Avila et al v. State of California et al

Filing 21

ORDER signed by Judge John A. Mendez on 10/14/2015 ORDERING that the Court GRANTS the CHP Defendants' 6 Motion to Dismiss the fourth cause of action as against CHP for negligent training and supervision WITH LEAVE TO AMEND. The CHP Motion is otherwise DENIED. The Court GRANTS the County Defendants' 11 Motion to Dismiss all claims against Rich WITH PREJUDICE. The County Motion is GRANTED as to Plaintiffs' fifth cause of action against the County WITH LEAVE TO AMEND. Plaintiffs shall file their Third Amended Complaint within twenty days of the date of this Order. The remaining Defendants shall file their responsive pleadings within twenty days thereafter. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MELINDA AVILA; GRETEL
LORENZO; ALFREDO LORENZO; and
JOSE LORENZO,

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Plaintiffs,
v.

No.

1:15-cv-00996-JAM-GSA

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS

STATE OF CALIFORNIA; COUNTY
OF MADERA; RICHARD GONZALES;
PAUL VARNER; GUY RICH, and
DOES 3 through 100,
inclusive,
Defendants.

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Plaintiffs Melinda Avila (“Avila”), Gretel Lorenzo

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(“Gretel”), Alfredo Lorenzo (“Lorenzo”), and Jose Lorenzo

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(“Jose”) (collectively “Plaintiffs”) brought suit against

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Defendants California Highway Patrol (“CHP”) (nominally the State

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of California), CHP Officer Paul Varner (“Varner”), County of

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Madera (“the County”), and two officers with the Madera County

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Sheriff’s Department, Deputy Sheriff Richard Gonzales

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(“Gonzales”) and Sergeant Guy Rich (“Rich”).

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(“the CHP Defendants”) filed a Motion to Dismiss (“the CHP
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CHP and Varner

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Motion”) (Doc. #6) the claims asserted against them in the Second

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Amended Complaint (“SAC”) (Exhibit #43, Doc. #1-7, to Notice of

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Removal).

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separate Motion to Dismiss (“the County Motion”) (Doc. #11),

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attacking the timeliness of the claims against Rich and the

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federal Monell claim against the County.

The County and Rich (“the County Defendants”) filed a

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The alleged conduct underlying Plaintiffs’ claims occurred

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on the night of June 1, 2013, and carried on into the next

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morning.

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occurred within the Chukchansi Gold Resort and Casino (“the

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Casino”), which led to Plaintiffs deciding to leave the Casino.

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While Plaintiffs were waiting outside the Casino, Gonzales, Rich,

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Varner and other law enforcement officers arrived and approached

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them.

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a concerted action,” Rich arrested Jose, and Gonzales and Varner

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grabbed Alfredo, forced him to the ground, and handcuffed him.

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When Gretel protested to the officers that Alfredo had done

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nothing wrong, Gonzales “forcefully shoved” her backwards.

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force caused Gretel to collide with Avila, which then caused

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Avila to fall to the ground.

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and shattered her hip.

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officers.

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SAC ¶¶ 19-23.

Plaintiffs allege an altercation

Plaintiffs were being questioned by the officers when, “in

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Avila struck her head on the ground

Avila was then pinned down by one of the

Avila was subsequently transported to the hospital by

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ambulance.

The remaining Plaintiffs were arrested, handcuffed,

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and taken to the County Jail.

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and Jose were filed, but later dropped.

Charges against Gretel, Alfredo

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Plaintiffs filed their initial Complaint (Exhibit #1, Doc.

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#1-1, to Notice of Removal, Doc. #1) in Madera Superior Court.

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Plaintiffs later filed an Amended Complaint (Exhibit 12, Doc. #1-

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2, to Notice of Removal).

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stated federal causes of action in the SAC that the County

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Defendants removed the case to this Court.

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It was not until after Plaintiffs

The SAC states five causes of action: (1) violation of

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California Civil Code § 52.1 (“the Bane Act”) against all

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Defendants; (2) False Arrest/Imprisonment against all Defendants;

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(3) Reckless Infliction of Emotional Distress against all

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Defendants; (4) Negligent Training and Supervision against CHP

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and the County; (5) violation of Federal constitutional rights

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pursuant to 42 U.S.C. § 1983 (“§1983”) against the County

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Defendants and Varner.

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II.

OPINION

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A.

Request for Judicial Notice

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The County Defendants request the Court take judicial notice

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(Doc. #12) of eight documents, Exhibits A-H (Doc. #12-1 through

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12-8), in connection with the County Motion.

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include Plaintiffs’ claims for damages filed with the County in

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accordance with the California Government Claims Act and the

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corresponding rejection notices.

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matters of public record that are not subject to reasonable

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dispute, the Court will take judicial notice of them.

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R. Evid. 201; Clarke v. Upton, 703 F. Supp. 2d 1037, 1042 (E.D.

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Cal. 2010) (finding filed California Government Tort Claims and

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their rejections the proper subject of judicial notice).

The documents

Because these materials are

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See Fed.

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B.

The CHP Motion to Dismiss
1.

Bane Act

The CHP Defendants contend there are no facts to support

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Plaintiffs’ first cause of action against them for violation of

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the Bane Act.

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CHP MTD at pp. 6-9.

The Bane Act creates an individual cause of action where “a

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person . . . whether or not acting under the color of law,

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interferes by threat, intimidation, or coercion, or attempts to

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interfere by threat, intimidation, or coercion” with a right

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secured by federal or state law.

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Section 52.1 was originally adopted in response to a rise in hate

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crimes, but it is not limited to such crimes, nor does it require

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plaintiffs to demonstrate discriminatory intent.

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County of Los Angeles, 32 Cal.4th 820, 843 (2004) (holding that

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“plaintiffs need not allege that defendants acted with

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discriminatory animus or intent, so long as those acts were

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accompanied by the requisite threats, intimidation, or

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coercion”).

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Cal. Civ. Code § 52.1(a).

Venegas v.

The CHP Defendants challenge this cause of action on three

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grounds: (1) Plaintiffs have failed to allege the requisite

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independent coercion element; (2) the allegations do not support

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a claim by Plaintiffs Avila, Gretel or Jose against either CHP or

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Varner; and (3) the Bane Act does not apply to public entities,

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such as CHP.

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CHP MTD at pp. 6-9.
a.

Coercion Element

Evident from the parties’ briefs and the authorities cited

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therein, interpretations of the required element of “threat,

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intimidation, or coercion” have created confusion and received
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considerable attention from state and federal courts faced with

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Bane Act claims.

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wrongful detention, courts have found that “[t]he statute

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requires a showing of coercion independent from the coercion

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inherent in the wrongful detention itself.”

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Los Angeles, 203 Cal. App. 4th 947, 959, 137 Cal. Rptr. 3d 839,

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849 (2012); Gant v. Cnty. of Los Angeles, 594 F. App'x 335, 337

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(9th Cir. 2014) (affirming the district court’s dismissal of a

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Bane Act claim based on a lack of “independent coercive acts”).

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There is disagreement about how exactly this principle is to be

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construed; some courts have recently found that when applying

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this principle at the pleadings stage “the relevant distinction

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for purposes of the Bane Act is between intentional and

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unintentional conduct.”

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02868 JST, 2013 WL 1701591, at *7 (N.D. Cal. 2013); see also

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Bender v. Cnty. of Los Angeles, 217 Cal. App. 4th 968, 980

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(2013).

Specifically in the context of claims involving

Shoyoye v. Cnty. of

M.H. v. Cnty. of Alameda, No. 11-CV-

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Applying these issues in another context, the Ninth Circuit

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has found that “a successful claim for excessive force under the

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Fourth Amendment provides the basis for a successful claim under

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§ 52.1” but that the two claims are not “entirely duplicative” of

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each other and can be brought in tandem.

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Angeles, 751 F.3d 1096, 1105-06 (9th Cir.) cert. denied sub nom.

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City of Los Angeles, Cal. v. Chaudhry, 135 S. Ct. 295 (2014); see

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also Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013)

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(finding “the elements of [an] excessive force claim under § 52.1

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are the same as under § 1983”).

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///
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Chaudhry v. City of Los

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Here, the CHP Defendants contend Plaintiffs impermissibly

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rely on the coercion inherent in the constitutional violations

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themselves, rather than an independent basis as required for a

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valid Bane Act claim.

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Plaintiffs argue they were unlawfully arrested and that excessive

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force was used in effecting the arrests, providing an adequate

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basis for a Bane Act claim.

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CHP MTD at pp. 6-9.

In their Opposition,

Whether Plaintiffs’ plausible allegations regarding the CHP
Defendants’ use of excessive force alone can suffice to state a

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Bane Act claim is irrelevant on the facts as alleged.

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allege they were unlawfully detained and that Defendants used

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excessive force in so detaining them.

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sufficient to support a Bane Act claim.

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Cal.App.4th at 980-81; Orr v. California Highway Patrol, No.

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2:14-585 WBS EFB, 2015 WL 4112363, at *10-11 (E.D. Cal. 2015);

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Bass v. City of Fremont, No. C12-4943 TEH, 2013 WL 891090, at *6

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(N.D. Cal. 2013).

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Plaintiffs

These allegations are
See Bender, 217

Defendants additionally argue “[c]laims of Fourth Amendment

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violations of wrongful arrest and excessive force in arrest are

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. . . insufficient to raise a Bane Act claim because remedies

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already exist in federal §1983 actions and California law

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concerning false arrest and assault and battery. . . .”

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at pp. 7-8.

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“entirely duplicative” of §1983 claims and the case law makes

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clear that Bane Act claims can be premised on conduct that also

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supports these other causes of action.

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1106.

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on this ground is denied.

CHP MTD

However, as discussed, Bane Act claims are not

See Chaudhry, 751 F.3d at

The CHP Defendants’ Motion to Dismiss the Bane Act claim

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b.

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Improper Plaintiffs

Defendants contend that regardless of the propriety of the

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Bane Act claim brought against them by Alfredo, the SAC fails to

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plead any facts supporting the claims of Plaintiffs Avila, Gretel

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and Jose.

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and Varner were working in concert and each is liable for the

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constitutional injuries inflicted by the others.

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7.

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MTD at p. 7.

Plaintiffs contend the County Officers

Opp. at pp. 6-

An officer cannot be held liable for constitutional

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violations committed by another officer if he or she is a mere

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bystander to the actionable conduct.

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No. C 14-00535 LB, 2015 WL 1738208, at *7 (N.D. Cal. 2015).

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order for an officer to be liable for the violation of []

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constitutional rights, that officer must have been either

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personally involved in that violation or an integral participant

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in the conduct giving rise to the violation.”

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Los Angeles, 144 Cal.App.4th 313, 323 (2006), as modified on

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denial of reh'g (Nov. 17, 2006).

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requires some fundamental involvement in the conduct that

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allegedly caused the violation.”

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Angeles, 820 F. Supp. 2d 1081, 1089-91 (C.D. Cal. 2011).

Burns v. City of Concord,
“In

Macias v. Cnty. of

“[I]ntegral participation

Monteilh v. Cnty. of Los

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Despite the CHP Defendants’ argument to the contrary in

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their Reply (Doc. #17), the SAC alleges that the arrest of Jose,

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the takedown and handcuffing of Alfredo and the force used on

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Gretel and Avila, was part of a “concerted action” by the County

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officers and Varner.

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true and drawing all reasonable inferences in favor of

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Plaintiffs, none of the named, individual Defendants was simply a

SAC ¶ 22.

Accepting the allegations as

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bystander; rather, each played an integral role in carrying out

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the conduct underlying the alleged constitutional violations.

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See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on

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other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v.

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Beto, 405 U.S. 319, 322 (1972).

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in the SAC, and specifically paragraphs 22 and 25, sufficiently

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state a Bane Act claim against the CHP Defendants on behalf of

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all Plaintiffs.

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C-13-01753-DMR, 2013 WL 3014136, at *8 n.3 (N.D. Cal. 2013).

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CHP Defendants’ Motion to Dismiss the Bane Act claim on this

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ground is denied.

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c.

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The Court finds the allegations

See Tien Van Nguyen v. City of Union City, No.
The

CHP Immunity

CHP contends that the Bane Act does not apply to them and

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therefore dismissal is proper.

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public entities should not be considered “persons” as that term

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is used in the Bane Act and therefore governmental liability

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under the statute is precluded.

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relied on by CHP are inapposite.

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argue liability under the Bane Act can be established against

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public agencies such as CHP.

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CHP MTD at p. 9.

It argues

Plaintiffs contend the cases
CHP Opp. at pp. 9-11.

They

Other courts in this district have found that public

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entities fall within the purview of the Bane Act.

See Sanchez v.

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City of Fresno, 914 F. Supp. 2d 1079, 1117 (E.D. Cal. 2012).

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“[A] public entity can be liable for ‘misconduct that interferes

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with federal or state laws, if accompanied by threats,

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intimidation, or coercion, and whether or not state action is

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involved.’”

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3791447, at *7 (N.D. Cal. 2012) (quoting Venegas, 32 Cal.4th at

Dorger v. City of Napa, No. 12-CV-440 YGR, 2012 WL

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843).

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on this ground is denied.

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Accordingly, the CHP Motion to Dismiss the Bane Act claim

2.

Third and Fourth Causes of Action

The CHP Defendants contend Plaintiffs’ causes of action for

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reckless infliction of emotional distress and negligent failure

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to train/supervise must fail.

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argue there is no mandatory duty imposed on CHP that would

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support holding CHP liable for these state law claims.

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they argue CHP and Varner are entitled to discretionary immunity

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CHP MTD at pp. 9-11.

First, they

Second,

based on California Government Code § 820.2 (“§820.2”).
California Government Code § 815.2 (“§815.2”) imposes

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vicarious liability upon public entities, such as the state:

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A public entity is liable for injury proximately
caused by an act or omission of an employee of the
public entity within the scope of his employment if
the act or omission would, apart from this section,
have given rise to a cause of action against that
employee or his personal representative.

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See also Strong v. State, 201 Cal.App.4th 1439, 1448-49 (2011).

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California courts have specifically found that CHP can be found

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vicariously liable for the acts of its officers.

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v. Dep't of California Highway Patrol, 181 Cal.App.4th 856, 890

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(2010), as modified on denial of reh'g (Mar. 1, 2010).

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See Catsouras

Section 820.2 states: “a public employee is not liable for

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an injury resulting from his act or omission where the act or

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omission was the result of the exercise of the discretion vested

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in him, whether or not such discretion be abused.”

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discretionary act immunity extends to basic governmental policy

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decisions entrusted to broad official judgment.”

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City & Cnty. of San Francisco, No. C 07-01186 SI, 2007 WL
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“The

Harmston v.

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2814596, at *3 (N.D. Cal. 2007) (citing Caldwell v. Montoya, 10

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Cal.4th 972, 976 (1995)).

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4

a.

Reckless Infliction of Emotional Distress

Courts have found public entities and their employees can be

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held liable for the infliction of emotional distress, especially

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when premised on claims of false arrest and violations of a

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plaintiff’s constitutional rights.

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As an initial matter, the Ninth Circuit has explicitly held
that “the immunity provided by California Government Code § 820.2

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does not apply to claims of false imprisonment or false arrest

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predicated on an officer's detaining a suspect without reasonable

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suspicion or probable cause.”

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1084-85 (9th Cir. 2011).

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to find that claims derivate of false imprisonment or arrest are

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similarly excluded from the discretionary immunity of §820.2.

Liberal v. Estrada, 632 F.3d 1064,

Courts have used this basic principle

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In Brown v. Cnty. of San Joaquin, No. CIVS042008FCDPAN, 2006

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WL 1652407, at *13 (E.D. Cal. 2006), an intentional infliction of

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emotional distress claim was brought against the defendant county

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and its officers.

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court found in favor of the plaintiff:

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Although the defendants claimed immunity, the

Plaintiff's claim for intentional infliction of
emotional distress is derivative of his claims of
violations of his civil rights under federal law and
false arrest under state law. Because there are
triable issues of fact regarding these claims,
specifically regarding the existence of probable cause
to arrest plaintiff, this claim survives as well.
Further, because this claim is derivative of
plaintiff's claim for false arrest, discretionary
immunity does not apply to insulate defendant
officers. See Martinez [v. City of Los Angeles], 141
F.3d [1373,] 1381-82 [(9th Cir. 1998)]. As such, the
County is also not immune from liability for this
claim. See Cal. Gov't Code § 815.2(b).

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Id.
In Tacci v. City of Morgan Hill, No. C-11-04684 RMW, 2012 WL

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195054, at *8-9 (N.D. Cal. 2012), the municipal defendants, the

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City of Morgan Hill and the Morgan Hill Police Department, argued

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that the plaintiff's claims for unlawful arrest and intentional

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infliction of emotional distress were barred as to them because

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the complaint did not identify a valid statutory basis for

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imposing liability against a public entity.

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application of §815.2, the Tacci court found the municipal

Discussing the

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defendants could be held liable for the acts of their employees

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under a respondeat superior theory of liability.

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the defendants’ arguments regarding immunity, the court concluded

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that “because plaintiff's cause of action for intentional

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infliction of emotional distress is derivative of his claim for

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false arrest, neither the defendant officers nor the municipal

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defendants are immune from liability for this claim.”

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2012 WL 195054, at *8-9 (citing Brown, 2006 WL 1652407, at * 13

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and Harmston, 2007 WL 2814596, at *8.

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Id.

Addressing

Tacci,

Plaintiffs’ claim for reckless infliction of emotional

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distress is derivative of their claims for false

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arrest/imprisonment (second cause of action) and violation of

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their constitutional rights (first and fifth causes of action).

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Therefore, the Court finds that CHP could be found liable for

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Varner’s conduct and neither CHP or Varner is protected by the

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discretionary immunity of §820.2.

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Cnty., No. C-11-1358 EMC, 2011 WL 5024551, at *6 (N.D. Cal. 2011)

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(denying a motion to dismiss state law claims against a public

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entity, including negligent and intentional infliction of
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See also Rojas v. Sonoma

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emotional distress, based on §815.2).

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to Dismiss these claims is denied.

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b.

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The CHP Defendants’ Motion

Negligent Training and Supervision

CHP contends there is no basis for imposing liability

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against it for negligent training and supervision; therefore, the

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fourth cause of action should be dismissed.

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11.

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pursuant to §815.2 because the employee accused of the culpable

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conduct, Commissioner Joseph A. Farrow (“Farrow”), is not a named

CHP MTD at pp. 9-

CHP argues that it cannot be held vicariously liable

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defendant and that it cannot be held directly liable because

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Plaintiffs have failed to cite a statute which imposes a

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mandatory duty on them regarding training or supervision.

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p. 11.

Id. at

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It appears that Plaintiffs first contend that CHP can be

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held directly liable for their failure to supervise and train

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their officers.

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consistently found no support for holding public entities

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directly liable for such state law claims.

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No. 09-CV-01348-H, 2009 WL 2780155, at *4 (S.D. Cal. 2009)

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(“California courts have repeatedly held that there is no

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statutory basis for direct claims against a public entity for

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negligent hiring and supervision practices.”); de Villers v.

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Cnty. of San Diego, 156 Cal. App. 4th 238, 252-53 (2007) (finding

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“no relevant case law approving a claim for direct liability

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based on a public entity's allegedly negligent hiring and

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supervision practices”).

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28

CHP Opp. at p. 12.

However, courts have

See Shoval v. Sobzak,

However, as discussed above, public entities can be held
vicariously liable for the conduct of their employees when
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committed within the scope of their employment, if the employees

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are not immune from liability themselves.

3

the Opposition does not appear to directly argue vicarious

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liability on this claim, the SAC specifically states that the

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fourth cause of action seeks to impose liability against CHP

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based on the conduct of Farrow pursuant to §815.2.

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CHP contends that Farrow must be named in order to assert

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vicarious liability against it.

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17

See §815.2.

While

SAC ¶¶ 55-56.

CHP MTD at p. 11.

One California Court of Appeal has discussed the proper
analysis of such claims:
[T]he liability of the employer only attaches if and
when it is adjudged that the employee was negligent as
well. If the agent or employee is exonerated, the
principal or employer cannot be held vicariously
liable. 7 Witkin, Cal. Procedure [4th Ed. 1997] Trial,
§ 368, pp. 418–419. Furthermore, unless the employee
is identified, the trier of fact will not be able to
determine if the elements needed to assert vicarious
liability have been proved. CACI No. 3701 (2004 ed.)
and Directions for Use. Thus, the doctrine clearly
contemplates that the negligent employee whose conduct
is sought to be attributed to the employer at least be
specifically identified, if not joined as a defendant.

18

Munoz v. City of Union City, 120 Cal.App.4th 1077, 1113 (2004),

19

opinion modified on denial of reh'g (Aug. 17, 2004) disapproved

20

on other grounds by Hayes v. Cnty. of San Diego, 57 Cal. 4th 622

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(2013).

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negligent hiring or supervision against the CHP, Plaintiffs must

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identify, if not join, the specific employee whose negligence is

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alleged and the specific negligent conduct underlying the claim.

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Accordingly, in order to state a proper claim for

The SAC adequately identifies Farrow as the employee whose

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conduct was allegedly negligent.

Therefore, imposition of

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liability on CHP based on §815.2 is proper if the negligent

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conduct is adequately alleged.

However, the Court finds that the
13

1

factual allegations in the SAC fail to “plausibly suggest an

2

entitlement to relief, such that it is not unfair to require the

3

opposing party to be subjected to the expense of discovery and

4

continued litigation.”

5

Cir. 2011), cert. denied, 132 S. Ct. 2101, 182 L. Ed. 2d 882

6

(U.S. 2012).

7

adequately train and supervise the law enforcement personnel

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employed by [him]” is insufficient, alone, to state a claim

9

against CHP.

Starr v. Baca, 652 F.3d 1202, 1216 (9th

Simply alleging that Farrow “failed to properly and

SAC ¶ 54; see Ashcroft v. Iqbal, 556 U.S. 662, 678

10

(2009) (“Assertions that are mere ‘legal conclusions’ are [] not

11

entitled to the presumption of truth.”).

12

Motion to Dismiss the fourth cause of action against CHP is

13

granted.

14

claim “could not be saved by amendment,” leave to amend is

15

granted pursuant to Federal Rule of Civil Procedure 15(a).

16

Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052

17

(9th Cir. 2003).

The CHP Defendants’

However, because it is not clear to the Court that the

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C.

The County Motion to Dismiss

19

The County Motion contends (1) the claims against Rich are

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untimely and (2) the fifth cause of action fails to state a

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viable claim against the County.

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23

1.

Defendant Rich

Plaintiffs allege four claims against Rich.

Three of the

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claims are under state law and the remaining claim is under

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federal law.

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Rich contends each of these claims is untimely.
a.

State Law Claims

Rich contends the state-law claims are subject to a sixmonth statute of limitations period.
14

County MTD at pp. 4-6.

1

Because Plaintiffs’ claims against him were filed after the six-

2

month deadline, Rich argues the Court should dismiss them.

3

Under California law, before suing a public entity or its

4

employees for money or damages, a plaintiff must present a

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timely, written claim for damages to the entity.

6

Unified Sch. Dist., 42 Cal. 4th 201, 208 (2007) (“Shirk”), as

7

modified (Oct. 10, 2007) (citing Cal. Gov. Code § 911.2; State of

8

California v. Superior Court, 32 Cal. 4th 1234, 1239 (2004));

9

Jaimes v. Herrera, No. 1:13-CV-01884 DLB PC, 2015 WL 4392951, at

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*3 (E.D. Cal. 2015) (citing Cal. Gov. Code §§ 905.2, 910, 911.2,

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945.4, 950-950.2).

12

the public entity no later than six months after the cause of

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action accrues.

14

after the public entity has acted upon or is deemed to have

15

rejected the claim may the injured person bring a lawsuit

16

alleging a cause of action in tort against the public entity or

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its employees.

18

945.4; Williams v. Horvath, 16 Cal.3d 834, 838 (1976)); Cal. Gov.

19

Code § 950.6.

20

Shirk v. Vista

The claim for damages must be presented to

Shirk, at 208; Cal. Gov. Code § 911.2.

Only

Shirk, at 209 (citing Cal. Gov. Code §§ 912.4,

It is undisputed that Plaintiffs timely filed their “Claims

21

for Damages” with the County.

22

is whether once those claims were denied did Plaintiffs timely

23

file their claims against Rich.

24

SAC ¶ 18; RJN Exh. A-H.

The issue

Once a public entity deposits its rejection of a claim in

25

the mail, a suit against the entity or its employees based on

26

that claim must be commenced not later than six months

27

thereafter.

Cal. Gov. Code §§ 945.6; 950.6.

28
15

1

The deadline for filing a lawsuit against a public
entity, as set out in the government claims statute, is
a true statute of limitations defining the time in
which, after a claim presented to the government has
been rejected or deemed rejected, the plaintiff must
file a complaint alleging a cause of action based on
the facts set out in the denied claim.

2
3
4
5

Shirk, 42 Cal. 4th at 209.

“The six-month period . . . is

6

mandatory and strict compliance is required.”

7

Fresno, No. CV F 10-1628 LJO SMS, 2011 WL 284971, at *20 (E.D.

8

Cal. 2011) (citing Clarke v. Upton, 703 F. Supp. 2d 1037, 1044

9

(E.D. Cal. 2010)).

Arres v. City of

The claim filed by Avila was rejected by the County on

10
11

October 10, 2013.

12

and Gretel were rejected on November 27, 2013.

13

Although the original complaint was filed on March 20, 2014,

14

within the six-month limitations period, Rich was not named as a

15

Defendant.

16

was not a named defendant until the SAC was filed on June 15,

17

2015.

18

therefore untimely.

19

that the claims against Rich should not be dismissed because the

20

late filing was, “obviously, the result of an oversight,” and the

21

doctrine of equitable tolling applies.

22

RJN Exh. E.

The claims filed by Jose, Alfredo
RJN Exh. F-H.

Notice of Removal, Exh. 1 (Doc. #1-1).

In fact, Rich

The County Defendants contend the claims against Rich are
County MTD at pp. 4-6.

Plaintiffs respond

Opp. to County at p. 5.

“Equitable tolling is a judge-made doctrine ‘which operates

23

independently of the literal wording of the Code of Civil

24

Procedure’ to suspend or extend a statute of limitations as

25

necessary to ensure fundamental practicality and fairness.”

26

Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003), as modified

27

(Aug. 27, 2003) (quoting Addison v. State of California, 21 Cal.

28

3d 313, 318-19 (1978)).

“[T]he effect of equitable tolling is
16

1

that the limitations period stops running during the tolling

2

event, and begins to run again only when the tolling event has

3

concluded.”

4

“[A]pplication of the doctrine of equitable tolling requires

5

timely notice, and lack of prejudice, to the defendant, and

6

reasonable and good faith conduct on the part of the plaintiff.”

7

Addison, 21 Cal. 3d at 319.

Id. at 370-71 (emphasis in original).

8

Many courts have applied equitable tolling to avoid the

9

harsh effects of a relevant statute of limitations, including the

10

one at issue here.

11

generally involved the plaintiff’s pursuit of alternate remedies,

12

such as required or voluntary pursuit of administrative remedies

13

or pursuit of a claim in a federal rather than state forum.

14

McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88,

15

101-05 (2008) (discussing various applications of the doctrine in

16

this context).

17

“[b]roadly speaking, the doctrine applies [w]hen an injured

18

person has several legal remedies and, reasonably and in good

19

faith, pursues one.”

20

citations omitted).

21

However, in these cases, the tolling event

See

The California Supreme Court has stated that

Id. at 100 (internal quotations and

Here, Plaintiffs were not pursuing alternate remedies

22

against Rich in some other forum and do not indicate exactly what

23

they consider the specific tolling event to be.

24

have not cited a single case in which equitable tolling was

25

applied in a context not involving the plaintiff’s pursuit of the

26

claim in another context during the limitations period. Nor have

27

Plaintiffs provided any authority for applying equitable tolling

28

where failure to meet the relevant statutory timeline was
17

Plaintiffs also

1

“obviously, the result of an oversight.”

2

No. 2:14-CV-00037-TLN, 2015 WL 4395013, at *5 (E.D. Cal. 2015)

3

(finding no case law to support a similar request for applying

4

equitable tolling to exempt a plaintiff from a “straightforward

5

application” of the California Government Claims Act’s statute of

6

limitations).

7

elements of the doctrine are met.

8

Because the statute of limitations has expired, the County

9

Defendants’ Motion to Dismiss the state law claims against Rich

10

See Hughey v. Drummond,

Rather, they offer conclusory contentions that the
Opp. to County at pp.4-5.

is granted with prejudice.

11

b.

Federal Claim

12

The parties agree that the California Government Claims

13

Act’s statute of limitations does not apply to Plaintiffs’ §1983

14

claims; rather, California’s two-year statute of limitations for

15

personal injury actions is the proper limitations period.

16

Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007).

17

The County Defendants contend Plaintiffs’ fifth cause of

18

action brought pursuant to §1983 is untimely because Rich was not

19

named as a defendant until over two years after the incident.

20

County MTD at pp. 8-9.

21

dismissed.

22

equitable tolling should be applied to avoid dismissal; and (2)

23

the claims are not untimely because Rich was made a party to the

24

action by Doe Amendment before the running of the two-year

25

limitations period.

26

They argue the claims should therefore be

Plaintiffs base their opposition on two grounds: (1)

Opp. to County at pp. 5-7.
i.

Equitable Tolling

27

In their Opposition, Plaintiffs have repeated, verbatim,

28

their previous arguments regarding equitable tolling, only now in
18

1
2

regard to their federal claim.

Opp. to County at p. 7.

For §1983 claims, federal courts apply the forum state’s law

3

regarding equitable tolling.

4

v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).

5

above, Plaintiffs are not entitled to equitable tolling under

6

California law.

7
8
9

Canatella, 486 F.3d at 1132; Jones
As discussed

The Court turns to Plaintiffs’ other theory.
ii.

Doe Amendment

Plaintiffs contend Rich was made a party to this action
based on a “Doe Amendment” filed with the state court, naming

10

Rich as “Doe 26” in May 2015.

11

(Doc. #1-5) to Notice of Removal.

12

relates back to the filing of the Amended Complaint (Exh. 12 to

13

Notice of Removal, Doc. #1-2) in May 2014, within the limitations

14

period.

15

never ratified by the state court as required and was improper

16

because Plaintiffs were not ignorant of Rich’s identity when

17

filing the Amended Complaint as evidenced by their Claims for

18

Damages.

19

Opp. to County at pp. 6-7; Exh. 34
They argue this amendment

The County Defendants argue the attempted amendment was

“The general rule is that an amended complaint that adds a

20

new defendant does not relate back to the date of filing the

21

original complaint and the statute of limitations is applied as

22

of the date the amended complaint is filed, not the date the

23

original complaint is filed.”

24

Cal.App.4th 169, 176 (1999).

25

is the use of Doe Defendants under California Code of Civil

26

Procedure § 474 (“§474”).

27

the plaintiff is ignorant of the name of a defendant, he must

28

state that fact in the complaint . . . and such defendant may be

Woo v. Superior Court, 75

Id.

An exception to this general rule

Section 474 provides that “[w]hen

19

1

designated in any pleading or proceeding by any name, and when

2

his true name is discovered, the pleading or proceeding must be

3

amended accordingly . . . .”

4

“Upon ascertaining the true name of the Doe defendant, the

5

plaintiff may amend the complaint even after the expiration of

6

the statute of limitations.”

7

Appeals Bd., 108 Cal.App.4th 717, 725 (2003) (citing §474; Woo,

8

75 Cal.App.4th at 175-78).

9

relation-back operation of §474 is that the plaintiff is

McGee St. Prods. v. Workers' Comp.

However, a requirement for the

10

“genuinely ignorant” of the Doe Defendant’s identity at the time

11

of the earlier filing.

12

faith ignorance of the true name of a fictitiously designated

13

defendant set forth in Code of Civil Procedure section 474 is

14

designed to promote the policies supporting the statute of

15

limitations.”

16

identity ignorance requirement of section 474 is not met, a new

17

defendant may not be added after the statute of limitations has

18

expired even if the new defendant cannot establish prejudice

19

resulting from the delay.”

20

201 Cal.App.3d 1458, 1466 (Ct. App. 1988)).

21

Woo, at 177.

“The requirement of good

McGee Street Productions, at 725.

“[I]f the

Woo, at 177 (citing Hazel v. Hewlett,

Plaintiffs contend §474 allows for the delay of naming a Doe

22

Defendant until a plaintiff has “‘knowledge of sufficient facts

23

to cause a reasonable person to believe liability is probable.’”

24

Opp. to County at p. 6 (quoting Dieckmann v. Superior Court, 175

25

Cal.App.3d 345, 363 (1985)).

26

for damages filed with the County, in which Rich is specifically

27

named, do not preclude their reliance on §474.

28

claims for damages filed by Plaintiffs make it abundantly clear

Therefore, they argue the claims

20

Id.

However, the

1

that Rich’s identity and culpable involvement in the underlying

2

incident was well known to Plaintiffs well before they sought to

3

add Rich to this litigation by way of a Doe Amendment.

4

A-H.

5

RJN Exh.

Because Plaintiffs were not genuinely ignorant of Rich’s

6

role in the alleged conduct underlying their claims, reliance on

7

the relation-back doctrine of §474 to avoid a statute of

8

limitations defense is improper.

9

to no evidence that the state court approved their motion to add

10
11

In addition, Plaintiffs point

Rich as Doe 26 before the SAC was filed.
The Court does not find Plaintiffs’ additional arguments

12

regarding the proper method for filing a Doe Amendment and the

13

proper remedy for striking an improper Doe Amendment persuasive.

14

Plaintiffs’ federal claim against Rich in the fifth cause of

15

action is untimely; the County Defendants’ Motion to Dismiss it

16

is therefore granted with prejudice.

17
18

2.

Monell Liability

The County contends Plaintiffs’ fifth cause of action

19

pursuant to §1983 should be dismissed because it does not

20

properly allege a basis for municipal liability.

21

pp. 9-10.

22

respondeat superior theory of liability, which is impermissible

23

for a §1983 claim.

24

County MTD at

It argues Plaintiffs attempt to hold it liable under a

Plaintiffs respond that their §1983 claim against the County

25

is based on a failure to train theory.

26

They argue the allegations in the fourth cause of action, which

27

are incorporated into the fifth cause of action, provide an

28

adequate basis for such a claim.
21

County Opp. at pp. 8-9.

1

To properly state a Monell claim, allegations in a complaint

2

“may not simply recite the elements of a cause of action, but

3

must contain sufficient allegations of underlying facts to give

4

fair notice and to enable the opposing party to defend itself

5

effectively.”

6

631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202,

7

1216 (9th Cir. 2011)).

8

theories of municipal liability: (1) when official policies or

9

established customs inflict a constitutional injury; (2) when

AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d

“A Monell claim may be stated under three

10

omissions or failures to act amount to a local government policy

11

of deliberate indifference to constitutional rights; or (3) when

12

a local government official with final policy-making authority

13

ratifies a subordinate's unconstitutional conduct.”

14

Seipert, No. 2:15-CV-00355-KJM, 2015 WL 5173075, at *4 (E.D. Cal.

15

2015) (citing Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232,

16

1249–50 (9th Cir. 2010)).

17

Sants v.

An “inadequate training” claim can be the basis for §1983

18

liability under the second theory, but only under “limited

19

circumstances.”

20

387 (1989); see also

21

v. Brown, 520 U.S. 397, 407 (1997).

22

to train must amount to “deliberate indifference to the rights of

23

persons with whom the police come into contact.”

24

89.

25

heightened negligence.”

City of Canton, Ohio v. Harris, 489 U.S. 378,
Bd. of Cnty. Comm'rs of Bryan Cnty., Okl.
In this context, the failure

Harris, at 388-

This standard is not met by a “showing of simple or even
Brown, at 407.

26

Here, Plaintiffs have alleged that the County, through

27

Sheriff John P. Anderson, has “negligently and carelessly failed

28

to train and supervise the law enforcement personnel employed by
22

1

[it].”

2

the heightened standard of “deliberate indifference” and

3

therefore the claim against the County in the fifth cause of

4

action is dismissed with leave to amend.

5

316 F.3d at 1052.

SAC ¶ 55.

Plaintiffs’ allegations clearly do not meet

See Eminence Capital,

6
7
8
9

III.

ORDER

For the reasons set forth above, the Court GRANTS the CHP
Defendants’ Motion to Dismiss the fourth cause of action as

10

against CHP for negligent training and supervision WITH LEAVE TO

11

AMEND.

12

The CHP Motion is otherwise DENIED.

The Court GRANTS the County Defendants’ Motion to Dismiss

13

all claims against Rich WITH PREJUDICE.

14

GRANTED as to Plaintiffs’ fifth cause of action against the

15

County WITH LEAVE TO AMEND.

The County Motion is

16

Plaintiffs shall file their Third Amended Complaint within

17

twenty days of the date of this Order. The remaining Defendants

18

shall file their responsive pleadings within twenty days

19

thereafter.

20
21

IT IS SO ORDERED.
Dated:

October 14, 2015

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24
25
26
27
28
23