Ludavico v. Sacramento County et al

Filing 97

ORDER signed by Chief Judge Morrison C. England, Jr. on 11/06/12 ORDERING that the 91 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows: plaintiffs' second, third, and seventh causes of action are DISMISSED WITHOUT LEAVE TO AMEND; plaintiffs' first cause of action is DISMISSED WITHOUT LEAVE TO AMEND as to all defendants EXCEPT defendants Heller, Schannep and Weightman; plaintiffs' fourth, fifth and sixth causes of action are DISMISSED WITHOUT LEAVE TO AMEND for all defendants EXCEPT defendants Schannep and Sacramento County; and plaintiffs' sixth cause of action is DISMISSED WITHOUT LEAVE TO AMEND to the extent that it is brought by plaintiffs Ashley and Thomas Ludavico. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS LUDAVICO, et al.,

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No. 2:08-cv-01473-MCE-KJM

Plaintiffs,
v.

MEMORANDUM AND ORDER

SACRAMENTO COUNTY,
et al.,

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Defendants.
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----oo0oo---16
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Through this action, Plaintiffs Thomas Ludavico, Sr.

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(“Ludavico”), Ashley Ludavico and Thomas Ludavico, Jr. seek

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redress from Defendants Sacramento County, Sacramento Sheriff’s

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Department1, Sheriff John McGinness, Sergeants Greg Hanks and

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Chris Mora, and Deputies Adrian Zuniga, Daniel Zuniga, Sydow,

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Dexter Powe, Michael Heller, Brett Schannep, and Chris Weightman,

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and others, based on alleged civil rights violations pursuant to

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42 U.S.C. § 1983.

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Defendants assert that Defendant Sacramento County was
erroneously sued as “Sacramento County Sheriff’s Department.”
For purposes of this Order, Defendants Sacramento County and the
Sacramento Sheriff’s Department will be collectively considered
as “the County” or “Sacramento County.”
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Plaintiffs also seek redress for multiple claims brought under

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California state law.

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Motion to Dismiss (ECF No. 91) Plaintiffs’ Third Amended

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Complaint (“TAC”) (ECF No. 90) for failure to state a claim upon

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which relief can be granted, pursuant to Federal Rule of Civil

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Procedure 12(b)(6).2

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2012, and Plaintiffs filed a timely opposition (ECF No. 92).

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Presently before the Court is Defendants’

Defendants filed their Motion on July 19,

Plaintiffs’ TAC asserts seven causes of action, with
Ludavico bringing the initial five causes of action and all three

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Plaintiffs asserting the last two.

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action are for excessive force in violation of the Fourth, Fifth,

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and Eighth Amendments, brought pursuant to 42 U.S.C. § 1983.

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third cause of action is for negligent hiring, supervision,

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training and retention, in violation of Fourteenth Amendment,

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also brought pursuant to 42 U.S.C. § 1983.

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action alleges a state law claim for negligence; the fifth,

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assault and battery; the sixth, negligent and intentional

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infliction of emotional distress against all Defendants; and the

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seventh, negligent and intentional infliction of emotional

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distress against Defendants Sacramento County and McGinness.

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The first two causes of

The

The fourth cause of

Defendants seek complete and final dismissal of Plaintiffs’

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second, third and seventh causes of action.

(ECF Nos. 91 and

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93.)

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action as to all defendants except Defendants Heller, Schannep

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and Weightman.

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///

Defendants ask that the Court dismiss the first cause of

(ECF No. 93 at 1-3.)

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2

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Unless otherwise noted, all further references to “Rule”
or “Rules” are to the Federal Rules of Civil Procedure.
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Defendants seek final dismissal of the fourth, fifth, and sixth

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causes of action, except as asserted against Defendants Schannep

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and the County.

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Plaintiffs from adding parties to the sixth cause of action.

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(Id. at 9.)

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to Dismiss is GRANTED.

(Id. at 7-10.)

Defendants also seek to prevent

For the reasons set forth below, Defendants’ Motion

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BACKGROUND3

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On or about May 14, 2007, Plaintiff Ashley Ludavico found a

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note left by Ludavico, her father, that possibly indicated his

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intention to commit suicide.

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requested that Defendant Sacramento County Sheriff’s Department

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perform a wellness check on her father.

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Daniel Zuniga were dispatched to Ludavico’s home to perform the

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check.

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Plaintiff Ashley Ludavico then

Defendants Sydow and

Before either Defendant deputy exited the patrol car,

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Ludavico saw at least two additional patrol cars park in front of

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his house.

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Zuniga approach his home.

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with his weapon unholstered.

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to walk out his front door with his hands in the air.

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also raised his shirt while turning around to allow Defendants to

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establish that he was unarmed.

Ludavico then observed Defendants Powe and Adrian
Defendant Adrian Zuniga was crouching
At this point, Ludavico proceeded
Ludavico

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3

The factual assertions in this section are based on the
allegations in Plaintiffs’ TAC, except where otherwise noted.
For the purposes of this Motion, the Court accepts Plaintiffs’
facts as true and makes all inferences in the light most
favorable to Plaintiffs.
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Ludavico subsequently asked Defendant Adrian Zuniga to explain

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why he was at Ludavico’s residence.

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Defendant Adrian Zuniga ordered Ludavico to the ground.

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Instead of responding,

Before Ludavico could comply with Defendant Adrian Zuniga’s

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command, and without Defendants suspecting Ludavico’s involvement

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in any criminal activity, Defendants Schannep and Heller struck

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Ludavico from behind and forcibly brought him to the ground.

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Once Ludavico was on the ground, Defendant Heller hit him in the

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stomach and face and Defendant Schannep struck him in the back

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and side of his head.

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gun on Ludavico at least twice.

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incident, Ludavico is unable to provide the exact identities and

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actions of everyone involved.

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presence of Ludavico’s two minor children, Plaintiffs Ashley

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Ludavico and Thomas Ludavico, Jr.

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Defendant Weightman then discharged a stun
Due to the nature of the

The altercation occurred in the

Although Ludavico made no threatening motions or comments to

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Defendants, except for objecting to their conduct, the Deputies

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took Ludavico into custody for battery on a police officer.

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Ludavico received medical treatment when he first arrived at the

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Sacramento County Jail.

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injuries, the medical care ceased once authorities booked him

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into the jail.

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and his subsequent treatment at the jail, Ludavico states that he

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suffered damage to various parts of his body.

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seek compensation for pain and suffering and emotional distress.

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///

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///

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Although Defendants knew of Ludavico’s

As a result of the incident at Ludavico’s home

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All Plaintiffs

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In compliance with California Government Code section 945.4,

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Plaintiffs filed the requisite tort claim against Defendants

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Sacramento County, Sacramento County Sheriff’s Department, Jim

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Rose, and Deputies Adrian Zuniga, Daniel Zuniga, Mueller, Powe,

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and Schannep. (ECF No. 68, Ex. A.)

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to applicable government statutes by filing the 2007 tort claim

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against all then known Defendants.

Plaintiffs claim they adhered

(ECF No. 92 at 14-15.)

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LEGAL STANDARD UNDER 12(b)(6)

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On a motion to dismiss for failure to state a claim under

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Rule 12(b)(6), all allegations of material fact must be accepted

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as true and construed in the light most favorable to the

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nonmoving party.

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337-38 (9th Cir. 1996).

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plain statement of the claim showing that the pleader is entitled

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to relief’ in order to ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’”

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

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Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
Rule 8(a)(2) “requires only ‘a short and

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While a complaint attacked by a Rule 12(b)(6) motion to

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dismiss does not require detailed factual allegations, “a

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plaintiff's obligation to provide the grounds of his entitlement

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to relief requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will

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not do.”

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“Factual allegations must be enough to raise a right to relief

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above the speculative level.”

Twombly, 550 U.S. at 555 (internal citations omitted.)

Id.
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Furthermore, a court is not required to accept as true a “legal

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conclusion couched as a factual allegation.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555.)

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“Rule 8(a)(2) . . . requires a ‘showing,’ rather than a blanket

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assertion, of entitlement to relief.”

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n.3 (internal citations omitted).

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facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged–-but it has

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not ‘show[n]’--‘that the pleader is entitled to relief.’”

Ashcroft v. Iqbal,

Twombly, 550 U.S. at 556

“But where the well-pleaded

Iqbal,

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556 U.S. at 679 (quoting Rule 8(a)(2)).

“Without some factual

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allegation in the complaint, it is hard to see how a claimant

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could satisfy the requirements of providing not only ‘fair

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notice’ of the nature of the claim, but also ‘grounds’ on which

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the claim rests.”

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omitted).

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claim to relief that is plausible on its face.”

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the “plaintiffs . . . have not nudged their claims across the

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line from conceivable to plausible, their complaint must be

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dismissed.”

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complaint must then decide whether to grant leave to amend.

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court should “freely give” leave to amend when there is no “undue

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delay, bad faith[,] or dilatory motive on the part of the movant,

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. . . undue prejudice to the opposing party by virtue of . . .

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the amendment, [or] futility of amendment . . . .”

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Davis, 371 U.S. 178, 182 (1962).

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denied only when it is clear the deficiencies of the complaint

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cannot be cured by amendment.

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Inc., 957 F.2d 655, 658 (9th Cir. 1992).

Twombly, 550 U.S. 556 n.3 (internal citation

A pleading must contain “only enough facts to state a

Id.

Id. at 570.

If

A court granting a motion to dismiss a
A

Foman v.

Generally, leave to amend is

DeSoto v. Yellow Freight Sys.,

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ANALYSIS

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Defendants move to dismiss all seven causes of action set

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forth in Plaintiffs’ TAC.

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The Court will discuss each cause of

action in turn.

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A.

42 U.S.C. § 1983: Fifth Amendment Excessive Force Claim

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Plaintiffs’ first cause of action alleges that Defendants’

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use of excessive force violated Ludavico’s Fifth Amendment right

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to due process.

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the Fifth Amendment claim is not viable.

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Fifth Amendment only applies to the federal government.

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Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).

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each Defendant in this lawsuit is a state actor, the Fifth

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Amendment claim cannot stand.

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without leave to amend.

However, Plaintiffs’ Opposition concedes that
(ECF No. 92 at 8.)

Because

This claim is therefore dismissed

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B.

42 U.S.C. § 1983: Fourth Amendment Excessive Force
Claim

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1.

The

Claims Against Sergeant and Deputy Defendants

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Plaintiffs’ first cause of action also alleges that

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Defendants’ use of excessive force violated Ludavico’s Fourth

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Amendment right against unreasonable searches and seizures.

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Plaintiffs must satisfy the Fourth Amendment’s “‘objective

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reasonableness’ standard” to establish a Fourth Amendment

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excessive force claim.
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Graham v. Connor, 490 U.S. 386, 388 (1989).

The “inquiry in an

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excessive force case is an objective one: the question is whether

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the officer’s actions are ‘objectively reasonable’ in light of

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the facts and circumstances.”

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States, 436 U.S. 128, 137-39 (1978); Terry v. Ohio, 392 U.S. 1

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(1968)).

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and circumstances of each particular case.”

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Tennessee v. Garner, 471 U.S. 1 (1985)).

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resolving the Fourth Amendment allegation necessitates examining

Id. at 397 (citing Scott v. United

This analysis “requires careful attention to the facts
Id. at 396 (citing

Put another way,

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“the factbound morass of ‘reasonableness.’”

Scott v. Harris,

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550 U.S. 372, 383 (2007).

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requires the Court to balance “the nature and quality of the

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intrusion of the individual’s Fourth Amendment interests against

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the countervailing governmental interests at stake.”

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490 U.S. at 396 (internal quotations omitted).

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reasonableness of the use of force is “judged from the

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perspective of a reasonable officer on the scene,” and not from

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the perspective of the person seized or of a court reviewing the

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situation “with the 20/20 vision of hindsight.”

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investigation into “objective reasonableness” is fact-driven, the

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plaintiffs must, at a minimum, provide sufficient details to

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satisfy the Twombly and Iqbal pleading requirements.

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Downs v. City of Stockton, No. 2:10-cv-02495-MCE-GGH, 2012 WL

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671932, *6 (E.D. Cal. Feb. 29, 2012).

Determination of reasonableness

Graham,

The

Id.

Because an

See Smith-

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Plaintiffs aggregate the excessive force claim against

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Defendants Hanks, Mora, Adrian Zuniga, Daniel Zuniga, Sydow and

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Powe without providing adequate facts or information describing

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the actual conduct of each individual defendant.
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Even after the Court’s warning in its prior order, Plaintiffs do

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nothing more than allege that these Defendants were present and

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used excessive force.

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Defendants Sydow and Daniel Zuniga were dispatched to Plaintiffs’

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home and that Defendants Hanks and Mora may have been at the

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scene.

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are insufficient to state a claim for excessive force in

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violation of the Fourth Amendment.

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Plaintiffs state merely that he was spotted leaving his patrol

In particular, Plaintiffs claim that

(ECF No. 90 at 5; ECF No. 92 at 9.)

For Defendant Powe,

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car.

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abuse of force.

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Zuniga drew his weapon, the facts pled simply fall short of

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showing that Defendant Zuniga used excessive force.

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at 6.)

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(ECF No. 90 at 6.)

However, these facts

This behavior hardly constitutes an

While the TAC asserts that Defendant Adrian

(ECF No. 90

Although given opportunities to correct their pleadings,

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Plaintiffs fail to assert sufficient information.

Rule 8 does

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not require Plaintiffs to provide detailed facts, but Plaintiffs

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must do more than simply accuse Defendants of causing harm.

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Iqbal, 556 U.S. at 678.

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Defendants Hanks, Mora, Adrian Zuniga, Daniel Zuniga, Sydow and

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Powe are dismissed without leave to amend.

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Consequently, the claims against

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2.

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Claims Against Defendants Sacramento County and
Sheriff McGinness

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Plaintiffs’ first cause of action is also brought against

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Defendant Sacramento County.

Municipalities and local officials

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cannot be vicariously liable for the conduct of their employees

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under § 1983, but rather are only “responsible for their own

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illegal acts.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)

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(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

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other words, a municipality may only be liable where it

In

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individually caused a constitutional violation via “execution of

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a government’s policy or custom, whether by its lawmakers or by

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those whose edicts or acts may fairly be said to represent

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official policy.”

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436 U.S. 658, 694 (1978).

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summarized the Ninth Circuit standard of municipal liability

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under § 1983 in the following way:

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Monell v. Dep’t of Soc. Servs. of N.Y.,
A recent decision from this district

Municipal liability may be premised on: (1) conduct
pursuant to an expressly adopted official policy; (2) a
longstanding practice or custom which constitutes the
“standard operating procedure” of the local government
entity; (3) a decision of a decision-making official
who was, as a matter of state law, a final policymaking
authority whose edicts or acts may fairly be said to
represent official policy in the area of decision; or
(4) an official with final policymaking authority
either delegating that authority to, or ratifying the
decision of, a subordinate.

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Young v. City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal.

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2009) (citing Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008);

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Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich v. City

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of S.F., 308 F.3d 968, 984-85 (9th Cir. 2002); Trevino v. Gates,

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99 F.3d 911, 918 (9th Cir. 1996)).

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///
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Besides demonstrating that one of the methods of

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establishing municipal liability applies, a plaintiff must also

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show that an official “policy or custom . . . inflicts the

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injury.”

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bears the burden of demonstrating that the policy or custom was a

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“moving force” of the constitutional deprivation and that the

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alleged injury would have been avoided had the municipality had a

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constitutionally proper policy.

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290 F.3d 1175, 1196 (9th Cir. 2002).

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Monell, 436 U.S. at 694.

That is to say, a plaintiff

Gibson v. County of Washoe,

Additionally, a negligent municipality does not violate the

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Constitution.

Rather, a plaintiff must demonstrate that the need

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for more or different action is “obvious, and the inadequacy [of

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the current policy or procedure] is so likely to result in a

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violation of constitutional rights, that the policymakers . . .

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can reasonably be said to have been indifferent to the need.”

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City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal

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citations omitted); Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir.

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2010).

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Liability attaches to the County, according to Plaintiffs,

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because it ratified the “policies, customs, and practices” that

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the Defendant deputies followed when assaulting Ludavico.

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No. 90 at 9.)

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Defendants acted pursuant to a government policy or custom,

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without ever identifying or describing the policy.

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Plaintiffs fail to explain how any government practice caused a

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constitutional violation.

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a right to relief above the speculative level.”

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550 U.S. at 555.

(ECF

Plaintiffs make only a conclusory allegation that

Furthermore,

Such unsupported claims fail to “raise

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Twombly,

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Plaintiffs also fall far short of showing deliberate

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indifference, as required by City of Canton.

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As a result, Plaintiffs’ claim against Defendant Sacramento

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County is dismissed without leave to amend.

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supervisory liability theory to allege a claim against Defendant

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Sheriff McGinness.

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are not liable for actions of subordinates on any theory of

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vicarious liability.”

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Cir. 1989) (citing Pembaur, 475 U.S. at 479).

489 U.S. at 389.

Plaintiffs rely on a

However, “under § 1983, supervisory officials

Hansen v. Black, 885 F.2d 642, 645-46 (9th
For allegations

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against an individual in a supervisory position, a plaintiff must

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establish the defendant’s personal involvement in the incident or

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that the defendant implemented a policy that was a moving force

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behind the alleged wrongdoing.

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“Supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials

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implement a policy so deficient that the policy ‘itself is a

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repudiation of constitutional rights’ and is ‘the moving force of

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the constitutional violation.’” Id. (quoting Thompkins v. Belt,

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828 F.2d 298, 304 (5th Cir. 1987)).

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Id. 885 F.2d at 646.

Plaintiffs assert that Defendant McGinness is responsible

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because he is “the ultimate supervisor of all individual

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defendants as well as the policymaker for defendant Sacramento

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County Sheriff’s Department.”

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pleadings do not claim that Defendant McGinness participated in

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the actual assault and provide no facts showing that Defendant

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McGinness knew of a constitutional violation and failed to remedy

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it.

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(ECF No. 92 at 10.)

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Plaintiffs’

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Finally, Plaintiffs fail to identify the alleged policy Defendant

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McGinness enacted, and prove unable or unwilling to offer even a

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rudimentary description of a procedure that caused the Defendant

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deputies to use excessive force.

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cause of action’s elements, supported only by conclusory

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statements and without adequate facts, does not satisfy the Rule

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8 pleading requirements.

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claim against Defendant McGinness is dismissed without leave to

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amend.

Simply stated, reiterating a

Iqbal, 556 U.S. at 678.

Thus, the

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C.

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42 U.S.C. § 1983: Eighth Amendment Inadequate Medical
Care Claim

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Plaintiffs’ second cause of action alleges that all

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Defendants violated Ludavico’s Eighth Amendment rights by failing

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to treat his medical needs.

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require facts demonstrating “deliberate indifference to serious

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medical needs.”

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the Ninth Circuit, the test for deliberate indifference consists

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of two parts.”

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2006) (internal citations omitted).

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plaintiff to establish both “that failure to treat a prisoner’s

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condition could result in further significant injury or

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unnecessary and wanton infliction of pain” and “a purposeful act

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or failure to respond to a prisoner’s pain or possible medical

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need.”

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when a government “policy or custom” caused the violation.

27

Monell, 436 U.S. 694.

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///

Id.

Denial of medical care claims

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

“In

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
This two-part test forces a

As discussed above, a municipal entity is liable

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1

To bring a supervisory liability claim, a plaintiff must allege

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that the defendant was actually involved in the wrongdoing or

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that the defendant’s policy caused the harm.

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646.

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Hansen, 885 F.2d at

Plaintiffs allege that Ludavico received medical treatment

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when he first arrived at the Sacramento County Jail, but

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Defendants, although aware of Ludavico’s medical need, allowed

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the care to end once Ludavico was booked.

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The TAC lacks any other factual statements regarding the

(ECF No. 90 at 10.)

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activities that occurred at the jail.

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officers, Plaintiffs do not assert even basic allegations as to

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which Defendants were present at the jail, which Defendants

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actually violated Ludavico’s rights, or which Defendants had a

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duty to administer care.

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facts regarding Ludavico’s medical condition.

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failure to plead this necessary information, Plaintiffs’ claims

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against the Defendant officers are dismissed without leave to

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amend.

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In regard to the Defendant

Plaintiffs also provide insufficient
Due to Plaintiffs’

Plaintiffs also assert that Defendant Sacramento County is

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liable for Eighth Amendment violations.

Plaintiffs do not

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mention or describe any government procedure that resulted in

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withholding needed medical aid from Ludavico.

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Plaintiffs fail to put forth any facts suggesting deliberate

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indifference.

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inadequately plead their allegations and fail to support their

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claim.

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cause of action is dismissed without leave to amend as to

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Defendant Sacramento County.

Furthermore,

Without the necessary facts, Plaintiffs

Twombly, 550 U.S. at 556 n.3.

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Thus, Plaintiffs’ second

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Plaintiffs also claim that Defendant McGinness is

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responsible for the alleged Eighth Amendment violations because

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he holds a supervisory position.

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allege that Defendant McGinness came into contact with Ludavico

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at his home or the jail, and Plaintiffs fail to identify or

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describe a procedure that Defendant McGinness ratified that

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caused Ludavico’s injuries.

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simply state a general claim that Defendant McGinness harmed

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Ludacivo.

However, Plaintiffs do not

Without additional facts, Plaintiffs

See Iqbal, 556 U.S. at 678.

As a result, Plaintiffs

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fail to state a claim against Defendant McGinness.

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Accordingly,

the claim is dismissed without leave to amend.

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D.

42 U.S.C. § 1983: Negligent Hiring, Training,
Supervision, and Retention

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15

Plaintiffs’ third cause of action alleges that Defendants

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Sacramento County, McGinness, Hanks and Mora are responsible for

17

engaging in negligent hiring, training, supervision and retention

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practices.

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negligence of a state official does not violate the due process

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clause of the [F]ourteenth [A]mendment, a constitutional

21

violation may arise from training or supervision where the

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training or supervision is sufficiently inadequate as to

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constitutes deliberate indifference to the rights of persons with

24

whom the police came into contact.”

25

869 F.2d 1230, 1235 (9th Cir. 1989) (internal citations omitted).

26

However, as set forth above, municipalities are liable under

27

§ 1983 “only where the municipality itself causes the

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constitutional violation at issue.

While “it is now well settled that the mere

15

Davis v. City of Ellensburg,

1

Respondeat superior or vicarious liability will not attach under

2

§ 1983.”

3

U.S. 694-95).

4

because they employ a tortfeasor.”

5

Thus, a municipality is only liable “where its policies are the

6

moving force [behind] the constitutional violation.”

7

Canton, 489 U.S. at 389.

8

alleging municipal liability under § 1983 is the question whether

9

there is a direct causal link between a municipal policy or

10

City of Canton, 489 U.S. at 385 (citing Monell, 436
“Municipalities cannot be held liable simply
Davis, 869 F.2d at 1234.

Thus, the “first inquiry in any case

custom and the alleged constitutional deprivation.”

11

City of

Id.

Plaintiffs claim that Defendant Sacramento County is at

12

fault under a Monell-liability theory.

13

contend that an official practice, enacted by Defendant

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Sacramento County, caused Ludavico’s harm.

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TAC fails to allege any specific policy or procedure that

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Defendant Sacramento County enacted that was “the moving force

17

[behind] the constitutional violation.”

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at 389.

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identifying any practices, policies, or customs which are

20

directly and causally linked to the alleged constitutional

21

deprivation.

22

plead this cause of action, the claim against the County is

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dismissed without leave to amend.

24

That is, Plaintiffs

However, Plaintiffs’

City of Canton, 489 U.S.

Plaintiffs merely provide conclusory allegations without

Due to Plaintiffs’ repeated failures to adequately

Plaintiffs rely on theories of general negligence,

25

supervisory liability, and Monell-liability to bring this cause

26

of action against Defendants McGinness, Hanks and Mora.

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///

28

///
16

1

As for Plaintiffs’ general negligence theory, it is “well settled

2

that mere negligence of a state official does not violate the due

3

process clause of the fourteenth amendment . . . .”

4

869 F.2d at 1235.

5

to demonstrate that Defendants McGinness, Hanks and Mora

6

inadequately supervised, hired, or trained police officers to the

7

point that their conduct “consitute[s] deliberate indifference to

8

the rights of persons with whom the police come into contact.”

9

Id. (internal citations omitted).

Davis,

Plaintiffs have not alleged facts sufficient

10

As to Plaintiffs’ supervisory liability theory, Plaintiffs

11

must establish Defendants’ personal involvement in the incident

12

or that Defendants implemented a policy that was a moving force

13

behind the alleged wrongdoing.

14

Defendants McGinness, Hanks and Mora, Plaintiffs offer too few

15

details to state a claim.

16

these three Defendants to the deputies involved in the incident

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at Ludavico’s house and do not plead facts sufficient to

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demonstrate that these Defendants were actually charged with

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hiring, training, supervision and retention.

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Plaintiffs fail to plead facts that clarify what policy or

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procedure was the moving force behind the wrongdoing, much less

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show that Defendants implemented such a policy.

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Plaintiffs submit only the general allegation that these

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Defendants are in management positions and should have prevented

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the wrongdoing.

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than bare conclusions and a recitation of the cause of action’s

27

requirements.

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///

Hansen, 885 F.2d at 646.

As to

Plaintiffs fail to personally connect

Moreover,

Instead,

To sustain a claim, Plaintiffs must present more

Twombly, 550 U.S. at 555.

17

1

As a result, the claim against Defendants McGinness, Hanks and

2

Mora are dismissed without leave to amend.

3
4

D.

Tort Claims Brought Pursuant to State Law

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6

Plaintiffs’ fourth, fifth, sixth, and seventh causes of

7

action allege state law claims for various torts committed by

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Defendants.

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1.

10

Duplicative Actions

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12

Plaintiffs’ sixth cause of action, claiming negligent and

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intentional infliction of emotional distress, names all

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Defendants.

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intentional infliction of emotional distress, only applies to

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Defendants Sacramento County and McGinness.

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cause of action is duplicative, it is dismissed without leave to

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amend.

The seventh cause of action, also for negligent and

Because the seventh

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20

2.

Additional Plaintiffs

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22

In granting Defendants’ previous motion to dismiss, the

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Court concluded that “Plaintiffs may not add any new claims to

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their complaint.”

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Corrected Second Amended Complaint, only Ludavico pled the sixth

26

cause of action.

27

to add Plaintiffs Ashley Ludavico and Thomas Ludavico, Jr. to the

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TAC’s sixth cause of action.

(ECF No. 88 at 11.)

(ECF No. 68 at 10.)

18

In Plaintiffs’ Second

Plaintiffs then proceeded

1

Adding parties to a cause of action constitutes alleging new

2

claims and thus violates the Court’s previous order.

3

result, only Ludavico can bring Plaintiffs’ sixth cause of

4

action.

As a

5
3.

6

The GCA

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8
9

Before bringing a suit against a public entity, the
California Tort Claims Act (“the GCA”) requires “the timely

10

presentation of a written claim and the rejection of the claim in

11

whole or in part.”

12

1470, 1477 (9th Cir. 1995).

13

to bringing suit against a public employee who is alleged to have

14

caused injury while acting within the scope of his or her

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employment.

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(1991).

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purposes: First, they give the governmental entity an opportunity

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to settle just claims before suit is brought.

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permit the entity to make an early investigation of the facts on

20

which a claim is based, thus enabling it to defend itself against

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unjust claims and to correct the conditions or practices which

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gave rise to the claim.”

23

145 Cal. App. 4th 1139, 1151 (2006).

24

Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d
Claims must also be presented prior

Briggs v. Lawrence, 230 Cal. App. 3d 605, 612-13

“[T]he claims-presentation requirements serve two basic

Second, they

Lozada v. City of S.F.,

A plaintiff must allege facts demonstrating either

25

compliance with the GCA requirement or an excuse for

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noncompliance as an essential element of the cause of action.

27

State v. Sup. Ct. (Bodde), 32 Cal. 4th 1234, 1243-44 (2004).

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///
19

1

Failure to allege compliance or an excuse for noncompliance

2

constitutes a failure to state a cause of action and results in

3

dismissal of such claims.

4

tort claim is not filed because certain defendants’ identities

5

are unknown, the plaintiff must plead and prove the reasons that

6

the public employees’ identities were not known.

7

Braslow, 179 Cal. App. 3d 762, 772-74 (1986).

8
9

Id.

Consequently, if the requisite

Williams v.

Plaintiffs did not file tort claims against Defendants
Heller, Weightman, McGinness, Hanks and Mora.

However,

10

Plaintiffs contend that they satisfied the GCA by timely filing

11

tort claims against all then known Defendants.

12

114-15.)

13

failure to identify these defendants.

14

App. 3d at 772-74.

15

reports and other documents with the information needed to

16

appropriately file tort claims against these Defendants.

17

Accordingly, it appears that Plaintiffs cannot show that they

18

“did not know or have reason to know the identities of the public

19

employees” when they filed their tort claims.

20

result of Plaintiffs’ failure to comply with the GCA, Plaintiffs’

21

fourth, fifth and sixth causes of action against Defendants

22

Heller, Weightman, McGinness, Hanks and Mora are dismissed

23

without leave to amend.

24

///

25

///

26

///

27

///

28

///

(ECF No. 92 at

Plaintiffs’ pleadings offer no explanation for their
See Williams, 179 Cal.

Furthermore, Plaintiffs had access to police

20

Id. at 773.

As a

4.

1

Claims Against Defendants Adrian Zuniga, Daniel
Zuniga, Sydow, and Powe

2
3

Plaintiffs’ fourth cause of action alleges negligence; the

4

fifth, assault and battery; and the sixth, negligently and

5

intentional infliction of emotional distress.

6

Adrian Zuniga, Daniel Zuniga, Sydow and Powe, Plaintiffs simply

7

offer blanket assertions of liability.

8

factual details showing that each individual Defendant was

9

negligent, assaulted and battered Ludavico, or caused, either

10

intentionally or negligently, Plaintiffs to suffer emotional

11

distress.

12

wielded a shotgun in a potentially menacing manner, and,

13

according to Plaintiffs’ TAC, the other Defendants might have

14

been at the scene.

15

short, Plaintiffs merely accuse Defendants of wrongdoing without

16

pleading facts sufficient to demonstrate that arriving at the

17

scene or holding a weapon constitutes tortious conduct of any

18

sort.

19

to support the causes of action and are insufficient to

20

demonstrate that Defendants are liable under state law.

21

Plaintiffs’ fourth, fifth and sixth causes of action against

22

Defendants Adrian Zuniga, Daniel Zuniga, Sydow and Powe are

23

dismissed without leave to amend.

24

///

25

///

26

///

27

///

28

///

As to Defendants

Plaintiffs offer no

Plaintiffs plead only that Defendant Adrian Zuniga

(ECF No. 90 at 5-6; ECF No. 92 at 5-9.)

In

Taken as true, the factual details in Plaintiffs’ FAC fail

21

Thus,

CONCLUSION

1
2
3

For the reasons set forth above, Plaintiffs’ second, third,

4

and seventh causes of action are DISMISSED WITHOUT LEAVE TO

5

AMEND; Plaintiffs’ first cause of action is DISMISSED WITHOUT

6

LEAVE TO AMEND as to all Defendants EXCEPT Defendants Heller,

7

Schannep and Weightman; Plaintiffs’ fourth, fifth and sixth

8

causes of action are DISMISSED WITHOUT LEAVE TO AMEND for all

9

Defendants EXCEPT Defendants Schannep and Sacramento County; and

10

Plaintiffs’ sixth cause of action is DISMISSED WITHOUT LEAVE TO

11

AMEND to the extent that it is brought by Plaintiffs Ashley and

12

Thomas Ludavico.

13
14

IT IS SO ORDERED.
Dated: November 6, 2012

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16
17

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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