A.C. et al v. City of Fairfield et al

Filing 19

ORDER signed by District Judge John A. Mendez on 10/11/2016 GRANTING IN PART and DENYING IN PART 12 Motion to Dismiss; GRANTING the plaintiffs twenty days to file a Second Amended Complaint; in the event a Second Amended Complaint is not filed, ORDERING the defendants to file their answers to the 7 First Amended Complaint within thirty days. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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A.C., individually and as cosuccessor-in-interest to
Decedent José Ceja, by and
through his Guardian-Ad-Litem
Alicia Villa; I.C.,
individually and as cosuccessor-in-interest to
Decedent José Ceja, by and
through his Guardian-Ad-Litem
Alicia Villa; GUADALUPE
VILLA-VARGAS; ARTURO CEJAGONZALEZ; W.C., individually,
by and through his GuardianAd-Litem Pablo Ceja; J.C.,
individually, by and through
his Guardian-Ad-Litem Pablo
Ceja; PABLO CEJA,
individually and as GuardianAd-Litem for W.C. and J.C.;
and LETICIA CEJA,

No.

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

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Plaintiffs,
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v.
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JOE GRIEGO; DANIEL HATZELL;
CLINTON MORGAN (All Officers
for the Fairfield Police
Department); and the City of
Fairfield,

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Defendants.
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2:16-cv-00746-JAM-CKD

///
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Defendants seek to dismiss a suit arising from the fatal

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police shooting of thirty-six-year-old José Ceja. ECF No. 12.

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Plaintiffs oppose dismissal. 1

ECF No. 16.

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I.

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The following facts are taken as true by the Court for
purposes of this motion.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

In the early morning on January 15, 2015, three officers
responded to a call for help from José Ceja’s family.

First Am.

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Compl. (“FAC”) ¶¶ 22-23.

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Officers Joe Griego, Daniel Hatzell, and Clinton Morgan from

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outside the family home in Fairfield, California.

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24.

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was “extremely intoxicated,” and asked that they turn on their

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body cameras, which they did.

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house, they noticed José standing on a porch smoking a cigarette.

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Id. ¶ 26.

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dining room.

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Id. ¶¶ 26-27.

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heard an officer yell at Officer Hatzell “wait, wait, wait,” but

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to no avail:

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¶¶ 27, 29.

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Pablo Ceja, José’s brother, greeted

Id. ¶¶ 8, 22-

Pablo explained the situation, warned the officers that José

Id. ¶¶ 24-25.

As they entered the

A sliding glass door divided this porch from the
One officer ordered José to come into the room.
As José walked through the glass door, his mother

Officer Hatzell shot José twice in the chest.
He died on the kitchen floor.

Id.

Id. ¶ 29.

All witnesses say José merely walked into the house—at an

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officer’s explicit request—when Officer Hatzell fired his weapon.

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Id. ¶¶ 27-28.

They emphasize that José was not posing an

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1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for August 23, 2016.
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immediate threat to anyone.

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officer say something about José having a knife.

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Neither Pablo nor his mother saw anything in José’s hands; though

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his father speculated that José might have wielded a butter knife

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from the barbeque.

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Officer Hatzell as the “rookie.”

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Id.

Id. ¶ 27.

But Pablo overheard an
Id. ¶ 30.

Pablo also heard one officer identify
Id. ¶ 33.

Eight relatives (“Plaintiffs”) sued Officers Griego,

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Hatzell, Morgan, and the City of Fairfield (“Defendants”) 2 under

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42 U.S.C. § 1983 and several California law claims.

Plaintiff’s

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include A.C. and I.C. (José’s children), Guadalupe Villa-Vargas

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(José’s mother), Arturo Ceja-Gonzalez (José’s father), Pablo Ceja

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(José’s brother), Leticia Ceja (José’s sister-in-law), W.C.

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(José’s nephew), and J.C. (José’s niece).

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for José’s children, all other plaintiffs were present during the

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shooting:

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shooting; his sister-in-law, niece, and nephew heard the gunshots

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from a different room.

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Id. ¶¶ 6-13.

Except

José’s brother, mother, and father witnessed the

Id. ¶ 31.

Plaintiffs seek damages for alleged constitutional

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violations and associated pain and suffering under § 1983;

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damages for wrongful death under C.C.P. §§ 337.60 and 337.61 and

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Probate Code § 6402(b); funeral and burial expenses under those

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same California statutes; damages for loss of financial support;

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punitive damages; and attorneys’ fees and costs under 42 U.S.C.

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§§ 1983, 1985-86, and 1988.
Defendants move to dismiss Plaintiffs’ FAC.

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Plaintiffs also sued other DOE and fictitiously named police
officers, but this Court dismissed all claims as to those
unidentified defendants. ECF No. 15.
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II.

OPINION

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A.

Section 1983 Claims

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Section 1983 vindicates federal rights, but does not itself

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constitute a substantive right.

See Albright v. Oliver, 510

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U.S. 266, 271 (1994) (internal citation omitted).

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successfully bring a § 1983 claim, a plaintiff must show that “a

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person acting under color of state law committed the conduct at

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issue” and “that the conduct deprived the claimant of some

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right, privilege, or immunity protected by [federal law].”

To

Leer

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v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).

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§ 1983 imposes liability for violating constitutional rights,

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but not for violating duties arising from tort law.

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v. McCollan, 443 U.S. 137, 146 (1979).

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B.

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Simply put,

See Baker

Discussion
1. Qualified Immunity

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Although § 1983 allows individuals to vindicate their

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federal rights, qualified immunity protects government officials

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from liability for damages in certain situations.

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immunity balances two important interests...the need to hold

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public officials accountable when they exercise power

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irresponsibly and the need to shield officials from harassment,

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distraction, and liability when they perform their duties

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reasonably.”

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other words, a person cannot sue a government official for

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damages unless that official’s conduct violated a constitutional

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or statutory right and that right was “clearly established” at

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the time the conduct occurred.

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///

“Qualified

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

See id.

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In

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When deciding this issue, a court considers two criteria:

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(1) whether, under the alleged facts taken in the light most

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favorable to the plaintiff, a constitutional right was violated;

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and (2) whether that constitutional right was clearly

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established at the time the violation occurred.

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The court may address this analysis in either order, especially

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when the second criterion is clearly dispositive.

8

242.

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error was “a mistake of law, a mistake of fact, or a mistake

See id. at 232.

See id. at

Qualified immunity applies no matter if the official’s

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based on mixed questions of law and fact.”

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citations and quotation marks omitted).

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Id. at 231 (internal

a. First Cause of Action Against Officers Griego,
Hatzell, and Morgan

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Plaintiffs bring a § 1983 claim against Officers Griego,

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Hatzell, and Morgan, alleging that the officers’ excessive force

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violated José’s Fourth Amendment right.

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Defendants move to dismiss this claim as to Officers Griego and

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Morgan.

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showing that Officers Griego and Morgan’s conduct violated

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José’s constitutional right nor cite clearly established law

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requiring on-scene officers to prevent or control alleged use of

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force by another officer.

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Officers Griego and Morgan are liable because they integrally

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participated in the shooting, and José did not pose a threat to

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anyone.

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FAC ¶¶ 45-49.

Defendants argue that Plaintiffs neither allege facts

Mot. at 7.

Yet Plaintiffs say that

Opp’n at 11.

Here, the dispositive inquiry is whether it would have been

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clear to a reasonable officer in Officers Griego and Morgan’s

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position that their conduct was unlawful in the situation they
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confronted.

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Plaintiffs’ “integral participation” theory fails because they

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did not allege supporting facts in their FAC.

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alleged those facts in their opposition brief.

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A court evaluates a complaint based on its allegations, not new

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facts or claims raised in a Rule 12(b)(6) opposition brief.

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Arres v. City of Fresno, No. CV F 10-1628, 2011 WL 284971, at

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*18 (E.D. Cal. Jan. 26, 2011) (emphasizing that allegations in

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opposition papers “are irrelevant for Rule 12(b)(6) purposes”).

See Wood v. Moss, 134 S. Ct. 2056, 2059 (2014).

They, instead,
Opp’n at 8-10.

See

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Also, Plaintiffs have not pled facts showing that clearly

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established law requires Officers Griego and Morgan to control

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or prevent another officer’s use of force.

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allege that Officers Griego and Morgan responded to the call for

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help and possibly communicated with José.

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Because it would not be clear to reasonable officers that this

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conduct violated any constitutional right, qualified immunity

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protects Officers Griego and Morgan.

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as currently pled in the FAC, the Court grants Defendants’

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motion to dismiss the First Cause of Action against Officers

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Griego and Morgan.

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Plaintiffs merely

FAC ¶¶ 23, 27-28.

Based on the allegations

Dismissal under Rule 12(b)(6) with prejudice and without

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leave to amend is appropriate “only if it appears beyond doubt

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that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief.”

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F.3d 729, 732 (9th Cir. 2001) (internal citations and quotation

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marks omitted).

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potentially allege sufficient facts, it dismisses the First

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Cause of Action with leave to amend.

Navarro v. Block, 250

Because the Court finds that Plaintiffs could

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b. Second Cause of Action Against Officers Griego,
Hatzell, and Morgan

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Plaintiffs bring another § 1983 claim against Officers

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Griego, Hatzell, and Morgan, alleging that these officers

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violated Plaintiffs’ Fourteenth Amendment right to a familial

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relationship and a right to seek redress.

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move to dismiss this claim as to Officers Griego and Morgan.

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They again argue that Plaintiffs neither allege facts showing

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that Officers Griego and Morgan’s conduct violated Plaintiffs’

FAC ¶ 51.

Defendants

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rights nor cite clearly established law requiring on-scene

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officers to prevent or control alleged use of force by another

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officer.

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Mot. at 7.

Plaintiffs’ familial relationship aspect of their § 1983

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claim fails against Officers Griego and Morgan for the same

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reasons the first § 1983 claim failed.

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this § 1983 claim also fails against all Defendants because

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Plaintiffs have withdrawn it.

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The redress aspect of

Opp’n at 11 n.3.

With respect to Plaintiffs’ Fourteenth Amendment right to a

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familial relationship, that part of the claim is dismissed with

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leave to amend against Officers Griego and Morgan.

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Plaintiff’s Fourteenth Amendment right to seek redress, that

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part of the claim is dismissed with prejudice against all

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Defendants.

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As for

2. Third Cause of Action Against the City of Fairfield

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

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allege facts showing that the city had a custom or policy that

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caused the plaintiff’s constitutional injury.

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Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
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See Monell v.
A “policy or

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

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constitutes the ‘standard operating procedure’ of the local

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government entity.”

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F.3d 968, 984 (9th Cir. 2002) (internal citation omitted).

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“[T]he complaint must allege the policy, as well as its causal

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relationship to the constitutional injury, in sufficient

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detail.”

8

01746, 2014 WL 1616440, at *5 (E.D. Cal. Apr. 18, 2014).

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Ulrich v. City & Cty. of San Francisco, 308

Hass v. Sacramento Cty. Sheriff’s Dep’t, No. 2:13-cv-

But a relaxed pleading standard may apply in limited

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circumstances.

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may be sufficient to establish a “causal connection between the

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existing or non-existing policies, procedures and practices and

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the harms [Plaintiffs] experienced” when “the facts that might

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demonstrate the causal connection—such as...corrective actions

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

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[before] discovery.”

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0538, 2013 WL 6243278, at *10 (E.D. Cal. Dec. 3, 2013) (internal

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citations and quotation marks omitted).

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true when a plaintiff raises failure to discipline or failure to

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train claims.

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

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plaintiffs’ failure to supervise, investigate, or discipline

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claim survive defendants’ motion to dismiss); Phillips, 2013 WL

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6243278 at *10 (“find[ing] that dismissal of plaintiffs’ claims

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for entity/supervisor liability is inappropriate at this stage

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of the proceeding”).

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Allegations based on “information and belief”

Phillips v. Cty. of Fresno, No. 1:13-cv-

This is particularly

See Estate of Duran v. Chavez, No. 2:14-cv-02048,

Plaintiffs bring a Monell claim against the City of
Fairfield (“City”).

FAC ¶¶ 52-57.
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Defendants argue that

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Plaintiffs have not sufficiently pled facts showing that the

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City had a custom or policy that caused a constitutional injury.

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Mot. at 8-9.

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discovery posture, it is no surprise they lack elaborate details

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to support their failure to discipline and inadequate training

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claims.

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Plaintiffs respond that given the case’s pre-

Opp’n at 13.

Here, a relaxed pleading standard suffices.

Plaintiffs’

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allegations based on “information and belief” parallel those

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found sufficient in Duran and Phillips.

Plus, Plaintiffs have

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pled some facts.

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Hatzell to “wait wait wait,” and another allegedly called him a

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“rookie.”

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thereof.

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training or failure to discipline claims is in Defendants’

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custody and not available to Plaintiffs before discovery.

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Phillips, 2013 WL 6243278 at *11.

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information “sufficient to supply notice to Defendants” about

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the kinds of “information they will need to provide to refute,

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if they can, Plaintiffs’ allegations in a subsequent motion for

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summary judgment.”

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stated a Monell claim, the Court denies Defendants’ motion to

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dismiss Plaintiffs’ Third Cause of Action against the City.

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One officer allegedly yelled for Officer

FAC ¶¶ 27, 33.

Both implicate training or the lack

Also, most information needed to support inadequate

Id.

See

Plaintiffs’ FAC contains

Because Plaintiffs have successfully

3. Fourth Cause of Action Against Officers Griego,
Hatzell, and Morgan

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Plaintiffs bring a Bane Act excessive force claim against

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Officers Griego, Hatzell, and Morgan.

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essence of a Bane Act claim is that the defendant, by [threat,

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intimidation, or coercion] tried to or did prevent the plaintiff
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FAC ¶¶ 59-62.

“The

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from doing something he or she had the right to do under the law

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or to force the plaintiff to do something that he or she was not

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required to do under the law.”

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No. 1:10-cv-01370, 2013 WL 6415620, at *10 (E.D. Cal. Dec. 9,

5

2013) (internal citation and quotation marks omitted).

6

Rodriguez v. City of Modesto,

To state a claim under California Civil Code § 52.1, a

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plaintiff must plead facts showing interference or attempted

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interference by threat, intimidation, or coercion.

9

Browning-Ferris Indus., 68 Cal.App.4th 101, 111 (1998).

Cabesuela v.

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Generally, a plaintiff must show a coercion independent from the

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coercion inherent in the wrong:

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the alleged constitutional violation, the statutory requirements

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of threats, intimidation, or coercion are not met.

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v. Cty. of Los Angeles, 203 Cal.App.4th 947, 959 (2012).

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Federal courts, however, have relaxed the pleading standard for

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Bane Act claims when the underlying claim involves excessive

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force:

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need not allege a showing of coercion independent from the

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coercion inherent in the use of force.

20

6415620 at *13; Dillman v. Tuolumne Cty., No. 1:13-cv-00404,

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2013 WL 1907379, at *21 (E.D. Cal. May 7, 2013).

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where coercion is inherent in

See Shoyoye

a plaintiff bringing a Bane Act excessive force claim

See Rodriguez, 2013 WL

Defendants argue that this Court should dismiss Plaintiffs’

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§ 52.1 claim against all defendants, but for two different

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reasons.

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facts showing violence or threat of violence by Officers Griego

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or Morgan.

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Shoyoye doctrine bars the claim against Officer Hatzell because

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Plaintiffs have not alleged facts illustrating violence or

First, Defendants assert that Plaintiffs have not pled

Mot. at 12.

Second, Defendants argue that the

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threat of violence separate from the shooting itself.

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13.

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Id. at

In response, Plaintiffs maintain that they have stated a

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claim against Officers Griego and Morgan because they

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“integrally participated” in Jose’s death and because their

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collective presence was coercive.

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argument fails for the same reasons the integral participation

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argument failed above:

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this argument, and the Court will not review new facts stated in

Opp’n at 13-14.

Again, this

the FAC contains no facts supporting

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opposition briefs.

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showing Officers Griego and Morgan committed violence or threats

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of violence.

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with leave to amend Plaintiffs’ Fourth Cause of Action against

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Officers Griego and Morgan.

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Plaintiffs have not sufficiently pled facts

The Court grants Defendants’ motion to dismiss

Plaintiffs’ Bane Act excessive force claim against Officer

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Hatzell, however, survives.

This Court has previously held that

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plaintiffs bringing these claims need not allege a showing of

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coercion independent from coercion inherent in the use of force.

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See Rodriguez, 2013 WL 6415620 at *13 (rejecting defendants’

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argument that the Bane Act excessive force claim should be

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dismissed because plaintiff failed to show a coercion

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independent from coercion inherent in use of force); Dillman,

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2013 WL 1907379 at 21 (same).

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Plaintiffs must allege facts of violence or intimidation

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separate from the underlying wronged act fails.

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denies Defendants’ motion to dismiss the Fourth Cause of Action

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against Officer Hatzell.

Defendants’ argument that

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The Court

1
4. Fifth Cause of Action Against Officers Griego,
Hatzell, Morgan, and the City

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3

Plaintiffs bring a wrongful death claim against Officers
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Griego, Hatzell, and Morgan directly and against the City under
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a respondeat superior theory.

FAC ¶¶ 63-68.

To state a claim

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for wrongful death under C.C.P. §§ 337.60 and 337.61, a
7
plaintiff must plead facts showing a “tort (negligence or other
8
wrongful act), the resulting death, and the damages, consisting
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of the pecuniary loss suffered by the heirs.

Quiroz v. Seventh

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Ave. Ctr., 140 Cal.App.4th 1256, 1263 (2006) (original
11
emphasis).

Stating a claim for negligence satisfies the “tort”

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element for wrongful death.

Claiming negligence requires

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showing a legal duty to use due care and a breach of that duty
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that proximately causes injury.

See Holmes v. Summer, 188

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Cal.App.4th 1510, 1528 (2010).
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Defendants contend that Plaintiffs failed to state a claim
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against Officers Griego and Morgan because those officers owed
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no legal duty to otherwise affirmatively act under the facts
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alleged.

Mot. at 13.

Plaintiffs argue in response that under

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the totality of the circumstances, all the officers violated the
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duty of care owed to José by not planning their approach—
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especially given José’s alleged diminished state—and by shooting
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him even after he obeyed their command to enter the home.

Opp’n

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at 15-16.
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Defendants make the stronger argument.

A police officer

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does not assume a greater obligation to others, and his duty is
27
limited to that owed to the public at large.
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12

See Williams v.

1

California, 34 Cal.3d 18, 24 n.3 (1983) (internal citation

2

omitted).

3

duty, the police have no legal duty to control the conduct of

4

others.”

5

(1998) (internal citation omitted).

6

factual allegations showing that Officers Griego and Morgan owed

7

a duty to José or had a special relationship with him, there is

8

no negligence liability, which means there can be no liability

9

for wrongful death.

10

“Absent a special relationship creating a special

Adams v. City of Fremont, 68 Cal.App.4th 243, 277
Because the FAC lacks

The Court dismisses with leave to amend the

Fifth Cause of Action against Officers Griego and Morgan.

11

5. Sixth Cause of Action Against Officers Griego,
Hatzell, Morgan, and the City

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13

Plaintiffs bring a negligence claim against Officers

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Griego, Hatzell, and Morgan directly and against the City under

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a respondeat superior theory.

16

since withdrawn this claim recognizing that it is duplicative of

17

their wrongful death claim.

18

dismisses with prejudice the Sixth Cause of Action against

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Officers Griego, Hatzell, Morgan, and the City.

20

FAC ¶¶ 70-72.

Plaintiffs have

Opp’n at 15 n.4.

The Court

6. Seventh Cause of Action Against Officers Griego,
Hatzell, Morgan, and the City

21
22

Plaintiffs seventh claim alleges assault and battery

23

against Officers Griego, Hatzell, and Morgan directly and

24

against the City under a respondeat superior theory.

25

75.

26

show that the defendant intentionally performed an act resulting

27

in harmful or offensive conduct with her person; that she did

28

not consent to that contact; and that the harmful or offensive

FAC ¶¶ 74-

To properly state a claim for battery, a plaintiff must

13

1

contact caused injury, damage, loss, or harm to her.

2

v. Ransweiler, 171 Cal.App.4th 516, 526-27 (2009).

3

successfully bring an assault claim, a plaintiff must plead

4

facts showing “an unlawful intent to inflict immediate injury on

5

the person of another then present.”

6

of Cal., 63 Cal.App.2d 1, 6-7 (1944) (internal citation

7

omitted).

8
9

See Brown
To

Lowry v. Standard Oil Co.

Defendants argue that the FAC reveals that Officers Griego
and Morgan used no force against José and contains no facts

10

showing their unlawful intent to inflict injury.

11

Plaintiffs disagree, arguing that, because battery is a state

12

law counterpart to § 1983 liability, the Defendants’ argument

13

fails as to these officers for the same reason.

Mot. at 14.

Opp’n at 17.

14

Plaintiffs have not meaningfully opposed Defendants’

15

argument, and because the FAC lacks facts showing that Officers

16

Griego and Morgan used force against José or had an unlawful

17

intent to inflict injury, Defendants prevail.

18

dismisses with leave to amend the Seventh Cause of Action

19

against Officers Griego and Morgan.

20

The Court

7. Eighth Cause of Action Against Officers Griego,
Hatzell, Morgan, and the City

21
22

Plaintiffs bring a negligent infliction of emotional

23

distress claim (“NIED”) against Officers Griego, Hatzell, and

24

Morgan directly and against the City under a respondeat superior

25

theory.

26

allege facts showing that she “[was] closely related to the

27

injur[ed] victim[;] [was] present at the scene of the injury-

28

producing event at the time it occur[red] and [was] then aware

FAC ¶¶ 77-83.

To state a NIED claim, a plaintiff must

14

1

that it was causing injury to the victim[;] and [as a result]

2

suffer[ed] serious emotional distress beyond that which would be

3

anticipated in a disinterested witness.”

4

Cal.3d 644, 647 (1989).

Thing v. La Chusa, 48

5

Defendants contend that because NIED is a theory of

6

negligence, for the same reasons as the wrongful death claim,

7

the FAC lacks sufficient facts showing that Officers Griego and

8

Morgan had a legal duty to José.

9

respond that, as bystanders, they were closely related to José

10

Mot. at 14.

and either witnessed or heard him gunned down.

11

NIED is not an independent tort.

Plaintiffs

Opp’n at 16.

When a plaintiff seeks

12

damages for NIED, the tort is negligence—regardless of the

13

specific name used to describe the tort.

14

Superior Court of Los Angeles Cty., 54 Cal.3d 868, 882 (1991).

15

That means the plaintiff must plead a legal duty, a breach of

16

that duty, causation, and damages.

17

in the wrongful death claim discussed above, Plaintiffs have not

18

pled facts showing that Officers Griego and Morgan had a legal

19

duty to José.

20

claim for NIED as to defendants Griego and Morgan. The Court

21

dismisses with leave to amend the Eighth Cause of Action against

22

these two defendants.

23

Id.

See Christensen v.

As this Court explained

Plaintiffs have, therefore, failed to state a

8. Damages Under Sections 1985 and 1986

24

Defendants argue that Plaintiffs improperly request

25

attorneys’ fees under 42 U.S.C. §§ 1985 and 1986.

Mot. at 14-

26

15.

27

facts showing that the Defendants conspired together.

28

Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th

To state a claim under § 1985, a plaintiff must allege

15

See

1

Cir. 1988).

2

specificity is insufficient.

3

survives dismissal only if “the complaint contains a valid claim

4

under section 1985.”

5

Merely alleging conspiracy without factual
See id.

And a claim under § 1986

Id.

Plaintiffs did not oppose this argument in their brief.

6

The Court therefore dismisses this claim with prejudice against

7

all Defendants.

8

9. Punitive Damages

9

Plaintiffs request punitive damages from all Defendants for

10

their alleged section 1983 violations.

11

Defendants’ argue that this request fails against the City.

12

at 15.

13

FAC ¶¶ 42, 60.
Mot.

Municipalities are immune from punitive damages under

14

§ 1983.

See City of Newport v. Fact Concerts, Inc., 453 U.S.

15

247, 271 (1981).

16

damages against public entities.

17

*6.

18

against the City is granted with prejudice.

And California law forbids imposing punitive
See Arres, 2011 WL 284971 at

Defendants’ motion to dismiss the claim for punitive damages

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III.

ORDER

For the reasons discussed above, this Court GRANTS IN PART
AND DENIES IN PART Defendants’ motion to dismiss as follows:
1.

DISMISSES without prejudice the first cause of action

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(§ 1983 claim under the Fourth Amendment) against Officers Griego

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and Morgan;

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2.

DISMISSES without prejudice the second cause of action

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(§ 1983 familial relationship claim under the Fourteenth

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Amendment) against Officers Griego and Morgan, and DISMISSES with
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1

prejudice the § 1983 redress claim under the Fourteenth Amendment

2

against all Defendants;

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4

3.

DENIES Defendants’ motion to dismiss the third cause of

action (Monell claim) against the City;

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4.

DISMISSES without prejudice the fourth cause of action

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(Cal. Civil Code § 52.1 claim) against Officers Griego and

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Morgan, and DENIES Defendants’ motion to dismiss this § 52.1

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claim against Officer Hatzell;

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5.

(wrongful death claim) against Officers Griego and Morgan;

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6.

7.

8.

9.

10.

The FAC’s surviving claims include:

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1.

2.

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The second cause of action (§ 1983 Fourteenth Amendment

familial relationship claim) against Officer Hatzell;

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The first cause of action (§ 1983 Fourth Amendment

excessive force claim) against Officer Hatzell;

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DISMISSES with prejudice the punitive damages claim

against the City.

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DISMISSES with prejudice the 42 U.S.C. §§ 1985 and 1986

attorneys’ fees claims against all Defendants; and

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DISMISSES without prejudice the eighth cause of action

(NIED claim) against Officers Griego and Morgan;

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DISMISSES without prejudice the seventh cause of action

(assault and battery claim) against Officers Griego and Morgan;

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DISMISSES with prejudice the sixth cause of action

(negligence claim) against all Defendants;

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DISMISSES without prejudice the fifth cause of action

3.

The third cause of action (Monell claim) against the

City;
4.

The fourth cause of action (Cal. Civil Code § 52.1
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1
2

claim) against Officer Hatzell;
5.

The fifth cause of action (wrongful death claim)

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against Officer Hatzell directly and against the City under a

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respondeat superior theory;

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6.

The seventh cause of action (assault and battery claim)

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against Officer Hatzell directly and against the City under a

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respondeat superior theory; and

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9
10

7.

The eighth cause of action (NIED claim) against Officer

Hatzell directly and against the City under a respondeat superior
theory.

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If Plaintiffs elect to amend any claim dismissed without

12

prejudice, they shall file their Second Amended Complaint (“SAC”)

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within twenty days of the date of this Order.

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file their responsive pleadings within twenty days thereafter.

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If Plaintiffs elect not to file a SAC, this case shall proceed on

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the remaining claims in the FAC, and Defendants shall file their

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answers to the FAC within thirty days from the date of this

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Order.

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IT IS SO ORDERED.
Dated: October 11, 2016

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Defendants shall