Bauldry v. Town of Danville et al

Filing 28

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 15 (Illston, Susan) (Filed on 11/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LANE BAULDRY,

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United States District Court
For the Northern District of California

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No. CV 12-03943 SI

Plaintiff,
ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND

v.
TOWN OF DANVILLE, et al.,
Defendants.

/

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On October 18, 2012, defendants City of Piedmont and Sergeant Andy Wells filed a motion to

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dismiss plaintiff Lane Bauldry’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

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On November 16, 2012, the Court held a hearing on defendants’ motion. Having considered the parties’

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arguments, the Court hereby GRANTS defendants’ motion and DISMISSES WITH LEAVE TO

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AMEND plaintiff’s claims against Wells and Piedmont.

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BACKGROUND

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Plaintiff Bauldry and defendant Mona Daggett were previously married, but commenced divorce

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proceedings in the winter of 2010. Compl. ¶ 17. Bauldry alleges that during that time, Daggett met with

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Private Investigator Christopher Butler for the purposes of entrapping Bauldry in illegal activity for

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Daggett’s benefit in the pending divorce proceedings. Id. at ¶ 18. The entrapment scheme involved

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using Butler’s associates within various police agencies to arrest Bauldry for driving under the

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influence, after cajoling and encouraging him to drink alcohol in excess and drive. Id. at ¶ 19. Plaintiff

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alleges that Butler referred to this practice as a “Dirty DUI.” Id. Allegedly, Daggett retained Butler for

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the Dirty DUI scheme. Id. at ¶ 20. Butler’s first attempted Dirty DUI against Bauldry allegedly

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occurred at Crogan’s Seafood Restaurant in Alameda County, in October 2010. Id. at ¶ 22. Butler’s

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plan that evening was to encourage and assist plaintiff to drink alcohol and then direct or guide him from

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Crogan’s Restaurant into the City of Piedmont, where Sgt. Wells would pull plaintiff over without cause

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and arrest him for driving under the influence. Id. at ¶ 23. Plaintiff alleges the scheme was aborted that

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evening by the co-conspirators. Id. at ¶ 26.
Bauldry alleges that prior to working for the Piedmont Police Department, defendant Wells

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worked for the Antioch Police Department where he became colleagues and friends with Butler. Id. at

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¶ 23. Plaintiff alleges that Wells was the officer “intended by” Butler to effectuate the DUI arrest. Id.

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Additionally, Wells allegedly “had been advised of and knew of Private Investigator Butler’s illegal and

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United States District Court
For the Northern District of California

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inappropriate schemes, and/or was part of Butler’s illegal and inappropriate schemes, and/or should have

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been aware of Private Investigator Butler’s illegal and inappropriate schemes.” Id. Wells allegedly

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“expressly or tacitly agreed to the plan, [and then] failed to stop, impede, or report Butler’s activities.”

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Id. at ¶ 25. Bauldry further alleges that because Wells and other Piedmont Police Officers “failed to

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report and/or act on the information” regarding the Dirty DUI scheme, the scheme continued. Id. at

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¶ 27.

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The second setup for the Dirty DUI allegedly took place on November 2, 2010, at Meenars, a

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tavern in Contra Costa County. Id. at ¶ 28. Bauldry asserts that two of Butler’s female co-conspirators

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cajoled him into drinking alcohol, and that Deputies Tanabe and Henderson were involved in the scheme

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and had agreed to work with Butler. Id. at ¶ 33. After Bauldry was invited to leave Meenars by two

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women and to drive behind them in his own vehicle, Deputy Henderson pulled Bauldry over and

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arrested him. Id. at ¶ 35-36. The arrest was reported by Daggett’s family law attorney to the Alameda

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County Superior Court, allegedly to restrict and limit plaintiff’s time with his daughter. Id. at ¶ 38.

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On July 26, 2012, plaintiff Bauldry filed a complaint with this Court, alleging: (1) bad faith

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arrest in violation of 42 U.S.C. § 1983; (2) conspiracy to commit bad faith arrest in violation of the

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Fourth Amendment and 42 U.S.C. § 1983; (3) egregious official conduct intended to injure in violation

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of the Fourteenth Amendment and 42 U.S.C. § 1983; (4) conspiracy to commit egregious official

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conduct intended to injure in violation of 42 U.S.C. § 1983; (5) false arrest and imprisonment; (6) abuse
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of process; (7) intentional infliction of emotional distress; and (8) negligence. Sgt. Wells is named in

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counts 2, 4, and 5-8, and the City of Piedmont is named in counts 5-8.
On October 8, 2012, defendants Wells and Piedmont filed a motion to dismiss under Fed. R. Civ.

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P. 12(b)(6), asserting that: (1) plaintiff failed to allege sufficient facts to support his claim that Wells

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participated in the Dirty DUI conspiracy § 1983 claims; (2) the state law tort claims for false arrest and

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imprisonment, abuse of process, intentional infliction of emotional distress, and negligence fail because

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they rely on an alleged conspiracy and that plaintiff has not stated that either Wells or Piedmont were

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involved in the Contra Costa County arrest; (3) Piedmont and Wells are immune from liability for

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failure to report the scheme under California Government Code §§ 818.2, 845, and 846; and (4) plaintiff

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United States District Court
For the Northern District of California

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may not recover punitive damages against Wells and Piedmont under California Government Code §

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818 and because he failed to allege oppression, fraud, or malice.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility ” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require “heightened fact pleading

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of specifics,” Twombly, 550 U.S. at 544, a plaintiff must provide “more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do,” id. at 555. The plaintiff must

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allege facts sufficient to “raise a right to relief above the speculative level.” Id.

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In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff’s

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allegations are true and must draw all reasonable inferences in his or her favor. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, “the tenet that a court

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must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
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Iqbal, 556 U.S. at 678.

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If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth

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Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal

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quotation marks omitted).

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DISCUSSION
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Pleading in Conspiracy Claims

United States District Court
For the Northern District of California

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Under Iqbal and Twombly, a plaintiff must allege “enough facts to state a claim to relief that is

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plausible on its face,” and a mere recitation of labels and conclusions is insufficient. Twombly, 550 U.S.

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at 570. Thus, the plaintiff must allege facts amounting to more than a “sheer possibility that a defendant

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acted unlawfully.” Iqbal, 556 U.S. at 678.

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Plaintiff’s allegations against Wells pursuant to 42 U.S.C. § 1983 do not pass muster under Fed.

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R. Civ. P. 12(b)(6). For instance, the complaint alleges only that “Wells was the person and officer who

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was intended by Private Investigator Butler to effect the DUI arrest.” Compl. ¶ 23 (emphasis added).

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It also concludes that Wells “had been advised of and knew of” Butler’s schemes, “and/or was part of”

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Butler’s schemes, “and/or should have been aware of” Butler’s schemes. Id. However, plaintiff does

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not allege facts supporting these conclusions, such as communications between Wells and Butler

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relating to the DUI scheme or any action by Wells in furtherance of the scheme. Bauldry merely recites

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that Wells “expressly or tacitly agreed to the plan” but does not allege facts showing such an agreement.

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Therefore, the Court DISMISSES WITH LEAVE TO AMEND plaintiff’s second and fourth

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causes of action against defendant Wells alleging conspiracies in violation of 42 U.S.C. § 1983.

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2.

Pleading and Immunity in State Law Tort Claims

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Plaintiff’s fifth through eighth causes of action allege state law tort claims against Wells and

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Piedmont based on the harm plaintiff suffered from the DUI arrest. To the extent that they are based

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on a conspiracy theory, they fail because plaintiff failed to plead specific facts alleging Wells or
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Piedmont conspired in the Dirty DUI scheme, as discussed above. To the extent that the state law

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claims are based on the allegation that Wells and other Piedmont officers knew of the Dirty DUI scheme

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and failed to stop it, Wells and Piedmont argue that they must fail because plaintiff failed to state a claim

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and they are immune under state law.
Wells and Piedmont assert that they are immune under Cal. Govt. Code §§ 845, 846, 820.2,

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818.2, 821, and 815.2(a), which generally grant immunity to police officers and municipalities for

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failure to protect, investigate, make an arrest, or any other discretionary nonfeasance. See Michenfelder

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v. City of Torrance, 28 Cal. App. 3d 202, 206 (1972). “The statutory immunity for inaction is broader

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than the immunity which is applicable to the manner in which a policeman uses his authority to direct

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United States District Court
For the Northern District of California

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or restrain persons.” Id. at 207. Furthermore, law enforcement officers are only liable under a failure

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to warn claim if they have made an affirmative promise to warn and then failed to do so, because the

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promise gave rise to a ministerial duty. Morgan v. Yuba County, 230 Cal. App. 2d 938, 942-43 (1964)

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(holding that defendant sheriff and deputies of Yuba County were liable for failure to warn after

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promising victim they would warn her if the man who had threatened her life was released on bail, and

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failed to do so when he was released, resulting in her death).

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The Court cannot decide the issue of immunity until it first determines that plaintiff has alleged

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defendants owed a legal duty of care to plaintiff. Williams v. State of California, 34 Cal. 3d 18, 22

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(1983). To do otherwise would place the immunity cart before the duty horse. Id. Ordinarily, “[a]

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person who has not created a peril is not liable in tort merely for failure to take affirmative action to

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assist or protect another unless there is some relationship between them which gives rise to a duty to

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act.” Id. at 23. With regard to law enforcement, the state and its agents are held to the same standard

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of care as an individual, and thus they have no duty to affirmatively act unless they voluntarily assume

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a protective duty toward a certain member of the public and induce reliance on their protection. Id. at

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The complaint only alleges that Wells and Piedmont knew of the DUI scheme and “failed to

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report and/or act on the information.” Plaintiff never alleges any facts regarding Wells’s or Piedmont’s

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actions in participation or agreement to carry out the scheme, only a failure to warn or prevent harm.

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However, the alleged omissions of Wells and Piedmont cannot be the basis for a tort claim, because
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police officers, like ordinary citizens, do not have an affirmative duty to act to protect an individual.

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Plaintiff has not alleged facts sufficient for the Court to find that defendants owed a special duty to

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protect him and stop the Dirty DUI scheme, since plaintiff has not sufficiently alleged that Wells created

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the harm by entering into the DUI conspiracy and thereby created a legal duty.

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Accordingly, the Court DISMISSES WITH LEAVE TO AMEND plaintiff’s fifth, sixth,

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seventh, and eighth causes of action against defendants Wells and Piedmont alleging violations of state

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tort law.

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3.

Punitive Damages

United States District Court
For the Northern District of California

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Defendant Piedmont argues that plaintiff is barred from asking for punitive damages against it

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by Cal. Gov’t Code § 818. However, plaintiff has only requested punitive damages as to individual

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defendants, and not against Piedmont.

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Defendant Wells argues that Bauldry failed to allege facts sufficient for the award of punitive

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damages against him. Under Cal. Civ. Code § 3294(a), the plaintiff may only obtain punitive damages

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after presenting clear and convincing evidence that the defendant was guilty of oppression, fraud or

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malice. Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or

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despicable conduct which is carried on by the defendant with a willful and conscious disregard of the

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rights or safety of others.” Cal. Civ. Code § 3294(c)(1). Oppression is “despicable conduct that subjects

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a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. at § 3294(c)(2).

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Plaintiff’s opposition alleges Wells engaged in despicable conduct to deprive him of his time with his

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child, but he does not allege any facts in support of this allegation in his complaint. Plaintiff’s Oppo.

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at 9-10. For instance, he does not allege facts showing that Wells engaged in conduct directed at

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plaintiff or that he desired to deprive plaintiff of his time with his daughter. The complaint also does

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not allege facts showing that Wells agreed to or participated in the Dirty DUI scheme. Thus, plaintiff

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failed to plead sufficient facts that would demonstrate that Wells defendant was guilty of oppression,

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fraud or malice, and plaintiff is entitled to punitive damages.

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Therefore, the Court DISMISSES WITH LEAVE TO AMEND plaintiff’s request for punitive
damages against defendant Wells.
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CONCLUSION

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For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants’

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motion and DISMISSES WITH LEAVE TO AMEND the claims against Sgt. Wells and the City of

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Piedmont. (Docket No. 15). Any amended complaint must be filed no later than November 30,

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2012.

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IT IS SO ORDERED.

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Dated: November 19, 2012
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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