Estate of Glenn Swindell et al v. County of Sonoma

Filing 28

ORDER by Judge Samuel Conti granting in part and denying in part 19 Motion to Dismiss. Plaintiffs may file a second amended complaint within thirty days. (sclc1, COURT STAFF) (Filed on 10/21/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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ESTATE OF GLENN SWINDELL, et
al.,

)
)
)
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Plaintiffs,
)
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v.
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)
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COUNTY OF SONOMA, DOES 1 through )
10, inclusive,
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Defendants.
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)
)

Case No. 15-CV-897-SC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION TO DISMISS

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Now before the Court is Defendant County of Sonoma's (the

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"County") motion to dismiss Plaintiff Estate of Glen Swindell, et

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al.'s ("Plaintiffs") First Amended Complaint ("FAC").

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("Mot.).

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without oral argument pursuant to Local Rule 7-1(b).

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reasons set forth below, the County's motion is GRANTED IN PART and

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DENIED IN PART.

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PREJUDICE, while others are DISMISSED WITH LEAVE TO AMEND, as

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specified below.

The motion is fully briefed1 and suitable for disposition

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For the

Some of Plaintiffs' claims are DISMISSED WITH

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ECF No. 19

ECF Nos. 24 ("Opp'n"), 25 ("Reply").

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I. BACKGROUND
As it must on a Rule 12(b)(6) motion, the Court assumes the

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truth of the following facts taken from Plaintiffs' First Amended

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Complaint.

ECF No. 6 ("FAC").

On the evening of May 16, 2014, Glenn Swindell and his wife,

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function.

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United States District Court

Sarah Swindell, had an argument while driving home from a work

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For the Northern District of California

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their home as Sarah delayed in exiting the vehicle.

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the front door of the house, and the argument continued as Sarah

Upon arriving home, Glenn and his two children entered
Glenn locked

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stood outside.

Sarah then called 911, reported the incident --

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which she stated was nonviolent -- and requested assistance in

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getting her children.
The responding sheriff deputies ("deputies") made contact with

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Glenn through a locked door in the home, and convinced him to

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release his children.

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He also made clear that he had a fear of law enforcement, stating

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that he was afraid they would shoot him as they had shot a

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thirteen-year-old child, Andy Lopez.

Glenn then demanded that the deputies leave.

At some point, the deputies and their supervisors learned that

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Glenn was the lawful owner of two firearms.

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Facebook page and falsely reported to other deputies that Glenn had

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made disparaging statements about law enforcement.

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frustrated, the deputies and their supervisors undertook a plan to

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punish Glenn for refusing to speak with them or let them into his

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home.

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They also searched his

Angered and

In order to secure a search and arrest warrant, the deputies

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and their supervisors fabricated evidence and lied about the

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circumstances relating to the incident, including

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a) That Glenn Swindell had committed a battery upon Sarah
Swindell;

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b) That Glenn Swindell had imprisoned Sarah Swindell;
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c) That Sarah Swindell felt fearful and intimidated by
Glenn Swindell's actions;

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d) That Glenn Swindell had barricaded himself in his
home;

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e) That Glenn Swindell had cut off communications with
Sheriff personnel whom were present at his home and
property;

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United States District Court

For the Northern District of California

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f) That Glenn Swindell
committing a felony; and

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had

used

his

firearms

in

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g) That Glenn Swindell had committed a public offense.

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At some point during the incident, Sarah Swindell approached

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the deputies and requested that the situation be deescalated.

In

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response, the deputies threatened to take Sarah's children from her

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if she failed to cooperate.
The deputies and their supervisors then summoned the Sonoma

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County Sheriff's Office SWAT.

Approximately 50 officers responded.

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Upon arriving at the scene, one of the SWAT supervisors exclaimed,

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"Why don't you just kill the fucker!"

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to use a military assault vehicle, concussion bombs, and chemical

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agents to break down the garage door and enter the Swindell home.

The SWAT team then proceeded

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Upon gaining entry, the SWAT unit learned that Glenn was in

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the attic, that he feared the police would kill him, and that he

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was armed.

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intended to harm anyone.

At no time, however, did Glenn indicate that he

After Glenn refused to come out, the SWAT unit began to pump

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gas into the attic.

Given his extreme fear of the police, the

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deputies and SWAT officers knew that Glenn was unlikely to leave

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///

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the attic notwithstanding the extreme pain that the gas would

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inflict.

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After suffering intense mental and physical anguish as a

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result of the gas, Glenn took his own life with a single gunshot to

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the head.

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Swindell at length as to her relationship with her husband while

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withholding from her that he had died.

United States District Court

For the Northern District of California

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After Glenn died, the deputies interrogated Sarah

On June 16, 2015, Plaintiffs filed their complaint in this
action against the County of Sonoma and unnamed Defendants 1

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through 10, alleging eleven claims for relief.

Plaintiff Estate of

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Glenn Swindell brings claims one through four under 42 U.S.C. §

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1983 for alleged violations of Glenn's Fourth, Fourteenth, First,

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and Second Amendment rights, respectively, against the deputies,

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their supervisors, and the responding SWAT units.

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of Glenn Swindell also brings the fifth claim for relief alleging

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municipal liability for unconstitutional customs and practices

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under 42 U.S.C. § 1983 against the County, the deputies, their

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supervisors, and the responding SWAT units.

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relief is brought by Glenn Swindell's family -- Plaintiffs Sarah

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Swindell, Deborah Belka, G.S., M.S., J.S., Deann Walund, and Tyler

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Swindell -- under 42 U.S.C. § 1983 alleging that the County, the

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deputies, their supervisors, and the responding SWAT units

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interfered with their familial integrity in violation of their

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Fourteenth Amendment Due Process rights.

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relief is brought under 42 U.S.C. § 1983 by Plaintiff Sarah

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Swindell against the deputies, their supervisors, and the

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responding SWAT units for violations of her Fourth Amendment

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rights.

Plaintiff Estate

The sixth claim for

The seventh claim for

Although it is not clear from the Complaint, it appears

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relief.

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supervisors, and the responding SWAT units for, respectively,

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assault and battery, wrongful death, and civil rights violations

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under Cal. Civ. Code Section 52.1.

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is brought by Plaintiffs Sarah Swindell, G.S., M.S., J.S., Tyler

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Swindell, and Deborah Belka against the County, the deputies, their

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United States District Court

that all Plaintiffs bring the eighth, ninth, and tenth claims for

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For the Northern District of California

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supervisors, and the responding SWAT units for survivorship.

Those claims are against the County, the deputies, their

The eleventh claim for relief

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II. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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is inapplicable to legal conclusions.

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.

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The allegations made in a

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1202, 1216 (9th Cir. 2011).

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Starr v. Baca, 652 F.3d

When granting a motion to dismiss, a court is generally

Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246–47

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(9th Cir. 1990).

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United States District Court

required to grant the plaintiff leave to amend.

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For the Northern District of California

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Cook, Perkiss &

faith, repeated failure to cure deficiencies by previous amendments

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allowed, futility of the amendment, or prejudice.

Leave to amend may be denied for undue delay, bad

Foman v. Davis,

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371 US 178, 182 (1962); Abagninin v. AMVAC Chem. Corp., 545 F3d

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733, 742 (9th Cir. 2008).

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be futile, the court examines whether the complaint could be

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amended to cure the defect requiring dismissal "without

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contradicting any of the allegations of [the] original complaint."

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

In determining whether amendment would

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III. DISCUSSION

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Defendants' motion asks the Court to dismiss Plaintiffs' FAC

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for failure to state a claim in their fifth, sixth, ninth, tenth,

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and eleventh claims for relief.

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A.

The Court addresses each in turn.

Fifth Claim for Relief: Municipal Liability for

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Unconstitutional Customs and Practices Under 42 U.S.C. §

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1983

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A plaintiff asserting a Section 1983 claim against a

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municipality must plead factual content that would allow the Court

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to draw a reasonable inference that: (1) the plaintiff has suffered

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a deprivation of a constitutional right; and (2) the violation of

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that right was caused by the enforcement of a municipal policy or

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practice, the decision of an official with final policy making

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authority, or inadequate training amounting to deliberate

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indifference to a plaintiff's constitutional rights.

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Dept. of Social Services, 436 U.S. 658, 694 (1978).
1.

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See Monell v.

Deprivation of a Constitutional Right

Plaintiffs' fifth claim for relief alleges violations of Glenn

United States District Court

Swindell's First, Second, Fourth, and Fourteenth Amendment rights.

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For the Northern District of California

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Defendants argue that the FAC does not state facts showing a

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violation of Glenn Swindell's Second or Fourteenth Amendment

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rights.
The "Second Amendment protects the right to possess a handgun

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in the home for the purpose of self-defense."

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Chicago, 561 U.S. 742, 790 (2010).

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deputies knew that Glenn lawfully owned firearms and assumes, in

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conclusory fashion, that the alleged unlawful search and seizure

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must have been, in part, retaliation for owning firearms.

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Plaintiffs' conclusory allegations are insufficient to state a

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claim based on a violation of the Second Amendment.

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Plaintiffs do not allege facts showing an interference with Glenn's

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right to possess a gun.

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kept multiple guns in his home.

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Plaintiffs' fifth claim for relief relies on purported Second

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Amendment violations, it is DISMISSED WITHOUT PREJUDICE.

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McDonald v. City of

The FAC alleges that sheriff

Moreover,

To the contrary, the FAC states that Glenn
Accordingly, to the extent that

As to alleged Fourteenth Amendment violations, Plaintiffs

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clarify in their Opposition that the Fourteenth Amendment is

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relevant to their fifth claim for relief only insofar as the

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Fourteenth Amendment applies the First, Second, and Fourth

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Amendments to the states.

Opp'n at 8-9.

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Plaintiffs therefore do

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not allege an independent Fourteenth Amendment violation.

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Accordingly, their fifth claim for relief as to purported

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Fourteenth Amendment violations is DISMISSED WITHOUT PREJUDICE.

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Defendants do not challenge Plaintiffs' fifth claim for relief

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as to alleged First and Fourth Amendment violations.

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fifth claim for relief survives only as to those allegations.

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2.

Thus, the

Municipal Policy or Practice

United States District Court

For the Northern District of California

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The Supreme Court has held that a municipality is subject to

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liability under Section 1983 only when a violation of a federally

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protected right can be attributed to (1) an express municipal

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policy, such as an ordinance, regulation, or policy statement (see

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Monell, 436 U.S. at 658); (2) a "widespread practice that, although

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not authorized by written law or express municipal policy, is 'so

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permanent and well settled as to constitute a custom or usage' with

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the force of law" (City of St. Louis v. Praprotnik, 485 U.S. 112,

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127 (1988)); (3) the decision of a person with "final policymaking

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authority" (id. at 123); or (4) inadequate training that is

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deliberately indifferent to an individual's constitutional rights

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

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there must be a sufficient causal connection between the

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enforcement of the municipal policy or practice and the violation

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of the plaintiff's federally protected right.

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Comm'rs v. Brown, 520 U.S. 397, 400 (1997); City of Canton v.

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Harris, 489 U.S. 378, 389 (1989).

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In addition,

See Bd. of County

The FAC alleges that Plaintiffs were harmed as a result of a

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widespread County custom or practice, decisions made by sheriff

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deputies and ratified by their supervisors and other high ranking

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County officials, and the County's failure to properly train

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officers on the use of force amounting to deliberate indifference

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to individuals' constitutional rights.

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addresses each in turn.

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See Opp'n at 10.

The Court

a. Custom or Practice
In Monell, the Supreme Court recognized that Section 1983

having the force of law, even though it has "not received formal

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United States District Court

municipal liability may be based on a municipal "custom or usage"

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For the Northern District of California

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approval through the body's official decision-making channels."

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Monell, 436 U.S. at 690.

More recently, the Supreme Court

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acknowledged that "an act performed pursuant to a 'custom' that has

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not been formally approved by an appropriate decisionmaker may

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fairly subject a municipality to liability on the theory that the

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relevant practice is so widespread as to have the force of law."

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Bd. of County Comm'rs, 520 U.S. at 404.

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whether there was a particular custom or practice that was "so well

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settled and widespread that the policymaking officials of the

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municipality can be said to have either actual or constructive

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knowledge of it yet did nothing to end the practice."

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McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989).

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The critical issue is

Bordanaro v.

Plaintiffs allege that "there exists an insidious custom and

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practice within the Sonoma County Sheriff's department of

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interrogating the family members of persons they have killed and

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extracting from them through lies and subterfuge information which

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would be only helpful to the defense of a civil case."

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Without more, however, Plaintiffs' conclusory assertion that "there

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exists" a widespread practice is insufficient.

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fails to assert facts establishing that the practice caused the

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alleged rights violations in this case.

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FAC ¶ 78.

Furthermore, it

Interrogating Glenn's

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surviving family members, after the fact, could not have been "the

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moving force" behind the alleged violations of Glenn's rights given

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that the violations at issue -- the alleged unlawful search and

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seizure, the alleged excessive use of force, and so on -- would

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have already occurred by that point.

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See Monell, 436 U.S. at 694.

The FAC also alleges that the County has a widespread practice

United States District Court

of (a) "retaliating against private citizens who exercise their

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For the Northern District of California

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Second Amendment rights to keep and bear arms in their homes for

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the purpose of self-defense" (FAC ¶ 65), and (b) of using "abusive

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militarized police tactics when responding to minor service calls"

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(Opp'n at 11).

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and fail to allege facts showing a practice beyond the incident in

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this case.

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Once again, Plaintiffs' assertions are conclusory

For the forgoing reasons, Plaintiffs' allegations of

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unconstitutional practices within the County are DISMISSED WITHOUT

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PREJUDICE.

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b. Decision By Final Policymaker
The Supreme Court has held that municipal liability may be

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based on a single decision by a municipal official who has final

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policymaking authority.

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City of Cincinnati, 475 U.S. 469, 480 (1986).

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has final policy-making authority is an issue of law to be

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determined by the court by reference to state and local law.

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Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989);

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Praprotnik, 485 U.S. at 123.

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official has discretionary authority is not a sufficient basis for

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imposing municipal liability.

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("The fact that a particular official -- even a policymaking

Praprotnik, 485 U.S. at 123; Pembaur v.
Whether an official

See

The mere fact that a municipal

See Pembaur, 475 U.S. at 481-82

10

does not, without more, give rise to municipal liability based on

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an exercise of the discretion."); Killinger v. Johnson, 389 F.3d

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765, 771 (7th Cir. 2004) ("mere authority to implement pre-existing

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rules is not authority to set policy").

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subordinate's decision to be attributable to the government entity

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through ratification, "the authorized policymakers must approve the

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United States District Court

official -- has discretion in the exercise of particular functions

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For the Northern District of California

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decision and the basis for it . . . .

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discretionary decisions made by one's subordinates . . . is not a

In order for a

Simply going along with

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delegation to them of authority to make policy."

Praprotnik, 485

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U.S. at 128-30; see also Gillette v. Delmore, 979 F.2d 1342, 1348

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(9th Cir. 1992) (concluding that mere inaction on part of policy

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maker "does not amount to 'ratification' under Pembaur and

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Praprotnik"); Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999)

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(holding that ratification requires showing approval by a policy

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maker, not a mere refusal to overrule a subordinate's action).
Here, Plaintiffs allege that the deputies worked "hand-in-hand

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with their supervisors."

Opp'n at 11.

In addition, Plaintiffs

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point to their allegation that a SWAT supervisor declared his

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intent to kill Glenn upon arriving at the location.

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Plaintiffs do not allege facts, however, establishing that any of

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the alleged decisions that led to Glenn's death were made by an

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official with final policymaking authority pursuant to state or

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local law.

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subordinate's decision leading to Glenn's death was ratified by a

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municipal officer with final policy making authority.

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Plaintiffs' fifth claim for relief for municipal liability based on

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Id.

Moreover, they do not allege facts establishing that a

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Accordingly,

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"policymakers' ratification of the deputies' unconstitutional acts"

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is DISMISSED WITHOUT PREJUDICE.

c. Inadequate Training

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4

See Opp'n at 10.

In City of Canton v. Harris, the Supreme Court held that

municipal liability.

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on inadequate training, the plaintiff must demonstrate specific

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United States District Court

deliberately indifferent training may give rise to Section 1983

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For the Northern District of California

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training deficiencies and either (1) a pattern of constitutional

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violations of which policy-making officials can be charged with

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knowledge, or (2) that training is obviously necessary to avoid

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constitutional violations, e.g., training on the constitutional

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limits on a police officer's use of deadly force.

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U.S. at 390.

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or different training was so obvious, and the inadequacy so likely

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to result in the violation of constitutional rights," as to amount

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to a municipal policy of deliberate indifference to citizens'

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constitutional rights.

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demonstrate a sufficiently close causal connection between the

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deliberately indifferent training and the deprivation of the

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plaintiff's federally protected right.

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489 U.S. 378 (1989).

To make a claim based

See Canton, 489

The plaintiff must also show that "the need for more

Id.

Finally, the plaintiff must also

Id. at 391-92.

Defendants argue that "Plaintiffs' amended complaint is

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devoid of facts showing what the training was, any prior similar

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acts or other basis to show the need for more or different

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training, [or that] the alleged inadequacy [was] likely to result

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in constitutional violations."

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however, makes several allegations along those lines:

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"Defendant was aware that the responding Sheriff Deputies and

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various other Sheriff's Office personnel, including the responding

Mot. at 9.

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Plaintiffs' FAC,

responding to minor service calls pertaining to domestic disputes

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and effectively dealing with individuals who are in a crisis,

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including safely defusing anxious and hostile behavior; deciphering

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when behavior escalates; reinforcing preventative techniques and

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practicing the principles of non-harmful physical intervention."

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FAC ¶ 74.

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United States District Court

SWAT unit, had not received proper and necessary training in

2

For the Northern District of California

1

untrained deputies would escalate minor service calls by creating

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violent confrontations leading to injury or death."

The FAC further alleges that the County "knew that such

FAC ¶ 75.

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These allegations are sufficient to satisfy the requirements of

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Rule 8.

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use of force -- where training is obviously necessary to avoid

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constitutional violations such that a lack of adequate training

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could constitute deliberate indifference.

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alleged facts sufficient to establish that the lack of training

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could have caused the alleged injuries in this case.

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19
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Further, they relate to an area -- police training on the

Finally, Plaintiffs have

Accordingly, Defendants' motion as to Plaintiffs' allegations
of inadequate training is DENIED.
3.

Claims for Damages to Surviving Plaintiffs

Constitutional rights are personal rights which cannot be

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vicariously asserted.

See Plumhoff v. Richard, 34 S.Ct. 2012, 2011

22

(2014); Rakas v. Illinois, 439 U.S. 128, 138-43 (1978).

23

do not dispute this and argue in their Opposition that their fifth

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claim for relief asserts a Section 1983 claim on behalf of "the

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Estate, not other plaintiffs."

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however, that Plaintiffs' fifth claim for relief includes language

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stating that, as a result of the alleged constitutional violations,

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Glenn Swindell's "wife, children and mother, the present

Opp'n at 13.

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Plaintiffs

Defendants point out,

1

Plaintiffs, suffered the loss of his love, affection, society and

2

moral support."

3

fifth claim for relief WITH PREJUDICE to the extent that it asserts

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claims on behalf of the surviving plaintiffs.

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6

B.

FAC ¶ 80.

Thus, the Court DISMISSES Plaintiffs'

Sixth Claim for Relief: Municipal Liability Under 42
U.S.C. § 1983 for Interference with Familial Integrity

United States District Court

Plaintiffs' sixth claim for relief is brought by Glenn

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For the Northern District of California

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Swindell's family members -- Sarah Swindell, Deborah Belka, G.S.,

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M.S., J.S., Deann Walund, and Tyler Swindell -- under 42 U.S.C. §

10

1983 alleging that the County, the deputies, their supervisors, and

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the responding SWAT units interfered with their familial integrity

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in violation of their Fourteenth Amendment Due Process rights.

13

Due Process Clause of the Fourteenth Amendment protects the private

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realm of family life from unwarranted state interference (see Meyer

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v. Nebraska, 262 U.S. 390, 400 (1923)) and includes the right to

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marry (Obergefell v. Hodges, 135 S. Ct. 2584, (June 26, 2015)), the

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right to direct the upbringing of one's children (Pierce v. Society

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of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534

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(1925)), and the right to live together as a family (Moore v. City

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of East Cleveland, 431 U.S. 494 (1977)).

21

The

Plaintiffs' allegations do not establish interference with

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their Fourteenth Amendment right to familial integrity.

True,

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Defendants' actions allegedly caused the death of Glenn Swindell --

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surviving plaintiffs' father, son, and husband.

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aware of any case, however, finding a Fourteenth Amendment

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violation where a family member has been wrongfully killed as a

27

result of state action.

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relief is DISMISSED WITH PREJUDICE.

The Court is not

Accordingly, Plaintiffs' sixth claim for

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1

C.

Ninth Claim for Relief: Wrongful Death
1. Claims by Glenn Swindell's Mother, Deborah Belka

2
3

The ninth cause of action for wrongful death is asserted on

4

behalf of all plaintiffs, including Glenn Swindell's mother,

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Deborah Belka.

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does not have standing under California law to bring a wrongful

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death claim.

FAC ¶¶ 11, 108.

Defendants argue that Ms. Belka

United States District Court

For the Northern District of California

8

"In California, an action for wrongful death is governed

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solely by statute, and the right to bring such an action is limited

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to those persons identified therein."

Scott v. Thompson, 184

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Cal.App.4th 1506, 1510 (2010).

12

wrongful death is governed by California Code of Civil Procedure

13

Section 377.60, which authorizes causes of action "to be brought by

14

decedent's personal representative 'or' any of a defined list of

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persons that includes a decedent's spouse, children, or heirs."

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Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 370 (9th

17

Cir. 1998).

18

be his heirs at all and therefore not entitled to maintain [a

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wrongful death] action at all."

20

4th 1433, 1440 (2001).

21

"Regardless of their status as heirs, parents may sue for the

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wrongful death of their child 'if they were dependent on the

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decedent.'"

24

Supp. 2d 1140, 1146 (E.D. Cal. 2005).

25

financial rather than emotional dependency . . . [and] a parent

26

'must show that they were actually dependent, to some extent, upon

27

the decedent for the necessaries of life.'"

28

2d at 1146; Chavez, 91 Cal. App. 4th at 1445 ("Financial dependency

Specifically, standing to sue for

Where a decedent leaves issue, "his parents would not

Chavez v. Carpenter, 91 Cal. App.

There is one exception, however:

Id. at 1445; see also Foster v. City of Fresno, 392 F.

15

"'Dependence' refers to

Foster, 392 F. Supp.

1

should be the test for parents who are not heirs of the

2

decedent.").
Glenn Swindell left a surviving spouse and children.

3

Further,

4

there are no facts alleged that Ms. Belka was financially dependent

5

on Glenn such that the exception under Section 377.60(b) could

6

apply.

7

Belka is DISMISSED WITH PREJUDICE.

Accordingly, Plaintiffs' wrongful death claim as to Deborah

2.

United States District Court

For the Northern District of California

8

Claims Against the County for Direct Liability

The Complaint asserts a wrongful death claim against the

9
10

County for vicarious liability under Cal. Gov. Code § 815.2.

11

also attempts to assert a claim, however, against the County

12

directly.

13

statute, a public entity is not liable for an injury, whether such

14

injury arises out of an act or omission of the public entity or a

15

public employee or any other person."

16

"Thus, in California, all government tort liability must be based

17

on statute . . . ."

18

Cal. 4th 925, 932 (1998).

See FAC ¶¶ 114-120.

It

"Except as otherwise provided by

Cal. Gov. Code, § 815(a).

Hoff v. Vacaville Unified School Dist., 19

Section 815.2 provides only for the County's vicarious

19
20

liability for the acts of its employees; it does not authorize

21

Plaintiffs' direct liability claim against the County.

22

113-122.

23

a negligence or wrongful death claim against the County directly,

24

Plaintiffs' ninth claim for relief is DISMISSED WITHOUT PREJUDICE

25

to the extent that it asserts claims against the County directly.

26

Its claim for vicarious liability survives, however.

27

///

28

///

See FAC ¶¶

Because Plaintiffs fail to state any statutory basis for

16

1

D.

Bane Act, Cal. Civ. Code Section 52.1

2

1. Failure to State a Claim

3
4

Tenth Claim for Relief: Civil Rights Violations Under The

The Bane Act, California Civil Code Section 52, provides a

or coercion . . . with the exercise or enjoyment by any individual

7

or individuals of rights secured by the Constitution or laws of the

8

United States District Court

right to relief when someone "interferes by threats, intimidation,

6

For the Northern District of California

5

United States, or of the rights secured by the Constitution or laws

9

of this state."

The elements of a claim for relief are: 1) an act

10

of interference with a legal right by 2) intimidation, threats or

11

coercion.

12

2010 WL 2991732, at *6 (N.D. Cal. Jul.28, 2010); Jones v. Kmart

13

Corp., 17 Cal. 4th 329 (1998).

14

Haynes v. City and County of San Francisco, No. 09–0174,

The California Court of Appeal held in Shoyoye v. County of

15

Los Angeles that "where coercion is inherent in the constitutional

16

violation alleged . . . the statutory requirement of 'threats,

17

intimidation, or coercion' is not met.

18

showing of coercion independent from the coercion inherent in the

19

wrongful detention itself."

20

Bender v. County of Los Angeles, the California Court of Appeal

21

held that where an arrest is unlawful and excessive force is used,

22

a claim is stated under California Civil Code Section 52.1.

23

Cal. App. 4th 968, 977–978 (2013).

24

The statute requires a

203 Cal.App.4th 947, 959 (2012).

In

217

Defendants argue that Plaintiffs' tenth claim for relief

25

should be dismissed under Shoyeye because it "fails to show

26

threats, coercion or intimidation independent from the underlying

27

claims of unlawful search and seizure."

28

however, Plaintiffs allege excessive force in addition to an

17

Mot. at 14.

Like Bender,

1

unlawful search and seizure, including that Defendants used a

2

military assault vehicle, concussion bombs, and chemical agents to

3

enter Glenn Swindell's home and that they unnecessarily pumped gas

4

into the attic which ultimately led Glenn to take his own life.

5

Accordingly, Defendants' motion to dismiss Plaintiffs' tenth claim

6

for relief for failure to state a claim is DENIED.
2.

7

United States District Court

For the Northern District of California

8
9

Standing

Plaintiffs assert their tenth claim for relief on behalf of
all plaintiffs, including all surviving plaintiffs.

Defendants

10

argue that "the surviving plaintiffs have no standing to assert a

11

Section 52.1 wrongful death claim . . . . [Because] Section 52.1(b)

12

specifically limits any cause of action to persons in his or her

13

own name and on his or her own behalf."

14

not dispute Defendants' argument.

15

Mot. at 14.

Plaintiffs do

Defendants are correct that relief under "the Bane Act . . .

16

is limited to plaintiffs who themselves have been the subject of

17

violence or threats."

18

38 Cal. App. 4th 141, 144 (1995).

19

claim for relief as to all surviving plaintiffs is DISMISSED WITH

20

PREJUDICE.

21

however, survives.

Bay Area Rapid Transit Dist. v. Super. Ct.,
Accordingly, Plaintiffs' tenth

Their claim on behalf of the Estate of Glenn Swindell,

22

E.

Eleventh Claim for Relief: Survivorship

23

Plaintiffs' eleventh claim for relief is for survivorship

24

under Cal. Civ. Proc. Code § 377.30.

"[A] survivor cause of

25

action," however, "is not a new cause of action that vests in the

26

heirs on the death of the decedent. . . . The survival statutes do

27

not create a cause of action."

28

Cal. App. 4th 1256, 1264 (2006).

Quiroz v. Seventh Ave. Ctr., 140
Instead, the survivorship

18

assert "a separate and distinct cause of action which belonged to

3

the decedent before death."

4

as a claim for "survivorship."

5

cause of action is DISMISSED WITH PREJUDICE.

6

///

7

///

8

United States District Court

statutes simply provide a means for a decedent's survivors to

2

For the Northern District of California

1

///

9

///

10

///

11

///

12

///

13

///

14

///

15

///

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Id.

In short, there is no such thing

Accordingly, Plaintiffs' eleventh

19

1
2
3
4
5
6
7

IV. CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss
is GRANTED IN PART and DENIED IN PART.
The following claims are DISMISSED WITH PREJUDICE:


Fifth Claim for Relief to the extent it asserts claims
for damages on behalf of the surviving plaintiffs



Sixth Claim for Relief



Ninth Claim for Relief to the extent it asserts claims on
behalf of Deborah Belka



Eleventh Claim for Relief

United States District Court

For the Northern District of California

8
9
10
11

The following claims are DISMISSED WITHOUT PREJUDICE:


Fifth Claim for Relief to the extent it relies on
purported violations of the Second and Fourteenth
Amendments, to the extent it asserts a claim based on an
unconstitutional custom or practice, and to the extent it
asserts a claim based on ratification



Ninth Claim for Relief to the extent it asserts claims
against the County directly

12
13
14
15
16

Defendants' motion to dismiss is otherwise DENIED.

17

Accordingly, leave to amend is GRANTED only as to the fifth and

18

ninth claims for relief as specified above.

19

second amended complaint within thirty (30) days.

20

a second amended complaint within the time allotted may result in

21

dismissal with prejudice.

Plaintiffs may file a
Failure to file

22
23

IT IS SO ORDERED.

24
25

Dated: October 21, 2015
UNITED STATES DISTRICT JUDGE

26
27
28

20