Kayleigh Slusher et al v. City of Napa et al

Filing 45

ORDER Granting in Part and Denying in Part 22 and 23 Defendants' Motions to Dismiss and Order Referring Case to Magistrate Judge Donna M. Ryu for Early Settlement Conference. Signed by Judge Saundra Brown Armstrong on 12/10/2015. (tmiS, COURT STAFF) (Filed on 12/11/2015)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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KAYLEIGH SLUSHER, Deceased,

Case No: C 15-2394 SBA

8 THROUGH HER SUCCESSOR IN

INTEREST JASON SLUSHER; JASON
9 SLUSHER, Individually; ROBIN SLUSHER,

Individually; and BENNY SLUSHER,
10 Individually,

Plaintiffs,

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vs.

ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTIONS
TO DISMISS AND ORDER OF
REFERENCE FOR EARLY
SETTLEMENT CONFERENCE
Dkt. 22, 23

13 CITY OF NAPA, a public entity; NAPA

POLICE OFFICER GARRETT WADE,
14 Individually; NAPA POLICE OFFICER

DEGUILIO, Individually; NAPA CHIEF OF
15 POLICE RICHARD MELTON, Individually

and in his Official Capacity; COUNTY OF
16 NAPA, a public entity; NAPA COUNTY

CHILD WELFARE SERVICES SOCIAL
17 WORKER NANCY LEFLER, Individually;

NAPA COUNTY CHILD WELFARE
18 SERVICES WORKER ROCIO DIAZ-LARA,

Individually; and DOES 1-50, Jointly and
19 Severally,

Defendants.

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On January 30, 2014, three year-old Kayleigh Slusher (“Kayleigh”) was viciously

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murdered by her mother, Sara Krueger (“Sara”) and her mother’s boyfriend, Ryan Warner

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(“Ryan”).1 Kayleigh’s biological father, Jason Slusher (“Jason”), individually and on

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behalf of Kaleigh, and Kayleigh’s paternal grandparents, Robin Slusher (“Robin”) and

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Benny Slusher (“Benny”), in their individual capacities, bring the instant action against:

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For clarity, Plaintiffs and related individuals will be referred to by their first names.

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the City of Napa (“City”); the County of Napa (“County”); the Napa Police Department

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(“NPD”) Chief Richard Melton; NPD officer Garrett Wade; NPD officer Dominic Deguilo;

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Child Welfare Services (“CWS”) worker Rocio Diaz-Lara; and CWS worker Nancy Lefler-

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Panela. The operative pleading is the First Amended Complaint (“FAC”), which alleges

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federal claims pursuant to 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Serv. of N.Y., 436

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U.S. 658 (1978), along with state law causes of action for violation of California’s Bane

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Act and negligence/negligence per se.

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The parties are presently before the Court on the City Defendants and the County

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Defendants’ respective motions to dismiss, pursuant to Federal Rule of Civil Procedure

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12(b)(6).2 Having read and considered the papers filed in connection with these matters

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and being fully informed, the Court hereby GRANTS IN PART and DENIES IN PART

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both motions, with leave to amend. The Court, in its discretion, finds this matter suitable

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for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

BACKGROUND

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A.

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On May 3, 2010, Kaleigh was born to Sara and Jason. FAC ¶ 26. For over a year,

FACTUAL SUMMARY

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Kaleigh and her mother lived with Jason’s parents, Robin and Benny. Id. ¶ 27.3 Sara

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eventually moved to her own apartment with Kayleigh. Id. Though no longer living with

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her grandparents, Kayleigh saw them regularly and often had weekend sleepovers at their

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home. Id. ¶ 29.

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Around October 2013, Sara’s boyfriend, Ryan, a “crank” (methamphetamine) addict

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with an outstanding arrest warrant, moved into Sara’s apartment and began preventing the

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grandparents from seeing Kaleigh. Id. ¶¶ 30-31. The grandparents suspected that Sara and

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Ryan were engaging in illegal drug activity and placing Kayleigh at serious risk of harm.

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The City, Chief Melton and Officers Wade and Deguilo are referred to collectively
as the “City Defendants,” while the County and CWS workers Diaz-Lara and Lefler-Panela
are collectively referred to as the “County Defendants.”

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During this time, Jason was in prison for a crime unrelated to his relationship with
Kaleigh. Id.
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Id. NPD police officers were summoned to Sara’s apartment in October 2013 and January

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2014 regarding disturbances there, but took no action. Id. ¶ 32.

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By January 2014, the grandparents had become increasingly concerned about

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Kayleigh, whom they had not seen or had contact with since Thanksgiving. Id. ¶¶ 33, 50.

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On January 23, 2014, Robin called the NPD to request a welfare check on Kayleigh. Id.

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¶ 33. She expressed concern that Kayleigh was under the care of drug addicts, that Ryan

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had an outstanding warrant and was armed, and that Kayleigh was being mistreated and

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abused. Id. Officer Wade responded to the call, but concluded that the situation was

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unsafe for him and his partner. Id. He did not to call for back up or investigate the report

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of suspected child abuse and neglect, and simply cleared the call. Id.4

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Also on January 23, 2014, Robin made numerous attempts to contact CWS social

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workers Diaz-Lara and Lefler-Panela to report her concerns regarding Kayleigh’s safety

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and well-being. Id. ¶ 40. Lefler-Panela later returned Robin’s call, informing her that there

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was nothing CWS could do and to call the police instead. Id. ¶ 41.

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On January 29, 2014, at around 5:58 p.m., Robin, fearing that Kayleigh was in grave

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danger, again contacted NPD for assistance. Id. ¶ 50. At around 8:47 p.m., Officers Wade

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and Deguilio went to Sara’s residence. Id. ¶ 51. Sara “actively tried to conceal the inside

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of her home from [them] by closing the front door against her body and peeking her head

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out to talk to them.” Id. Sara brought Kayleigh to the front door. Id. The officers

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observed that Kayleigh had bruises on her face, appeared gaunt, sick, malnourished and

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distressed. Id. The officers also encountered Sara’s boyfriend, Ryan, who falsely

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identified himself as “Ryan Howard.” Id. Ryan appeared malnourished, with sunken

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cheekbones, and to be under the influence of narcotics. Id. After the officers entered the

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apartment, Kayleigh vomited in front of them, and was quickly taken to the bathroom by

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Sara. Id. They also saw a male whom they knew was on probation attempt to depart from

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A few days later on the morning of January 27, 2014, unspecified NPD officers
were again dispatched to Kaleigh’s home due to a neighbor’s report of a domestic
disturbance. Id. ¶ 38. The officers never made any report of child abuse and/or neglect to
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the premises. Id. Sara asked the officers to leave. Id. The officers complied, without

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making any effort to speak with Kayleigh or physically examine her. Id.

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After the visit, Officers Wade and Deguillo determined that the person who

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identified himself in the apartment as “Ryan Howard” had lied about his identity and, in

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fact, was Ryan Warner. Id. ¶ 51. They also confirmed that Ryan had an active, outstanding

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arrest warrant. Id. Despite this realization and their observations at the apartment, the

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officers made no effort to obtain a warrant to re-enter the apartment or arrest him. Instead,

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Officer Wade called Robin and told her that Kayleigh had food and that everything

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appeared normal at the home. Id. Defendant Wade also reassured Robin that he would

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“keep an eye on the apartment.” Id. ¶ 55. Had Defendants investigated further, they would

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have discovered that Ryan had an extensive criminal history, which included, without

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limitation, assault and possession of drugs. Id. ¶ 52. Ryan also had a restraining order

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entered against him for threatening to kill his pregnant ex-girlfriend, among making other

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extremely sadistic and violent threats. Id. ¶ 56.

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On or about February 1, 2014, NPD police officers responded to a call to perform

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another welfare check on Kayleigh. Id. ¶ 57. When the officers arrived at Sara’s

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apartment, they discovered Kaleigh lying deceased in her bed, with evidence of having

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suffered severe physical abuse. Id. The Napa County District Attorney later reported that

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Kaleigh died from multiple blunt force trauma with impact injuries to her head, torso and

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extremities. Id. ¶ 57. Sara and Ryan have been charged with Kaleigh’s murder. Id.

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B.

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On May 29, 2015, Plaintiffs filed the instant action in this Court and subsequently

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filed a FAC on July 1, 2015. The FAC alleges the following claims: (1) violation of due

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process, mandatory reporting requirements, and interference with familial relations,

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pursuant to 42 U.S.C. § 1983; (2) Monell liability; (3) violation of the Bane Act, Cal. Civ.

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Code § 52.1; and (4) negligence/negligence per se. The County Defendants and City

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Defendants have separately filed motions to dismiss all claims alleged in the FAC. The

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motions are fully briefed and ripe for adjudication.

PROCEDURAL HISTORY

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II.

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.”

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal under Rule 12(b)(6) is

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proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege

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sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953,

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959 (9th Cir. 2013). “Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires

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not only ‘fair notice of the nature of the claim, but also grounds on which the claim rests.’”

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Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013) (quoting in part Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 556 n.3 (2007)). “To survive a motion to dismiss, a complaint

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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

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U.S. at 570 (2007)).

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In assessing the sufficiency of the pleadings, “courts must consider the complaint in

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its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)

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motions to dismiss, in particular, documents incorporated into the complaint by reference,

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and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

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Rights, Ltd., 551 U.S. 308, 322 (2007). The court is to “accept all factual allegations in the

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complaint as true and construe the pleadings in the light most favorable to the nonmoving

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party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir.

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2007). Where a complaint or claim is dismissed, leave to amend generally is granted,

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unless further amendment would be futile. Cervantes v. Countrywide Home Loans, Inc.,

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656 F.3d 1034, 1041 (9th Cir. 2011).

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III.

DISCUSSION

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A.

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Plaintiffs’ first claim for relief under § 1983 for denial of due process and

42 U.S.C. § 1983

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interference with familial relations is directed against Officers Wade and Deguilo and CWS

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workers Diaz-Lara and Lefler Panela. Section 1983 provides that individuals may sue

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government officials who violate their civil rights while acting “under color of any statute,
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ordinance, regulation, custom, or usage, of any State.” 42 U.S.C. § 1983. To maintain a

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claim pursuant to § 1983, a plaintiff must establish: (1) the deprivation of any rights,

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privileges or immunities secured by the Constitution or federal law, (2) by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Nurre v.

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Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). In addition, defendant’s actions must

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both actually and proximately cause the deprivation of a federally protected right. Lemire

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v. Caifornia Dep’t of Corrections & Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013).

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Section 1983 is not itself a source of substantive rights, but a jurisdictional vehicle for

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vindicating federal rights elsewhere conferred. See Thornton v. City of St. Helens, 425

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F.3d 1158, 1164 (9th Cir. 2008) (citations omitted).
1.

Due Process

“The Fourteenth Amendment prohibits states from ‘depriv[ing] any person of life,

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liberty, or property, without due process of law.’” Newman v. Sathyavaglswaran, 287 F.3d

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786, 789 (9th Cir. 2002) (quoting U.S. Const. amend. XIV, § 1). The Due Process Clause

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encompasses two types of protections: procedural fairness (procedural due process) and

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substantive rights (substantive due process). Zinermon v. Burch, 494 U.S. 113, 125-28

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(1990). A procedural due process claim challenges the procedures used in effecting a

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deprivation, whereas a substantive due process claim challenges the governmental action

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itself. See Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006).

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Here, the gist of Plaintiffs’ due process claim is that Defendants violated their

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mandatory duties to investigate and report child abuse, which, in turn, led to Kayleigh’s

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murder. FAC ¶¶ 64-66. Although the pleadings do not specify whether the due process

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claim is based on substantive or procedural due process, Plaintiffs state in their opposition

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that they are proceeding on both legal theories.

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a)

Substantive Due Process

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Generally, “a State’s failure to protect an individual against private violence simply

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does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.

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Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (holding that a social services agency and
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social workers did not violate a child victim’s substantive due process rights by failing to

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protect him from his abusive father, notwithstanding significant evidence establishing that

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the child was subjected to beatings). “There are two exceptions to this rule: (1) when a

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‘special relationship’ exists between the plaintiff and the state (the special-relationship

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exception) . . . ; and (2) when the state affirmatively places the plaintiff in danger by acting

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with ‘deliberate indifference’ to a ‘known or obvious danger’ (the state-created danger

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exception) . . . .” Patel v. Kent School Dist., 648 F.3d 965, 971-72 (9th Cir. 2011)

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(citations omitted). Plaintiffs rely on the state-created danger exception, sometimes simply

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referred to as the “danger creation” exception. Kennedy v. City of Ridgefield, 439 F.3d

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1055, 1062 (9th Cir. 2006) (citing DeShaney, 489 U.S. at 197).
“[A] police officer’s conduct that affirmatively places a plaintiff in a position of

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danger deprives him or her of a substantive due process right.” Johnson v. City of Seattle,

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474 F.3d 634, 639 (9th Cir. 2007) (citing Wood v. Ostrander, 879 F.2d 583, 589-90 (9th

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Cir. 1989)). “To determine whether an official affirmatively placed an individual in

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danger, we ask: (1) whether any affirmative actions of the official placed the individual in

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danger he otherwise would not have faced; (2) whether the danger was known or obvious;

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and (3) whether the officer acted with deliberate indifference to that danger.” Henry A. v.

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Willden, 678 F.3d 991, 1002 (9th Cir. 2012).

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For example, in Wood, a trooper stopped a car in which the plaintiff was a

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passenger, arrested the driver for drunk driving, and left the plaintiff in a high crime area at

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2:30 a.m. The plaintiff later accepted a ride from a stranger and was raped. The Ninth

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Circuit reversed a summary judgment ruling in favor of the trooper, finding that there was

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“a factual dispute regarding whether [the trooper] deprived her of a liberty interest

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protected by the Constitution by affirmatively placing her in danger and then abandoning

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her.” Id. at 596. Similarly, in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir.

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2013), the court found that the police officers affirmatively increased the danger to an

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individual who had been shot and later died by preventing her ambulance from leaving the

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scene. Id. at 1082. The court explained that the delay left the victim “worse off than if the
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ambulance had been allowed to bring her to an air ambulance that had advanced medical

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capabilities and was ready to fly her to a trauma center.” Id.

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Plaintiffs argue that the Ninth Circuit’s decision in Kennedy, in particular, supports

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the application of the danger creation exception. In Kennedy, the plaintiff, the mother of a

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nine year-old girl, reported to the police that a thirteen year-old neighbor had molested her

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daughter. In response to the mother’s concern regarding the neighbor’s history of violence,

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the officer told her that she would be given notice prior to any police contact with the

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neighbor’s family regarding her allegations. Kennedy, 439 F.2d at 1058. Despite those

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assurances, the police officer, without first notifying the mother, informed the neighbor and

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his mother of the plaintiff’s claim of molestation. When the plaintiff learned of this, she

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asked the officer why he had contacted the neighbor without first notifying her, and

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expressed serious concerns for her safety. In response, the officer “assured [the plaintiff]

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that the police would patrol the area around both her house and the [neighbor’s] house that

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night to keep an eye on [him].” Id. Due to the late hour and the officer’s promise to patrol

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the neighborhood, the plaintiff and her husband decided to stay at their house. Id. The

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following morning, the neighbor broke into the plaintiff’s home and shot her and her

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husband, killing him, as they slept. Id. In upholding the denial of qualified immunity for

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the officer, the Ninth Circuit held that the officer “affirmatively created a danger to [the

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plaintiff] she otherwise would not have faced, i.e., that [the neighbor] would be notified of

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the allegations before the [parents] had the opportunity to protect themselves from his

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violent response to the news.” Id.

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Plaintiffs contend that Defendants’ failure to investigate and report on the suspected

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abuse of Kayleigh, in tandem with Officer Wade’s “false” assurance that “everything

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appeared normal” at Kayleigh’s home and that he would “keep an eye on the apartment,

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affirmatively increased the risk of harm to Kayleigh. Pls.’ Opp’n at City Defs.’ Mot. to

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Dismiss at 9-10. The Court disagrees. In Kennedy, the affirmative danger created by the

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officer was his informing the neighbor of the plaintiff’s accusations before she and her

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husband could protect themselves against the neighbor’s violent response—coupled with
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his assurance to monitor the defendant. 439 F.3d at 1058. Here, the risk to Kayleigh was

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the fact that she lived with adults who were abusive. While Defendants were allegedly

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derelict in their failure to extricate Kayleigh from that situation, no facts are alleged that

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suggest that they placed her in danger or affirmatively increased the risk of harm to her

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through their inaction. Despite Plaintiffs’ intimations to the contrary, Kennedy does not

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support the proposition that false assurances by a law enforcement officer, standing alone,

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can affirmatively create a danger. 439 F.3d at 1063. To the contrary, the court simply

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explained that such misrepresentations can constitute “an additional and aggravating factor,

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making [the plaintiff] more vulnerable to the danger he had already created.” Id.

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Construing the facts in a light most favorable to Plaintiffs, the pleadings, at most,

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demonstrate that Defendants knew or had reason to know that Kayleigh was at serious risk

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of harm. Absent from the pleadings are any facts demonstrating that Defendants

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affirmatively placed Kayleigh in a position that increased such risk. See DeShaney, 489

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U.S. at 201 (“While the State may have been aware of the dangers that Joshua faced in the

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free world, it played no part in their creation, nor did it do anything to render him any more

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vulnerable to them.”). As such, the Court finds that Plaintiff has failed to state a claim

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based on the denial of the right to substantive due process. The foregoing notwithstanding,

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it is possible that Plaintiffs will be able to rectify these deficiencies through the presentation

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of additional facts. Accordingly, Plaintiffs are granted leave to amend their substantive due

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process claim.

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b)

Procedural Due Process

The procedural due process component of the Fourteenth Amendment protects

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individuals against the deprivation of liberty or property by the government without due

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process. Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “State law

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can create a right that the Due Process Clause will protect only if the state law contains

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‘(1) substantive predicates governing official decisionmaking, and (2) explicitly mandatory

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language specifying the outcome that must be reached if the substantive predicates have

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been met.’” James v. Rowlands, 606 F.3d 646, 656 (9th Cir. 2010) (quoting Bonin v.

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Calderon, 59 F.3d 815, 842 (9th Cir. 1995)).

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According to the FAC, Plaintiffs’ protected property interest arises principally from

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the mandatory child abuse reporting requirements set forth in the California Child Abuse

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and Neglect Reporting Act (“CANRA”), Cal. Pen. Code §§ 11164-11174.4. FAC ¶ 64.

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Among other things, CANRA provides that specified “mandated reporters,” which include

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social workers and police officers, “shall make a report to an agency specified in Section

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11165.9 whenever the mandated reporter, in his or her professional capacity or within the

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scope of his or her employment, has knowledge of or observes a child whom the mandated

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reporter knows or reasonably suspects has been the victim of child abuse or neglect.” Cal.

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Pen. Code § 11166(a) (emphasis added); see also id. § 11165.7(a) (list of “mandated

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reporters”). California courts have construed this provision as imposing “two mandatory

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duties” on a mandated reporter who receives an account of child abuse: (1) the duty to

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investigate; and (2) the duty to file a report of child abuse when an objectively reasonable

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person in the same situation would suspect abuse. Alejo v. City of Alhambra, 75

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Cal.App.4th 1180, 1186 (1999).5 A violation of section 11166’s duties constitutes a

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misdemeanor offense. Cal. Pen. Code § 11166(c).

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The County Defendants contend that CANRA only creates a discretionary as

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opposed to a mandatory duty and therefore fails to provide any “substantive predicates to

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decision-making.” County Defs.’ Mot. to Dismiss at 6. They posit that since the reporting

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obligation is triggered only upon a “reasonable suspicion” of child abuse, a mandated

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reporter inherently must use discretion in determining whether to make a report of

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suspected child abuse in the first instance. Id. These contentions are uncompelling. The

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plain language of the statute clearly states that a “mandated reporter shall make a report” to

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CPS, police, or other law enforcement agency upon a reasonable suspicion of child abuse or

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The Alejo court noted that while the duty to investigate is not express, it is clearly
envisioned by the statute so the officer can determine whether there is a reasonable
28 suspicion of child abuse. 75 Cal.App.4th at 1186.
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neglect. Cal. Pen. Code § 11166(a) (emphasis added). As noted, California courts have

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construed this obligation as a “mandatory” one. Alejo, 75 Cal.App.4th at 1185-86; see also

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Tarrant Bell Property, LLC v. Superior Court, 51 Cal.4th 538, 542 (2011) (noting that the

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Legislature’s use of the word “shall” denotes a mandatory act). Defendants’ assertion that

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no mandatory duty is imposed under CANRA also is undermined by the fact that the statute

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explicitly requires that a mandated reporter apply an objective standard in determining

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whether there is reasonable suspicion a child has been abused or neglected. Cal. Pen. Code

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§ 11166(a)(1); see Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (“If the decisionmaker is

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not ‘required to base its decisions on objective and defined criteria,’ but instead ‘can deny

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the requested relief for any constitutionally permissible reason or for no reason at all,’ the

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State has not created a constitutionally protected liberty interest.”) (citations omitted).

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Having concluded above that CANRA provides “substantive predicates” to guide the

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decisionmaker, the question becomes whether it also contains “‘explicitly mandatory

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language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive

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predicates are present, a particular outcome must follow . . . .” Kentucky Dept. of

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Corrections v. Thompson, 490 U.S. 454, 463 (1989). In Thompson, the Supreme Court

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considered whether prison regulations governing visitation could give rise to a protected

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liberty interest. The Court found that while the regulations “do provide certain ‘substantive

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predicates’ to guide the decisionmaker,” they “lack the requisite relevant mandatory

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language” because “[t]hey stop short of requiring that a particular result is to be reached

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upon a finding that the substantive predicates are met.” Id. at 463-64. In particular, the

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procedures at issue granted administrative staff discretion whether to allow or disallow

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visits, such that the “overall effect of the regulations is not such that an inmate can

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reasonably form an objective expectation that a visit would necessarily be allowed absent

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the occurrence of one of the listed conditions.” Id.

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The County Defendants assert that CANRA and the other statutes and regulations

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cited by Plaintiffs contain no mandatory language specifying the particular outcome that

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must be reached if the substantive predicates have been met. More specifically, they assert
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that “the statutes [cited by Plaintiffs] articulate the procedure for evaluation, reporting and

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investigation; [however,] the substantive outcome as the report of Robin Slusher or other

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report is left open to the discretionary decisions of CWS personnel.” County Defs.’ Mot. to

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Dismiss at 6-7. For their part, Plaintiffs do not respond to Defendants’ argument or

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otherwise address that contention. As for the pleadings, they do not allege that any of the

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cited authority mandates a particular outcome—or what that outcome would be. See FAC

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¶ 64. In the absence of such allegations, coupled with Plaintiffs failure to address this issue

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in their opposition, the Court cannot conclude at this juncture that Plaintiffs have alleged a

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plausible claim for procedural due process. Since Plaintiffs may be able to rectify this

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deficiency, the Court dismisses this claim with leave to amend.
2.

Familial Association

The Fourteenth Amendment protects the liberty interest in familial companionship

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and association against unwarranted governmental interference. See Wilkinson v.

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Torres, 610 F.3d 546, 554 (9th Cir. 2010); Crowe v. Cnty. of San Diego, 608 F.3d 406, 441

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& n. 23 (9th Cir. 2010). The liberty interest in familial companionship encompasses the

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familial relationship between parents and children. Curnow By and Through Curnow v.

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Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). “Moreover, the First Amendment

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protects those relationships, including family relationships, that presuppose deep

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attachments and commitments to the necessarily few other individuals with whom one

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shares not only a special community of thoughts, experiences, and beliefs but also

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distinctively personal aspects of one’s life.” Lee v. City of Los Angeles, 250 F.3d 668, 685

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(9th Cir. 2001).

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Defendants contend that Plaintiffs’ familial association claim must be dismissed

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because the pleadings fail to demonstrate an underlying constitutional violation. Though it

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has not addressed this issue directly, the Ninth Circuit has intimated that an underlying due

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process violation is a prerequisite to a claim for denial of familial association claim based

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on the Fourteenth Amendment. See, e.g., Lee, 250 F.3d at 685 (“[T]he state’s interference

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with [the right of familial association] without due process of law is remediable under 42
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U.S.C. § 1983.”) (internal quotations omitted, emphasis added); accord McClurg v.

2

Maricopa Cnty., No. CIV-09-1684-PHX-MHB, 2012 WL 3655318, at *9 (D. Ariz. Aug.

3

27, 2012) (“[T]he right to familial association can only be violated if there is an underlying

4

due process violation.”).

5

Plaintiffs fail to respond directly to Defendants’ argument, and instead points out

6

that in Lee the Ninth Circuit recognized that a familial association claim may also be

7

predicated on the First Amendment. Neither of the moving or reply memoranda filed by

8

either set of Defendants addresses Plaintiffs’ familial association claim in that context. The

9

Court notes that there appears to be no controlling case law regarding the legal standard for

10

stating a familial association claim under the First Amendment. See Schwartz v. Lassen

11

Cnty., No. 2:10-CV-03048-MCE), 2013 WL 5375588, at *10 (E.D. Cal., Sept. 24, 2013)

12

(“[T]he contours of a First Amendment familial association claim are unclear, and indeed

13

the Court is aware of no Ninth Circuit case setting out specifically the conduct or elements

14

that constitute violation of familial association under the First Amendment.”). Given the

15

paucity of authority, along with Defendants’ failure to meaningfully address this issue, the

16

Court declines to dismiss Plaintiff’s familial association claim insofar as it is predicated on

17

the First Amendment. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.

18

2003) (“It is [the movant’s] burden . . . to present the court with legal arguments to support

19

its claims.”).6

20
21

3.

Monell Liability

Plaintiffs’ second claim for municipal and supervisorial liability is alleged against

22

the County, the City and Chief Melton. “In order to establish liability for governmental

23

entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed a

24

constitutional right of which [s]he was deprived; (2) that the municipality had a policy;

25

(3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right;

26
6

In view of the Court’s ruling on Plaintiffs’ due process claims, Plaintiffs ability to
proceed on a familial association claim based on the Fourteenth Amendment is dependent
upon their ability to rectify the deficiencies discussed above in connection with those
28 claims.
27

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1

and, (4) that the policy is the moving force behind the constitutional violation.’” Dougherty

2

v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (alterations in original).

3

A Monell claim may take one of three forms: (1) “when implementation of its

4

official policies or established customs inflicts the constitutional injury”; (2) when

5

omissions or failures to act amount to a local government policy of “deliberate

6

indifference” to constitutional rights7; or (3) when a local government official with final

7

policy-making authority ratifies a subordinate’s unconstitutional conduct. Clouthier v.

8

Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). To state a claim, the

9

pleadings need only “contain sufficient allegations of underlying facts to give fair notice

10

and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v.

11

Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (addressing the pleading requirements

12

applicable to a Monell claim). In addition, the facts alleged must “plausibly suggest an

13

entitlement to relief, such that it is not unfair to require the opposing party to be subjected

14

to the expense of discovery and continued litigation.” Id. Here, Plaintiffs seek to state a

15

claim under each of three aforementioned theories of liability; to wit, the existence of a

16

policy or custom, ratification and failure to train.

17

a)

Policy or Custom

18

Defendants first contend that Plaintiffs’ allegations regarding the existence of a

19

policy or custom are too vague and non-specific to state a claim. The Court partially agrees

20

with Defendants’ assertion. Although the pleadings specifically identify the various

21

policies or customs allegedly implicated in the constitutional injury alleged suffered by

22

Plaintiffs, see FAC ¶ 70(a)-(f), they fail to distinguish between the acts or omissions of the

23

County, City and Chief Melton. Instead, Plaintiffs inappropriately allege a variety of

24

policies which they attribute generally to these Defendants. See Connick v. Thompson, –

25

U.S. –, –, 131 S.Ct. 1350, 1359 (2011) (“[U]nder § 1983, local governments are responsible

26
7

An actionable policy can “be one of action or inaction.” Waggy v. Spokane
County Wash., 594 F.3d 707, 713 (9th Cir. 2010) (citing City of Canton v. Harris, 489 U.S.
378, 388 (1989) (internal quotations omitted). “[A] municipality’s failure to train its
28 employees is one such claim of omission or inaction by the municipality.” Id.
27

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1

only for ‘their own illegal acts.”). Because the pleadings fail to give each of the Defendants

2

particular fair notice of the particular policies attributed to them, Plaintiffs’ policy and

3

custom claim is dismissed with leave to amend.8

4
5

b)

Ratification

“A municipality . . . can be liable for an isolated constitutional violation if the final

6

policymaker ‘ratified’ a subordinate’s actions.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th

7

Cir. 1999); see also Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (noting

8

than an “official with final policy-making authority” may be liable for ratifying a

9

subordinate’s unconstitutional conduct). “To show ratification, a plaintiff must show that

10

the ‘authorized policymakers approve a subordinate’s decision and the basis for it.’” Lytle

11

v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (citation omitted). The plaintiff must establish

12

that the ratification was a “conscious, affirmative choice.” Clouthier, 591 F.3d at 1250. A

13

mere failure to overrule a subordinate’s actions, without more, is insufficient to support a

14

§ 1983 claim. Lytle, 382 F.3d at 987.

15

The FAC alleges that the County, City and Chief Melton “approved, tolerated and/or

16

ratified” the acts and omissions of officers with the NPD and CWS, notwithstanding their

17

“direct knowledge of the facts of this incident.” FAC ¶ 72. However, no facts are alleged

18

to support this conclusory assertion. There are no allegations specifying the particular

19

actions at issue or how and by whom they were ratified. Since it is possible that these

20

deficiencies can be cured with additional factual allegations, the Court dismisses the claim

21

with leave to amend.

22
23
24

c)

Failure to Train

“[T]he inadequacy of police training may serve as the basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the rights of persons with

25
8

The City Defendants contend Plaintiffs’ Monell claim must be dismissed based on
their failure to allege an underlying constitutional violation. It is true that there can be no
Monell liability without an underlying constitutional violation. Scott v. Henrich, 39 F.3d
27 912, 916 (9th Cir. 1994). Accordingly, Plaintiffs’ ability to proceed on a Monell claim
based on an underlying due process violation is contingent on whether they are able to state
28 a plausible due process violation.
26

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1

whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

2

To state a claim for insufficient training, plaintiff must allege facts sufficient to show that

3

the County, City and Chief Melton “disregarded the known or obvious consequence that a

4

particular omission in their training program would cause [the individual defendants] to

5

violate citizens’ constitutional rights.” Flores v. Cnty. of Los Angeles, 758 F.3d 1154,

6

1159 (9th Cir. 2014).

7

With respect to the failure to train, the pleadings allege that the City, County and

8

Chief Melton “failed to properly hire, train, instruct, monitor, supervise, evaluate,

9

investigate, and discipline Defendants, with deliberate indifference to Plaintiffs’

10

constitutional rights, which were thereby violated as described above.” FAC ¶ 71. This

11

conclusory allegation, without more, is insufficient to state a claim for failure to train. See

12

Flores, 758 F.3d at 1159. Plaintiffs’ failure to train claim is dismissed with leave to amend.

13

d)

Chief Melton

14

Chief Melton is named as a party-defendant in both his official and individual

15

capacities. Official capacity claims against an individual are the functional equivalent of a

16

suit against the entity of which he is an agent. Kentucky v. Graham, 473 U.S. 159 (1985).

17

Since Chief Melton is alleged to be an agent of the City, the official capacity claims alleged

18

against him are dismissed as duplicative. See Center for Bio-Ethical Reform, Inc. v. Los

19

Angeles Cnty Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008) (holding that a county

20

sheriff sued in “official capacity” is a redundant defendant and should be dismissed when

21

the county is also named).

22

To state an individual capacity claim against Chief Melton, Plaintiffs must allege

23

facts showing that he “was personally involved in the constitutional deprivation or a

24

sufficient causal connection exists between the supervisor’s unlawful conduct and the

25

constitutional violation.” Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946, 961

26

(9th Cir. 2010); e.g., Hydrick v. Hunter, 669 F.3d 937, 941-42 (9th Cir. 2012) (noting that

27

to state an individual capacity claim, the complaint must identify the specific conduct that

28

forms the basis of the claim against the individual defendant). Because such facts are not
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1

pled, the individual capacity claims against Chief Melton are dismissed with leave to

2

amend.

3
4

4.

Qualified Immunity

Defendants contend, in the alternative, that they are entitled to qualified immunity

5

with respect to Plaintiffs’ federal claims. “The doctrine of qualified immunity protects

6

government officials ‘from liability for civil damages insofar as their conduct does not

7

violate clearly established statutory or constitutional rights of which a reasonable person

8

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

9

Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a qualified immunity defense,

10

the court considers: (1) whether the facts alleged, taken in the light most favorable to the

11

plaintiff, demonstrate that the defendant’s conduct violated a statutory or constitutional

12

right; and (2) whether the right at issue was “clearly established.” Saucier v. Katz, 533

13

U.S. 194, 201 (2001).

14

In view of the dismissal of Plaintiffs’ due process claims with leave to amend, it is

15

unnecessary at this juncture to determine whether those claims are precluded by the

16

doctrine of qualified immunity. As for Plaintiffs’ remaining First Amendment-based

17

familial association claim, Defendants fail to discuss that claim specifically. Accordingly,

18

the Defendants’ motion to dismiss based on qualified immunity is denied at this time.

19
20
21

B.

STATE LAW CLAMS
1.

Bane Act

Jason, as Kayleigh’s successor-in-interest, asserts a survival claim under California’s

22

Bane Act, which provides that a person “whose exercise or enjoyment” of constitutional

23

rights has been interfered with “by threats, intimidation, or coercion” may bring a civil

24

action for damages and injunctive relief. Cal. Civ. Code § 52.1. “The essence of a Bane

25

Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation

26

or coercion’), tried to or did prevent the plaintiff from doing something he or she had the

27

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

28
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1

required to do under the law.” Austin B. v. Escondido Union Sch. Dist., 149 Cal.App. 4th

2

860, 883 (2007) (citing Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998)).

3

Defendants argue that Plaintiff’s Bane Act claim should be dismissed because such a

4

claim is personal to the victim and does not survive her death.9 As support, Defendants cite

5

Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal.App.4th 141 (1995), which held

6

that the parents of a child victim could not bring a wrongful death claim under the Bane Act

7

because the statute only provides for “a personal cause of action for the victim[.]” Id. at

8

144. Notably, the court did not address or preclude a survival claim. Here, Jason does not

9

allege a Bane Act claim for injuries he sustained. Rather, Jason seeks to vindicate rights

10

personal to Kayleigh in the form of a survival claim under California Code of Civil

11

Procedure § 377.20. Courts within this District have concluded that such a claim is

12

permissible. See M.H. v. Cnty. of Alameda, 62 F.Supp.3d 1049, 1096 (N.D. Cal. 2014)

13

(“A survival Bane Act claim, unlike a wrongful death Bane Act claim, is permissible.”);

14

accord Medrano v. Kern Cnty. Sheriff’s Officer, 921 F.Supp.2d 1009, 1016 (E.D. Cal.

15

2013); Dela Torre v. City of Salinas, No. 09-cv-00626-RMW, 2010 WL 3743762, at *7

16

(N.D. Cal. Sept. 17, 2010).10 The Court therefore rejects Defendants’ contention that Jason

17

lacks standing to bring a Bane Act claim.

18

The above notwithstanding, the FAC fails to allege a plausible survival claim under

19

the Bane Act. To prevail on a Bane Act claim, a plaintiff must demonstrate, inter alia,

20

“intimidation, threats or coercion.” Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998). The

21
9

A survival action is a personal injury action that survives to permit a decedent’s
estate to recover damages that would have been personally awarded to the decedent had he
survived. Cal. Civ. Pro.Code §§ 377.20, 377.30. In contrast, a wrongful death action is an
23 independent claim for damages personally suffered by a decedent’s heirs as a result of the
decedent’s death. Id. § 377.60; see Davis v. Bender Shipbuilding & Repair Co., 27 F.3d
24 426, 429 (9th Cir. 1994).
22

10

Defendants cite Tolosko-Parker v. County of Sonoma, No. C 06-06841 CRB,
2009 WL 498099, at *5 (N.D. Cal., Feb. 26, 2009) which concluded that the parents of the
26 decedent could not bring a survival claim under the Bane Act. The court’s opinion offers
no reasoning or analysis to support that conclusion, and merely cites Bay Area Rapid
27 Transit District, which, as discussed, does not stand for that proposition a survival claim
cannot be brought under the Bane Act. The Court therefore finds Tolosko-Parker to be
28 unpersuasive and declines to follow it.
25

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1

FAC fails to allege such facts. Accordingly, Plaintiffs’ third claim for relief is dismissed

2

with leave to amend.

3
4

2.

Negligence/Negligence Per Se

Plaintiffs’ fourth and final claim for relief for negligence/negligence per se is

5

brought against all Defendants. “To state a cause of action under the negligence per se

6

doctrine, the plaintiff must plead four elements: (1) the defendant violated a statute or

7

regulation, (2) the violation caused the plaintiff’s injury, (3) the injury resulted from the

8

kind of occurrence the statute or regulation was designed to prevent, and (4) the plaintiff

9

was a member of the class of persons the statute or regulation was intended to protect.”

10

Alejo, 75 Cal.App.4th at 1184-85 (citing Cal. Evid. Code § 669); see Transamerica Title

11

Ins. Co. v. Green, 11 Cal.App.3d 693, 702 (1970) (“The breach of statutory duty is

12

negligence per se”). At issue here are the duty and causation elements.

13

Defendants contend that CANRA and the other statutes and regulations alleged in

14

the FAC impose no mandatory duties on them, and by extension, cannot form the basis for

15

a negligence per se claim. Defendants further argue that, pursuant to California

16

Government Code §§ 815.2 and 820.2, they are entitled to statutory immunity for

17

discretionary acts.11 The California Court of Appeal in Alejo rejected virtually identical

18

arguments. In that case, the father of three year-old Alec Alejo (“Alec”) had received

19

reports from the mother’s friend and neighbor that the mother’s boyfriend was using drugs

20

and physically abusing Alec. Alejo, 75 Cal.App.4th at 1183. The father reported the abuse

21

to the local police department, which failed to conduct any investigation into Alec’s well-

22

being. Id. Six weeks later, the mother’s boyfriend savagely beat Alec, causing him to

23

suffer total and permanent disability. Id. The father, on behalf of Alec, filed suit against

24
25
11

Government Code § 820.2 provides that “a public employee is not liable for an
injury resulting from his act or omission where the act or omission was the result of the
27 exercise of the discretion vested in him, whether or not such discretion be abused.” Section
815.2 provides generally that a public entity is not liable for an injury resulting from an act
28 or omission of its employee if the employee himself is immune from liability.
26

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1

the city and two police officers alleging that they were negligent in failing to investigate or

2

report a reasonable suspicion of child abuse as mandated by CANRA. Id. at 1183-84.

3

The trial court sustained the city’s demurrer on the grounds that its police

4

department and officers had no special duty to protect a child from abuse, were immune

5

from liability for discretionary conduct, and, in any event, their failure to act was not the

6

cause of Alec’s injuries. Id. at 1184. The California Court of Appeal reversed, holding

7

“the duty to investigate and report child abuse is mandatory under [CANRA].” Id. at 1186.

8

In addition, the court found that “[the officers’] failure to investigate was clearly a breach

9

of [that] duty,” and therefore, the plaintiff could state a cause of action for negligence per se

10

against the police officers. Id. at 1189. The court likewise rejected the city’s claim of

11

statutory immunity, concluding the immunity statutes do not bar liability for breach of a

12

mandatory law enforcement duty. Id. at 1194. With regard to the issue of causation, the

13

court concluded that the question of whether the defendants’ alleged violation of their

14

mandatory duty to investigate and report child abuse resulted in harm could not be decided

15

at the pleading stage. Id. at 1190-91.

16

Despite the fact Alejo is directly on point and discussed extensively in Plaintiffs’

17

opposition briefs, Defendants offer no argument in rebuttal. Instead, they contend that this

18

case is controlled by Jacqueline T. v. Alameda County Child Protective Services, 155

19

Cal.App.4th 456 (2007), where the court rejected negligence and negligence per se claims

20

brought against a county and two of its social workers who allegedly failed to adequately

21

investigate reports of sexual abuse against several minors. In that case, the plaintiff alleged

22

that the defendants “breached this mandatory duty [i.e., CANRA], not by failing to

23

investigate the alleged abuse, but rather by failing to ‘reasonably and diligently’ investigate

24

it.” Id. at 470. In the instant case, however, Plaintiffs allege that the individual Defendants

25

“failed to investigate and/or report the abuse and neglect” as required by California law.

26

FAC ¶ 37, 45, 54. Thus, this case is more analogous to Alejo, which involved a complete

27

abdication of their mandatory duty to investigate, as opposed to Jaqueline T., where the

28

social workers conducted an investigation that was alleged to be inadequate. See Ortega v.
- 20 -

1

Sacramento Cnty. Dept. of Health & Human Servs, 161 Cal.App.4th 713, 732 (2008)

2

(distinguishing between a “failure to investigate,” which is “clearly a breach” of the

3

mandatory duty owed under Penal Code § 11166, and “a claim of inadequate

4

investigation.”) (emphasis added).

5

The City Defendants separately argue that, like Jacqueline T., this is “not a situation

6

where officers performed no investigation.” City Defs.’ Mot. to Dismiss at 14. They point

7

out that in response to the reports of suspected child abuse, Officers Wade and Deguilo

8

went to Kayleigh’s home, but observed nothing that would have caused them to know or

9

suspect that she was being abused. Id. This argument strains credulity. Consistent with

10

the information reported to them, the officers personally observed that Kayleigh had bruises

11

on her face, “appeared gaunt, sick, malnourished, and distressed with dark circles under her

12

eyes that her neighbors had recently noticed,” and had vomited in front of them. FAC ¶ 51.

13

The officers also observed a malnourished man with sunken cheek bones and obviously

14

under the influence of drugs along with another suspicious individual known to be on

15

probation attempting to flee the premises. Id. Despite these obvious signs of potential

16

child abuse and neglect, the officers allegedly conducted no investigation. Id. Construing

17

the facts alleged in a light most favorable to Plaintiffs, the Court finds that “a reasonable

18

person in [the officers’] position would have suspected [child] abuse.” Alejo, 75

19

Cal.App.4th at 1186.

20

Finally, Defendants contend that Plaintiffs cannot show causation; to wit, that their

21

failure to comply with their mandatory reporting and investigation duties resulted in harm.

22

In rejecting this argument, the court in Alejo explained that causation is a question for the

23

finder of fact that cannot be resolved at the pleading stage. 75 Cal.App.4th at 1189 (“The

24

complaint in the case before us alleges that despite Hector’s account of Alec’s abuse,

25

Officer Doe performed no investigation and made no report and, as a result, Alec suffered

26

further abuse. Therefore, the necessary linkage between the mandatory duty and the injury

27

is established for pleading purposes.”). Defendants’ reliance on Jacqueline T. is misplaced,

28
- 21 -

1

as the issue of causation was decided on summary judgment, not at the pleading stage. The

2

Court finds that Plaintiffs have stated a plausible claim for negligence/negligence per se.

3

IV.

CONCLUSION

4

For the reasons stated above,

5

IT IS HEREBY ORDERED THAT:

6

1.

Defendants’ respective motions to dismiss are GRANTED IN PART and

7

DENIED IN PART. The motions are GRANTED as to Plaintiffs’ first claim under 42

8

U.S.C. § 1983 for violation of due process, second claim under Monell and third claim for

9

violation of the Bane Act, which are dismissed with leave to amend. The motions to

10
11

dismiss are DENIED in all other respects.
2.

Plaintiffs shall file their Second Amended Complaint no later twenty-eight

12

(28) days from the date this Order is entered into the docket. Plaintiffs are hereby notified

13

that any pleading filed in this Court is subject to Federal Rule of Civil Procedure 11, and as

14

such, they may amend only to the extent that they have a good faith basis for doing so.

15

3.

This matter is REFERRED to Magistrate Judge Donna Ryu for a mandatory

16

settlement conference to take place within ninety (90) days of the date this Order is filed.

17

The deadline for Defendants to file their response to the Second Amended Complaint shall

18

be held in abeyance pending the settlement conference. In the event the parties are unable

19

to reach a settlement, Defendants shall file their responsive pleading or Rule 12(b) motion

20

within fourteen (14) days of the conclusion of the settlement conference.

21
22

IT IS SO ORDERED.
Dated: 12/10/15

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

23
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25
26
27
28
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