Wilson v. Hays et al

Filing 18

ORDER granting in part and denying in part the City's 4 Motion to Dismiss. Specifically, the Court dismisses Plaintiff's first claim against the City without leave to amend but denies the City's request to dismiss Plaintiff's second claim. The Court grants Hay's 14 Motion to Dismiss. The Court dismisses Plaintiff's first claim against Hays with leave to amend and dismisses Plaintiff's second claim against Hays without leave to amend. If Plaintiff chooses to file a First Amended Complaint, she must do so no later than January 27, 2017. Signed by Judge Cynthia Bashant on 1/13/17. (kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No. 16-cv-01161-BAS(DHB) 11 12 MELANIE WILSON, ORDER: Plaintiff, 13 (1) GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF SAN DIEGO’S MOTION TO DISMISS (ECF No. 4); AND 14 15 16 17 v. CHRISTOPHER R. HAYS; CITY OF SAN DIEGO, Defendants. (2) GRANTING DEFENDANT CHRISTOPHER R. HAYS’S MOTION TO DISMISS (ECF No. 14) 18 19 20 21 22 Plaintiff Melanie Wilson commenced this action against Defendants 23 Christopher R. Hays and the City of San Diego on May 13, 2016, alleging violations 24 of her civil rights pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social 25 Services of City of New York, 436 U.S. 658 (1978). This action arises from an 26 incident in December 2013 where Plaintiff alleges Defendant Hays, a San Diego 27 Police Department Officer at the time, sexually battered her after giving her a ride 28 home and then taunted her for an hour and a half. Defendants separately move to –1– 16cv1161 1 dismiss Plaintiff’s claims on the ground that they are time barred by the statute of 2 limitations. (ECF Nos. 4, 14.) Plaintiff opposes. (ECF Nos. 5, 15.) 3 The Court finds these motions suitable for determination on the papers 4 submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 5 For the following reasons, the Court GRANTS IN PART and DENIES IN PART 6 the City’s motion to dismiss and GRANTS Hays’s motion to dismiss. 7 8 9 I. BACKGROUND1 A. Section 1983 Allegations against Defendant Hays 10 The San Diego Police Department (“SDPD”) hired Defendant Christopher R. 11 Hays as a sworn police officer in late 2009 or early 2010. (Compl. ¶ 24, ECF No. 12 1.) On December 23, 2013, at approximately 5:12 a.m., Plaintiff was out collecting 13 items for recycling near the intersection of 50th Street and El Cajon Boulevard in 14 San Diego, California. (Id. ¶ 38.) Earlier that morning, Plaintiff fought with her 15 boyfriend, forgot her glasses, broke her flashlight, and got lost in an unfamiliar part 16 of town. (Id.) Plaintiff admits she had used methamphetamine earlier that morning, 17 but claims she was aware of what was happening around her. (Id.) 18 At around the same time she was collecting items for recycling, Plaintiff 19 alleges that Hays—who was on duty in his SDPD uniform and driving a marked 20 patrol car—approached Plaintiff and asked her what she was doing. (Compl. ¶ 38.) 21 Plaintiff replied that she was collecting items for recycling and explained to Hays 22 what had happened to her earlier in the morning. (Id.) Hays offered Plaintiff a 23 courtesy ride home. (Id.) Plaintiff accepted the offer, and Hays drove her to the 24 address where she was staying. (Id.) 25 26 27 28 1 All facts are taken from the Complaint. For these motions, the Court assumes all facts alleged in the Complaint are true. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). –2– 16cv1161 1 Once they arrived at the address, Plaintiff exited the car, and Hays 2 immediately informed her that he needed to search her. (Compl. ¶ 39.) Plaintiff 3 consented to the search, despite Hays’s lack of probable cause to conduct a search. 4 (Id.) Hays, contrary to SDPD policy and procedure, did not then conduct a quick 5 “pat down.” (Id.) Rather, he allegedly touched Plaintiff “in a continuous motion,” 6 including “touching her breasts and vagina” and “lingering over every part of her 7 body” for approximately three minutes (Id.) 8 Following the search, Hays remained in the driveway for approximately an 9 hour and a half. (Compl. ¶ 40.) While in the driveway, Hays made various comments 10 to Plaintiff, including questions about what color underwear she was wearing, racial 11 comments about Plaintiff’s Vietnamese boyfriend, and statements about his sexual 12 preferences. (Id.) 13 Plaintiff alleges that she did not report the incident until she was contacted by 14 SDPD detectives after January 1, 2014, because she feared no one would believe 15 her.2 (Compl. ¶ 40.) On February 9, 2014, the SDPD arrested Hays for crimes 16 committed against various women while Hays was on duty as a police officer. (Id. 17 ¶ 35.) On February 18, 2014, the San Diego County District Attorney filed a criminal 18 complaint against Hays, charging him with felonies and misdemeanors for the 19 alleged crimes committed against Plaintiff and two other women while Hays was on 20 duty. (Id.) Hays subsequently resigned from the SDPD on February 19, 2014. (Id.) 21 22 23 24 25 26 27 28 2 Both the City and Hays request this Court take judicial notice of a Crime/Incident Report that they state Plaintiff filed with the SDPD on January 7, 2014. (City’s Req. for Judicial Notice (“RJN”) ¶ 5, Ex. 3, ECF No. 4-7; Hays’s RJN ¶ 3, Ex. 3, ECF No. 14-6.) The court may take judicial notice of a fact that is “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Although the court “may take judicial notice of some public records,” the contents of a police report have been held to not be the proper subject of judicial notice. See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (citing Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985)) (holding that the existence and content of a police report are not properly the subject of judicial notice). Defendants have not demonstrated why the Court should depart from this rule in this case. (See City’s RJN ¶ 5, Hays’s RJN ¶ 3.) Therefore, the Court denies Defendants’ requests to take judicial notice of the Crime/Incident Report. –3– 16cv1161 1 On August 22, 2014, Hays pled guilty to one count of false imprisonment and two 2 misdemeanor counts of assault under color of authority. (Id.) 3 Plaintiff alleges that Hays’s actions on December 23, 2013, constitute a 4 violation of her civil rights under the Fourth and Fourteenth Amendments of the 5 U.S. Constitution. (Compl. ¶ 41.) Plaintiff also alleges that as a result of Hays’s 6 conduct on December 23, 2015, Plaintiff suffered injury, including mental and 7 emotional distress, humiliation, anxiety, and physical pain and suffering. (Id. ¶ 42.) 8 9 B. Monell Allegations against the City 10 Plaintiff further alleges that Hays’s conduct on December 23, 2013, was a 11 direct result of the City’s failure to properly train, screen, examine, supervise, and 12 evaluate its police officers. (Compl. ¶ 46.) Part of the events that form the basis for 13 Plaintiff’s second cause of action began in 1994 when the SDPD employed former 14 SDPD Officer Anthony Arevalos. (Id. ¶ 7.) 15 In 1999, a fellow SDPD officer witnessed Officer Arevalos sexually assault a 16 young woman who was in a fragile mental state. (Compl. ¶ 9.) The officer reported 17 the incident to his supervisors. (Id.) However, rather than report the incident up the 18 SDPD chain of command, the supervisors destroyed photographs Officer Arevalos 19 had taken during the sexual assault and other evidence of the incident. (Id.) After the 20 1999 incident, Officer Arevalos continued to target women and sexually assault 21 them while on duty. (Id. ¶¶ 8–9.) Such misconduct included sexually assaulting 22 women, engaging in sexual intercourse and/or oral copulation while in uniform in 23 the back of a patrol car, soliciting sexual favors as bribes, and engaging in other 24 forms of sexual misconduct. (Id. ¶ 8.) In addition, Officer Arevalos bragged about 25 his sexual misconduct and showed photographs he took during the various incidents 26 to fellow police officers and his supervisors. (Id.) In at least four incidents of sexual 27 misconduct by Officer Arevalos, the victims came forward and reported the incident 28 to the SDPD and its supervisory officials. (Id. ¶¶ 11–14.) Despite these reports from –4– 16cv1161 1 four different victims, the SDPD never punished or disciplined Officer Arevalos. 2 (Id.) 3 In addition, during part of the time Officers Arevalos and Hays were 4 assaulting women, Plaintiff alleges that former SDPD Officer Kevin Hychko was 5 also assaulting and battering women under color of authority. (Compl. ¶ 15.) Officer 6 Hychko would perform traffic stops on attractive female drivers without probable 7 cause or reasonable suspicion and without properly notifying dispatch of such stops. 8 (Id.) Officer Hychko also targeted victims of domestic violence because their 9 vulnerability allowed him to make sexual advances toward them more easily. (Id.) 10 Furthermore, during this time in late 2012, Officer Hychko met an underage girl 11 while on duty and maintained an inappropriate relationship with her thereafter. (Id. 12 ¶ 17.) The SDPD was aware of Officer Hychko’s misconduct, but allegedly chose 13 not to take any corrective action until the federal government publicly chastised the 14 SDPD and its command. (Id. ¶¶ 15, 17.) In 2014, former Chief of Police William 15 Landsdowne resigned under pressure, and the newly-appointed Chief Shelley 16 Zimmerman launched a confidential internal affairs investigation that resulted in the 17 termination of Officer Hychko. (Id. ¶ 18.) 18 Plaintiff alleges that the cover up of Officer Arevalos’s criminal, sexual 19 misconduct in 1999 and the failure to investigate his later misconduct was part of a 20 long-standing “unwritten” policy within the SDPD that discouraged officers from 21 reporting instances of suspected or witnessed police misconduct to their supervisors 22 or to SDPD Internal Affairs. (Compl. ¶ 10.) Plaintiff asserts that this policy allowed 23 supervisors and officers to cover up and destroy evidence of officer misconduct. 24 (Id.) 25 Plaintiff further alleges that from 2003 to the present, the City and the SDPD 26 maintained “unwritten” policies that allowed SDPD officers to continue their 27 28 –5– 16cv1161 1 criminal misconduct without punishment. 3 (Compl. ¶¶ 19–22.) Plaintiff asserts that 2 the City and the SDPD maintained these policies knowingly, with gross negligence, 3 and with deliberate indifference for the constitutional rights of citizens. (Id. ¶ 22.) 4 Plaintiff also alleges that the City and the SDPD failed to properly test, screen, 5 evaluate, or train officers before hiring them. (Compl. ¶ 26.) For example, Plaintiff 6 alleges that Hays’s field training officer recommended to the training sergeant at the 7 police academy that Hays’s performance at the academy was well-below average, 8 that he was unfit to be a police officer, and that he should not be hired as a police 9 officer. (Id. ¶ 25.) Despite this recommendation, the training sergeant hired Hays as 10 a police officer after being pressured by Hays’s father-in-law—a thirty-year veteran 11 of the SDPD who leads the SDPD’s Special Operations Unit and who 12 inappropriately interfered with and influenced the decision to hire Hays. (Id.) 13 These policies, procedures, and customs underlie Plaintiff’s Monell claim 14 under 42 U.S.C. § 1983 against the City for failing to train, screen, test, evaluate, 15 supervise, and examine officers and policies within the SDPD. (Compl. ¶ 46.) As a 16 result of these policies, procedures, and customs, Plaintiff alleges the City deprived 17 her of her constitutional rights under the Fourth and Fourteenth Amendments. (Id.) 18 19 II. LEGAL STANDARD 20 A motion to dismiss pursuant to 12(b)(6) of the Federal Rules of Civil 21 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 22 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court 23 must accept all factual allegations pleaded in the complaint as true and must construe 24 25 26 27 28 3 For example, Plaintiff alleges these policies include: (i) failing or refusing to adequately discipline police officers for acts of abuse and misconduct; (ii) failing or refusing to impartially investigate citizens’ complaints of alleged abuse or misconduct by police officers; (iii) covering up acts of police officer misconduct or sanctioning a code of silence by police officers; (iv) failing and refusing to adequately supervise the actions of police officers; and (v) intentionally mischaracterizing and misidentifying complaints against police officers of misconduct. (Compl. ¶ 20.) –6– 16cv1161 1 them and draw all reasonable inferences from them in favor of the non-moving party. 2 Cahill, 80 F.3d at 337–38. To avoid a Rule 12(b)(6) dismissal, a complaint need not 3 contain detailed factual allegations; rather, it must plead “enough facts to state a 4 claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 5 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 8 (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely 9 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility 10 and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 11 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 12 relief’ requires more than labels and conclusions, and a formulaic recitation of the 13 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in 14 original) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court need not 15 accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference the 16 court must pay to the plaintiff’s allegations, it is not proper for the court to assume 17 that “the [plaintiff] can prove facts that it has not alleged or that the defendants have 18 violated the . . . law[] in ways that have not been alleged.” Assoc. Gen. Contractors 19 of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 20 In ruling on a Rule 12(b)(6) motion, “a court may not look beyond the 21 complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a 22 defendant’s motion to dismiss.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 23 1197 n.1 (9th Cir. 1998). Further, as a general rule, a court freely grants leave to 24 amend a complaint that has been dismissed. Fed. R. Civ. P. 15(a); Schreiber Distrib. 25 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). However, leave 26 to amend may be denied when “the court determines that the allegation of other facts 27 consistent with the challenged pleading could not possibly cure the deficiency.” 28 Schreiber Distrib. Co., 806 F.2d at 1401 (citing Bonanno v. Thomas, 309 F.2d 320, –7– 16cv1161 1 322 (9th Cir. 1962)). 2 3 III. ANALYSIS 4 The City and Hays move to dismiss Plaintiff’s 42 U.S.C. § 1983 claims on 5 statute of limitations grounds. (ECF Nos. 4, 14.) “A claim may be dismissed under 6 Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations 7 only when ‘the running of the statute is apparent on the face of the complaint.’” Von 8 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 9 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 10 “[A] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff 11 can prove no set of facts that would establish the timeliness of the claim.” Id. 12 (alteration in original) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 13 1204, 1206 (9th Cir. 1995)). 14 Whether a claim under 42 U.S.C. § 1983 is timely depends on a combination 15 of state and federal law that determines (1) the length of the applicable limitations 16 period, (2) the accrual date of the claim, and (3) whether the limitations period was 17 tolled. See, e.g., Wallace v. Kato, 549 U.S. 384, 387–88 (2007); Lucchesi v. Bar-O 18 Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003). A combination of state and federal 19 law influences this inquiry because although 42 U.S.C. § 1983 provides for a federal 20 cause of action, “federal law looks to the law of the State in which the cause of action 21 arose” in several respects. Wallace, 549 U.S. at 387. 22 The first issue, the length of the statute of limitations, is determined by state 23 law. Wallace, 549 U.S. at 387. “It is that which the State provides for personal-injury 24 torts.” Id. (citing Owens v. Okure, 488 U.S. 235, 249–250 (1989); Wilson v. Garcia, 25 471 U.S. 261, 279–280 (1985)). In California, the statute of limitations for personal 26 injury actions is two years. Cal. Code Civ. Proc. § 335.1. Thus, the statute of 27 limitations for a § 1983 claim arising in California is two years. See Wallace, 549 28 U.S. at 387; see also, e.g., Colony Cove Props., LLC v. City of Carson, 640 F.3d –8– 16cv1161 1 948, 956 (9th Cir. 2011) (applying California’s two-year statute of limitations to § 2 1983 action). 3 The second issue, the accrual date, “is the date on which the statute of 4 limitations begins to run.” Lukovsky v. City & Cty. of S.F., 535 F.3d 1044, 1048 (9th 5 Cir. 2008). “[T]he accrual date of a § 1983 cause of action is a question of federal 6 law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388. Instead, 7 as with other aspects of § 1983 that “are not governed by reference to state law,” the 8 court applies “federal rules conforming in general to common-law tort principles.” 9 Id. “Under those principles, it is ‘the standard rule that [accrual occurs] when the 10 plaintiff has “a complete and present cause of action,”’ that is, when ‘the plaintiff 11 can file suit and obtain relief.’” Id. (alteration in original) (citation omitted) (quoting 12 Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 13 522 U.S. 192, 201 (1997)). 14 The third issue, whether the limitations period was tolled for a § 1983 action, 15 is generally governed by state law. See Bd. of Regents of Univ. of N.Y. v. Tomanio, 16 446 U.S. 478, 485–86, n.6 (1980) (discussing New York’s codified tolling rules for 17 the statute of limitations, such as tolling for infancy or imprisonment, in the context 18 of a § 1983 action); Lucchesi, 353 F.3d at 694 (“State law governs the statutes of 19 limitations for section 1983 actions as well as questions regarding the tolling of such 20 limitations periods.”). 21 The Court analyzes these issues below to determine whether it is apparent 22 from the face of Plaintiff’s Complaint that the statute of limitations has run on her 23 claims against Hays and the City. 24 25 26 27 28 –9– 16cv1161 Section 1983 Claim against Hays4 1 A. 2 Plaintiff asserts a claim against Hays under 42 U.S.C. § 1983 for violations of 3 her constitutional rights under the Fourth and Fourteenth Amendments. (Compl. ¶¶ 4 37–43.) Hays argues Plaintiff’s claim is time barred by the statute of limitations 5 because Plaintiff did not file her Complaint until more than two years after the date 6 her claim accrued. (Hays’s Mot. 4:23–27, ECF No. 14-1.) 7 The Court agrees. It is apparent from the face of Plaintiff’s Complaint that her 8 claim is time barred. Because Plaintiff’s claim arose in California, she had two years 9 from the date her § 1983 claim against Hays accrued to file her action. See, e.g., City 10 of Carson, 640 F.3d at 956. Plaintiff alleges Hays sexually battered her on December 11 23, 2013. (Compl. ¶¶ 38–40.) She knew on that date she had been injured and the 12 cause of her injury—Hays’s conduct. (See id.) Thus, under the federal accrual rule, 13 Plaintiff’s claim against Hays accrued on the same day. See Bonneau v. Centennial 14 Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012). That is, she could then 15 commence an action against Hays and obtain relief. See Wallace, 549 U.S. at 388. 16 Yet, she filed her Complaint more than two years later on May 13, 2016. (ECF No. 17 1.) Consequently, Plaintiff’s claim against Hays is time barred unless her allegations 18 demonstrate the limitations period was tolled for a sufficient period to make her 19 claim timely. 20 The Court pivots to California state law to determine whether the statute of 21 limitations for Plaintiff’s § 1983 claim was tolled. See Tomanio, 446 U.S. at 485– 22 86; Lucchesi, 353 F.3d at 694. In her opposition, Plaintiff invokes one of California’s 23 tolling provisions, California Code of Civil Procedure Section 351. (Opp’n 1:23– 24 25 26 27 28 4 Plaintiff brings her first claim under 42 U.S.C. § 1983 against both Hays and the City. (Compl. ¶¶ 37–43.) However, because (i) the City cannot be held liable on a theory of respondeat superior and (ii) this claim does not contain Monell allegations, Plaintiff’s first claim against the City fails. See Monell, 436 U.S. at 691. Further, any amendment to this claim would be “futile.” See Newland v. Dalton, 81 F.3d 904, 906–07 (9th Cir. 1996). Thus, dismissing Plaintiff’s first claim against the City without leave to amend is appropriate. The City’s potential liability under Monell is instead addressed in Section III.B below. – 10 – 16cv1161 1 2:16, ECF No. 15.) This section provides that if a defendant leaves California “after 2 the cause of action accrues,” the defendant’s “absence is not part of the time limited 3 for the commencement of the action.” Cal. Code Civ. Proc. § 351. Plaintiff alleges 4 that Hays left California on June 17, 2015, and has since resided in Russellville, 5 Arkansas. (Compl. ¶ 2.) Therefore, Plaintiff argues the statute of limitations has been 6 tolled since June 17, 2015, and had not yet run when she filed her complaint on May 7 13, 2016. (Opp’n 2:10–16.) 8 The Court finds Plaintiff’s tolling argument unavailing because applying 9 California Code of Civil Procedure Section 351 in these circumstances would be 10 unconstitutional. Various courts have declared this section unconstitutional as a 11 violation of the Commerce Clause when applied in certain situations, particularly 12 those involving out-of-state defendants or defendants who have permanently 13 relocated to another state. See, e.g., Ross v. O’Neal, 525 F. App’x 600, 601–02 (9th 14 Cir. 2013) (applying Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 15 891 (1988), in holding that section 351 is unconstitutional when applied to a former 16 NBA player who was employed by various out-of-state teams during the relevant 17 time period); Dan Clark Family Ltd. P’ship v. Miramontes, 193 Cal. App. 4th 219, 18 234 (2011) (concluding the Commerce Clause precluded application of section 351 19 to nonresident defendants who resided in Mexico); Heritage Mktg. and Ins. Servs., 20 Inc. v. Chrustawka, 160 Cal. App. 4th 754, 763–64 (2008) (holding that section 21 351’s tolling provision violates the Commerce Clause as applied to defendants who 22 move out of the state and establish a permanent residence in another state); cf. State 23 ex rel. Bloomquist v. Schneider, 244 S.W.3d 139, 144 (Mo. 2008) (holding 24 comparable state tolling provision is unconstitutional as applied to “persons who 25 move their residence out of Missouri during the pendency of the statute of 26 limitations”). 27 // 28 // – 11 – 16cv1161 1 In particular, the Court finds the California Court of Appeal’s reasoning in 2 Heritage Marketing and Insurance Services, Inc. v. Chrustawka, 160 Cal. App. 4th 3 754, 762–63 (2008), to be persuasive. There, in an issue of first impression for 4 California courts, the court addressed the constitutionality of California Code of 5 Civil Procedure Section 351 when applied to several defendants who were residents 6 of California but then “moved to Texas and ha[d] lived there since.” Chrustawka, 7 160 Cal. App. 4th at 758. After canvassing several decisions involving section 351 8 or comparable statutes in other jurisdictions, the court concluded applying section 9 351 to toll the statute of limitations would violate the Commerce Clause. Id. at 759– 10 64. It reasoned: 15 Section 351 penalizes people who move out of state by imposing a longer statute of limitations on them than on those who remain in the state. The commerce clause protects persons from such restraints on their movements across state lines. By creating disincentives to travel across state lines and imposing costs on those who wish to do so, the statute prevents or limits the exercise of the right to freedom of movement. 16 Id. at 763–64 (citations omitted). The court further reasoned that applying section 17 351 under the facts of the case “would impose an impermissible burden on interstate 18 commerce as it would force defendants to choose between remaining residents of 19 California until the limitations periods expired or moving out of state and forfeiting 20 the limitations defense, thus ‘remaining subject to suit in California in perpetuity.’” 21 Id. at 764 (quoting Abramson v. Brownstein, 897 F.2d 389, 392 (9th Cir. 1990)). 22 Thus, the court concluded section 351 did not apply, and the causes of action at issue 23 were barred by the applicable statutes of limitations. Id. 11 12 13 14 24 Here, “beginning on or before June 17, 2015, Hays departed from California, 25 began residing in Russellville, Arkansas, and has continued to reside there ever 26 since.” (Compl. ¶ 2.) Similar to the defendants in Chrustawka who had moved to 27 Texas and resided there since, “[a]pplying section 351 under the facts of this case 28 would impose an impermissible burden on interstate commerce as it would force – 12 – 16cv1161 1 [Hays] to choose between remaining [a] resident[ ] of California until the limitations 2 period[ ] expired or moving out of state and forfeiting the limitations defense, thus 3 ‘remaining subject to suit in California in perpetuity.’” See Chrustawka, 160 Cal. 4 App. 4th at 764 (quoting Abramson, 897 F.2d at 392). Consequently, applying 5 section 351 would be unconstitutional in these circumstances. See id. at 764. 6 Moreover, although Plaintiff relies on Maurer v. Individually & as Members 7 of Los Angeles County Sheriff’s Department, 691 F.2d 434, 436–37 (9th Cir. 1982), 8 that decision does not compel a different conclusion. Although the court in Maurer 9 reasoned section 351 could apply to toll a claim under 42 U.S.C. § 1983, it is unclear 10 whether the defendants in Maurer had moved and taken up residence in another 11 state, whereas here Plaintiff alleges Hays now resides in Arkansas. See Maurer, 691 12 F.2d at 436–37. More importantly, Maurer predates (1) the Supreme Court’s 13 decision in Bendix, 486 U.S. 888, which held a tolling provision that hinged on 14 whether the defendant was present in the state violated the Commerce Clause, and 15 (2) the Ninth Circuit’s subsequent decision in Abramson v. Brownstein, 897 F.2d 16 389 (9th Cir. 1990), which held section 351 violated the Commerce Clause when 17 applied to the facts of that case. See also Ross, 525 F. App’x at 601–02. Hence, the 18 Court finds Maurer is inapposite. 19 Plaintiff also cites to Dew v. Appleberry, 23 Cal. 3d 630 (1979), in her 20 Opposition. There, the plaintiff relied on California Code of Civil Procedure Section 21 351 because the defendant “had been absent from California for five weeks” during 22 the limitations period. Dew, 23 Cal. 3d at 633. Thus, unlike the authority discussed 23 above, this decision did not specifically address a defendant who had moved to 24 another jurisdiction to reside there. See id. It also, like Maurer, predates subsequent 25 federal and California authority that had the advantage of the Supreme Court’s 26 decision in Bendix, 486 U.S. 888. Therefore, the Court finds this decision is 27 distinguishable from the present case. 28 // – 13 – 16cv1161 1 Plaintiff does not advance any other tolling argument in her opposition. 2 Accordingly, because Plaintiff commenced her action against Hays more than two 3 years after her claim accrued, and because her allegations do not establish the statute 4 of limitations for her claim was tolled, her claim is time barred and subject to 5 dismissal. 6 That said, the Court will grant Plaintiff leave to amend her claim. “[W]hen a 7 viable case may be pled, a district court should freely grant leave to amend.” 8 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 9 2011) (citing Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002)). It 10 is possible that Plaintiff could plausibly plead the application of one of California’s 11 tolling doctrines or statutory provisions to toll the statute of limitations to make her 12 claim against Hays timely. Moreover, Plaintiff has not previously amended her 13 Complaint. Therefore, the Court will grant Plaintiff leave to amend her first claim 14 against Hays. See Fed. R. Civ. P. 15(a). 15 Monell Claim against the City5 16 B. 17 Plaintiff also brings a claim against the City under 42 U.S.C. § 1983 and 18 Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). 19 (Compl. ¶¶ 44–47.) Similar to Hays’s attack on Plaintiff’s individual claim, the City 20 argues Plaintiff’s Monell claim should be dismissed because it is time barred by the 21 two-year statute of limitations. (City’s Mot. 1:2–15, ECF No. 4.) The City further 22 argues Plaintiff’s allegations do not demonstrate delayed accrual of her Monell claim 23 or that the statute of limitations was tolled. (Id. 3:6–17:9.) 24 // 25 26 27 28 5 Plaintiff brings her second claim under 42 U.S.C. § 1983 and Monell against both the City and Hays. (Compl. ¶¶ 44–47.) However, because Hays is an individual, Monell is inapplicable, and Plaintiff’s second claim against Hays fails. See Monell, 436 U.S. at 691. Further, any amendment to this claim would be “futile.” See Newland, 81 F.3d at 906–07. Thus, dismissing Plaintiff’s second claim against Hays without leave to amend is appropriate. – 14 – 16cv1161 1 The Court’s resolution of the City’s motion depends on whether Plaintiff may 2 proceed on a theory that her Monell claim accrued at a later date than her individual 3 claim against Hays. As mentioned above, federal law governs the accrual date of 4 Plaintiff’s Monell claim. See, e.g., Wallace, 549 U.S. at 388. The court considers 5 “federal rules conforming in general to common-law tort principles.” Id. “The 6 general common law principle is that a cause of action accrues when ‘the plaintiff 7 knows or has reason to know of the injury.’” Bonneau v. Centennial Sch. Dist. No. 8 28J, 666 F.3d 577, 581 (9th Cir. 2012) (quoting TwoRivers v. Lewis, 174 F.3d 987, 9 991 (9th Cir. 1999)). The Ninth Circuit has “interpreted the ‘question . . . [of] what 10 . . . we mean by injury’ with some flexibility, and held that a ‘claim accrues’ not just 11 when the plaintiff experiences the injury, but ‘when the plaintiff knew or in the 12 exercise of reasonable diligence should have known of the injury and the cause of 13 that injury.’” Id. (alterations in original) (quoting Lukovsky, 535 F.3d at 1050). 14 To this Court’s knowledge, the Ninth Circuit has not addressed specifically 15 when a Monell claim under 42 U.S.C. § 1983 accrues. See Matheny v. Clackamas 16 Cty., No. 3:10-CV-1574-BR, 2012 WL 171015, at *4 (D. Or. Jan. 20, 2012) (“[T]he 17 Ninth Circuit has not specifically addressed the issue of claims accrual in the context 18 of a Monell claim.”). In general, “[r]elatively few decisions have given serious 19 consideration to the accrual of § 1983 municipal and supervisory liability claims.” 20 Martin A. Schwartz, Section 1983 Litigation Claims & Defenses § 12.03 (2017). 21 Several district courts in the Ninth Circuit, however, have encountered the issue. See 22 Doe v. City of Eugene, No. 6:15-CV-00154-JR, 2016 WL 1385450, at *1 (D. Or. 23 Apr. 6, 2016); Matheny, 2012 WL 171015, at *4; Temple v. Adams, No. CV-F04- 24 6716 OWW DLB, 2006 WL 2454275, at *10 (E.D. Cal. Aug. 23, 2006). These 25 courts have relied on the accrual analysis for a Monell claim from Pinaud v. County 26 of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995). In Pinaud, the Second Circuit 27 reasoned that because “an actionable claim under § 1983 against a county or 28 municipality depends on a harm stemming from the municipality’s ‘policy or – 15 – 16cv1161 1 custom,’ a cause of action against the municipality does not necessarily accrue upon 2 the occurrence of a harmful act, but only later when it is clear, or should be clear, 3 that the harmful act is the consequence of a county ‘policy or custom.’” 52 F.3d at 4 1157; see also id. at 1157 n.17 (“The issue before us, instead, is precisely that of 5 when [the plaintiff] knew or should have known enough to claim the existence of a 6 ‘policy or custom’ so that he could sue the County.”); but see Lawson v. Rochester 7 City Sch. Dist., 446 F. App’x 327, 329 (2d Cir. 2011) (disagreeing with Pinaud in 8 summary disposition and noting “a § 1983 cause of action accrues when ‘the 9 plaintiff becomes aware that [he] is suffering from a wrong for which damages may 10 be recovered in a civil action.’” (alteration in original) (quoting Eagleston v. Guido, 11 41 F.3d 865, 872 (2d Cir. 1994))). 12 In addition to these decisions, which discussed Monell specifically, the Ninth 13 Circuit’s decision in Bonneau v. Centennial School District No. 28J, 666 F.3d 577, 14 581–82 (9th Cir. 2012), indicates it is possible for a plaintiff to plead delayed accrual 15 of a § 1983 claim. There, the 34 year-old plaintiff alleged he experienced physical 16 and emotional injuries when he was beaten by teachers while he was an elementary 17 school student from 1986 to 1988. Id. at 579. The Ninth Circuit addressed the 18 plaintiff’s argument “that accrual of his claims should be delayed because he 19 repressed memories of the beatings.” Id. at 580. Although the court ultimately found 20 the plaintiff had not alleged sufficient facts to support delayed accrual of his claim, 21 the court’s reasoning indicates that a plaintiff, with sufficient facts, could allege 22 delayed accrual based on being unaware of an injury or cause of the injury. See id. 23 at 581. 24 Against this backdrop, the Court concludes it is possible for Plaintiff to 25 proceed on a theory of delayed accrual of her Monell claim. In applying the federal 26 accrual rule, the injury underlying Plaintiff’s Monell claim is the same as her claim 27 against Hays. This alleged injury occurred on December 23, 2013, when Hays 28 sexually battered Plaintiff. (Compl. ¶¶ 38–40.) But “a ‘claim accrues’ not just when – 16 – 16cv1161 1 the plaintiff experiences the injury, but ‘when the plaintiff knew or in the exercise 2 of reasonable diligence should have known of the injury and the cause of that 3 injury.’” See Bonneau, 666 F.3d at 582 (emphasis added) (quoting Lukovsky, 535 4 F.3d at 1050). For Plaintiff’s Monell claim, the cause of her injury is the City’s 5 alleged wrongful policies. See Dougherty v. City of Covina, 654 F.3d 892, 900–01 6 (9th Cir. 2011). The City “may not be held liable under 42 U.S.C. § 1983, unless a 7 policy, practice, or custom of the [City] can be shown to be a moving force behind 8 a violation of constitutional rights.” Id. at 900 (citing Monell, 436 U.S. at 694). Thus, 9 to establish the City is liable under Monell, Plaintiff must prove: “(1) that [she] 10 possessed a constitutional right of which [s]he was deprived; (2) that the 11 municipality had a policy; (3) that this policy amounts to deliberate indifference to 12 [her] constitutional right; and, (4) that the policy is the moving force behind the 13 constitutional violation.” Id. (second alteration in original) (quoting Plumeau v. Sch. 14 Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). Consequently, there 15 can be no liability unless the City had a policy that was the “moving force” behind 16 the violation of Plaintiff’s constitutional rights. See id. at 900–01 It follows that 17 Plaintiff’s claim accrued when she “knew or in the exercise of reasonable diligence 18 should have known” of not only her injury, but also the City’s alleged wrongful 19 policies—the cause of her injury for her Monell claim. See Bonneau, 666 F.3d at 20 582. 21 As for when Plaintiff discovered the cause of her injury, Plaintiff alleges that 22 she “did not know . . . until April 2016, the City and the SDPD had engaged in the 23 practices or committed the failures” underlying her Monell claim. (Compl. ¶ 36.) 24 Plaintiff claims her “living conditions at the time of the assault not only made her 25 very vulnerable to Hays’s exploitation, but also made it impossible for her to learn 26 any facts giving rise to the Monell claim.” (Id.) “[S]he was homeless and financially 27 destitute at the time, and had no meaningful access to any public records or media 28 that would have provided her any such information.” (Id.) Further, although she – 17 – 16cv1161 1 cooperated with “SDPD and District Attorney detectives and investigators,” 2 Plaintiff alleges “none of the detectives, lawyers, advocates, or other members of 3 the prosecution team provided any information to [Plaintiff] that would have led a 4 reasonable person to suspect the facts giving rise to the Monell allegations in this 5 complaint.” (Id.) Rather, Plaintiff alleges the “SDPD and District Attorney 6 detectives . . . discouraged her from pursuing legal action against Hays and the City.” 7 (Id.) In addition, for the third officer involved in Plaintiff’s Monell allegations, 8 Officer Hychko, Plaintiff alleges when the new Chief of Police took over in 2014, 9 the investigation that resulted in the officer’s termination was confidential and 10 conducted “out of the media’s and the public’s eyes.” (Id. ¶ 18.) When Plaintiff’s 11 allegations are accepted as true and all reasonable inferences from the allegations 12 are drawn in favor of Plaintiff, the Court concludes Plaintiff has sufficiently pled 13 delayed accrual of her Monell claim against the City. 14 The arguments raised by the City in response to Plaintiff’s delayed accrual 15 theory highlight the fact that Plaintiff knew Hays had injured her. (See Reply 9:7– 16 23, ECF No. 6.) Thus, the City argues she “knew of her injury and who caused her 17 injury.” (Id. 9:7.) Yet, as discussed above, whether Plaintiff simply knew Hays 18 “caused her injury” does not resolve the issue of when her Monell claim accrued. 19 Further, to the extent the City disagrees with Plaintiff’s factual allegations regarding 20 the accrual of her Monell claim, including that she was not aware of the basis for the 21 claim until many months later, the City may investigate these allegations in 22 discovery and challenge them appropriately—including by bringing a motion for 23 summary judgment to pierce Plaintiff’s pleadings and again assert the statute of 24 limitations. In sum, the Court concludes dismissing Plaintiff’s Monell claim against the 25 26 City on statute of limitations grounds is not appropriate. 27 // 28 // – 18 – 16cv1161 1 IV. CONCLUSION 2 In light of the foregoing, the Court GRANTS IN PART and DENIES IN 3 PART the City’s motion to dismiss (ECF No. 4). Specifically, the Court dismisses 4 Plaintiff’s first claim against the City without leave to amend but denies the City’s 5 request to dismiss Plaintiff’s second claim. 6 In addition, the Court GRANTS Hays’s motion to dismiss (ECF No. 14). The 7 Court dismisses Plaintiff’s first claim against Hays with leave to amend and 8 dismisses Plaintiff’s second claim against Hays without leave to amend. If Plaintiff 9 chooses to file a First Amended Complaint, she must do so no later than January 10 11 27, 2017. IT IS SO ORDERED. 12 13 DATED: January 13, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 19 – 16cv1161

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