De Leon v. San Diego, County of et al

Filing 13

ORDER Granting Defendant's 8 Motion to Dismiss. The Court grants Plaintiff 21 days leave to amend his complaint. Signed by Judge Roger T. Benitez on 6/20/2017. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WARNER DE LEON,

Case No.: 3:16-cv-02507-BEN-JLB
Plaintiff,

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v.

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

COUNTY OF SAN DIEGO; and DOES 1
through 50, inclusive,

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Defendants.

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I. INTRODUCTION

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Plaintiff Warner De Leon brings this action under 42 U.S.C. § 1983 for damages

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arising from an alleged car stop. Before the Court is Defendant County of San Diego’s

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(“County”) Motion to Dismiss Plaintiff’s claims pursuant to Federal Rule of Civil

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Procedure 12(b)(6). Because Plaintiff fails to set forth sufficient facts on which to base

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his municipal liability claims, Defendant’s Motion to Dismiss is GRANTED as to claims

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five and six. Furthermore, because Plaintiff has not identified a statute authorizing direct

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liability against the County, Defendant’s motion to dismiss the state law claims is

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GRANTED to the extent those claims plead direct liability.

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II. BACKGROUND1

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On June 6, 2016, San Diego County Sheriff’s deputies pulled over Plaintiff’s

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vehicle while he was driving on Highway 78. (Compl. ¶¶ 13-15). The Sheriff’s deputies,

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Doe Defendants 1-25, drew their firearms on Plaintiff and ordered him out of his car. (Id.

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at ¶ 16). The deputies then handcuffed Plaintiff and placed him in one of their vehicles.

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(Id. at ¶ 19). The deputies searched his vehicle without consent, exigent circumstances,

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or a warrant. (Id. ¶¶ 21-22, 31). Doe Defendants 1-25 ripped out the upholstery of

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Plaintiff’s vehicle and threw his personal belongings in the road. (Id. at ¶¶ 23-24). After

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Doe Defendants 1-25 completed the search of the vehicle, they released Plaintiff from

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custody. (Id. at ¶ 25).

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Plaintiff subsequently brought suit alleging multiple claims under federal and state

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law. He alleges: (1) a Fourth Amendment violation for an unreasonable seizure of his

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person, alleged against Doe Defendants 1-25; (2) a Fourth Amendment violation for

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unreasonable seizure of his automobile, alleged against Doe Defendants 1-25; (3) a

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violation of 42 U.S.C. § 1983 for excessive use of force, alleged against Doe Defendants

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1-25; (4) a Fourth Amendment violation for unreasonable search and seizure of a person,

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alleged against Doe Defendants 1-25; (5) a Monell claim for failure to train and

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supervise, alleged against Doe Defendants 26-50 and the County; (6) a Monell claim

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against Doe Defendants 26-50 and the County, alleging that the unconstitutional acts of

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Doe Defendants 1-25 were (i) caused by inadequate training and supervision and/or

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deliberate indifference of the County and Doe Defendants 26-50, (ii) pursuant to County

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custom or policy, and/or (iii) ratified by a final decision maker of the County; (7) false

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The Court is not making any findings of fact, but rather, summarizing the relevant
allegations of the complaint for the purposes of evaluating Defendant’s Motion to
Dismiss.
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arrest and false imprisonment, alleged against all Defendants; (8)2 battery, alleged against

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the County and Doe Defendants 1-25; (9) assault, alleged against the County and Doe

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Defendants 1-25; (10) negligence, alleged against all Defendants; (11) intentional

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infliction of emotional distress, alleged against all Defendants; (12) violation of

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California Civil Code § 52.1, alleged against all Defendants; and (13) conversion and/or

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trespass to chattels, alleged against Doe Defendants 1-25.

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Plaintiff has not named or served the Doe Defendants. Defendant County of San
Diego now moves to dismiss the claims alleged against it.

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III. LEGAL STANDARD

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be

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granted where the pleadings fail to state a claim upon which relief can be granted. When

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considering a Rule 12(b)(6) motion, the court must “accept as true facts alleged and draw

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inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto

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Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege

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conceivably unlawful conduct but must allege “enough facts to state a claim to relief that

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is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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is facially plausible ‘when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

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Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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IV. DISCUSSION
The County moves to dismiss Plaintiff’s claims on two grounds: first, Plaintiff

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fails to allege sufficient facts to support municipal liability, and second, Plaintiff’s claims

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There is no eighth claim for relief listed in the complaint. The Court has listed the
claims in the order they appear in the complaint, not as they are numbered in the
complaint.
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based on state law must fail as a matter of law because counties and municipal entities

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cannot be sued directly. Plaintiff responds that he does not sue the County directly for

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the state law claims, but under a theory of vicarious liability pursuant to California

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Government Code § 815.2. The Court reviews each argument in turn.

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A. Claims Five and Six Based on Monell Liability

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A plaintiff may bring a suit for deprivation of federal rights against any person

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acting under color of state law. 42 U.S.C. § 1983. Municipalities and other local

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government units are among those persons to whom § 1983 applies. Monell v. Dep’t of

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Soc. Servs., 436 U.S. 658, 690 (1978). Municipal liability can be established two ways:

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through an express municipal policy or through a widespread practice that, although not

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authorized by written law or express municipal policy, is so permanent and well-settled

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as to constitute a custom or usage with the force of law. City of Saint Louis v.

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Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S.

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144, 167-68 (1970)). The alleged action must amount to more than a bare allegation of

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the existence of such policies or practices. White v. Cnty. of San Diego, No. 13-cv-1166,

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2013 WL 12080218, at *3 (S.D. Cal. Aug. 14, 2013) (dismissing Monell claim where

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plaintiff recited conclusory allegations of County customs and practices).

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Plaintiff alleges the County was acting pursuant to “the customs, policies, usages

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and practices” of the San Diego County Sheriff’s office. (Compl. ¶¶ 62-65). Plaintiff

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additionally alleges that the County’s “training policies” are inadequate and that the

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County and Doe Defendants 26-50 have failed to properly train their employees. (Id. ¶

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45, 51). Finally, Plaintiff alleges that a County “final policymaker” ratified the individual

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deputies’ acts. (Id. ¶ 62).

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The only facts alleged in the complaint are those pertaining to the single incident

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between Plaintiff and Doe Defendants 1-25 on Highway 78. “Proof of a single incident

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of unconstitutional activity is not sufficient to impose liability under Monell, unless proof

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of the incident includes proof that it was caused by an existing, unconstitutional

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municipal policy, which policy can be attributed to a municipal policymaker.” City of
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Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). But no specific policy or policy

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maker is alleged in the complaint. Additionally, no similar incidents of Sheriff’s deputy

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conduct are alleged to support the existence of a “custom or practice,” and no facts are

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alleged to support a ratification claim. For this reason, Defendant’s Motion to Dismiss

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claims five and six is GRANTED. Plaintiff is given leave to amend his complaint to

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cure factual insufficiency.

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B. The County’s Liability for the State Law Claims

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The County moves to dismiss the state law claims to the extent Plaintiff seeks to

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hold the County directly liable. Under California law, a “public entity is not liable for an

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injury,” “[e]xcept as otherwise provided by statute.” Cal. Gov’t Code § 815; AE ex rel.

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Hernandez v. Cnty. of Tulare, 666 F.3d 631, 638 (9th Cir. 2012) (“California public

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entities are not subject to common law tort liability; all liability must be pursuant to

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statute.”). Thus, to hold a public entity directly liable, a plaintiff must identify a statute

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that authorizes the direct claims.

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Here, Plaintiff fails to allege any statutory authority to support claims for direct

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liability against the County. Thus, the County’s Motion to Dismiss the state law claims

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on a theory of direct liability is GRANTED. Because Plaintiff concedes that he is not

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pursuing direct claims, but rather is pursuing claims of vicarious liability, 3 the Court

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denies leave to amend the complaint to plead direct liability.

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California Government Code § 815.2 makes a public entity vicariously liable “for injury
proximately caused by an act or omission of an employee of the public entity within the
scope of his employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employee or his personal representative.” § 815.2.
The County does not challenge the state law claims to the extent they are based on
vicarious liability. The state law claims survive to the extent they plead vicarious
liability.
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V. CONCLUSION
Defendant County’s motion to dismiss is GRANTED. As explained above, the
Court grants Plaintiff 21 days leave to amend his complaint.
IT IS SO ORDERED.
Dated: June 20, 2017

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