Fuentes et al v. City of San Diego et al

Filing 19

ORDER Granting in Part and Denying in Part Defendants' 8 Motion to Dismiss. 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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ALFREDO FUENTES and SOCORRO
FUENTES,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Plaintiffs,

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Case No.: 3:16-cv-02871-BEN-JMA

v.

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CITY OF SAN DIEGO, a public entity;
SAN DIEGO POLICE DEPARTMENT, a
public entity; and SAN DIEGO POLICE
DEPARTMENT OFFICER
MEISELMEN, individually and in his
official capacity,

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Defendants.

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[ECF No. 8]

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Plaintiffs Alfredo Fuentes and Socorro Fuentes, husband and wife, bring this

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action for damages and injunctive relief based on the shooting death of their family pet,

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Grizzly, a seven-year-old mixed breed canine, by San Diego Police Department Officer

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Meiselmen. (Compl., ECF No. 1). Defendants City of San Diego (the “City”), San

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Diego Police Department (“SDPD”), and Officer Meiselmen (collectively,

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“Defendants”) move to dismiss the complaint. (Mot., ECF No. 8). Plaintiffs oppose the

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motion (Opp’n, ECF No. 15), and Defendants replied (Reply, ECF No. 18).

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For the reasons discussed below, the Court GRANTS IN PART and DENIES IN
PART Defendants’ motion.

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BACKGROUND1

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Shortly before midnight on February 21, 2016, Defendant San Diego Police

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Department Officer Meiselmen and/or other SDPD officers entered Plaintiffs’ property

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to inquire whether Plaintiffs had witnessed a vehicle theft reported by Plaintiffs’

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neighbor, Mr. Chavira. (Compl. ¶ 2). Mr. Chavira had informed the officers that they

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need not question Plaintiffs at that time due to the late hour and the family dog on the

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property. (Id. ¶ 4). The officers ignored this information and multiple “Beware of Dog”

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signs and unlatched a secure gate to enter the fenced property. (Id.)

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The officers pounded on the front door, but did not announce the presence of

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police, awaking Plaintiffs. (Id. ¶ 26). As Mr. Fuentes neared the front door, he heard

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four gunshots just outside his home. (Id. ¶ 27). Officer Meiselmen had fired the shots at

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Plaintiffs’ dog, Grizzly. (Id. ¶ 30). Grizzly was shot at least three times. (Id. ¶ 30).

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Grizzly was known to be a friendly dog and had participated in various community

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events. (Id. ¶ 15). Upon Plaintiffs’ information and belief, Grizzly never made an

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aggressive move towards Officer Meiselmen. (Id.). Mr. Fuentes eventually located his

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wounded dog in the backyard, but the SDPD officers refused to provide any assistance

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and responded to Plaintiffs’ pleas for medical attention by interrogating Mr. Fuentes as

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to what he may have seen happen to Mr. Chavira’s vehicle. (Id. ¶ 33). Grizzly

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ultimately bled to death in the backyard from his wounds. (Id. ¶ 30).

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On November 11, 2016, Plaintiffs filed a complaint alleging (1) trespass to chattel

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against all Defendants, (2) conversion against Officer Meiselmen, (3) conversion against

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the City and SDPD, (4) violation of 42 U.S.C. § 1983 against all Defendants, (5)

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negligence against the City and SDPD, (6) negligence against Officer Meiselmen, and

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The Court is not making any findings of fact, but rather, summarizing the relevant
allegations of the complaint for purposes of evaluating Defendants’ motion to dismiss.
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(7) intentional infliction of emotional distress against all Defendants. Defendants move

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to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

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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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DISCUSSION
Defendants raise a number of arguments challenging Plaintiffs’ claims. The Court

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addresses these arguments in turn.

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I.

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Common Law Claims Against the City and SDPD
Defendants move to dismiss four claims for relief based on common law—the first

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(trespass to chattel), third (conversion), fifth (negligence; government), and seventh

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(intentional infliction of emotional distress) claims—as alleged against the City and

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SDPD. The common law claims present two possible theories of liability. First, the

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complaint contains some allegations to suggest that Plaintiffs seek to hold the public

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entities directly liable on the basis of negligent training and supervision of Officer

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Meiselmen. Second, the complaint includes allegations that Plaintiffs seek to hold the

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City and SDPD vicariously liable.

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Under California law, a “public entity is not liable for an injury,” “[e]xcept as
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otherwise provided by statute.” Cal. Gov’t Code § 815; AE ex rel. Hernandez v. Cnty. of

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Tulare, 666 F.3d 631, 638 (9th Cir. 2012) (“California public entities are not subject to

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common law tort liability; all liability must be pursuant to statute.”). Thus, to hold a

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public entity directly liable, a plaintiff must identify a statute that authorizes the direct

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claims. Here, Plaintiffs fail to allege any statutory authority to support claims for direct

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liability against the City and SDPD. To this extent, the claims are dismissed with leave

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to amend.

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Although Plaintiffs’ theory of direct liability fails, its theory of vicarious liability

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survives. California Government Code section 815.2 makes a public entity vicariously

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liable “for injury proximately caused by an act or omission of an employee of the public

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entity within the scope of his employment if the act or omission would, apart from this

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section, have given rise to a cause of action against that employee or his personal

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representative.” § 815.2. Accordingly, Plaintiffs may pursue a theory of vicarious

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liability against the City and SDPD. Defendants raise discretionary immunity as a

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defense in their Reply, but the Court will not consider this belated argument. See United

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States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (stating that courts ordinarily decline to

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consider arguments raised for the first time in a reply brief).

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Despite the Court’s finding that vicarious liability is a legally viable theory in

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general, Plaintiffs’ fifth claim for “negligence; government” fails to state a plausible

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claim. The fifth claim for relief is against the City and SDPD and, while its theory is

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somewhat unclear, part of the pleading appears to allege negligence in selection, training,

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retention, and supervision of Officer Meiselmen. That is, Plaintiffs seek to hold the City

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and SDPD vicariously liable for negligent acts of its employees and/or administrators in

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hiring, training, and supervising Officer Meiselmen.2

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Plaintiffs also allege another negligence claim—the sixth claim for relief—against
Officer Meiselmen for breaching his duty of care. As noted, the City and SDPD may be
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The California Supreme Court has permitted a plaintiff to sue a public entity for

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negligent hiring, retention, and supervision on the basis of vicarious liability. In C.A. v.

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William S. Hart Union High School District, the court held that the plaintiff could pursue

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a vicarious liability claim against a public school district for the negligence of its

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administrators in hiring and overseeing a guidance counselor that abused the plaintiff. 53

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Cal. 4th 861 (2012). Critically, however, the court limited the viability of this type of

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claim to situations where the supervisory or administrative personnel had a “special

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relationship” with the plaintiff. Id. at 877. There, the administrators had a special

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relationship with the plaintiff, a student under their supervision, “arising from the

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mandatory character of school attendance and the comprehensive control over students

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exercised by school personnel.” Id. at 869. That special relationship “entailed a duty to

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take reasonable measures to protect plaintiff from injuries at the hands of others in the

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school environment.” Id. at 877. But “[a]bsent such a special relationship, there can be

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no individual liability to third parties for negligent hiring, retention or supervision of a

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fellow employee, and hence no vicarious liability under section 815.2.” Id.

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In this case, Plaintiffs have not identified a special relationship between Officer

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Meiselmen’s supervisors and Plaintiffs. Rather, Plaintiffs generally allege that the City

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and/or SDPD have a duty to protect people from harm and exercise care in selection,

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retention, training, and supervision of their employees. However, these alleged duties do

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not resemble the enhanced duties imposed on school personnel that formed the basis for

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their special relationship with the minor plaintiff in William S. Hart. See Lindsay v.

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Fryson, No. 2:10-cv-02842 LKK KJM PS, 2012 WL 2683019, at *7 (E.D. Cal. July 6,

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2012). Accordingly, Plaintiffs have not stated a plausible vicarious liability claim for

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negligent hiring, training, and supervision. The fifth claim for relief is dismissed with

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leave to amend.

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vicariously liable for Officer Meiselmen’s acts under California Government Code
section 815.2.
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II.

Conversion Claim

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Defendants argue that the second claim for relief, a conversion claim against

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Officer Meiselmen, fails as a matter of law because Meiselmen is entitled to the privilege

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of self-defense. Defendants argue that a reasonable inference from Plaintiffs’ allegations

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is that Grizzly was not friendly and that Officer Meiselmen felt threatened by the dog.
The Court disagrees. Defendants’ argument asks the Court to draw inferences

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against Plaintiffs, which is improper on a motion to dismiss. The Court denies the

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motion to dismiss on this ground.

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III.

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Federal Claim Under 42 U.S.C. § 1983
The fourth claim for relief, the federal claim under 42 U.S.C. § 1983, is alleged

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against all Defendants. To establish § 1983 liability, a plaintiff must show a deprivation

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of a right secured by the Constitution and laws of the United States and that the

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deprivation was caused by a person acting under color of state law. 42 U.S.C. § 1983.

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“The killing of a dog is a destruction recognized as a seizure under the Fourth

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Amendment and can constitute a cognizable claim under § 1983.” San Jose Charter of

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Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005)

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(internal citation omitted).

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Defendants advance several arguments to dismiss the fourth claim. First,

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Defendants argue that SDPD is not a properly named Defendant in this action. The Court

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agrees. Section 1983 liability applies to “persons.” It is beyond dispute that a local

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governmental unit or municipality can be sued as a “person” under section 1983. Monell

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v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). However, “municipal police

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departments and bureaus are generally not considered ‘persons’ within the meaning of 42

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U.S.C. § 1983.” United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005).

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Plaintiffs allege that SDPD is “operated as a division and/or under the control of

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Defendant the City.” (Compl. ¶ 18). The Court dismisses the SDPD from the § 1983

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claim without leave to amend because amendment would be futile. Albrecht v. Lund, 845

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F.2d 193, 195 (9th Cir. 1988) (leave to amend may be denied where amendment is futile),

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modified on other grounds 856 F.2d 111 (9th Cir. 1988).

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With the SDPD dismissed, Defendants argue that Officer Meiselmen is entitled to

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qualified immunity and that the City is derivatively entitled to Officer Meiselmen’s

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immunity. Qualified immunity serves to shield government officials “from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether an officer is entitled to

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qualified immunity, the court considers (1) whether there has been a violation of a

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constitutional right, and (2) whether that right was clearly established at the time of the

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officer’s alleged misconduct. C.V. by & through Villegas v. City of Anaheim, 823 F.3d

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1252, 1255 (9th Cir. 2016). Both prongs must be present for the officer to be liable;

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otherwise, he is entitled to immunity.
The Ninth Circuit’s decision in Hells Angels compels this Court to deny qualified

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immunity at this time. In Hells Angels, police officers executed search warrants at two

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properties and had advance notice that the properties featured large and potentially

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dangerous dogs. Despite this knowledge, the officers failed to consider any non-lethal

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methods to subdue the dogs. The officers shot and killed the dogs when they entered the

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properties and feared the dogs would attack them.
The Ninth Circuit held that the officers violated the plaintiffs’ Fourth Amendment

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rights by unnecessarily shooting the dogs. In finding the seizures unreasonable, the court

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balanced the intrusion of the seizures against the countervailing governmental interests at

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stake. The court found that the killing of the dogs was a severe intrusion that was not

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warranted by the circumstances. The officers knew dogs were present, yet failed to

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develop a non-lethal plan for engaging or subduing the dogs. The officers were not

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responding to an emergency. Although the search warrants were obtained in connection

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with a murder investigation, none of the plaintiffs were potential suspects.

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The Ninth Circuit also denied the officers qualified immunity. The court found

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that a reasonable officer should have known that the Fourth Amendment forbids killing a

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person’s dog when less intrusive, or less destructive, alternatives exist. As applied to the

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particular circumstances of the case, the court stated that a “reasonable officer should

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have known that to create a plan to enter the perimeter of a person’s property, knowing

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all the while about the presence of dogs on the property, without considering a method

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for subduing the dogs besides killing them, would violate the Fourth Amendment.” Hells

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Angels, 402 F.3d at 978.

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Here, the complaint’s allegations set forth a plausible claim of a Fourth

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Amendment violation that was clearly established at the time of the shooting. The

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complaint alleges that Officer Meiselmen, acting in a non-emergency situation and with

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advance notice of a dog on the premises, entered Plaintiffs’ property and, without

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provocation, shot Grizzly. (See Compl. ¶¶ 2-4 (stating that the officers were

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investigating a report of a stolen car; that Plaintiffs were potential witnesses of the theft,

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but not suspects; and that the officers were personally warned about the dog by a

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neighbor and that multiple Beware of Dogs signs were posted)). The alleged facts fall

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squarely within the test articulated in Hells Angels. Considering the totality of the

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circumstances, the seizure was unreasonable. And the violation was clearly established

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law in 2016. The Ninth Circuit decided Hell’s Angels eleven years before the events at

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issue, thus giving Officer Meiselmen “fair warning” that his alleged actions were

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unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Therefore, Officer

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Meiselmen is not entitled to qualified immunity.

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Finally, Defendants seek to dismiss the § 1983 claim against the City by arguing

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that the complaint insufficiently pleads a Monell claim for municipal liability. A local

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government entity may not be held liable under 42 U.S.C. § 1983 unless a policy, custom,

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or practice of the entity is shown to be a moving force behind a violation of constitutional

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rights. Monell, 436 U.S. at 694. To establish municipal liability under Monell, a plaintiff

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must prove: “(1) that the plaintiff possessed a constitutional right of which he was
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deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate

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indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving

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force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892,

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900 (9th Cir. 2011).
The complaint adequately pleads a deprivation of Plaintiffs’ Fourth Amendment

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rights. The question, therefore, is whether the complaint plausibly alleges that the City is

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responsible for the violation. It does not. Here, Plaintiffs plead only that the City has a

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“policy of allowing its employees to disregard the lives of families’ companion animals”

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and that the “policies, retention, training, supervision, management, regulation, oversight,

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discipline, and/or review of qualifications by [the City] allow, condone, ratify, and/or

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afford the reckless, careless, and/or erroneous shooting of canines; and thereby allow,

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condone, ratify, and/or afford incompetent, unqualified, untrained, unskilled, and/or

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inexperienced personnel to shoot animals . . . ; foreseeably resulting in the unjustified

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killing of companion animals.” (Compl. ¶¶ 78-79). Plaintiffs appear to seek Monell

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liability on the basis of an unlawful official policy, failure to train and supervise, and

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ratification.
The Court finds that Plaintiffs’ Monell claims “lack any factual allegations that

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would separate them from the ‘formulaic recitation of a cause of action’s elements’

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deemed insufficient by Twombly.” Dougherty, 654 F.3d at 900 (internal citation

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omitted). Their allegations are mostly conclusory and fail to address all the elements of a

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Monell violation. For instance, a “[f]ailure to train may amount to a policy of ‘deliberate

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indifference,’ if the need to train was obvious and the failure to do so made a violation of

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constitutional rights likely.” Id. at 900 (citing City of Canton v. Harris, 489 U.S. 378,

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390 (1989)). But the complaint lacks factual allegations about the failure to train being

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obvious and likely to result in a constitutional violation. The § 1983 against the City is

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dismissed with leave to amend. See id. at 900-01 (affirming dismissal of Monell claim

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where complaint lacked factual allegations supporting all elements of the claim).

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CONCLUSION

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For the reasons stated above, the Court GRANTS IN PART and DENIES IN

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PART Defendants’ motion to dismiss. The fifth claim for relief as alleged directly and

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vicariously against the City and SDPD is dismissed with leave to amend. The first,

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third, and seventh claims for relief as alleged directly against the City and SDPD are

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dismissed with leave to amend. The SDPD is dismissed from the § 1983 claim without

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leave to amend. The § 1983 claim against the City is dismissed with leave to amend.

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IT IS SO ORDERED.
Dated: June 20, 2017

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