Cardenas v. County of Tehama ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO GUDINO CARDENAS, et No. 2:18-cv-03021-TLN-DMC al., 12 Plaintiffs, 13 ORDER v. 14 COUNTY OF TEHAMA, et al., 15 Defendants. 16 17 18 This matter is before the Court on Defendants County of Tehama (“County”), Sheriff 19 Dave Hencratt (“Hencratt”), Assistant Sheriff Phil Johnston (“Johnston”), and Sheriff Deputy 20 Lester Squier (“Squier”) (collectively, “County Defendants”) Motion to Dismiss. (ECF No. 22.) 21 Plaintiffs Francisco Gudino Cardenas and Marta Gudino Landaverde (collectively, “Plaintiffs”) 22 filed an opposition. (ECF No. 24.) County Defendants filed a reply. (ECF No. 26.) 23 For the reasons set forth below, the Court GRANTS in part and DENIES in part County 24 Defendants’ motion. (ECF No. 22) 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The Court need not recount all background facts, as they are set forth fully in the Court’s 3 August 4, 2020 Order. (See ECF No. 18.) In short, this action arises from a mass shooting that 4 occurred on November 14, 2017. (Id.) The shooter, Kevin Neal (“Neal”) killed at least five 5 people and wounded at least a dozen more. (Id.) Francisco Gudino Cardenas suffered injuries 6 after being caught in crossfire between Neal and police officers. (Id.) 7 Plaintiffs filed the instant action on November 20, 2018. (ECF No. 1.) The Court granted 8 County Defendants’ motion to dismiss the Complaint on August 4, 2020. (ECF No. 18.) 9 Plaintiffs filed the operative First Amended Complaint (“FAC”) on September 3, 2020. (ECF No. 10 19.) Plaintiffs assert the following claims: (1) a 42 U.S.C. § 1983 (“§ 1983”) claim for violation 11 of due process under the Fourteenth Amendment; (2) a § 1983 claim for violation of equal 12 protection under the Fourteenth Amendment; (3) a § 1983 claim for excessive force/unreasonable 13 seizure in violation of the Fourth Amendment; (4) a § 1983 claim for conduct shocking to the 14 conscience in violation of due process under the Fourteenth Amendment; (5) a § 1983 claim for 15 deliberate indifference to medical needs in violation of due process under the Fourteenth 16 Amendment; (6) a § 1983 claim for conspiracy to violate civil rights; (7) assault and battery; (8) 17 intentional infliction of emotional distress; (9) negligence; (10) loss of consortium; (11) trespass 18 to chattels and/or conversion; and (12) failure to perform mandatory duties in violation of 19 California Government Code § 815.6. (See generally id.) 20 County Defendants filed the instant motion to dismiss pursuant to Federal Rule of Civil 21 Procedure (“Rule”) 12(b)(6) on October 22, 2020. (ECF No. 22.) 22 II. STANDARD OF LAW 23 A motion to dismiss for failure to state a claim upon which relief can be granted under 24 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 25 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 26 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 27 U.S. 662, 677–78 (2009). Under notice pleading in federal court, the complaint must “give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 1 v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified 2 notice pleading standard relies on liberal discovery rules and summary judgment motions to 3 define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema 4 N.A., 534 U.S. 506, 512 (2002). 5 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 6 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 7 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 8 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 9 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 10 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 11 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 12 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 13 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 14 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 15 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 16 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 17 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements, do not suffice.”). Thus, ‘[c]onclusory allegations of law and unwarranted inferences 19 are insufficient to defeat a motion to dismiss for failure to state a claim.” Adams v. Johnson, 355, 20 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 21 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 22 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 23 Council of Carpenters, 459 U.S. 519, 526 (1983). 24 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 25 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 26 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 27 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 28 680. While the plausibility requirement is not akin to a probability requirement, it demands more 1 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 2 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 3 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 4 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 5 dismissed. Id. at 680 (internal quotations omitted). 6 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 7 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 8 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 9 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels- 10 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 11 allegations that contradict matters properly subject to judicial notice). 12 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 13 amend even if no request to amend the pleading was made, unless it determines that the pleading 14 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 15 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 16 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 17 denying leave to amend when amendment would be futile). Although a district court should 18 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 19 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 20 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 21 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 22 III. ANALYSIS 23 County Defendants move to dismiss all of Plaintiffs’ claims. (ECF No. 22-1 at 8.) The 24 Court will address Plaintiffs’ federal claims and state claims in turn. 25 A. Federal Claims 26 i. Claim One: Due Process 27 Plaintiffs bring a due process claim against County Defendants under the state created 28 danger theory. (ECF No. 19 at 28.) In order to prevail under a state created danger theory, a 1 plaintiff must show (1) there was “affirmative conduct on the part of the state in placing the 2 plaintiff in danger” and (2) the state acted with “deliberate indifference” to a “known or obvious 3 danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (citing Munger v. City of 4 Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000); L.W. v. Grubbs, 92 F.3d 894, 900 5 (9th Cir. 1996)). The Court further notes that should Plaintiffs be able to establish a 6 constitutional violation under this theory, the County can only be held liable if there is a 7 municipal policy or practice which was the driving force behind the deprivation, or, on the part of 8 Hencratt and Johnston, if they had a personal involvement in the deprivation or if their wrongful 9 acts were sufficiently causally related to the deprivation. Monell v. Dep’t of Social Serv., 436 10 U.S. 658, 691 (1978); Hansen v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989). 11 In its previous order, the Court concluded Plaintiffs’ allegations that officers ignored 12 credible complaints about Neal were not “affirmative act[s] that placed the victims in a more 13 dangerous position.” (ECF No. 18 at 9–10.) Because Plaintiffs failed to allege officers took any 14 affirmative action, the Court declined to address deliberate indifference. (Id. at 11.) 15 In the instant motion, County Defendants again argue Plaintiffs fail to allege affirmative 16 action. (ECF No. 22-1 at 14.) In opposition, Plaintiffs highlight the following allegations in the 17 FAC: (1) when responding to a complaint about Neal’s shooting in 2016, officers told Neal he 18 could discharge firearms as long as he did so “in a safe manner” when they knew he had not been 19 doing so and that the discharge of firearms was prohibited in the community; (2) after a criminal 20 protective order against Neal became effective in early 2017, officers improperly left it up to Neal 21 to voluntarily turn in his firearms, which communicated to Neal that County Defendants did not 22 care if he continued to own and discharge firearms; (3) County Defendants communicated to Neal 23 they did not enforce protective order violations or take illegal possession of firearms seriously 24 when they refused to respond to Neal’s complaints in July 2017 about other individuals 25 brandishing firearms and violating restraining orders; and (4) Neal knew that County Defendants 26 failed to adequately respond to complaints about Neal possessing and shooting firearms on his 27 property toward his neighbor’s homes. (ECF No. 24 at 15.) To support the proposition that these 28 allegations amount to affirmative action, Plaintiffs rely primarily on three Second Circuit cases: 1 Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005), Dwares v. City of N.Y., 985 F.2d 94 (2d Cir. 1993), 2 and Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415 (2d Cir. 2009). (Id. at 13– 3 15.) Even if this Court were to apply the foregoing Second Circuit authority, however, these 4 cases are easily distinguishable. 5 In Dwares, police officers allegedly told skinheads in advance of a political rally that they 6 would not interfere with assaults or arrest those responsible for them. 985 F.2d at 99. The 7 Dwares court stated “[s]uch a prearranged official sanction of privately inflicted injury would 8 surely have violated the victim’s rights under the Due Process Clause.” Id. In contrast, Plaintiffs 9 do not allege any officers explicitly told Neal it was acceptable to harm others or that he would 10 not be arrested if he did so. Plaintiffs argue officers “directly communicated” their approval by: 11 (1) telling Neal in 2016 there “was nothing they could do” so as long as he was shooting his 12 firearms “in a safe manner” despite knowing Neal was not shooting in a safe manner and had 13 recently assaulted someone; (2) allowing Neal to voluntarily turn in firearms after the criminal 14 protective order was issued and failing to follow up with a subsequent report from Neal’s wife 15 that her firearm was missing; (3) refusing to respond to Neal’s reports of another individual 16 brandishing a weapon; and (4) ignoring or failing to respond adequately to numerous reports 17 regarding Neal’s dangerous activities. (ECF No. 24 at 15.) None of these communications with 18 Neal come close to the “prearranged official sanction” of violence that occurred in Dwares. As to 19 Plaintiffs’ allegations about the officers’ inaction, even the Dwares court recognized “an 20 allegation simply that police officers had failed to act upon reports of past violence would not 21 implicate the victim’s rights under the Due Process Clause.” 985 F.2d at 99. 22 In Pena, an off-duty officer killed a number of people while driving intoxicated. 432 F.3d 23 at 102. The plaintiff alleged supervisory personnel encouraged the off-duty officer to drink in 24 excess and drive under the influence by routinely drinking with him in the precinct parking lot, 25 drinking and riding with him on the date of the incident, and otherwise communicating their 26 approval by condoning the misconduct. Id. at 110–11. The court found such allegations 27 amounted to a state created danger claim because state officials implicitly communicated to the 28 off-duty officer that he would not be “arrested, punished, or otherwise interfered with while 1 engaging in misconduct that [was] likely to endanger the life, liberty, or property of others.” Id. 2 at 111–12. Importantly, “the Ninth Circuit has not adopted the Pena [c]ourt’s holding that the 3 affirmative conduct element of the state-created danger doctrine may occur ‘implicitly.’” 4 Jamison v. Storm, 426 F. Supp. 2d 1144, 1156 (W.D. Wash. 2006). Even if this Court found 5 Pena to be persuasive, the facts are much different here. In Pena, officers and supervisors 6 routinely drank at work with the off-duty officer and knew he was driving while drunk. 432 F.3d 7 at 110–11. Here, there are no allegations that County Defendants or any other officers 8 participated in or encouraged Neal’s violence. There are no allegations to suggest that officers 9 implicitly communicated to Neal that he would “not be arrested, punished, or otherwise interfered 10 with” if he harmed others. Id. at 111. To the contrary, Plaintiffs allege Neal was arrested for 11 threatening individuals and firing a gun over their heads in January 2017, which resulted in the 12 issuance of the criminal protective order and a civil restraining order. (ECF No. 19 at 12.) At 13 most, Plaintiffs assert “a failure to prevent misbehavior and to reprimand or punish” Neal for 14 complaints about owning and shooting firearms on his property after January 2017, which is 15 insufficient to state a due process claim. 432 F.3d at 112. 16 In Okin, the court found there was “a genuine issue of material fact as to whether 17 [officers] implicitly but affirmatively encouraged [the assailant’s] domestic violence.” 577 F.3d 18 at 430. The court cited an occasion when officers discussed football with the assailant during 19 their response to the victim’s complaint that he had beaten and tried to choke her. Id. The court 20 also emphasized there were numerous occasions when the officers responded to the victim’s 21 complaints without filing a domestic incident report, interviewing the assailant, or making an 22 arrest, even after the assailant told the officers he could not “help it sometime when he smack[ed] 23 . . . [the victim] around.” Id. The court stated the evidence showed “an escalating series of 24 incidents” where the officers “openly expressed camaraderie with [the assailant] and contempt for 25 [the victim],” which could be viewed as ratcheting up the threat of danger to the victim. Id. 26 Unlike Okin, there are no allegations here that officers ever expressed camaraderie with Neal or 27 contempt for potential victims. 28 /// 1 The only Ninth Circuit case Plaintiffs cite on this issue is Kennedy v. City of Ridgefield, 2 439 F.3d 1055 (9th Cir. 2006). (ECF No. 24 at 13.) In Kennedy, Kimberly Kennedy contacted a 3 police department to report that a neighbor molested her young daughter. Id. at 1057. Kennedy 4 warned the officer that the neighbor had “violent tendencies.” Id. The officer “assured Kennedy 5 she would be given notice prior to any police contact with the [neighbor’s family] about her 6 allegations.” Id. at 1058. Despite this promise, the officer drove to the neighbor’s residence and 7 informed the neighbor’s family of the allegations prior to warning Kennedy. Id. Later that 8 evening, the suspect broke into Kennedy’s house and shot Kennedy and her husband, killing the 9 husband. Id. The Ninth Circuit found that, by notifying the neighbor’s family of the allegations 10 “before the Kennedys had the opportunity to protect themselves from this violent response to the 11 news,” the officer “affirmatively created an actual, particularized danger Kennedy would not 12 otherwise have faced.” Id. at 1063 (emphasis added). 13 Unlike Kennedy, Plaintiffs’ allegations do not lend even a reasonable inference that 14 officers “affirmatively created an actual, particularized” danger to Plaintiffs. Consistent with 15 Kennedy, other Ninth Circuit courts have permitted claims to proceed under the state created 16 danger theory only where the state actor played a significant role in creating the dangerous 17 situation. See Munger, 227 F.3d at 1082 (holding police officers could be held liable for the 18 death of a visibly drunk patron from hypothermia they had ejected from a bar on an extremely 19 cold night); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997) (holding as viable a 20 state created danger claim against police officers who, after finding a man in grave need of 21 medical care, cancelled a request for paramedics and locked him inside his house); L.W. v. 22 Grubbs, 974 F.2d 119 (9th Cir. 1992) (holding state employees could be liable for the rape of a 23 registered nurse assigned to work alone with a known, violent sex-offender); Wood v. Ostrander, 24 879 F.2d 583 (9th Cir. 1989) (holding state could be liable for the rape of a woman that an officer 25 had left stranded in a known high-crime area late at night). Here, the officers’ alleged conduct 26 falls far short of this standard. Although the officers may have been able to prevent the injuries, 27 that does not mean they created an “actual, particularized” danger that did not otherwise exist. 28 See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 203 (1989) (“The most that 1 can be said of the state functionaries in this case is that they stood by and did nothing when 2 suspicious circumstances dictated a more active role for them.”). As stated in this Court’s 3 previous order, Plaintiffs’ allegations make clear that “Neal was, and would have remained, a 4 dangerous individual prone to violent behavior” regardless of the officers’ conduct.1 (ECF No. 5 18 at 10.) 6 For all these reasons, Plaintiffs fail to allege affirmative action by County Defendants or 7 any particular officer that created the danger posed by Neal. As such, Plaintiffs fail to assert a 8 viable due process claim under the state created danger theory. In its prior order, the Court 9 informed Plaintiffs what was necessary to state a plausible due process claim. Plaintiffs failed to 10 do so and instead relied on many of the same allegations and arguments the Court previously 11 rejected. Plaintiffs fail to persuade the Court that they can allege additional facts that would cure 12 the deficiencies in this claim. Therefore, the Court GRANTS County Defendants’ motion to 13 dismiss Claim One and DISMISSES Plaintiffs’ claim without leave to amend.2 14 ii. Claim Two: Equal Protection 15 As a preliminary matter, Plaintiffs argue the Court should deny County Defendants’ 16 challenge to the equal protection claim because County Defendants did not challenge this claim in 17 their original motion to dismiss. (ECF No. 24 at 17.) “If a failure-to-state-a-claim defense under 18 19 1 Plaintiffs also argue County Defendants actively suppressed intervention by other agencies. (ECF No. 24 at 15.) As an example, Plaintiffs allege CalFire received a call in July 20 2017 from Neal alleging he could smell a “burning perfume” he thought was methamphetamine. 21 (ECF No. 19 at 14.) Plaintiffs allege County Defendants recommended CalFire not investigate this incident because Neal “had reality issues and was also a firearms owner.” (Id.) Plaintiffs 22 allege this shows County Defendants instructed CalFire not to respond, but they fail to explain how this allegation is relevant to or contributed to the danger that occurred on November 14, 23 2017. (Id.) 24 2 The Court also notes that to the extent Plaintiffs’ claim is based on the actions of individual officers, those officers would likely be granted qualified immunity based on the lack of 25 clearly established law on this issue. See, e.g., Decoria v. Cnty. of Jefferson, 333 F. App’x 171, 26 173 (9th Cir. 2009) (“[W]e have never decided the question of whether a defendant officer violates a plaintiff’s constitutional rights when, as in this case, the officer’s challenged actions 27 were not directed toward the plaintiff, but rather toward another person who later harmed the plaintiff.”). 28 1 Rule 12(b)(6) was not asserted in the first motion to dismiss under Rule 12, Rule 12(h)(2) tells us 2 that it can be raised, but only in a pleading under Rule 7, in a post-answer motion under Rule 3 12(c), or at trial.” In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318 (9th Cir. 2017). 4 However, the Ninth Circuit has adopted a “very forgiving” approach and allows district courts to 5 consider new arguments in successive motions to dismiss in the interest of judicial economy. Id. 6 at 318–19. Because the issue has now been fully briefed, the Court will consider the merits of 7 County Defendants’ arguments. 8 “The Equal Protection Clause of the Fourteenth Amendment commands that no state shall 9 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 10 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 11 Living Ctr., Inc., 473 U.S. 432, 439 (1985). In order to state an equal protection claim, a plaintiff 12 must allege: (1) the municipal defendants treated him differently from others similarly situated; 13 (2) this unequal treatment was based on an impermissible classification; (3) the municipal 14 defendants acted with discriminatory intent in applying this classification; and (4) the plaintiff 15 suffered injury as a result of the discriminatory classification. Moua v. City of Chico, 324 F. 16 Supp. 2d 1132, 1137 (E.D. Cal. 2004). The denial of police protection to disfavored persons 17 stemming from discriminatory intent or motive violates the Equal Protection Clause. Estate of 18 Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000). However, “in police failure-to-serve cases, the 19 courts consistently have required more evidence of discriminatory intent than a simple failure of 20 diligence, perception, or persistence in a single case. . . .” Moua, 324 F. Supp. 2d at 1140. 21 County Defendants argue Plaintiffs fail to allege discriminatory intent or motive. (ECF 22 No. 22-1 at 17.) In opposition, Plaintiffs argue the following allegations in the FAC show 23 discriminatory intent: (1) Defendants were biased and prejudiced against Rancho Tehama based 24 on the perception that the community was impoverished, isolated, and a haven for “lowlifes, drug 25 use, and general lawlessness”; (2) based on these biases and prejudices, Defendants withheld 26 from the community ordinary and reasonable police response, protection, and enforcement 27 services compared to other communities within their jurisdiction, particularly involving Neal; (3) 28 Defendants’ discriminatory purpose was to allow the community to experience and suffer the 1 dangerous and lawless effects of the community’s own fault and making; and (4) Defendants’ 2 conduct had the discriminatory effect of exposing Plaintiffs to the danger posed by Neal. (ECF 3 No. 24 at 17–19.) 4 Plaintiffs’ somewhat attenuated claim seems to allege that officers violated their equal 5 protection rights by failing to respond to complaints about Neal because the parties resided in the 6 “impoverished,” “lowlife,” and “lawless” community of Rancho Tehama. (See ECF No. 19 at 7 34.) Plaintiffs fail to cite any case law where an individual raised a similar equal protection 8 claim. Indeed, “the typical fact pattern in . . . cases [regarding alleged unequal protection of 9 police services] involves domestic violence and repeated calls for police intervention by a female 10 victim,” which is not analogous to the instant case. Moua, 324 F. Supp. 2d at 1139–40. 11 Moreover, Plaintiffs fail to cite any factual allegations suggesting that officers withheld police 12 services in response to complaints about Neal because of any bias or perception about Rancho 13 Tehama, or that officers would have acted differently under the circumstances if Neal resided in 14 another community. The FAC includes numerous allegations suggesting police responded to 15 complaints about Neal in a particular way because of Neal’s specific characteristics. For 16 example, Plaintiffs allege officers indicated Neal was “not law enforcement friendly,” “would not 17 come to the door,” “had reality issues,” and “was also a firearms owner.” (ECF No. 19 at 29, 36.) 18 While the FAC also alleges the officers dismissed complaints about Neal because the callers were 19 deemed “not credible,” there are no factual allegations to suggest officers based these credibility 20 determinations on broad perceptions about Rancho Tehama. (Id. at 34.) Put simply, there are no 21 factual allegations to lend even a reasonable inference that officers treated Rancho Tehama 22 residents, including Plaintiffs, worse than residents of other communities, much less that officers 23 did so based on any bias or perception about Rancho Tehama. It seems that Plaintiffs’ claim 24 relates to “a simple failure of diligence, perception, or persistence” in cases involving Neal 25 specifically, not Rancho Tehama generally. See Moua, 324 F. Supp. 2d at 1140. Plaintiffs fail to 26 explain how this is sufficient to state an equal protection claim. Accordingly, the first element for 27 such a claim — different treatment from others similarly situated — is not met. 28 /// 1 For these reasons, the Court GRANTS County Defendants’ motion to dismiss Claim Two. 2 Assuming Plaintiffs intend to bring a Monell claim against County Defendants, the Court also 3 dismisses such a claim because there is no underlying constitutional violation. Although the 4 Court is hard-pressed to imagine how Plaintiffs could cure the aforementioned deficiencies in the 5 equal protection claim, the Court will allow Plaintiffs an opportunity to amend based on the 6 liberal standard in favor of granting leave to amend. See Lopez, 203 F.3d at 1130. 7 iii. Claim Three: Excessive Force 8 Plaintiffs assert their § 1983 excessive force claim against Squier. (ECF No. 19 at 37.) 9 Plaintiffs allege Squier shot Cardenas despite the fact that the police chief was shooting at Neal in 10 a different car, there were reports of only one gunman, and Squier could see and hear Cardenas 11 was pleading for help and not armed. (Id.) In moving to dismiss this claim, County Defendants 12 argue Squier’s actions were reasonable under the circumstances. (ECF No. 22-1 at 18–20.) 13 The Fourth Amendment protects the “right of the people to be secure . . . against 14 unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth Amendment permits 15 officers making an arrest to use force, but only an amount that is objectively reasonable in light of 16 the circumstances. Tennessee v. Garner, 471 U.S. 1, 11 (1985). “The intrusiveness of a seizure 17 by means of deadly force is unmatched.” Garner, 471 U.S. at 9. However, “whether or not 18 [Squier’s] actions constituted application of ‘deadly force,’ all that matters is whether [his] 19 actions were reasonable.” Scott v. Harris, 550 U.S. 372, 383 (2007). The inquiry is objective. 20 Graham v. Connor, 490 U.S. 386, 397 (1989); Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th 21 Cir. 2011). The vantage point is that of a reasonable officer confronted with the same facts, 22 bearing in mind the decisions occurred in a “split” second and making every effort to ignore the 23 advantages of “20/20 vision of hindsight.” Graham, 490 U.S. at 396–97. 24 Plaintiffs allegations state a plausible excessive force claim. See Jensen v. City of Oxnard, 25 145 F.3d 1078, 1083 (9th Cir. 1998) (concluding the allegation that an officer engaged in a Fourth 26 Amendment seizure “by intentionally shooting at a figure he mistook to be an armed criminal” 27 stated a viable excessive force claim). Whether Squier’s use of force was reasonable is a fact 28 question for the jury, not one to be decided on a motion to dismiss. See A.G.1 by & through 1 Uribe v. City of Fresno, No. 1:16-CV-01914-LJO-SAB, 2018 WL 4042906, at *4 (E.D. Cal. Aug. 2 22, 2018) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997)). 3 Accordingly, the Court DENIES County Defendants’ motion to dismiss Claim Three. 4 iv. Claim Four: Due Process Claim for Conduct that Shocks the 5 Conscience 6 Plaintiffs also assert a due process claim against Squier for the same conduct at issue in 7 the excessive force claim. (ECF No. 19 at 38.) In moving to dismiss, County Defendants argue 8 facts related to the shooting do not shock the conscience. (ECF No. 22-1 at 20.) 9 To prevail on a substantive due process claim under the Fourteenth Amendment, Plaintiffs 10 must show that an officer’s conduct “shocks the conscience.” See Wilkinson v. Torres, 610 F.3d 11 546, 554 (9th Cir. 2010). “[A]n officer’s ‘deliberate indifference’ may suffice to shock the 12 conscience,” Wilkinson, 610 F.3d at 554, and the plaintiff may prevail by showing that the officer 13 “disregarded a known or obvious consequence of his action,” Patel v. Kent Sch. Dist., 648 F.3d 14 965, 974 (9th Cir. 2011). 15 The Court finds Plaintiff has alleged a plausible due process claim against Squier. See 16 Nicholson v. City of L.A., 935 F.3d 685, 693 (9th Cir. 2019) (“[A] rational finder of fact could 17 find that [an officer’s] use of deadly force shocks the conscience and was unconstitutional under 18 the Fourteenth Amendment.”). As with the reasonableness inquiry discussed above, the 19 “deliberate-indifference inquiry should go to the jury.” Patel, 648 F.3d at 974. The Court 20 declines to make such a fact-sensitive determination on a motion to dismiss. 21 Therefore, the Court DENIES County Defendants’ motion to dismiss Claim Four. 22 v. Claim Five: Due Process Claim for Deliberate Indifference to 23 Medical Needs 24 Plaintiffs assert a due process claim for deliberate indifference to medical needs against 25 Squier and “Doe” defendants. (ECF No. 19 at 40.) Plaintiffs allege that after Squier shot 26 Cardenas, Cardenas was completely immobile and dependent on others to move him and summon 27 medical aid for him. (Id. at 41.) Plaintiffs allege Squier waited over five minutes to provide aid 28 to Cardenas and then dragged Cardenas about 50 feet out from behind his car. (Id.) Plaintiffs 1 allege Squier did not call for an ambulance and County officials waited another 11 minutes before 2 calling an ambulance. (Id.) Plaintiffs allege the delay worsened Cardenas’s injuries and 3 suffering. (Id. at 41–42.) 4 County Defendants argue the Court should dismiss this claim because Neal created the 5 danger, not the officers. (ECF No. 22-1 at 21.) The Court disagrees. Not only do Plaintiffs 6 allege Squier created the danger by shooting Cardenas without justification, but Plaintiffs also 7 allege that Squier and other officers affirmatively increased the danger to Cardenas by waiting 8 over 16 minutes before calling an ambulance. This is sufficient to survive a motion to dismiss. 9 See Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) (concluding there was 10 evidence officers affirmatively increased the danger to a gunshot victim by preventing her 11 ambulance from leaving the crime scene). 12 Therefore, the Court DENIES County Defendants’ motion to dismiss Claim Five. 13 vi. Claim Six: Conspiracy to Violate Civil Rights 14 Plaintiffs assert a conspiracy to violate civil rights claim against all individual Defendants. 15 (ECF No. 19 at 43.) County Defendants argue Plaintiffs are barred from bringing the new claim 16 because they were not given leave to add new claims. (ECF No. 22-1 at 22.) In opposition, 17 Plaintiffs argue they are restating their previous conspiracy claim under § 1983, not adding a new 18 claim. (ECF No. 24 at 22.) 19 To the extent Plaintiffs base their conspiracy claim on the constitutional violations alleged 20 in Claims One and Two, the Court has dismissed those claims. Moreover, as County Defendants 21 correctly point out, this Court previously found Plaintiffs’ allegations insufficient to show that 22 Hencratt and Johnson personally participated in any alleged misconduct. (ECF No. 18 at 15.) 23 Plaintiffs again only make the bare assertion that Defendants conspired with each other. There 24 are no additional facts which support this conclusion. Because the Court has already given 25 Plaintiffs the opportunity to amend this claim and Plaintiffs make no argument that the claim can 26 be cured, the Court finds further amendment would be futile. 27 Accordingly, the Court GRANTS County Defendants’ motion to dismiss Claim Six and 28 DISMISSES that claim without leave to amend. 1 B. State Claims 2 i. Claim Seven: Assault and Battery 3 As with the excessive force claim, County Defendants argue Plaintiffs cannot allege an 4 assault and battery claim because Squier used reasonable force. (ECF No. 22-1 at 23–24.) 5 County Defendants are correct that Plaintiffs’ claim requires a showing of unreasonable force. 6 See Campos v. City of Merced, 709 F. Supp. 2d 944, 963 (E.D. Cal. 2010) (quoting Munoz v. City 7 of Union City, 120 Cal. App. 4th 1077, 1102 (2004) (“In order to prevail on a claim of battery 8 against a police officer, the plaintiff bears the burden of proving the officer used unreasonable 9 force.”)). However, as discussed in the context of Plaintiffs’ excessive force claim, whether 10 Squier’s use of force was reasonable is a fact question for the jury, not a question that should be 11 decided on a motion to dismiss. 12 Therefore, the Court DENIES County Defendants’ motion to dismiss Claim Seven. 13 ii. Claim Eight: Intentional Infliction of Emotional Distress (“IIED”) 14 County Defendants argue Plaintiffs’ IIED claim should be dismissed because they have 15 failed to allege Squier’s conduct was extreme and outrageous. (ECF No. 22-1 at 24.) More 16 specifically, County Defendants argue Squier’s conduct was “reasonable and justified.” (Id.) As 17 stated above, the Court declines to find as a matter of law that Squier’s conduct was reasonable, 18 which is ultimately a question for the factfinder. The Court agrees that the standard for proving 19 “extreme and outrageous conduct” is difficult to meet. However, at the pleading stage, there is at 20 the very least a reasonable inference that Squier’s alleged conduct in shooting Cardenas when it 21 was clear that he was innocent and unarmed was extreme and outrageous. 22 Accordingly, the Court DENIES County Defendants’ motion to dismiss Claim Eight. 23 iii. Claim Nine: Negligence 24 County Defendants argue they are immune from Plaintiffs’ negligence claims. (ECF No. 25 22-1 at 24.) County Defendants cite various statutes for this broad contention. (Id. at 24–25.) To 26 the extent County Defendants argue they are immune from liability for Plaintiffs’ negligence 27 claim as a whole, such arguments would benefit from more thorough briefing. As it is, County 28 Defendants cite scattershot provisions of the California Government Code and fail to coherently 1 argue why those provisions warrant dismissal of Plaintiffs’ negligence claim in its entirety. It 2 also bears mentioning that Plaintiffs assert a negligence claim against Squier for his decision to 3 shoot Cardenas. (ECF No. 19 at 48.) It appears County Defendants do not challenge Plaintiffs’ 4 negligence claim as to Squier’s actions. 5 For these reasons, the Court DENIES County Defendants’ motion to dismiss Claim Nine. 6 iv. Claim Ten: Loss of Consortium 7 County Defendants argue Plaintiffs’ loss of consortium claim fails because it is derivative 8 of their other claims. (ECF No. 22-1 at 26.) In opposition, Plaintiffs do not disagree that the loss 9 of consortium claim is a derivative claim. (ECF No. 23 at 25.) Because the Court has found that 10 some of Plaintiffs’ claims survive County Defendants’ motion to dismiss, the Court declines to 11 dismiss the derivative loss of consortium claim at this time. 12 As such, the Court DENIES County Defendants’ motion to dismiss Claim Ten. 13 v. Claim Eleven: Trespass to Chattels and/or Conversion 14 County Defendants argue Plaintiffs fail to allege a conversion claim because 15 “[i]mpounding a vehicle does not amount to conversion.” (ECF No. 22-1 at 26.) In opposition, 16 Plaintiffs argue the claim of conversion is based on allegations that County Defendants ransacked 17 Plaintiffs’ car, “further damaging it on top of the damage from the shootout, thereby effectively 18 totaling it economically” and that “Defendants’ employees always refused to reasonably permit or 19 enable Plaintiffs to retrieve their car.” (ECF No. 24 at 25–26.) 20 Trespass to chattels “lies where an intentional interference with the possession of personal 21 property has proximately caused injury.” Thrifty–Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 22 1566 (1996). “Conversion is the wrongful exercise of dominion over the property of another. 23 The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the 24 property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and 25 (3) damages.” Welco Electronics, Inc. v. Mora, 223 Cal. App. 4th 202, 208 (2014) (internal 26 quotation marks omitted). 27 County Defendants fail to persuade the Court that Plaintiffs fail to state a claim for 28 conversion and/or trespass of chattels. County Defendants summarily argue they are immune 1 from liability for the tort of trespass under California Government Code §§ 820.2 and 815. (ECF 2 No. 22-1 at 26.) However, they fail to develop the argument further or cite any case law with 3 remotely similar facts. As with County Defendants’ arguments regarding immunity for Plaintiffs’ 4 negligence claim, this matter would benefit from more thorough, precise briefing in the future. 5 Based on the limited arguments before the Court, the Court concludes Plaintiffs’ allegations that 6 County Defendant’s employees totaled Plaintiffs car during the shootout and refused to permit 7 Plaintiffs to retrieve the car thereafter are sufficient to state a claim. 8 Therefore, the Court DENIES County Defendants’ motion to dismiss Claim Eleven. 9 vi. Claim Twelve: Failure to Perform Mandatory Duties 10 Finally, County Defendants move to dismiss Plaintiffs’ claim for violation of mandatory 11 duties.3 (ECF No. 22-1 at 26–27.) In opposition, Plaintiff cites this Court’s prior order in related 12 cases finding this to be a viable claim in these factual circumstances. (ECF No. 24 at 26–27.) 13 “Where a public entity is under a mandatory duty imposed by an enactment that is 14 designed to protect against the risk of a particular kind of injury, the public entity is liable for an 15 injury of that kind proximately caused by its failure to discharge the duty unless the public entity 16 establishes that it exercised reasonable diligence to discharge the duty.” Cal. Gov’t Code § 815.6. 17 Plaintiffs allege Defendants are liable under this section because they failed to arrest Neal for 18 reported violations of the restraining order. 19 California courts have set out a three-prong test to determine if tort liability may attach 20 under § 815.6 for the failure of a public entity to discharge its duty: (1) the enactment in question 21 must impose a mandatory, not discretionary, duty; (2) the enactment must be intended to protect 22 against the kind of risk of injury suffered by the party asserting the statute as the basis of liability; 23 and (3) the breach must be the proximate cause of the plaintiff’s injury. California v. Superior 24 Court, 150 Cal. App. 3d 848, 853-54 (1984) (citations omitted); Cal. Gov’t Code § 815.6. 25 /// 26 3 To the extent County Defendants argue Plaintiffs are impermissibly adding a new claim 27 (ECF No. 22-1 at 27), the Court notes that this claim falls within the scope of Plaintiffs’ previous tort claims. Further, leave to amend is granted liberally, and the Court declines to dismiss Claim 28 Twelve solely on this basis. 1 As in the related cases, the Court finds § 836(c)(1) creates a mandatory duty — albeit one 2 | conditioned on an objective finding of probable cause — for which Defendants may be liable 3 | under § 815.6. Whether Defendants violated this duty is a question for the factfinder. Further, 4 | Plaintiffs have pleaded sufficient facts to allege probable cause that Neal had firearms in violation 5 | of the restraining order including: the neighbors’ various reports of Neal shooting; visible 6 | ammunition on Neal’s property; and Neal’s alleged statement to an officer that he had been 7 | shooting but in a safe manner. 8 Accordingly, Defendants’ motion to dismiss Claim Twelve is DENIED. 9 IV. CONCLUSION 10 For the foregoing reasons, the Court GRANTS in part County Defendants’ Motion to 11 | Dismiss (ECF No. 22) as follows: 12 1. Claim One is DISMISSED without leave to amend; 13 2. Claim Two is DISMISSED with leave to amend; and 14 3. Claim Six is DISMISSED without leave to amend 15 County Defendants’ motion is DENIED with respect to the remaining claims. Plaintiffs 16 | may file an amended complaint consistent with this Court’s ruling not later than thirty (30) days 17 | from the electronic filing date of this Order. Defendants shall file a responsive pleading not later 18 | than twenty-one (21) days thereafter. 19 IT IS SO ORDERED. 20 | DATED: September 2, 2021 21 hy /) 22 “ \/ Lo 24 United States District Judge 25 26 27 28 18