A.G. v. United States of America

• Court: District Court, S.D. California
• Decided: October 30, 2023
• Docket: 3:23-cv-00745
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.G., a minor child by and through his Case No.: 23-CV-745 JLS (KSC) Guardian Ad Litem, Alfonso Galindo, Jr.; 12 and R.G., a minor child by and through ORDER GRANTING IN PART AND 13 her Guardian Ad Litem, Alfonso Galindo, DENYING IN PART DEFENDANT’S Jr., MOTION TO DISMISS 14

Plaintiffs, 15 (ECF No. 6) v. 16 UNITED STATES OF AMERICA; and 17 UNITED STATES POSTAL SERVICE, 18 Defendants. 19

20 Presently before the Court is Defendant the United States of America’s Motion to 21 Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 6) pursuant to Federal Rules of Civil 22 Procedure 12(b)(1) and 12(b)(6). Minor Plaintiffs A.G. and R.G., by and through their 23 guardian ad litem, filed a Response to the Motion (“Opp’n,” ECF No. 7), and Defendant 24 filed a Reply in support of the Motion (“Reply,” ECF No. 8). The Court took the matter 25 under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF 26 No. 9. Having carefully reviewed Plaintiffs’ Complaint (“Compl.,” ECF No. 1), the 27 Parties’ arguments, and the law, the Court GRANTS IN PART AND DENIES IN PART 28 Defendant’s Motion to Dismiss. 1 BACKGROUND 2 Plaintiffs are two young siblings who live in a single-family home with their dog, 3 Pupa. Compl. ¶¶ 4–5, 8–9. A gate and an exterior garage door stand side by side in front 4 of Plaintiffs’ home. Id. ¶ 8. The front gate opens to an enclosed patio where Plaintiffs 5 play. Id. Mail carriers need not pass through the front gate into Plaintiffs’ patio to deliver 6 mail, as Plaintiffs’ mailbox sits between the garage door and the exterior side of the gate. 7 Id. ¶¶ 8, 10. 8 During the time period relevant here, Plaintiffs’ mail was delivered by United States 9 Postal Service (“USPS”) mail carrier Nestor Medina (“Medina”). Id. ¶ 9. At times, Pupa 10 approached the “interior side of the front gate” when Medina neared Plaintiffs’ home; Pupa 11 would bark at Medina but could not get through the gate. Id. ¶ 10. On these occasions, 12 Medina used pepper spray on Pupa before reaching Plaintiffs’ mailbox. Id. After Pupa 13 retreated, Medina would deliver Plaintiffs’ mail and move on. Id. 14 Medina repeated the above actions “numerous” times. Id. After each occasion, 15 pepper spray residue lingered in Pupa’s fur. Id. ¶ 11. Plaintiffs, who spent significant time 16 with Pupa every day, ended up “touch[ing] and breath[ing] in” the residual chemicals. Id. 17 These episodes began in the summer of 2018. Id. ¶ 9. Around the same time, 18 Plaintiffs both developed symptoms of respiratory illnesses, including shortness of breath 19 and coughs. Id. ¶ 12. Multiple medical appointments failed to uncover the cause of 20 Plaintiffs’ symptoms. Id. Medina continued pepper spraying Pupa until February or 2019, 21 when Plaintiffs’ family caught him in the act on a home surveillance video. Id. ¶ 13. 22 Medina stopped delivering Plaintiffs’ mail after his behavior was reported to the USPS. 23 Id. ¶ 14. 24 / / / 25 / / / 26

27 1 The facts alleged in Plaintiffs’ Complaint are accepted as true for purposes of Defendant’s Motion. See 28 Vasquez v. Los Angles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in ruling on a motion to 1 Plaintiffs initiated this action on April 21, 2023. See Compl. Plaintiffs asserted one 2 claim for negligence against the United States and the USPS2 pursuant to the Federal Tort 3 Claims Act (“FTCA”). See generally id. The instant Motion followed. 4 LEGAL STANDARD 5 Federal Rule of Civil Procedure 12(b)(1) allows a party to file a motion to dismiss a 6 case for lack of subject matter jurisdiction. When a party files such a motion, “there is a 7 presumption of a lack of jurisdiction until the plaintiff affirmatively proves otherwise.” 8 Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 (D. Ariz. 1996). Where, 9 as here, a defendant makes a facial attack on subject matter jurisdiction, courts must 10 consider the allegations of the complaint to be true and draw all reasonable inferences in 11 the plaintiff’s favor. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 12 Federal Rule of Civil Procedure 12(b)(6), for its part, permits a party to raise by 13 motion the defense that the complaint “fail[s] to state a claim upon which relief can be 14 granted.” The Court evaluates whether a complaint states a cognizable legal theory and 15 sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and 16 plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 17 8 “does not require ‘detailed factual allegations,’ . . . it [does] demand[] more than an 18 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 20 In other words, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 21 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 22 of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citing 23 Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice “if it tenders 24 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 25 (alteration in original) (quoting Twombly, 550 U.S. at 557). 26 27 28 2 Because the Court later dismisses the USPS as a defendant in this action, mentions of “Defendant” in 1 To survive a motion to dismiss, then, “a complaint must contain sufficient factual 2 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 3 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 4 when the facts pled “allow[] the court to draw the reasonable inference that the defendant 5 is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 6 550 U.S. at 556). That is not to say that the claim must be probable, but there must be 7 “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely 8 consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. 9 (quoting Twombly, 550 U.S. at 557). This review requires a context-specific analysis that 10 involves the Court’s “judicial experience and common sense.” Id. at 679 (citation omitted). 11 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 12 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 13 pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). 14 Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to 15 amend unless it determines that no modified contention “consistent with the challenged 16 pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 17 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 18 806 F.2d 1393, 1401 (9th Cir. 1986)). 19 ANALYSIS 20 In seeking to dismiss this case, Defendant makes four arguments: that (1) this Court 21 lacks subject matter jurisdiction under the FTCA’s intentional tort exception; (2) Plaintiffs 22 fail to state a negligence claim; (3) the USPS is not a proper defendant; and (4) Plaintiffs’ 23 demands for costs of suit and prejudgment interest should be dismissed or stricken. 24 Mot. at 8–9. The Court addresses each in turn. 25 I. Motion for Lack of Subject Matter Jurisdiction 26 Defendant asserts that Plaintiffs’ negligence claim is really a battery action. See 27 Mot at 5–8. If Defendant is correct, the FTCA’s “intentional tort exception” bars Plaintiffs’ 28 claim and this Court lacks subject matter jurisdiction over this action. 1 Defendant’s argument has two parts. First, Defendant contends that Plaintiffs are 2 alleging “an intentional tort—trespass to chattel—against their dog.” Id. at 5. Defendant 3 next turns to California’s version of the transferred intent doctrine and argues that Medina’s 4 “intent to harm the dog transferred to a battery against [Plaintiffs] when the pepper spray 5 made contact with them.” Id. at 8. 6 Defendant’s argument invites several difficult questions. While similar arguments 7 exist in the caselaw, the Parties do not cite—nor could this Court find—any cases that 8 shared similar facts or that broach the relationship between battery and trespass to chattels 9 in the context of the FTCA. Nevertheless, by applying the relevant statutory framework 10 and tort law concepts, the Court finds that Plaintiffs’ claim does not arise from a battery 11 and is thus not barred by the FTCA. 12 A. Applicable Law 13 Analyzing this issue involves navigating the relationship between the FTCA, the 14 traditional definitions of various torts, and substantive state law. So, before addressing the 15 Parties’ arguments, some background is in order. 16 1. Federal Tort Claims Act 17 When a party sues the federal government, subject matter jurisdiction exists only 18 when the law on which such action is based contains an explicit waiver of sovereign 19 immunity, as “[i]t is axiomatic that the United States may not be sued without its consent 20 and that the existence of consent is a prerequisite for jurisdiction.” United States v. 21 Mitchell, 463 U.S. 206, 212 (1983) (footnote omitted). “[W]hen Congress attaches 22 conditions to legislation waiving the sovereign immunity of the United States, those 23 conditions must be strictly observed . . . .” Block v. N. Dakota ex rel. Bd. of Univ. & Sch. 24 Lands, 461 U.S. 273, 287 (1983). 25 The FTCA provides such a waiver, but it is limited. The statute allows plaintiffs to 26 seek damages against the United States only for certain torts committed by federal 27 employees. 28 U.S.C. §§ 1346(b), 2674. More specifically, the FTCA “provides a 28 waiver . . . for tortious acts of an agency’s employees only if such torts committed in the 1 employ of a private person would have given rise to liability under state law.” Pereira v. 2 U.S. Postal Serv., 964 F.2d 873, 876 (9th Cir. 1992) (citation omitted). 3 The statutory exceptions listed in 28 U.S.C. § 2680 further narrow the FTCA’s 4 waiver of sovereign immunity. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). 5 If Plaintiffs’ claim “fall[s] within one . . . of [those] exceptions, then the federal courts lack 6 subject matter jurisdiction to hear [their] claim[].” Id. That said, “these exceptions should 7 be strictly construed.” Ritchie v. United States, 210 F. Supp. 2d. 1120, 1127 (N.D. Cal. 8 2002) (citing Sheehan v. United States, 896 F.2d 1168, 1170 (9th Cir.), amended, 917 F.2d 9 424 (9th Cir. 1990)); see also Rayonier Inc. v. United States, 352 U.S. 315, 320 (1957) 10 (“There is no justification for this Court to read exemptions into the [FTCA] beyond those 11 provided by Congress.” (footnote omitted)). 12 2. Section 2680’s “Intentional Tort Exception” 13 Relevant here is § 2680(h), which is sometimes called the “intentional tort 14 exception.” Levin v. United States, 568 U.S. 503, 507 (2013). That provision excepts 15 “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious 16 prosecution, abuse of process, libel, slander, misrepresentation, or interference with 17 contract rights” from the FTCA’s waiver of immunity. 28 U.S.C. § 2680(h). While the 18 list is comprehensive, “[i]t is also clear § 2680(h) does not include all intentional torts.” 19 Sheehan, 896 F.2d at 1172. For example, “Section 2680(h) does not remove from the 20 FTCA’s waiver . . . conversion and trespass . . . .” Levin, 568 U.S. at 507 n.1. 21 Artful pleaders cannot circumvent § 2680(h) by disguising a barred claim as a 22 permissible one. When evaluating the applicability of the intentional tort exception, courts 23 “look[] beyond the labels used to determine whether a proposed claim is barred under 24 [§ 2680(h)].” Snow-Erlin v. United States, 470 F.3d 804, 808 (9th Cir. 2006) (second 25 alteration in original) (quoting Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 26 1988)). A claim is barred “[i]f the gravamen of [a plaintiff’s] complaint is a claim for an 27 excluded tort under § 2680(h).” Id. (citation omitted). In this context, the gravamen of a 28 complaint is defined by “the conduct on which the claim is based.” Id. (quoting Mt. Homes, 1 Inc. v. United States, 912 F.2d 352, 356 (9th Cir. 1990)). Here, then, Plaintiffs’ claim fails 2 if Medina’s conduct, as alleged in the Complaint, constitutes a battery. 3 Even an adequately stated claim for a permissible cause of action can fail under 4 § 2680(h). “[I]n sweeping language [§ 2680(h)] excludes any claim arising out of” specific 5 torts. United States v. Shearer, 473 U.S. 52, 55 (1985). The provision thus covers claims 6 that “sound” in negligence, for example, but “stem” from an excluded tort. See id. As a 7 result, a claim is barred if all of the conduct underlying it equally constitutes an excluded 8 tort and a non-excluded tort. See Sheehan, 896 F.2d at 1171 (“Such a claim is barred even 9 though the conduct may also constitute a tort other than assault; to hold otherwise would 10 permit evasion of the substance of the exclusion . . . .”). But if a claim relies on at least 11 some conduct that does not also support an excluded tort, it survives. See id. (“If, however, 12 the aspect of the conduct upon which plaintiff relies did not constitute an assault, suit is not 13 barred even though another aspect of that conduct may have been assaultive.”). 14 3. Relevant Substantive Law 15 Defendant contends that California tort law controls for the purposes of the Court’s 16 § 2680(h) battery analysis. Mot. at 6. Defendant is wrong. 17 True, when a plaintiff brings a tort claim pursuant to the FTCA, state law defines the 18 elements of that tort. See Xue Lu v. Powell, 621 F.3d 944, 945–46 (9th Cir. 2010). But 19 “[w]e are here concerned with a question of Federal Court Jurisdiction within the limited 20 waiver of . . . sovereign immunity evidenced by the [FTCA].” Woods v. United States, 21 720 F.2d 1451, 1453 n.2 (9th Cir. 1983). So, the issue “is not what constitutes a battery 22 within the meaning of California law, but within the meaning of § 2680(h).” Id. To 23 evaluate Plaintiffs’ claim, then, the Court must use the definition of battery “that was 24 ‘traditional,’ ‘commonly understood,’ or ‘established’ when [the] FTCA was enacted.” 25 Sheehan, 896 F.2d at 1170 (citing Block v. Neal, 460 U.S. 289, 296 (1983)). 26 / / / 27 / / / 28 / / / 1 “The Ninth Circuit refers to the Restatement of Torts” in these circumstances. 2 Shipman v. United States, No. 3:21-CV-00606, 2021 WL 7904044, at *2 (D. Or. 3 Dec. 28, 2021), report and recommendation adopted, 2022 WL 981090 (D. Or. 4 Mar. 30, 2022); see also Sheehan, 896 F.2d at 1171–72 (relying on the Second Restatement 5 of Torts for the elements of intentional torts in the context of § 2680(h)). 6 B. Application 7 To situate the above principles in the context of this case, the Court summarizes the 8 applicable framework as follows. Plaintiffs’ negligence claim survives § 2680(h) in either 9 of two scenarios. First, their claim is not barred if the conduct alleged in the Complaint 10 does not constitute—i.e., satisfy the elements of—a battery. Alternatively, Plaintiffs’ claim 11 survives if some aspect of Medina’s alleged conduct (i) supports a non-excluded tort claim, 12 but (ii) is not relevant to battery. And in this analysis, the Court is guided by the 13 Restatement, not California law. Having set the ground rules, the Court turns to 14 Defendant’s argument. 15 1. Restatement’s Definition of Battery 16 Per the Restatement, “[a]n actor is subject to liability to another for battery if (a) he 17 acts intending to cause a harmful or offensive contact with the person of the other . . . and 18 (b) a harmful contact with the person of the other directly or indirectly results.” 19 Restatement (Second) of Torts (“Restatement”3) § 13 (Am. L. Inst. 1965). 20 The Court addresses the second element first, as it is easily handled. To be liable 21 for a battery, Medina’s conduct must have resulted in Plaintiffs experiencing a “harmful” 22 bodily contact. See id. Here, Plaintiffs “both touched and breathed in the chemical residue 23 from the pepper spray” that Medina had earlier used on Pupa. Compl. ¶ 11. This exposure 24 caused Plaintiffs to develop respiratory illnesses. Id. ¶ 15. Thus, Medina’s conduct 25 resulted in a harmful physical contact between Plaintiffs and the pepper spray. 26 27 28 3 Unless otherwise noted by the Court, mentions of—and citations to—the “Restatement” refer to the 1 Medina’s intent poses a more complicated question. Under the Restatement, an actor 2 must intend “to produce the harm that ensues; it is not enough that [the actor] intend[] to 3 perform the act.” Restatement § 870 cmt. b. “All consequences which the actor desires to 4 bring about are intended,” id. § 8A cmt. b, but nothing in the Complaint suggests Medina 5 consciously “desire[d]” to create a contact between his pepper spray and Plaintiffs, see 6 Compl. ¶ 10 (“[Medina] would use pepper spray . . . and move on to the next home.”). 7 However, if Medina “[knew] that the [contacts were] certain, or substantially certain, to 8 result from his act[s], . . . he is treated by the law as if he had in fact desired” said contacts 9 to occur. Restatement § 8A cmt. b (emphasis added). 10 2. Intent Requirement: Substantial Certainty 11 Given the above, determining whether Medina had the requisite intent for battery 12 requires the Court to ask if—at the time Medina pepper sprayed Pupa4—it was 13 “substantially certain” that Plaintiffs would also suffer a harmful contact with the spray. 14 Drawing all reasonable inferences from the Complaint in Plaintiffs’ favor, the Court 15 concludes it was not. 16 Substantial certainty sits on the same continuum of culpability as recklessness and 17 negligence, with substantial certainty lying toward the more culpable end of the spectrum. 18 Which label applies in any given case is a question of foreseeability. “As the probability 19 that the [harmful] consequences will follow decreases, and becomes less than substantial 20 certainty, the actor’s conduct loses the character of intent, and becomes mere 21 recklessness . . . .” See id. Recklessness, for its part, involves acting in the face of “facts 22 which create a high degree of risk of physical harm to another.” Id. § 500 cmt. a. 23 Accordingly, courts have set a high bar for finding substantial certainty. See, e.g., 24 Mein v. Cook, 193 P.3d 790, 796 (Ariz. Ct. App. 2008) (“In this context, ‘substantially 25 certain’ means nearly certain.”); Erickson v. Canyons Sch. Dist., 467 P.3d 917, 923 26 27 28 4 “[C]ulpability is generally measured against the knowledge of the actor at the time of the challenged 1 (Utah Ct. App. 2020) (“[To show substantial certainty] a party must show that the actor 2 believed that the legally harmful or offensive contact was essentially unavoidable.”); 3 Charkhian v. Nat’l Envtl. Testing, 907 F. Supp. 961, 964 (M.D. La. 1995) (“The term has 4 been interpreted as being equivalent to ‘inevitable,’ ‘virtually sure’ and ‘incapable of 5 failing.’” (footnote omitted)). 6 Prototypical examples of substantial certainty confirm this high threshold. See, e.g., 7 Restatement § 8A cmt. b, illus. 1 (“A throws a bomb into B’s office . . . . A knows that C, 8 B’s stenographer, is in the office. A has no desire to injure C, but knows that his act is 9 substantially certain to do so.”); United Specialty Ins. Co. v. Cole’s Place, Inc., 10 936 F.3d 386, 405 (6th Cir. 2019) (“The man who fires a bullet into a dense crowd may 11 fervently pray that he will hit no one, but since he must believe and know that he cannot 12 avoid doing so, he intends it.” (quoting Graves v. Dairyland Ins. Grp., 538 S.W.2d 42, 44 13 (Ky. 1976)). 14 Here, the facts do not suggest that Medina knew to a substantial certainty that Pupa 15 would interact with anyone while pepper spray remained in Pupa’s fur. Beginning in the 16 summer of 2018, Medina would spray Pupa and then move away from Plaintiffs’ home. 17 Compl. ¶¶ 9–10. Plaintiffs would not touch the pepper spray until later, when they played 18 with Pupa. See id. ¶ 11. Though these episodes would recur “numerous” times over a 19 period of months, Plaintiffs’ family did not discover Medina’s behavior until February 20 2019. See id. ¶¶ 10, 13. The Court can infer from these facts that no one was outside 21 Plaintiffs’ home, and thus in danger of encountering residual pepper spray, around the time 22 of Medina’s visit. 23 Nor does it appear that Medina must have known, to a substantial certainty, that the 24 amount of spray he discharged would pose a risk to those later interacting with Pupa. 25 Plaintiffs began exhibiting respiratory symptoms soon after their initial exposure to the 26 pepper spray. See id. ¶¶ 11–12. And yet, Plaintiffs’ family members appear not to have 27 noticed residual pepper spray in their home or on Pupa; despite taking Plaintiffs to 28 “multiple urgent care and pediatrician” appointments, the cause of Plaintiffs’ symptoms 1 remained unknown. See id. ¶ 12. 2 Because the conduct alleged in the Complaint fails to show the required intent, the 3 conduct does not constitute a battery. The Court thus finds that Plaintiffs’ claim does not 4 arise from a battery within the meaning of § 2680(h). 5 3. Transferred Intent5 6 Defendant cannot use the doctrine of transferred intent to change this conclusion. 7 Under its broadest formulation, the doctrine treats an actor “who possesses intent A . . . as 8 possessing intent B,” and thereby subjects him or her to “liability for the tort of which 9 intent B is a necessary element.” Restatement (Third) of Torts: Inten. Torts to Persons 10 § 110 cmt. b (Am. L. Inst., Tentative Draft No. 1, 2015). However, the doctrine applies 11 more narrowly than the above description suggests. 12 Rather than adopting transferred intent wholesale, the Restatement “fragments” the 13 doctrine by baking it into the definitions of individual torts. See Dan B. Dobbs et al., The 14 Law of Torts § 45 (2d ed. 2011). Specifically, the Restatement defines each tort to include 15 two categories of cases. One might call the first category “intended tort, unintended 16 victim.” In such cases, “the tort was intended,” but the resulting victim was not. Id. 17 § 45 n.11. The second group can be labeled “unintended tort, intended victim” cases: an 18 actor intends one tort but commits a different one against an intended victim. Id. The 19 instant case, based on the facts alleged in the Complaint, falls into neither category. 20 Even under Defendant’s argument, the events alleged in the Complaint do not fit the 21 description of an intended-tort-but-unintended-victim scenario. Defendant contends that 22 Medina had the intent required to commit a “trespass to chattels . . . against [Plaintiffs’] 23 dog,” but that an unintended tort (battery) harmed unintended victims (Plaintiffs). See 24 Mot. at 5–6. 25 / / / 26 27 28 5 For the purposes of this discussion, the Court presumes but does not decide that the Complaint alleges 1 Nor do Plaintiffs’ allegations fit the Restatement’s description of an unintended tort, 2 intended victim case. This is because the Restatement restricts which intended torts can 3 provide the requisite intent to create liability for an unintended battery. The list is short; it 4 consists of just two torts, neither of which is trespass to chattels.6 One is assault. See 5 Restatement § 16(1) (“If an act is done with the intention . . . of putting another in 6 apprehension of either a harmful or offensive bodily contact, and such act causes a bodily 7 contact to the other, the actor is liable . . . .”). The other is battery itself. One who intends 8 “an offensive but not a harmful bodily contact” is liable for battery “although the act was 9 not done with the intention of bringing about the resulting bodily harm.” Id. (emphasis 10 added). 11 That the Restatement limits the list to assault and battery is not surprising, as both 12 actions protect closely related interests. An intended assault can support liability for an 13 unintended battery because one’s “interest in freedom . . . from the apprehension” of 14 “harmful or offensive” contacts is “so far a part of” the interest invaded by a battery: the 15 “interest in [one’s] bodily security.” Id. § 16 cmt. a. The connection is so tight that the 16 intent to violate one interest suffices to hold an actor liable for the resulting violation of the 17 other. See id. 18 Trespasses to chattels, on the other hand, implicate a different set of interests. Rather 19 than discussing bodily security, the Restatement describes that action as protecting interests 20 in “the physical condition and use of chattels,” “the retention of the possession of chattels,” 21 and “the availability of chattels to immediate or future possession.” Id. div. 1, ch. 9, 22 scope note. Further illustrating the difference, the Restatement slots battery and assault in 23 the same chapter heading: “Intentional Invasions of Interests in Personality.” 24 See generally id. div.1, ch. 2. Meanwhile, trespass to chattels falls under a separate 25 26 6 In a section titled “Transferred Intent,” a proposed update to the Restatement maintains the same restrictions. See Restatement (Third) of Torts: Inten. Torts to Persons § 110(b) (Am. L. Inst., Tentative 27 Draft No. 1, 2015) (“For purposes of liability for battery, the intent requirement . . . is satisfied if the actor 28 either intends to cause a contact with the person of another or intends to cause the other to anticipate an 1 chapter: “Intentional Invasions of Interests in the Present and Future Possession of 2 Chattels.” See id. div.1, ch. 9. 3 Nothing in the Restatement thus suggests that the intent to commit a trespass to 4 chattels can “transfer” and give rise to liability for battery. 5 C. California Law 6 Even if California law applied, Defendant’s argument would fail. To establish the 7 contours of California’s version of transferred intent, Defendant relies principally on 8 Singer v. Marx, 301 P.2d 440 (Cal. Ct. App. 1956). There, a young boy tried to throw a 9 rock at one girl but accidentally hit another, and the court applied the doctrine of transferred 10 intent. See id. at 441–43. The court explained that “if the defendant did an illegal act 11 which was likely to prove injurious to another, he is answerable for the consequence which 12 directly and naturally resulted.” Id. at 443 (quoting Lopez v. Surchia, 246 P.2d 111, 113 13 (Cal. Ct. App. 1952)). The boy could thus be held liable for battery, as the “direct, natural 14 and probable consequence” of “unlawfully aim[ing] at one person” is “hit[ting] another.” 15 Id. (quoting Lopez, 246 P.2d at 113). 16 But Singer poses the same challenges to Defendant as the Restatement does. For 17 one thing, the rule Singer adopts also requires a certain degree of foreseeability; the court 18 extends liability to the “direct, natural, and probable consequence[s]” of unlawful acts. Id. 19 While this standard seems to demand something less than substantial certainty, the word 20 “direct”—along with Singer’s reasoning—suggests that transferred intent applies when 21 “unlawful” acts have immediate consequences that resemble the actor’s originally- 22 intended results. Indeed, the boy in Singer threw a rock with the intention of hitting 23 someone; that the thrown rock did hit someone immediately thereafter is hardly surprising. 24 Singer also fits squarely within Restatement’s version of transferred intent as a case of an 25 intended tort and an unintended victim; the boy intended a battery and a battery resulted. 26 Singer thus bears little factual resemblance to the instant case, which exhibits both 27 greater temporal separation between the alleged intentional conduct and its harmful 28 consequences, as well as dissimilar torts—battery and trespass to chattels. Another 1 California case Defendant cites is distinguishable on the same grounds. See Meza v. City 2 of Palm Springs, No. ED CV 14-00509, 2014 WL 12965997, at *2–3 (C.D. Cal. 3 Sept. 23, 2014) (applying transferred intent when police shot at a moving vehicle and hit 4 plaintiff). 5 Defendant downplays the above aspects of Singer by asserting that (i) California 6 caselaw does not require harmful consequences to be particularly foreseeable in transferred 7 intent cases, and (ii) the differences between battery and trespass to chattels do not prevent 8 transferred intent from applying. Neither argument proves persuasive. 9 1. Foreseeability 10 Defendant’s foreseeability argument relies on People v. Roberts, 826 P.2d 274 (Cal. 11 1992), as modified on denial of reh’g (May 20, 1992). Reply at 4. Per Defendant, Roberts 12 “favorably cite[s] transferred intent cases where the defendant did not directly contact the 13 unintended victim, and where intermediary causal links were required to consummate the 14 wrongful contact.” Id. 15 Defendant’s portrait of Roberts is not convincing. Both cases cited by Roberts entail 16 intentional unlawful acts that have immediate and, arguably, substantially certain 17 consequences. This makes sense, as Roberts itself addressed the limits on transferred intent 18 doctrine. Along with caselaw, the court cited favorably to the Model Penal Code for the 19 proposition that an “actor is not liable for an unintended . . . result unless, as relevant here, 20 ‘the actual result involves the same kind of injury . . . as that designed or contemplated and 21 is not too remote or accidental.’” Roberts, 826 P.2d at 300 (emphases added) (quoting 22 Model Pen. Code § 2.03(2)(b)). 23 In the first case cited by Roberts, Wright v. State, “the defendant, driving one car, 24 fired at an intended victim in another. The target ‘rapidly accelerated his car while ducking 25 bullets and ran over and killed a pedestrian.’” Id. (internal quotations omitted) (citing 26 363 So.2d 617, 618 (Fla. Dist. Ct. App. 1978)). Technically, “the defendant did not directly 27 contact the unintended victim,” Reply at 4, but that is beside the point. Wright’s decision 28 to shoot at a moving car led directly to the result that, to borrow the Restatement’s wording, 1 was “substantially certain” to occur. The intended victim was driving on a road near 2 pedestrians. Naturally, the driver tried to dodge the bullets Wright shot, and during that 3 exchange a pedestrian was hit. Perhaps Wright would be more relevant if the Complaint 4 alleged, say, that Medina pepper sprayed Pupa and hit Plaintiffs as they played nearby. But 5 as this case currently stands, Wright provides little guidance. 6 The second case, Madison v. State, proves just as unhelpful to Defendant. There, the 7 court “implied” intent in a murder case “when the defendant threw a hand grenade at one 8 [person] who, presumably impulsively, kicked it to another who was killed.” Roberts, 9 826 P.2d at 300 (citing 130 N.E.2d 35 (Ind. 1955)). Defendant thus argues that transferred 10 intent can apply “where intermediary causal links were required to consummate the 11 wrongful act.” Reply at 4. And again, Defendant is technically correct. But the intervening 12 factors in Madison bear little resemblance to the facts alleged in the Complaint. Madison 13 threw a live explosive device at one person while another was within kicking distance; in 14 doing so, Madison would have been substantially certain that harm could befall anyone in 15 the proximity of the grenade. The “intermediary” link—the intended victim’s kicking of 16 the grenade—does little to change those facts. 17 Moving beyond Roberts, Defendant next attempts to lower the threshold at which 18 intent can be imputed by analogizing the doctrine of transferred intent with the “rules of 19 causation for intentional torts.” Reply at 5. In intentional tort cases, California uses the 20 substantial factor test, which “generally produces the same results as does the ‘but for’ rule 21 of causation.” Bank of New York v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir. 2008). 22 Under this standard, “that the actor’s conduct becomes effective in harm only through the 23 intervention of new and independent forces for which the actor is not responsible is of no 24 importance.” Id. (quoting Tate v. Canonica, 5 Cal. Rptr. 28, 35 (Ct. App. 1960)). That is 25 because “the notion of independent intervening cause has no place in the law of intentional 26 torts, so long as there is a factual chain of causation.” Id. at 910 (emphasis omitted) 27 (quoting United States Fid. & Guar. Co., 205 Cal. Rptr. 460, 465 (Ct. App. 1984)). As 28 “Plaintiffs allege a factual chain of causation” between Medina’s pepper spray and their 1 injuries, Defendant seems to argue, the doctrine of transferred intent ought to apply here. 2 See Reply at 5. 3 Intent—and the foreseeability question embedded in it—is not, however, 4 synonymous with causation. Intent is a matter of culpability. Acts done intentionally, 5 recklessly, or negligently can all be tortious, “but the liability attached to them will differ.” 6 Restatement § 8A cmt. b. “[R]esponsibility for harmful consequences should be carried 7 further in the case of one who does an intentionally wrongful act.” Id. § 435B cmt a. 8 Courts may thus apply a broader rule of causality, allowing defendants to be liable for 9 harmful results “whether or not [they were] expectable,” precisely because they acted 10 intentionally. See id. § 435A. That logic does not work in reverse to lower the threshold 11 at which courts find intent to commit a tort. 12 Defendant thus identifies neither California caselaw suggesting the doctrine of 13 transferred intent applies in circumstances like those described in the Complaint, nor any 14 policy-based reason that it should. 15 2. Transferring Intent from Trespass to Chattels to Battery 16 Defendant next argues that the transferred intent doctrine applies not just to “torts 17 against persons,” but also where “a tort against an animal is intended.” Mot. at 7. 18 Defendant points to two cases, both involving a law enforcement officer that accidentally 19 shot a person after attempting to shoot a dog, in which courts applied transferred intent. 20 See Bailey v. Cnty. of San Joaquin, 671 F. Supp. 2d 1167, 1171, 1175 (E.D. Cal. 2009); 21 Rivera v. Garza, No. CV H-20-3333, 2021 WL 2533566, at *1–2 (S.D. Tex. 22 June 21, 2021). 23 The Court first notes that this question is more open than Defendant suggests, as 24 illustrated by the very cases Defendant cites. Bailey held, with minimal analysis, that 25 transferred intent did not “require[] the intended party to be a person” only after noting the 26 lack of caselaw on the issue. 671 F. Supp. 2d at 1175 n.3. Rivera provides even less 27 support. There, the plaintiffs’ claims arose under the Texas Tort Claims Act (“TTCA”). 28 See Rivera, 2021 WL 2533566, at *1–2. Unlike the FTCA, the Texas statute bars claims 1 “aris[ing] out of” any intentional tort. Id. at *2. The court’s inquiry thus ended after it 2 determined that the defendant committed a trespass to chattels. See id. (“Because they are 3 rooted in an intentional tort, the . . . claims against the City under the [TTCA] will be 4 dismissed.”). The court did not decide, nor even discuss, whether the plaintiffs’ claims 5 constituted batteries. See generally id. at *1–4. Rivera mentions the doctrine of transferred 6 intent only in dicta, explaining that the defendant’s conduct was “intentional” though he 7 had not intended to shoot the plaintiffs. See id. at *2 (“His lack of intent to shoot the 8 Riveras is also irrelevant as the transferred intent doctrine would shift his intent . . . . 9 (emphasis added)). Other authorities also note the uncertainty surrounding this issue. 10 See, e.g., Dobbs et al., supra, § 45 (“It has been suggested that the doctrine could apply as 11 between any two trespassory torts, including, perhaps, property torts as well as personal 12 torts.” (emphases added and footnote omitted)). 13 Even if the Court presumed that the intent to commit a trespass to chattels can 14 sometimes transfer to an intent to commit a battery, it would not follow that such a transfer 15 was always possible. Far from supporting Defendant’s argument, Rivera and Bailey 16 reinforce the same idea as do Singer and the Restatement: transferred intent doctrine 17 applies when tortious acts have immediate, predictable consequences that resemble the 18 results the actor intended to bring about. Like the boy in Singer, who intended to throw a 19 rock at one child and struck another, the officers in Bailey and Rivera intended to shoot 20 something and shot nearby bystanders. The instant case is different; Medina did not miss 21 his intended target and pepper spray Plaintiffs. 22 Defendant’s final argument is similarly misguided. Defendant cites Logan v. City 23 of Pullman Police Dep’t (“Logan II”7), No. CV-04-214, 2006 WL 994754 (E.D. Wash. 24 Apr. 10, 2006), for the proposition that “the transferred intent doctrine has been applied 25

26 7 Logan II incorporates the facts summarized in an earlier order from the same case. See 2006 WL 994754 27 at *1. The Court will refer to that earlier order, Logan v. City of Pullman, 392 F. Supp. 2d 1246 28 (E.D. Wash. 2005), as “Logan I.” When referencing the facts underlying the entire case, the Court will 1 where pepper spray was deployed” and “injur[ed] others beyond the intended recipient.” 2 Mot. at 7. In that case, law enforcement officers used pepper spray8 while inside a building 3 to break up a fight. Logan II, 2006 WL 994754 at *3. Others inside the building “suffered 4 secondary effects,” though they “were not sprayed directly.” Id. at *4. The court 5 concluded that “the Officers’ intent with respect to the those [sic] individuals who were 6 directly sprayed by O.C. transfers to all of the plaintiffs who were inside the building when 7 the O.C. was sprayed.” Id. 8 Unfortunately for Defendant, the facts underlying Logan more closely resemble 9 those of Singer, Wright, Madison, Bailey, and Rivera than those alleged in the Complaint. 10 As in Wright or Madison, for example, the high risk of harm to non-targeted individuals 11 would have been clear to the officers in Logan. Logan took place in a busy area at a busy 12 time: in a two-story building, which housed a restaurant and a night club, during a 13 Saturday-evening fraternity party. See Logan I, 392 F. Supp. 2d at 1254–55. And the 14 officers appear to have sprayed a large quantity of chemicals without focusing on one 15 target; three officers sprayed “toward” a group of twenty-six to thirty-eight people who 16 were fighting in the first-floor restaurant. See id. at 1256. Also noteworthy is the timing 17 of the intended act and its unintended consequences. Like the rock thrown in Singer, or 18 the bullets shot in Bailey and Rivera, the pepper spray in Logan “immediately diffused 19 through the building” and reached the unintended victims upstairs. Id. (emphasis added). 20 As the Court has already explained, the facts alleged in the Complaint suggest that similarly 21 obvious risk factors were not present, and similarly immediate consequences did not occur, 22 when Medina pepper sprayed Pupa. 23 Nor can Defendant avoid Logan’s factual dissimilarities by drawing a parallel 24 between the “ducts” in Logan, which carried the pepper spray through the building, and 25 Pupa. See Reply at 7 n.3. Defendant frames both the ducts and the dog as “conduits 26 27 28 8 The officers used oleoresin capsicum spray, also known as O.C. or pepper spray. See Logan I, 1 through which unintended victims suffered alleged injury from an alleged intentional tort.” 2 Id. But the issue of intent hangs on questions relating to foreseeability, whether framed in 3 terms of substantial certainty, per the Restatement, or in terms of direct, natural, and 4 probable consequences, as under the doctrine of transferred intent. That the ducts and the 5 dog served as “conduits” simply does not speak to that issue. 6 In light of the foregoing, the Court DENIES Defendant’s Motion to Dismiss for lack 7 of subject matter jurisdiction pursuant to Rule 12(b)(1). 8 II. Motion for Failure to State a Claim 9 Defendant makes the alternative argument that Plaintiffs fail to state a negligence 10 claim because the Complaint “alleges only intentional conduct.” Mot. at 9. For the reasons 11 that follow, the Court cannot agree. 12 A. Applicable Law 13 As the Court is no longer interpreting § 2680(h), California tort law applies here. 14 See United States v. Neustadt, 366 U.S. 696, 705 n.15 (1961) (“[W]hen a claim is not barred 15 by one of the [FTCA]’s exclusionary provisions, the liability of the Government must be 16 determined ‘in accordance with the law of the place where the act or omission occurred.’” 17 (quoting 28 U.S.C. § 1346(b))); see also Xue Lu, 621 F.3d at 946–47 (“The FTCA 18 incorporates the law of the state in which the tort is alleged to have occurred, in this case 19 California, so that we are bound to interpret and apply the law California would.”). 20 To state a negligence claim under California law, Plaintiffs must demonstrate “a 21 legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the 22 proximate or legal cause of the resulting injury.” Kesner v. Superior Ct., 384 P.3d 283, 23 289 (Cal. 2016) (alterations in original) (quoting Beacon Residential Cmty. Assn. v. 24 Skidmore, Owings & Merrill LLP, 327 P.3d 850, 853 (Cal. 2014)). 25 / / / 26 / / / 27 / / / 28 / / / 1 B. Intentional Conduct and Negligence Claims 2 The line between intentional and negligent acts is murkier than Defendant suggests. 3 True, California has, to an extent, “codifie[d] the common law dichotomy of intentional 4 torts and negligence.” Mahoney v. Corralejo, 112 Cal. Rptr. 61, 64 (Ct. App. 1974). But 5 tortious conduct cannot be so easily labeled. Rather, “human conduct fits along a 6 continuum which passes from totally innocent conduct through slight negligence, 7 negligence, gross negligence, willful and wanton or reckless conduct, and finally to 8 intentional misconduct.” Am. Emp.’s Ins. Co. v. Smith, 163 Cal. Rptr. 649, 652–53 9 (Ct. App. 1980). 10 While it is “seldom, if ever, necessary for a court to determine the precise point on 11 the continuum . . . any given conduct fits,” id. at 653, each category of conduct comes with 12 different legal consequences, see Mahoney, 112 Cal. Rptr. at 64 (“California has 13 recognized various degrees of negligence which invoke various legal consequences.”). For 14 example, and as discussed above, intentional tortfeasors may be “held liable for a broader 15 range of consequences” than negligent actors. Thing v. La Chusa, 771 P.2d 814, 819 16 (Cal. 1989) (quoting Amaya v. Home Ice, Fuel & Supply Co., 379 P.2d 513, 525 17 (Cal. 1963), overruled on other grounds by Dillon v. Legg, 441 P.2d 912 (Cal. 1968)). 18 Courts have thus policed the line between intentional and negligent actions closely 19 when a plaintiff tries to increase a defendant’s liability by recharacterizing less 20 blameworthy conduct as a more grievous wrong, like in Donnelly v. S. Pac. Co., 21 118 P.2d 465 (Cal. 1941). There, a passenger sought to frame a train conductor’s actions 22 as more than negligent. See id. at 466–67. A favorable ruling could have allowed the 23 passenger to seek punitive damages and avoid confronting a contributory negligence 24 defense. See id. at 469. But the California Supreme Court drew a line distinguishing 25

26 9 For the purposes of this discussion, the Court presumes, but does not decide, that Medina’s alleged 27 conduct was “intentional” in the sense relevant to intentional torts, i.e., that Medina “inten[ed] ‘the 28 consequences of [his] act[s],’ not simply ‘the act[s] [themselves].’” Kawaauhau v. Geiger, 523 U.S. 57, 1 willful and negligent conduct. See id. at 468 (“If conduct is negligent, it is not willful; if it 2 is willful, it is not negligent.”). Though the court also noted that some acts may have 3 “characteristics of both negligence and willfulness,” id. at 468, it held that the passenger 4 could not turn allegations of “careless[ness]” into more blameworthy conduct, id. at 470. 5 Though seemingly on-point, Donnelly does not support Defendant’s argument. This 6 is in part because Donnelly’s holding was premised on federal substantive law. See 7 generally id. at 469–70. In fact, the court may have come to a different conclusion under 8 California law. See id. at 470 (“This negligence may have been ‘gross’ under the California 9 rule but the federal cases are clear . . . .”). But more importantly, Donnelly does not address 10 the question at issue here. The court in Donnelly had to decide whether evidence 11 supporting a negligence claim could also establish more serious wrongdoing. 12 See generally id. Most “[d]ecisional law has distinguished negligence from willful or 13 intentional misconduct in that context.” Am. Emp.’s Ins., 163 Cal. Rptr. at 651 (emphasis 14 added). But the instant case presents the opposite question: whether intentional misconduct 15 can support a showing of negligence. This distinction is key. See generally id. 16 American Employer’s Insurance proves much more instructive. There, the 17 defendant was accused of negligently setting a fire. See id. at 650–51. On appeal, he 18 argued against negligence liability on the grounds that the plaintiff’s claim was necessarily 19 for an intentional tort.10 Before approaching the merits of the argument, the court 20 distinguished Donnelly, noting that “[n]o appellate decision ha[d] dealt with litigants in 21 this posture.” Id. at 651. The court then considered the relationship between culpability 22 / / / 23 / / / 24 / / / 25

26 10 The case’s unique posture resulted from the parties’ attempts to navigate an indemnification issue. See 27 Am. Emp.’s Ins., 163 Cal. Rptr. at 651 (“It is clear that plaintiffs do not desire a judgment for intentional 28 or willful misconduct since such a judgment would preclude indemnification by defendant’s insurer.”). 1 and liability, explaining, 2 Whether any particular conduct is sufficiently culpable to support the imposition of liability is a question of fact for the trier 3 of fact. The question for a court is whether the evidence, judged 4 in the light most favorable to the prevailing party, supports the finding of the trier of fact. This question is answered when the 5 court determines whether the conduct shown by the evidence 6 passes the minimum threshold necessary to impose liability. 7 Id. at 653 (internal citations omitted). So, the court reasoned, “[i]t is generally irrelevant 8 the evidence might also support a finding that the conduct was of a more culpable nature.” 9 Id. (emphases added). 10 American Employer’s Insurance thus announced the rule that “it is not a defense to 11 negligence to contend that the conduct was willful or the harm intended.” Id. And other 12 courts encountering similar issues have followed that rule. See Atain Specialty Ins. Co. v. 13 Slocum, No. 1:19-CV-0247, 2019 WL 6918273, at *7 (E.D. Cal. Dec. 19, 2019); T.B. ex 14 rel. G.B. v. Chico Unified Sch. Dist., No. 2:07-CV-926, 2008 WL 5382060, at *1–2 15 (E.D. Cal. Dec. 22, 2008); Krause v. W. Heritage Ins. Co., No. G041405, 16 2010 WL 2993991, at *14 (Cal. Ct. App. Aug. 2, 2010) (“Plaintiffs have the prerogative to 17 sue for negligence, rather than intentional tort.” (footnote omitted)). But see Harris v. 18 Recek, No. F066213, 2014 WL 3509986, at *3 (Cal. Ct. App. July 16, 2014). 19 The cases Defendant cites in opposition arise out of a distinct legal context that is, 20 at best, distantly related to the issues presented here. Said cases thus fail to persuade this 21 Court to depart from American Employer’s Insurance. To fully explain its reasoning, the 22 Court must take a brief detour into California employment law. 23 California’s workers’ compensation regime generally provides the exclusive means 24 through which an employee can recover for workplace injuries. See Cal. Lab. Code § 3602 25 (West). An exception exists when a claim is based on “alleged acts or motives” that do not 26 constitute “a risk reasonably encompassed within the compensation bargain.” Charles J. 27 Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 14 P.3d 234, 249 (Cal. 2001) (quoting 28 Shoemaker v. Myers, 801 P.2d 1054, 1063 (Cal. 1990)). But “motive” has a unique 1 definition in workers’ compensation cases. “In the exclusivity context, motive refers to the 2 purpose or reason behind the acts and not the intentional or negligent nature of these acts.” 3 Id. at 250 (citation omitted). 4 Cole v. Fair Oaks Fire Prot. Dist. explained that this context-specific definition of 5 motive is necessary because employer actions are “inherently” intentional. 6 See 729 P.2d 743, 750 (Cal. 1987). Considering whether exclusive remedy provisions 7 barred a claim for intentional infliction of emotion distress (“IIED”), the Cole court noted, 8 An employer's supervisory conduct is inherently ‘intentional.’. . . [E]very employer must on occasion review, criticize, demote, 9 transfer and discipline employees. Employers are necessarily 10 aware that their employees will feel distressed by adverse personnel decisions, while employees may consider any such 11 adverse action to be improper and outrageous. Indeed, it would 12 be unusual for an employee not to suffer emotional distress as a result of an unfavorable decision by his employer. 13 14 Id. Allowing employees to bypass exclusivity whenever an “employer act[ed] with the 15 purpose of causing emotional distress” would, therefore, “throw open the doors to 16 numerous claims already compensable under the compensation law.” Id. Accordingly, the 17 court held that “an employee suffering emotional distress” could “not avoid the exclusive 18 remedy provisions.” Id. 19 Though it discussed only the policy implications of allowing IIED claims to avoid a 20 statutory remedial scheme, later cases cited Cole, without providing additional analysis, to 21 bar employees from bringing claims for negligent infliction of emotional distress 22 (“NIED”). One such case, Semore v. Pool, relies exclusively on Cole. See 23 266 Cal. Rptr. 280, 291 (Ct. App. 1990) (“‘An employer’s supervisory conduct is 24 inherently “intentional.”’ The conduct alleged here does not support a cause of action for 25 [NIED].” (citation omitted)). The court in Edwards v. U.S. Fidelity and Guaranty 26 Company did the same, except it relied solely on Semore. See 848 F. Supp. 1460, 1466 27 (N.D. Cal. 1994), aff’d, 74 F.3d 1245 (9th Cir. 1996) (“‘[A]n employer’s supervisory 28 conduct is inherently “intentional.”’ Thus, where the conduct alleged is intentional, it 1 cannot be used as a basis for a[n] [NIED] claim.” (citation omitted)). Walker v. Boeing 2 Corporation followed suit, relying solely on Edwards. See 218 F. Supp. 2d 1177, 1185 3 (C.D. Cal. 2002) (“Moreover, because Walker’s termination was an intentional act, it also 4 cannot give rise to a claim for [NIED].” (footnote and citation omitted)). 5 This leads back to Defendant’s argument. Defendant does not reference Cole, 6 Semore, Edwards, or Walker. However, most of the authorities Defendant does cite rely 7 entirely on those four cases. See Mot. at 8–9. Bernal v. United Parcel Service Co., for 8 example, cites Walker and Semore and states that “[i]ntentional conduct cannot form the 9 basis of a negligence action.” No. EDCV 08-01579, 2009 WL 10671151, at *8 (C.D. Cal. 10 Dec. 8, 2009). Similarly, Monaghan v. El Dorado County Water Agency uses Semore and 11 Edwards to dismiss a negligence claim that was based on “evidence only describe[ing] 12 intentional acts.” No. 2:10-CV-00434, 2012 WL 397769, at *9 (E.D. Cal. Feb. 7, 2012). 13 Rounding out the trio is Dayton v. Modesto Irrigation District, No. CV-F-06-1076, 14 2007 WL 4107904 (E.D. Cal. Nov. 16, 2007). There, the court claimed that Semore and 15 Edwards “both . . . stand for the proposition that an intentional act cannot give rise to a 16 claim for NIED.” Id. at *13. 17 In this Court’s view, the above cases have little bearing on the matter at hand. The 18 decision in Cole—and, by extension, those in Semore, Edwards, and Walker—was 19 premised on policy considerations that stemmed from specific claims (emotional distress 20 actions) in a discrete area of law (California’s workers’ compensation regime). To the 21 extent any of these cases purported to transform Cole into the general rule that intentional 22 conduct can never support a negligence suit, and it is not clear to this Court they intended 23 to, they cite no supporting authority in doing so. Moreover, Defendant makes no attempt 24 to connect Bernal, Monaghan, or Dayton to the present issue. See generally Mot. The 25 Court thus respectfully declines to follow those decisions, and instead applies the holding 26 and logic of American Employer’s Insurance. 27 / / / 28 / / / 1 Additionally, many of the above cases are more plausibly read to stand for the 2 uncontroversial principle that conduct, whether intentional or otherwise, cannot constitute 3 negligence unless it violates some duty of care. See, e.g., Monaghan, 2012 WL 397769, 4 at *9 (“Plaintiff fails to specify exactly what conduct constituted negligence. . . . [T]he 5 court cannot deduce how [the defendant’s conduct] gave rise to any duty of care.”). The 6 Court also reads Defendant’s remaining cases that way. Defendant quotes Orn v. City of 7 Tacoma, which stated that “[i]t is of course true that battery is an intentional tort, and that 8 the intentional act of shooting Orn, by itself, cannot support a negligence claim.” No. C13- 9 5974, 2018 WL 1961067, at *1 (W.D. Wash. Apr. 27, 2018). But Defendant leaves out 10 the court’s next statement, which explains why Orn’s negligence claim survives summary 11 judgment. See id. (“But the claim . . . is based on the totality of the circumstances leading 12 up to the shooting—the failures to follow policies and orders.”).11 Like Monaghan, Orn 13 thus suggests that a bare assertion of intentional conduct, without the company of a 14 plausible assertion of a breached legal duty, cannot support a negligence claim. 15 Defendant’s final case can be read much the same way. See Sanders v. Madden, 16 No. B316082, 2023 WL 164922, at *7, 7 n.11 (Cal. Ct. App. Jan. 11, 2023). 17 The Court thus rejects Defendant’s argument and finds that negligence claims can 18 be based on allegations of intentional misconduct. 19 C. Adequacy of Plaintiffs’ Claim 20 That plaintiffs can base negligence claims on intentional conduct does not mean 21 intentional conduct always supports a finding of negligence. The Court must thus 22 separately determine whether the Complaint sufficiently states a negligence claim. “[T]o 23 establish negligence under California law,” Plaintiffs must “establish four required 24 elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 25 349 F.3d 1191, 1203 (9th Cir. 2003) (citations omitted). 26 27 28 11 The Court also notes that Orn does not involve California law. See generally Orn v. City of Tacoma, 1 1. Duty and Breach 2 California’s default rule of duty is codified by § 1714(a) of the California Civil 3 Code. Kuciemba v. Victory Woodworks, Inc., 531 P.3d 924, 939 (Cal. 2023). The statute 4 “establishes the default rule that each person has a duty ‘to exercise, in his or her activities, 5 reasonable care for the safety of others.’” Id. (quoting Cabral v. Ralph’s Grocery Co., 248 6 P.3d 1170, 1172 (Cal. 2011)). Everyone thus has a duty to avoid creating “unreasonable 7 risk of injury to others” as they go about their days. Lugtu v. Cal. Highway Patrol, 8 28 P.3d 249, 256 (2001) (citations omitted). Further, this default duty “is the same under 9 all [conceivable] circumstances,” unless an exception applies. Hacala v. Bird Rides, Inc., 10 306 Cal. Rptr. 3d 900, 918 (Ct. App. 2023), review denied (June 21, 2023) (alteration in 11 original) (quoting Cabral, 248 P.3d at 1183). 12 Foreseeability factors into the duty analysis.12 California’s default duty of care is 13 owed, specifically, “to the class of persons who it is reasonably foreseeable may be injured 14 as the result of the actor’s conduct.” Lugtu, 28 P.3d at 256. Importantly, foreseeability 15 plays a different role here than in causation analysis. See Cabral, 248 P.3d at 1175. The 16 Court need not “decide whether a particular plaintiff’s injury was reasonably foreseeable 17 in light of a particular defendant’s conduct,” but rather must “evaluate more generally 18 whether the category of negligent conduct at issue is sufficiently likely to result in the kind 19 of harm experienced.” Id. (third emphasis added) (quoting Ballard v. Uribe, 715 P.2d 624, 20 628 n.6 (Cal. 1986)). 21 Accepting all facts alleged in the Complaint as true and drawing reasonable 22 inferences in their favor, the Court finds Plaintiffs have adequately plead that Medina owed 23 them California’s statutory default duty of care. Plaintiffs allege that Medina “owed a duty 24 of reasonable care to each member”13 of Plaintiffs’ family “when he entered their 25 26 12 The Court notes, as addressed above, that the bar for finding foreseeability here—i.e., in the sense relevant to negligence—is lower than the “substantial certainty” threshold set for inferring intentionality. 27 13 In their Opposition to Defendant’s Motion, Plaintiffs argue that Medina owed a duty “to not needlessly 28 discharge pepper spray when the effects of that pepper spray have a fair likelihood of harming those who 1 property.” Compl. ¶ 17. Plaintiffs further claim Medina approached their home and 2 discharged pepper spray onto their property on numerous occasions. See id. ¶¶ 10–11. 3 Viewing this conduct at the generalized level required by California’s duty analysis, this 4 Court finds that Medina’s actions were “sufficiently likely to result in the kind of harm” 5 Plaintiffs experienced. And Defendant does not argue that an exception to California’s 6 general duty of care applies. See generally Mot. The Court thus finds Medina had a duty 7 to take reasonable care when using the pepper spray on Plaintiffs’ property. 8 Plaintiffs similarly plead facts sufficient to allege breach. The Complaint asserts 9 Medina breached his duty because “no reasonable mail carrier would have perceived a risk 10 of harm from Pupa” or “would have used pepper spray on Pupa.” Compl. ¶ 18. These are 11 “legal conclusions” that this Court need not credit. Iqbal, 556 U.S. at 678. But the 12 Complaint also alleges that Medina pepper sprayed Pupa before placing mail in Plaintiffs’ 13 mailbox, which was located “on the exterior of the home” next to “the exterior side of the 14 front gate,” even though Pupa was incapable of “passing through the front gate.” Compl. 15 at ¶¶ 8, 10. The Complaint further states that “chemical residue” would “remain on Pupa’s 16 fur” after each time Medina repeated this conduct, and that Plaintiffs “spen[t] significant 17 time with Pupa each day.” Id. at ¶¶ 10–11. Taking those facts as true, the Court can infer 18 that Medina unreasonably endangered Plaintiffs when he discharged pepper spray into 19 Plaintiffs’ yard and onto their dog, thereby breaching the duty he owed. 20 2. Causation and Damages 21 In California, causation analysis asks two distinct questions. 22 The first asks whether “the defendant’s breach of duty was a cause in fact of [a 23 plaintiff’s] injury.” Union Pac. R.R. Co. v. Ameron Pole Prod. LLC, 257 Cal. Rptr. 3d 131, 24 137 (Ct. App. 2019) (citing Vasquez v. Residential Invs., Inc., 12 Cal. Rptr. 3d 846, 861 25

26 dismiss . . . is ordinarily ‘addressed to the four corners of the complaint without consideration of other 27 documents.’” Reply at 8–9 (quoting Wolcott v. Meuller, No. 12-CV-1282, 2013 WL 6795412, at *3 28 (S.D. Cal. Dec. 20, 2013)). The Court thus does not consider Plaintiffs’ more detailed description of the 1 (Ct. App. 2004)). This analysis itself has two steps. The first issue is whether a defendant’s 2 “breach of its duty . . . was a substantial factor in bringing about plaintiff’s harm.” Ortega 3 v. Kmart Corp., 36 P.3d 11, 14 (Cal. 2001) (citing Nola M. v. Univ. of S. Cal., 4 20 Cal. Rptr. 2d 97, 101 (Ct. App. 1993)). For its part, the substantial factor inquiry 5 essentially looks for “but-for” causation, though it also covers situations in which a 6 “defendant’s conduct was one of multiple causes sufficient to cause the alleged harm.” 7 Union Pac., 257 Cal. Rptr. 3d at 137 (citation omitted). The second step asks whether a 8 “rule of law reliev[es] the defendant of liability.” Ortega, 36 P.3d at 14 (citation omitted). 9 Beyond the cause-in-fact element, a plaintiff must show “that the defendant’s breach 10 was the proximate, or legal, cause of the injury.” Union Pac., 257 Cal. Rptr. 3d at 137 11 (citation omitted). This second question, proximate causation, is “a normative or 12 evaluative one that asks whether the defendant should owe the plaintiff a legal duty of 13 reasonable care under the circumstances of the case.” Vazquez, 12 Cal. Rptr. 3d at 861. 14 With those rules in mind, the Court finds that the Complaint alleges facts sufficient 15 to show causation. Plaintiffs allege that Medina pepper sprayed Pupa, Compl. ¶ 10; that 16 chemicals from the spray remained in Pupa’s fur, id. ¶ 11; that Plaintiffs “touched and 17 breathed in the chemical residue” while interacting with Pupa, id.; and that Plaintiffs 18 developed “serious respiratory illnesses” as a result, id. ¶¶ 12, 19. This is more than 19 sufficient to establish cause-in-fact. And because the Court has already concluded that the 20 Complaint sufficiently alleges that Medina owed Plaintiffs a legal duty, “the second 21 component of causation is satisfied.” Vasquez, 12 Cal Rptr. 3d at 861. Notably, Defendant 22 does not contend that the Complaint fails to adequately allege causation. See generally 23 Mot. Indeed, Defendant seems to suggest the opposite. See Reply at 6. 24 The Court thus finds that the Complaint adequately states a negligence claim under 25 California law. Accordingly, the Court DENIES Defendant’s Motion to Dismiss for 26 failure to state a claim pursuant to Rule 12(b)(6). 27 / / / 28 / / / 1 III. USPS as a Defendant 2 Plaintiffs brings their FTCA claim against both the United States and the USPS. 3 Defendant contends that the USPS is not a proper defendant in this matter. See Mot. at 9. 4 Plaintiffs make no argument to the contrary. See generally Opp’n. 5 The only proper defendant in an FTCA action is the United States. See F.D.I.C. v. 6 Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA . . . only allows claims against the 7 United States.” (emphasis added)). This feature of the FTCA is a “jurisdictional 8 restriction.” Id. Even when a claim arises from the conduct of a federal agency, the 9 “agency itself cannot be sued under the FTCA.” Id. (citing Shelton v. United States 10 Customs Serv., 565 F.2d 1140, 1141 (9th Cir.1977)); see also Kennedy v. U.S. Postal Serv., 11 145 F.3d 1077, 1078 (9th Cir. 1998) (“A claim against the [USPS] in its own name is not 12 a claim against the United States.”). 13 Because the Court lacks jurisdiction over the agency in this matter, Plaintiffs’ FTCA 14 claim against the USPS is DISMISSED WITH PREJUDICE. 15 IV. Plaintiffs’ Requested Relief 16 Lastly, Defendant moves to dismiss or strike Plaintiffs’ demand for “[c]osts incurred 17 in this lawsuit” and “[p]rejudgment interest.” See Mot. at 10; Compl. at 5. Plaintiffs do 18 not respond to this argument. See generally Opp’n. 19 Defendant is correct; Plaintiffs cannot seek either remedy here. The FTCA explicitly 20 bars claims against the United States for “interest prior to judgment.” 28 U.S.C. § 2674. 21 Further, the FTCA does “not waive[] the government’s sovereign immunity for attorneys’ 22 fees and expenses.” Anderson v. United States, 127 F.3d 1190, 1191–92 (9th Cir. 1997). 23 The Court thus DISMISSES WITH PREJUDICE Plaintiffs’ prayers for prejudgment 24 interest and costs incurred in this suit. 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 Given the foregoing, the Court GRANTS IN PART AND DENIES IN PART 3 || Defendant’s Motion to Dismiss (ECF No. 6). Specifically, the Court DENIES Defendant’s 4 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, DENIES Defendant’s 5 || 12(b)(6) motion for failure to state a claim, GRANTS Defendant’s motion to dismiss the 6 ||USPS as a Defendant in this action, and GRANTS Defendant’s motion to dismiss 7 || Plaintiffs’ prayers for preyudgment interest and costs incurred in this suit. 8 IT IS SO ORDERED. 9 ||Dated: October 30, 2023 (een 10 on. Janis L. Sammartino United States District Judge

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