Banks v. San Mateo County District Attorney's Office

• Court: District Court, N.D. California
• Decided: April 18, 2025
• Docket: 3:24-cv-08681
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARRIE BANKS, Case No. 24-cv-08681-SI

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS

10 SAN MATEO COUNTY DISTRICT Re: Dkt. No. 26 ATTORNEY’S OFFICE, et al., 11 Defendants. 12 13 14 Now pending before the Court is defendants’ motion to dismiss the complaint. Pursuant to 15 Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument 16 and VACATES the hearing set for May 9, 2025. For the reasons set forth below, the Court 17 GRANTS the motion to dismiss, with leave to amend in part. 18 19 BACKGROUND1 20 On or about July 17, 2021, Fernando Altuna Mendoza raped plaintiff Carrie Banks while 21 she was unconscious in her home. Dkt. No. 3, Compl. ¶ 10. After a night out, plaintiff left a bar in 22 an Uber, and Altuna Mendoza followed her home. Id. ¶ 11. According to the complaint, “He entered 23 Plaintiff’s home uninvited and without permission, found her unconscious in her bed, and had sex 24 with her without Plaintiff’s consent.” Id. 25 In August 2021, Altuna Mendoza was arrested. Id. ¶ 12. In an interview with police, Altuna 26

27 1 For purposes of this motion to dismiss, the Court treats as true the factual allegations as 1 Mendoza admitted that he had entered plaintiff’s home on his own, that he found plaintiff passed 2 out in her bed, and that she was not sober enough to consent to sex. Id. ¶ 53. He also wrote “a note 3 of apology, which was booked into evidence[.]” Id. ¶ 55. Altuna Mendoza was charged in San 4 Mateo County Superior Court with multiple felonies, including two counts of rape and two counts 5 of sexual penetration by a foreign object. Id. ¶ 56. 6 During the following year, the San Mateo County District Attorney’s Office (“SMCDA”) 7 advised plaintiff to prepare to testify at trial. Id. ¶ 57. Trial was set to begin October 6, 2023. Id. 8 ¶¶ 58, 61-62. The assigned prosecutor, defendant Sharron Lee, was not prepared for trial. Id. ¶ 60. 9 Lee did not prep witnesses and was unresponsive to them, “demonstrated only superficial 10 knowledge as to the details of the case[,]” and never met with plaintiff to prepare her for trial or ask 11 her any questions. Id. ¶¶ 59-60. 12 In the week prior to trial, Lee told plaintiff that she intended to take the case to trial and there 13 was no plea deal. Id. ¶ 62. On September 29, 2023, Lee notified plaintiff that the parties would 14 likely begin jury selection for the trial on October 6 and that plaintiff did not need to come to court 15 that morning. Id. ¶ 61. On October 5, defendant Laura Adams, who worked for the victims’ services 16 office at SMCDA, told plaintiff that witnesses were being scheduled for trial. Id. ¶ 63. 17 The complaint alleges that “[a]t the eleventh hour, Defendant Lee ambushed Plaintiff with a 18 sweetheart plea deal for her attacker[.]” Id. at 17. On October 6, 2023, unbeknownst to plaintiff, 19 Lee presented Altuna Mendoza with a plea deal “that would allow him to plead to false 20 imprisonment, which was not among the original charges and did not match the facts of the case.” 21 Id. ¶ 64. According to the complaint, “Lee did not consult with plaintiff regarding the proposed 22 plea deal, in violation of Plaintiff’s rights under California law as a victim of a crime . . . .” Id. ¶ 65. 23 When Adams told plaintiff about the plea deal, plaintiff immediately went to the courthouse to speak 24 to Lee. Id. ¶ 66. 25 “In an effort to justify the plea deal after the fact, Defendant Lee made various comments to 26 Plaintiff demonstrating bias against victims of sexual violence, especially female victims of such 27 crimes, including victim blaming, minimizing, invoking harmful and outdated sex stereotypes, and 1 “that the plea deal was not final, but this turned out not to be true. Defendant Lee told Plaintiff she 2 was going to speak with the defendant and his counsel about the plea, but, upon information and 3 belief, Defendant Lee in fact went to the courtroom to finalize the plea deal.” Id. ¶ 69. Adams 4 discouraged plaintiff from speaking in court and advised her that she would be removed from the 5 courtroom if she did, which is false under California law governing victims’ rights (i.e., Marsy’s 6 Law). Id. ¶ 70. 7 Judge Donald Ayoob accepted the plea deal. Id. ¶ 71. SMCDA had previously criticized 8 Judge Ayoob’s handling of sex crime cases. Id. ¶ 73. The complaint alleges that “Lee rushed the 9 plea deal that day in part because Judge Ayoob, rather than the regularly scheduled judge, was 10 presiding.” Id. ¶ 72. According to the complaint, “The push to have Judge Ayoob preside over 11 Plaintiff’s case is therefore evidence that Defendant Lee was interested in completing the case rather 12 than taking the necessary time to consult with Plaintiff as required under Marsy’s Law.” Id. ¶ 73. 13 The complaint also alleges misconduct by defendants Stephen Wagstaff and Shin-Mee 14 Chang, the District Attorney and Assistant District Attorney, respectively. Id. ¶¶ 30-31, 74. On 15 October 19, 2023, plaintiff informed them that she believed her rights under Marsy’s Law had been 16 violated. Id. ¶ 74. Rather than intervene to prevent the plea deal from going forward, as plaintiff 17 hoped, “upon information and belief, Defendant Wagstaff worked to ensure that the sentencing 18 would be conducted by Judge Ayoob, knowing that Judge Ayoob had previously conducted himself 19 in a manner that raised concerns for Defendant Wagstaffe and SMCDA about whether the judge 20 took sex crimes cases seriously.” Id. ¶¶ 74-75. 21 On November 27, 2023, Altuna Mendoza was sentenced to probation, receiving no jail time 22 beyond the five days he had already served. Id. ¶ 76. The assigned prosecutor did not consult with 23 plaintiff regarding the proposed sentence. Id. It was not until the day of sentencing that plaintiff 24 learned that the plea deal had been accepted and what the full details were. Id. Later that day, Judge 25 Ayoob “told Plaintiff that he may not have accepted the plea deal had he known that Plaintiff was 26 not consulted or that it had originally been a sex crime.” Id. ¶ 77. 27 In March 2024, Altuna Mendoza was arrested for a probation violation for driving while 1 the new arrest; plaintiff only discovered it by happenstance. Id. ¶ 79. Plaintiff attempted to contact 2 Adams but was unable to reach her. Id. ¶ 80. Plaintiff then contacted Adams’s supervisor, who did 3 not intervene. Id. ¶¶ 34, 81. 4 The complaint raises concerns about the handling of the case by Altuna Mendoza’s probation 5 officer, defendant Alfonso Hernandez. In violation of Marsy’s Law, Hernandez did not consult with 6 plaintiff before issuing a sentencing recommendation on the probation violation, despite plaintiff 7 leaving voicemails and sending him emails. Id. ¶ 83. Hernandez recommended one month in jail 8 for the probation violation without considering the underlying sexual offense. Id. ¶ 82. Plaintiff 9 contacted Hernandez’s supervisors, who did not intervene. Id. ¶¶ 37-38, 84. 10 On March 26, 2024, Altuna Mendoza was sentenced for the probation violation by a different 11 judge (not Judge Ayoob) and with a different prosecutor assigned to the case (not defendant Lee), 12 who requested substantial jail time. Id. ¶¶ 85-86. The judge sentenced Altuna Mendoza to six 13 months in jail for the probation violation. Id. ¶ 85. 14 On December 3, 2024, plaintiff filed this suit in federal court. Dkt. No. 3. Plaintiff sues: 15 San Mateo County, the San Mateo County District Attorney’s Office, the San Mateo County 16 Probation Department, and various individuals within the District Attorney’s Office and Probation 17 Department. Plaintiff brings four claims under 42 U.S.C. § 1983, for: violation of the Fourteenth 18 Amendment, Equal Protection; violation of the Fourteenth Amendment, Due Process; supervisory 19 liability under the Fourteenth Amendment; and Monell liability. Plaintiff also brings five claims 20 under California state law. Plaintiff seeks damages as well as declaratory and injunctive relief. 21 Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 22 23 LEGAL STANDARD 24 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 25 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 26 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 1 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require 2 “heightened fact pleading of specifics,” Twombly, 550 U.S. at 544, a plaintiff must provide “more 3 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 4 do.” Id. at 555. The plaintiff must allege facts sufficient to “raise a right to relief above the 5 speculative level.” Id. 6 In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff’s 7 allegations are true and must draw all reasonable inferences in his or her favor. Usher, 828 F.2d at 8 561. However, the Court is not required to accept as true “allegations that are merely conclusory, 9 unwarranted deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc., 536 10 F.3d 1049, 1055 (9th Cir. 2008). “[T]he tenet that a court must accept as true all of the allegations 11 contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. 12 If the Court dismisses the complaint, it must then decide whether to grant leave to amend. 13 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no 14 request to amend the pleading was made, unless it determines that the pleading could not possibly 15 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 16 (citations and internal quotation marks omitted). 17 18 DISCUSSION 19 Defendants move to dismiss the federal claims, arguing that the individual defendants are 20 immune from damages, that the complaint fails to allege municipal liability, and that plaintiff does 21 not have standing to seek declaratory or injunctive relief. 22 23 I. Immunity for Individual Defendants 24 Defendants first argue that the individually named defendants are immune from the claims 25 raised in this suit, under the doctrines of absolute and qualified immunity. Plaintiff sues five 26 individuals within SMCDA (Wagstaffe, Chang, Lee, Adams, and Kuhl) and four individuals within 27 the Probation Department (Keene, Hernandez, Sisavath, and Dah). The Court finds the individual 1 the question of qualified immunity. 2 3 A. District Attorney’s Office Defendants 4 A state prosecuting attorney enjoys absolute immunity from liability under 42 U.S.C. § 1983 5 for his conduct in pursuing a criminal prosecution insofar as he acts within his role as an advocate 6 for the State and his actions are “intimately associated with the judicial phase of the criminal 7 process[.]” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). But prosecutors are entitled only to 8 qualified immunity when they perform investigatory or administrative functions or are essentially 9 functioning as police officers or detectives. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 10 “[A]bsolute immunity is an extreme remedy, and it is justified only where ‘any lesser degree of 11 immunity could impair the judicial process itself.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 912 12 (9th Cir. 2012) (quoting Kalina v. Fletcher, 522 U.S. 118, 127 (1997)). The prosecutor “bears the 13 burden of showing that . . . immunity is justified for the function in question.” Id. (quoting Burns 14 v. Reed, 500 U.S. 478, 486 (1991)). 15 Plaintiff’s federal claims against District Attorneys Wagstaffe, Chang, and Lee are dismissed 16 with prejudice because these defendants have absolute prosecutorial immunity for the actions 17 alleged in the complaint, all of which pertain to the criminal prosecution of Altuna Mendoza in state 18 court. See id. at 272-73. Lee has immunity for her actions related to the decision to present Altuna 19 Mendoza with a plea deal for false imprisonment, for her presentation of a plea deal without first 20 consulting with plaintiff, and for her decision to present the plea deal to Judge Ayoob on October 6, 21 2023. See Briley v. State of Cal., 564 F.2d 849, 856 (9th Cir. 1977) (“prosecutorial immunity 22 extends to the process of plea bargaining”). 23 In opposition, plaintiff reads the advocacy/investigatory distinction too literally. She argues 24 that some of the conduct complained of occurred “prior to advocacy, that is, before the prosecutor 25 goes into court to advocate for a plea deal or a sentence.” Dkt. No. 27, Opp’n at 4-5. Presumably 26 she intends that the Marsy’s Law violations were part of the “investigation” of the case, and so 27 absolute immunity would not apply. Yet absolute immunity protects “those functions in which the 1 of a prosecution and actions apart from the courtroom.” Lacey, 693 F.3d at 912 (quoting Burns, 500 2 U.S. at 486) (internal quotation marks omitted). The question is thus not whether the prosecutor’s 3 conduct occurred literally inside or outside of the courtroom doors. The Court has little difficulty 4 under the facts alleged here in finding that Lee’s actions surrounding the plea deal offered to Altuna 5 Mendoza, including any inadequate notice to plaintiff, are protected by absolute prosecutorial 6 immunity.2 7 Prosecutorial immunity also applies to the conversation Lee had with plaintiff on October 6, 8 2023. During that conversation, Lee “suggested that she show Plaintiff video of Plaintiff kissing 9 the defendant inside the bar the night of the rape[;]” stated that the jury being shown the video may 10 cause a juror to acquit; and “[t]old Plaintiff that ‘No’ does not always mean ‘no,’ in the eyes of the 11 law.” See Compl. ¶ 67. When the conclusory allegations are subtracted, this paragraph of the 12 complaint, on which plaintiff heavily relies for her equal protection claim, shows that Lee was 13 providing her legal assessment of the pros and cons of going to trial. Prosecutors are absolutely 14 immune for “evaluating evidence and interviewing witnesses” in preparation for trial. Buckley, 509 15 U.S. at 273; see also Caruso, 646 F. App’x at 105 (finding prosecutor absolutely immune from 16 Section 1983 suit brought by victim who alleged the prosecutor’s office “did not meaningfully 17 interview her concerning her version of the events and ignored her input when negotiating a plea 18 deal”); Arellano v. Becton, No. 24-cv-2250-WHO, 2024 WL 3908114, at *4-5 (N.D. Cal. Aug. 20, 19 2024) (finding District Attorney defendants absolutely immune from Section 1983 suit brought by 20 victim’s father, who alleged DA failed to investigate case or talk to the family witnesses, finalized 21 an illegal plea deal without consulting with victim’s family, and got a specific judge to improperly 22 preside over the case). In short, the Court finds Lee’s actions covered by absolute prosecutorial 23 2 The Court’s ruling today is consistent with the provision of Marsy’s Law that specifies: 24 “This section does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its 25 political subdivisions, or any officer or employee of the court.” Cal. Const. art. I, § 28(c)(2). Plaintiff does not address this provision in her brief. 26 The Court’s ruling is also consistent with the two circuit courts that have addressed whether prosecutors are absolutely immune from suit for violating the state’s victims’ rights law. See Pusey 27 v. City of Youngstown, 11 F.3d 652, 658 (6th Cir. 1993) (“we address this issue to make clear that 1 immunity in this case. 2 District Attorney Wagstaff and Assistant District Attorney Chang are likewise immune. To 3 the extent plaintiff argues they are liable for not having intervened to “prevent the plea deal from 4 going forward[,]” as plaintiff had hoped, see Compl. ¶ 74, they are immune because such advocacy 5 is “intimately associated with the judicial phase of the criminal process.” See Patterson v. Van 6 Arsdel, 883 F.3d 826, 830 (9th Cir. 2018) (quoting Imbler, 424 U.S. at 430). To the extent they are 7 named for failing to intervene on Lee’s Marsy’s Law violations, they have immunity for the same 8 reason that Lee is absolutely immune from the underlying Marsy’s Law claims. See Van De Kamp 9 v. Goldstein, 555 U.S. 335, 344 (2009) (supervising prosecutors absolutely immune from claims 10 that they failed to train or supervise prosecutors on constitutional obligations at trial). 11 Prosecutorial immunity also extends in this case to defendants Adams and Kuhl, the 12 SMCDA victim’s advocate and her supervisor, respectively. Adams and Kuhl’s involvement stems 13 entirely from their assigned roles in the Altuna Mendoza prosecution. See Compl. ¶ 33 (defendant 14 Adams “worked for the victims’ services office at SMCDA and was assigned to support Plaintiff 15 during the prosecution of Plaintiff’s attacker”). “Immunity flows from ‘the nature of the function 16 performed, not the identity of the actor who performed it.’” Patterson, 883 F.3d at 830 (quoting 17 Kalina, 522 U.S. at 127). Defendants argue that Adams and Kuhl’s actions in this case were “all 18 part of the SMCDA’s advocacy in a particular criminal matter, and thus . . . [were] intimately 19 associated with the judicial process.” Dkt. No. 26, Mot. at 12-13. Plaintiff fails to address this point 20 in her brief, and the Court agrees with defendants. Cf. Tennison v. City & Cnty. of San Francisco, 21 548 F.3d 1293, 1304 (9th Cir. 2008) (assuming without deciding that investigating officers may be 22 entitled to absolute immunity from liability for Brady violations when their actions are intimately 23 associated with the judicial phase of the criminal process). 24 25 B. Probation Department Defendants 26 For the same reasons, plaintiffs’ claims against Probation Officers Keene, Hernandez, 27 Sisavath, and Dah are dismissed. “[I]mmunity depends on an official’s function rather than his or 1 against the probation officer defendants are sufficiently similar to the advocacy role of the SMCDA 2 defendants that absolute immunity should extend to them as well. Plaintiff alleges that Hernandez 3 did not consider the underlying sexual offense when he recommended only one month in jail for 4 Altuna Mendoza’s probation violation. Compl. ¶ 82. The complaint also alleges that Hernandez 5 did not consult plaintiff before issuing his sentencing recommendation and did not contact her until 6 the day after sentencing, despite plaintiff’s multiple attempts to reach him. Id. ¶¶ 83, 88. The 7 complaint also alleges that Hernandez’s supervisors did not intervene when plaintiff complained to 8 them about Hernandez’s handling of the case. Id. ¶ 84. The probation officers’ actions, as stated in 9 the complaint, are “acts of advocacy, which are entitled to absolute immunity,” rather than 10 “administrative [or] ‘police-type’ investigative acts which are not.” See Patterson, 883 F.3d at 830. 11 Absolutely immunity thus applies to these defendants as well. 12 Because absolute immunity applies, the federal claims against the individual defendants are 13 dismissed with prejudice. 14 15 II. Municipal Defendants 16 In addition to the individual defendants, plaintiff sues the County of San Mateo, the San 17 Mateo County District Attorney’s Office, and the San Mateo County Probation Department. She 18 sues all of these municipal defendants on her First through Fourth claims for relief (Equal Protection, 19 Due Process, Supervisory Liability, and Monell Liability). 20 As an initial matter, municipal departments within the County are improper defendants on a 21 Section 1983 claim. See Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996); 22 see also Nelson v. Cnty. of Sacramento, 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013). The Court 23 therefore DISMISSES with prejudice the federal claims stated against the San Mateo County 24 District Attorney’s Office and the San Mateo County Probation Department. 25 The Court also DISMISSES with prejudice the First through Third Claims brought against 26 the County. Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where 27 official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 1 acts of its employees under the theory of respondeat superior. See Board of Cnty. Comm’rs. of 2 Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 3 47 F.3d 1522, 1534 (9th Cir. 1995). Because the County is named as a defendant on the First through 4 Third Claims based on supervisory liability, dismissal of these claims against the County is 5 warranted. 6 The Court now proceeds to address the Fourth Claim for Monell liability against the County. 7 To establish an official policy that would give rise to Monell liability, a plaintiff must allege facts 8 to support one of the following to survive dismissal of her claim: (1) an unconstitutional custom or 9 policy behind the violation of rights; (2) a deliberately indifferent omission, such as a failure to train 10 or failure to have a needed policy; or (3) a final policy-maker’s involvement in, or ratification of, 11 the conduct underlying the violation of rights. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 12 1249-50 (9th Cir. 2010) (synthesizing authorities), overruled on other grounds by Castro v. Cnty. 13 of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). 14 “[W]here a government official is merely negligent in causing the injury, no procedure for 15 compensation is constitutionally required.” Davidson v. Cannon, 474 U.S. 344, 347 (1986). “That 16 injuries inflicted by governmental negligence are not addressed by the United States Constitution is 17 not to say that they may not raise significant legal concerns and lead to the creation of protectible 18 legal interests.” Daniels v. Williams, 474 U.S. 327, 333 (1986). However, “negligence on the part 19 of the municipal defendant [is] a much lower standard of fault than deliberate indifference.” 20 Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007). 21 At the outset, the Court notes that the contours of plaintiff’s Monell claim are not entirely 22 clear. The complaint appears to assert that the County is liable based on a municipal custom or 23 practice that caused her injury, based on a failure to adequately train staff, and based on the 24 ratification of unconstitutional conduct by County policy-making officials, including Wagstaffe, 25 Keene, and Chang. See Compl. ¶¶ 156-159. Plaintiff’s opposition brief focuses on the ratification 26 theory and requests leave to amend the complaint regarding the failure-to-train theory. See Opp’n 27 at 20-23. 1 The complaint references ratification only in passing, in a conclusory allegation. See Compl. ¶ 159. 2 Plaintiff’s opposition brief focuses on additional facts, not included in the original complaint, that 3 she would allege in support of ratification if given leave to amend. See Opp’n at 21. 4 Likewise with the failure-to-train theory, plaintiff includes additional facts in her opposition, 5 appearing to concede that the complaint does not adequately state a claim. See id. As with 6 ratification, she provides no explanation for why she did not include her full allegations the first 7 time around. Nevertheless, the Court will give plaintiff one chance to amend. If it is true, for 8 instance, that SMCDA or the San Mateo County Probation Department fail to train their staff on 9 compliance with Marsy’s Law, then it is possible that a Monell claim may exist. 10 However, the Court provides the following words of caution. First, plaintiff will need to 11 allege sufficient, non-conclusory facts for her Monell claim to survive another motion to dismiss. 12 Second, “[r]atification . . . generally requires more than acquiescence.” Sheehan v. City & Cnty. of 13 San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part on other grounds, cert. dismissed 14 in part sub nom. City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015). A “mere 15 failure to discipline [a subordinate] does not amount to ratification of their allegedly unconstitutional 16 actions.” Id. (citing Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1253-54 (9th Cir. 2010)). 17 Plaintiff’s amendment will need to do more than plead “acquiescence” on the part of Wagstaffe, 18 Chang, and Keene in order to proceed on a ratification theory. See Compl. ¶¶ 30-31, 35. 19 To the extent plaintiff bases her Monell claim on the existence of a longstanding practice or 20 custom within the County, the Court notes that “[a] single constitutional deprivation ordinarily is 21 insufficient to establish a longstanding practice or custom.” See Christie v. Iopa, 176 F.3d 1231, 22 1235 (9th Cir. 1999) (citing Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)). Proof of random 23 acts or isolated incidents of unconstitutional action by a non-policymaking employee is insufficient 24 to establish the existence of a municipal policy or custom. Rivera v. Cnty. of Los Angeles, 745 F.3d 25 384, 398 (9th Cir. 2014); McDade v. West, 223 F. 3d 1135, 1142 (9th Cir. 2000); Trevino, 99 F.3d 26 at 918. The Court cautions that “[i]t is difficult to discern from the caselaw the quantum of 27 allegations needed to survive a motion to dismiss a pattern and practice claim.” See Gonzalez v. 1 one more instance may not suffice to establish the County had a longstanding practice or custom. 2 See Bell v. Krol, No. 13-cv-5820-SI, 2023 WL 8101982, at *5 (N.D. Cal. Nov. 21, 2023) (finding 3 “two incidents—more than four years apart—are by themselves insufficient to establish a custom 4 or policy”). 5 Today’s Order assumes, without deciding, that plaintiff has stated an underlying 6 constitutional violation, without which no Monell claim will lie. If plaintiff successfully cures the 7 above deficiencies in her Monell claim, the Court may revisit the question of whether she has stated 8 a constitutional violation. 9 10 III. Injunctive and Declaratory Relief 11 The Court’s above finding on absolute prosecutorial immunity protects individual 12 defendants “only from damage claims, not from suits for prospective injunctive relief.” See Roe v. 13 City & Cnty. of San Francisco, 109 F.3d 578, 586 (9th Cir. 1997) (citation omitted). Defendants 14 move to dismiss plaintiff’s claims for injunctive and declaratory relief, arguing lack of standing. 15 A foundational principle of Article III of the United States Constitution is that “an actual 16 controversy must exist not only at the time the complaint is filed, but through all stages of the 17 litigation.” Trump v. New York, 592 U.S. 125, 131 (2020) (per curiam) (quoting Already, LLC v. 18 Nike, Inc., 568 U.S. 85, 90-91 (2013) (internal quotation marks omitted)). A plaintiff “must show 19 standing with respect to each form of relief sought.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 20 978 (9th Cir. 2011); see also Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th 21 Cir. 1996) (plaintiff who seeks only prospective injunctive relief has no standing to challenge statute 22 on vagueness grounds because relief sought will not redress any past injury). 23 Standing for prospective injunctive relief requires either “continuing, present adverse 24 effects” or “a sufficient likelihood that [s]he will again be wronged in a similar way.’” Villa v. 25 Maricopa Cnty., 865 F.3d 1224, 1229 (9th Cir. 2017) (quoting O’Shea v. Littleton, 414 U.S. 488, 26 496-98 (1974), and City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). Where the plaintiff 27 seeks injunctive relief, standing requires a “real and immediate threat” of future injury. See Lyons, 1 which, if true, prove an unlawful pattern and practice of behavior on the part of the defendants, and 2 not just a random, relatively isolated incident. See Nelsen v. King Cnty., 895 F.2d 1248, 1254 (9th 3 Cir. 1989). The speculative nature of the allegations also must be considered, including whether the 4 claim of future injury relies upon a chain of speculative contingencies. See, e.g., Lyons, 461 U.S. at 5 105-09 (plaintiff who was stopped by police and subjected to a chokehold had no standing to pursue 6 claim for injunctive relief where it was no more than speculation to assert that he would again break 7 the law, be stopped, and be subjected to a chokehold without any provocation); O’Shea, 414 U.S. at 8 496-98 (finding no standing because plaintiffs could not establish that they would violate the law, 9 be charged, held to answer, and tried in flawed proceedings). 10 Here, the Court agrees with defendants that the grounds for plaintiff to seek injunctive relief 11 are too speculative to support standing. The complaint asserts: “Given the frequency of attacks on 12 women in San Mateo County, the data regarding SMCDA’s handling of sex crimes, and Plaintiff’s 13 own experience with County officials’ mishandling of her case, Plaintiff reasonably fears that she 14 is likely to be attacked again, and that her rights will be further violated by SMCDA and the 15 Probation Department, and that her rights will continue to be violated in the ongoing case involving 16 her attacker, who remains on probation until November 2025.” Compl. ¶ 114. This is not sufficient 17 to plausibly allege a “sufficient likelihood that [s]he will again be wronged in a similar way.” See 18 Lyons, 461 U.S. at 111; Caruso, 646 F. App’x at 104 (affirming dismissal of the victim plaintiff’s 19 claims for declaratory and injunctive relief because the court “would have to assume that Caruso 20 would again be a victim of a crime, that the perpetrator of that crime would be prosecuted by the 21 Rockland County District Attorney’s Office, that the perpetrator would then negotiate a plea 22 agreement, and that Caruso’s input would not be considered in the court’s acceptance of the plea 23 agreement”). Because plaintiff does not have standing for her claims for declaratory and injunctive 24 relief, the Court has no jurisdiction to hear those claims and the claims are dismissed from this case 25 without leave to amend. 26 27 CONCLUSION 1 Claim (Monell claim) and only against defendant County of San Mateo. Any amended complaint 2 || is due no later than May 9, 2025. If plaintiff fails to file an amended complaint, the Court will 3 decline supplemental jurisdiction over the remaining state law claims and will dismiss those claims 4 || without prejudice. 5 6 IT IS SO ORDERED. 7 Dated: April 18, 2025 8 SUSAN ILLSTON 9 United States District Judge 10 11 12

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