Bauer v. City of Pleasanton

• Court: District Court, N.D. California
• Decided: March 26, 2020
• Docket: 3:19-cv-04593
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 JOHN BAUER, et al., Case No. 3:19-cv-04593-LB

12 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 13 v. MOTION TO DISMISS PLAINTIFFS’

14 CITY OF PLEASANTON, et al., FIRST AMENDED COMPLAINT

15 Defendants. Re: ECF No. 15 16 17 INTRODUCTION 18 In August 2019, police officers responded to a call about Jacob Bauer, who allegedly was 19 causing a disturbance at a grocery store in Pleasanton, California.1 The officers allegedly 20 restrained Jacob, put a spit mask over his mouth, used a stun gun and a taser, and — after he was 21 fully restrained — hit him with a baton and “stomped on his chest several times.”2 Jacob, who was 22 unarmed and suffering from a mental illness, died on the scene after the police “did not provide or 23 summon timely medical attention,” even though Jacob was “unresponsive and turning blue.”3 24 Jacob’s parents, and the plaintiffs in this lawsuit, are John and Rose Bauer, and they sued the City 25

26 1 FAC – ECF No. 7 at 4 (¶ 14). Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Id. 4–5 (¶¶ 15–16). 1 of Pleasanton and its police chief, Dave Spiller, for (1) excessive force in violation of 42 U.S.C. § 2 1983 and the Fourth Amendment to the U.S. Constitution, (2) deliberative indifference to the 3 provision of emergency medical care, in violation of § 1983 and the Fourteenth Amendment, (3) a 4 deprivation of their right to familial association, in violation of $ 1983 and the Fourteenth 5 Amendment, (4) municipal liability (against the City of Pleasanton) under Monell v. New York 6 City Department of Social Services, 436 U.S. 658 (1978); and (5) similar claims under state law.4 7 The defendants moved to dismiss the Monell claim, a negligent hiring/supervision claim, and a 8 claim for intentional infliction of emotional distress (“IIED”).5 The court can decide the motion 9 without oral argument, see N.D. Cal. Civ. L. R. 7-1(b), and grants the motion. 10 11 STATEMENT 12 Before the events that resulted in their son’s death, the plaintiffs “were desperate to get help 13 for their son and contacted Pleasanton Police no less than four times to notify them of their son’s 14 condition and to try to get their son committed for mental health evaluation and treatment.”6 15 “Because Jacob was not a danger to himself or others, Pleasanton Police told Mr. and Mrs. Bauer 16 that there was nothing they could do.”7 17 On August 1, 2018 (based on the plaintiffs’ knowledge and belief), Chief Spiller and other 18 police officers “were dispatched” to a grocery store (a Raley’s store) in Pleasanton, California, to 19 respond to an alleged disturbance by Jacob Bauer.”8 The police officers “restrained Jacob’s hands 20 and legs, placed a spit mask over his mouth, and used a stun gun and taser on him several times.”9 21 22 4 Id. at 7–23 (¶¶ 26–118). 5 Mot. – ECF No. 15 at 10–20. The defendants also moved to dismiss the plaintiffs’ claims (to the 23 extent that they are predicated on their survival claim) for failure to file the required affidavit under Cal. Civ. P. Code § 377.32. Mot. – ECF No. 15 at 9. The plaintiffs filed the required affidavit. 24 Affidavit – ECF NO. 16. The defendants do not contend otherwise. Reply – ECF No. 21. The motion to dismiss on this basis is moot. 25 6 FAC – ECF No. 7 at 2. 26 7 Id. 27 8 Id. at 4 (¶ 14). 9 Id. (¶ 15). 1 After restraining Jacob, who was unarmed, the defendants “hit Jacob with a baton and stomped on 2 his chest several times.”10 Jacob became unresponsive and turned blue, but the police officers did 3 not provide medical care and prevented medical personnel on the scene from rendering care.11 As 4 a result, Jacob suffered injuries (including “contusions and severe emotional distress”) and died.12 5 The plaintiffs plead the following to support their Monell claim: 6 21. Plaintiffs are informed and believe that the Pleasanton Police Department has a custom and/or policy of failing to use de-escalation tactics or other appropriate police 7 intervention tactics and instead regularly employs unconstitutional excessive force against disabled individuals. Examples of this include, but are not limited to, the July 5, 2015 fatal 8 shooting of 19 year old John Deming Jr who was experiencing a mental health crisis and 9 the May 20, 2017 fatal shooting of Shannon Edward Estill who was experiencing a mental health crisis at the time of his interaction with Pleasanton Police. The death of Jacob Bauer 10 makes three fatalities of mentally ill individuals in three years by officers of the Pleasanton Police Department. 11 22. Plaintiffs are informed and believe and thereon allege that the Pleasanton Police 12 Department failed to investigate and remedy the shooting deaths of these mentally disabled individuals and failed to conduct adequate training following these events thereby ratifying 13 the custom and policy of using excessive, unconstitutional force against people in mental crisis. 14 23. Plaintiffs are informed and believe and thereon allege that the City of Pleasanton 15 does not have civilian oversight of the police department and this custom, policy and practice of the police overseeing themselves contributes to the unconstitutional use of force 16 against the mentally ill and other disadvantaged groups. 17 24. Plaintiffs are informed and believe and thereon allege that the Pleasanton Police Department’s response to Jacob Bauer and other fatalities involving mentally disabled 18 people was so lacking that it amounted to a ratification and/or evidence of a custom and 19 practice of disregarding the constitutional rights of the mentally disabled and use of excessive force against them and other disadvantaged groups. The lack of adequate 20 training, disciplinary action or other corrective measures taken before and after the death of John Deming Jr. and again after the death of Shannon Estill directly contributed to the 21 death of Jacob Bauer. Such failure to act amounts to a ratification of the unconstitutional 22 use of excessive force. Plaintiffs are informed and believe and thereon allege that following the death of Jacob Bauer the Pleasanton Police Department continues to lack 23 civilian oversight and has not taken any corrective training measures or taken disciplinary action against any officer involved.13 24 25 26 10 Id. at 5–6 (¶ 16). 11 Id. at 6 (¶¶ 19–20). 27 12 Id. (¶ 17). 1 The plaintiffs’ claims are as follows: (1) state-law battery for the wrongful death; (2) 2 negligence for the wrongful death (from the use of force and failure to provide medical care); (3) 3 excessive force in violation of § 1983 and the Fourth Amendment; (4) deliberative indifference to 4 the provision of medical care, in violation of § 1983 and the Fourteenth Amendment; (5) 5 deprivation of the parents’ right to familial association, in violation of § 1983 and the Fourteenth 6 Amendment; (6) a Monell claim; (7) a violation of California’s Bane Act, Cal. Civ. Code § 52.1 7 (based on the excessive force and the failure to provide medical care); (8) negligent hiring and 8 supervision of the police officers; and (9) IIED.14 9 The defendants moved to dismiss claims six (the Monell claim), claim eight (the negligent 10 supervision claim), and claim nine (the IIED claim), and they also ask to dismiss Chief Spiller on 11 the ground that the claims against him duplicate those against the City.15 12 All parties have consented to magistrate jurisdiction.16 13 14 STANDARD OF REVIEW 15 A complaint must contain a “short and plain statement of the claim showing that the pleader is 16 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 17 which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 18 A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 19 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 20 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 21 raise a claim for relief above the speculative level[.]” Id. (internal citations omitted). 22 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which 23 when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 24 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 25 26 14 Id. at 7–23 (¶¶ 26–118). 27 15 Mot. – ECF No. 15 at 2, 6, 9–20. 1 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 2 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 3 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 4 unlawfully.” Id. (citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are 5 merely consistent with a defendant’s liability, it stops short of the line between possibility and 6 plausibility of ‘entitlement to relief.’” Id. (internal quotation marks omitted) (quoting Twombly, 7 550 U.S. at 557). 8 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 9 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 10 848 F.3d 1161, 1183 (9th Cir. 2016) (citations and internal quotation marks omitted). 11 12 ANALYSIS 13 1. The Monell Claim 14 The plaintiffs claim a Monell violation in the form of the City of Pleasanton’s (1) policy of not 15 using de-escalation techniques for persons who are mentally ill (shown by two prior incidents also 16 involving deaths of mentally ill persons), and its resulting failure to train its officers in the use of 17 de-escalation techniques, and (2) ratification of the use of force (also shown by the prior 18 incidents).17 The City moves to dismiss on the ground that the plaintiffs have not met the Monell 19 standard.18 The court grants the motion to dismiss because the allegations are too conclusory to 20 establish Monell liability. 21 Local governments can be sued directly under § 1983 only if they maintain a policy or custom 22 that results in a violation of the plaintiff’s constitutional rights. Monell, 436 U.S. at 690–91. To 23 impose Monell entity liability under § 1983 for a violation of constitutional rights, a plaintiff must 24 show that (1) the plaintiff possessed a constitutional right and was deprived of that right, (2) the 25 municipality had a policy, (3) the policy amounts to deliberate indifference to the plaintiff’s 26

27 17 FAC – ECF No. 7 at 5–6 (¶¶ 21–24); Opp’n – ECF No. 17 at 9–17 (characterizing the claim). 1 constitutional right, and (4) the policy was the moving force behind the constitutional violation. 2 Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 3 The Ninth Circuit has explained how a policy may be established: 4 There are three ways to show a policy or custom of a municipality: (1) by showing “a longstanding practice or custom which constitutes the ‘standard operating procedure’ of 5 the local government entity;” (2) “by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said 6 to represent official policy in the area of decision;” or (3) “by showing that an official with 7 final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” 8 9 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cty. of 10 San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)); accord, e.g., Parker v. City of Pittsburg, 11 No. 17-cv-01563-LB, 2017 WL 2986225, at *5 (N.D. Cal. July 13, 2017) (applying standard on a 12 motion to dismiss). The practice or custom must consist of more than “random acts or isolated 13 events” and instead, must be the result of a “permanent and well-settled practice.” Thompson v. 14 City of Los Angeles, 885 F.2d 1439, 1443–44 (9th Cir. 1988), overruled on other grounds by Bull 15 v. City and Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010); see City of St. Louis v. 16 Praprotnik, 485 U.S. 112, 127 (1988). Thus, “a single incident of unconstitutional activity is not 17 sufficient to impose liability under Monell, unless” there is proof that the incident “was caused by 18 an existing, unconstitutional municipal policy. . . .” City of Oklahoma City v. Tuttle, 471 U.S. 808, 19 823–24 (1985). 20 A police chief “may be held liable as a supervisor under § 1983 if there exists either (1) his or 21 her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 22 between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 23 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation omitted). “Supervisors can 24 be held liable for: 1) their own culpable action or inaction in the training, supervision, or control of 25 subordinates. . . .” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (citation omitted). 26 The plaintiffs claim a Monell violation based on (1) a long-standing practice and custom, 27 including a failure to train, and (2) ratification of the officers’ actions. 1 1.1 Practice and Custom 2 To plead a Monell claim through a “longstanding practice or custom,” the “practice or custom 3 must consist of more than ‘random acts or isolated events’ and instead, must be the result of a 4 ‘permanent and well-settled practice.’” Parker, 2017 WL 2986225, at *5 (citing Thompson v. City 5 of Los Angeles, 885 F.2d 1439, 1443–44 (9th Cir. 1998), overruled on other grounds by Bull v. 6 City and Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010)). “[T]he custom must be so 7 ‘persistent and widespread’ that it constitutes a ‘permanent and well settled city policy.” Leon v. 8 Hayward Bldg. Dep't, No. 17-cv-02720-LB, 2017 WL 3232486, at *3 (N.D. Cal. July 31, 2017) 9 (some internal quotation marks omitted) (quoting Hunter v. Cty. of Sacramento, 652 F.3d 1225, 10 1233 (9th Cir. 2011)). “‘Isolated or sporadic incidents,’ by contrast, will not support Monell 11 liability against a municipality.” Id. (quoting Hunter, 652 F.3d at 1233). 12 “‘In limited circumstances, a local government’s decision not to train certain employees about 13 their legal duty to avoid violating citizens’ rights may rise to the level of an official government 14 policy for purposes of § 1983.’” Heyward v. BART Police Dep’t, No. 3:15-cv-04503-LB, 2016 15 WL 730282, at *6 (N.D. Cal. Feb. 24, 2016) (quoting Connick v. Thompson, 563 U.S. 51, 61 16 (2011)). “‘A municipality’s culpability for a deprivation of rights is at its most tenuous where a 17 claim turns on a failure to train.’” Id. (quoting Connick, 563 U.S. at 61). “‘To satisfy [§ 1983], a 18 municipality’s failure to train its employees in a relevant respect must amount to deliberate 19 indifference to the rights of persons with whom the untrained employees come into contact.’” Id. 20 (internal brackets and some internal quotation marks omitted) (quoting City of Canton v. Harris, 21 489 U.S. 378, 389 (1989)). “Only then ‘can such a shortcoming be properly [thought] of as a city 22 policy or custom that is actionable under § 1983.’” Id. (some internal quotation marks omitted) 23 (quoting City of Canton, 489 U.S. at 389 (1989)). 24 “‘Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor 25 disregarded a known or obvious consequence of his action.” Id. (internal brackets and some 26 internal quotation marks omitted) (quoting Bd. of Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). 27 “‘Thus, when city policymakers are on actual or constructive notice that a particular omission in 1 be deemed deliberately indifferent if the policymakers choose to retain that program.’” Id. 2 (quoting Connick, 563 U.S. at 61). “‘The city’s policy of inaction in light of notice that its 3 program will cause constitutional violations is the functional equivalent of a decision by the city 4 itself to violate the Constitution.’” Id. (some internal quotation marks omitted) (quoting City of 5 Canton, 489 U.S. at 389 (1989)). “‘A less stringent standard of fault for a failure-to-train claim 6 would result in de facto respondeat superior liability on municipalities[.]’” Id. (some internal 7 quotation marks omitted) (quoting City of Canton, 489 U.S. at 389). “Thus, ‘a pattern of similar 8 constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate 9 indifference for purposes of failure to train.’” Id. (internal brackets and some internal quotation 10 marks omitted) (quoting Connick, 563 U.S. at 62). “‘Policymakers’ continued adherence to an 11 approach that they know or should know has failed to prevent tortious conduct by employees may 12 establish the conscious disregard for the consequences of their action — the deliberate 13 indifference — necessary to trigger municipal liability.’” Id. (some internal quotation marks 14 omitted) (quoting Connick, 563 U.S. at 62). “‘Without notice that a course of training is deficient 15 in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training 16 program that will cause violations of constitutional rights.’” Id. 17 The plaintiffs contend that there is a “custom and/or policy” of “unconstitutional excessive 18 force” and “failing to use de-escalating tactics” based on Jacob’s death and two fatal shootings of 19 other persons suffering from mental-health crises in three years.19 The defendants counter that 20 plaintiff’s allegations are conclusory and do not sufficiently show a persistent and widespread 21 practice.20 22 The plaintiffs do not allege facts that plausibly plead a failure to train that amounts to 23 deliberate indifference to the rights of persons such as Jacob. They contend that the following 24 examples show an unconstitutional policy: “the July 5, 2015 fatal shooting of 19 year old John 25 Deming Jr[.] who was experiencing a mental health crisis and the May 20, 2017 fatal shooting of 26 27 19 FAC – ECF No. 7 at 5–6 (¶ 21). 20 See Mot. – ECF No. 15 at 10–14; Reply – ECF No. 21 at 2–7. 1 Shannon Edward Estill who was experiencing a mental health crisis at the time of his interaction 2 with Pleasanton Police.”21 These conclusory allegations do not show that the incidents are 3 factually similar or plausibly show a “persistent and widespread” custom (as opposed to “isolated 4 or sporadic” incidents). See, e.g., Sweiha v. County of Alameda, 19-cv-03098-LB, 2019 WL 5 4848227, at *4–5 (N.D. Cal. Oct. 1, 2019) (plaintiff’s allegations of five other incidents do not 6 show a custom or policy where the incidents “have markedly different facts”); Estate of Mendez v. 7 City of Ceres, 390 F. Supp. 3d 1189, 1208 (E.D. Cal. 2019) (“If [the] alleged prior instances are 8 sufficiently similar to [plaintiff’s circumstances] . . . and the instances constitute a pattern of 9 violations rather than isolated incidents to which policymakers failed to respond or inadequately 10 responded,” then the plaintiff sufficiently stated a Monell claim). 11 The court dismisses the claim with leave to amend. 12 1.2 Ratification 13 The plaintiffs claim that ratification is shown by the lack of any corrective or disciplinary 14 action for any of the three shooting incidents involving mentally ill decedents.22 15 To plead a Monell claim through ratification, “a plaintiff must show that the ‘authorized 16 policymakers approve[d] a subordinate’s decision and the basis for it.’” Dasovich v. Contra Costa 17 Cty. Sheriff’s Dep't, No. 14-cv-00258-MEJ, 2014 WL 4652118, at *6 (N.D. Cal. Sept. 17, 2014) 18 (quoting Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004)). “The policymaker must have 19 knowledge of the constitutional violation and actually approve of it.” Id. (citing Lytle, 382 F.3d at 20 987). “A mere failure to overrule a subordinate’s actions, without more, is insufficient to support a 21 § 1983 claim.” Id. (citing Lytle, 382 F.3d at 987); accord, e.g., Estate of Adomako v. City of 22 Fremont, No. 17-cv-06386-DMR, 2018 WL 2234179, at *3 (N.D. Cal. May 16, 2018) (“A police 23 department’s ‘mere failure to discipline its officers does not amount to ratification of their 24 allegedly unconstitutional actions.’ ”) (internal brackets omitted) (quoting Sheehan v. City and 25 26

27 21 FAC – ECF No. 7 at 5–6 (¶ 21). 1 Cty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part, cert. dismissed in part, 2 135 S. Ct. 1765 (2015)). 3 First, the plaintiffs do not identify a final policymaker. They allege only that “at all times 4 relevant herein, Spiller and DOES 30 through 50 were supervisors and policy makers for PPD 5 [Pleasanton Police Department.]”23 6 Second, their ratification theory relies on the other incidents, and so the claim fails for the 7 reasons that the failure-to-train theory fails. See Sweiha, 2019 WL 484227 at *5 (plaintiffs did not 8 state a ratification claim based on other dissimilar incidents). 9 Third, their other allegations are conclusory. They allege that “Defendants Spiller and DOES 10 30–50 ratified the conduct” by maintaining an unconstitutional policy of excessive force use and 11 failing to train or discipline the officers accordingly.24 This does not plausibly plead how any final 12 policymaker ratified the conduct at issue here. Cf. Slusher v. City of Napa, 15-cv-02394-SBA, 13 2015 WL 8527411, at *8 (N.D. Cal. Dec. 11, 2015) (dismissing Monell ratification claim where 14 “[t]here are no allegations specifying the particular actions at issue or how and by whom they were 15 ratified”); Dasovich, 2014 WL 4652118 at *6 (plaintiff’s complaint “contain[ed] no [] allegations 16 of affirmative action by [the] Sheriff” to ratify the challenged conduct and thus did not state a 17 ratification claim). 18 The court dismisses the claim with leave to amend. 19 1.3 Chief Spiller 20 The plaintiffs do not state a claim against Chief Spiller. They do not allege his personal 21 involvement in the alleged constitutional deprivation or a causal connection (such as his own 22 culpable action in training and supervising his subordinates). Starr, 652 F.3d at 1207; 23 Cunningham, 229 F.3d at 1292 (9th Cir. 2000). 24 The court dismisses the claim with leave to amend. 25 26 27 23 FAC – ECF No 7 at 3 (¶ 8); see also id. at 3 (¶ 6), 15 (¶ 78). 24 Id. at 14–15 (¶ 77). 1 2. Negligent Hiring, Retention, Supervision or Training 2 The plaintiffs’ eighth claim is for negligent hiring, retention, supervision, and training.25 The 3 defendants move to dismiss the claim on the grounds that (1) there is no cause of action under 4 state law for direct-liability claims for negligent hiring and supervision, and (2) there is no 5 vicarious liability.26 The court grants the motion to dismiss. 6 Under California law, “[a] public entity is not liable for an injury” unless “otherwise provided 7 by statute.” Cal. Gov. Code § 815(a). “One such statutory basis for liability is California 8 Government Code section 815.2(a), which extends liability to a public entity ‘for injury 9 proximately caused by . . . an employee of the public entity within the scope of his employment if 10 the act or omission would . . . have given rise to a cause of action against that employee.” Hardin 11 v. Mendocino Coast Dist. Hosp., 17-cv-05554-JST, 2018 WL 2984834, at *9 (N.D. Cal. June 14, 12 2018). 13 To the extent that the plaintiffs are alleging a theory of direct liability for negligent hiring or 14 supervision, they have not identified a statute providing for the defendants’ direct liability. See 15 Ottolini v. City of Rohnert Park, 19-cv-02851-LB, 2019 WL 3254231, at *9 (N.D. Cal. July 19, 16 20190 (“California courts of appeal have held that no statutory basis exists for a claim of direct 17 liability based on a public entity’s negligent hiring, policymaking, and supervision”) (internal 18 citations and quotations omitted); see also Shoval v. Sobzak, 09-cv-01348-H (JMA), 2009 WL 19 2780155, at *4 (S.D. Cal. August 31, 2009) (“California courts have repeatedly held that there is 20 no statutory basis for direct claims against a public entity for negligent hiring and supervision 21 practices”) (citing California cases). In their opposition, the plaintiffs do not dispute that they 22 cannot bring a direct claim for negligent hiring or supervision against the defendants.27 23 The plaintiffs contend that “[m]unicipal governments may be vicariously liable for negligent 24 hiring and supervision pursuant to Government Code section 815.2.”28 Courts in the Ninth Circuit 25 26 25 Id. at 19–21 (¶¶ 97–108). 26 Mot. – ECF No. 15 at 15–17. 27 27 See Opp’n – ECF No. 17 at 17–18. 1 have rejected similar arguments. See, e.g., Herd v. County of San Bernardino, 311 F. Supp. 3d 2 1157, 1171–72 (C.D. Cal. 2018) (rejecting, in an excessive-force case, the plaintiffs’ argument 3 that the municipal defendants can be vicariously liable under § 815.2 for negligently failing to 4 train officers on the use of deadly force); Hardin, 2018 WL 2984834 at *9 (“Section 815.2(a) does 5 not apply to a negligent supervision, hiring, and retention claim because ‘liability for negligent 6 supervision and/or retention of an employee is one of direct liability for negligence, not vicarious 7 liability’”) (citing Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 790, 815 (2006)); cf. Munoz v. 8 City of Union City, 120 Cal. App. 4th 1077, 1113–14 (2004) (rejecting argument that city- 9 defendant’s alleged negligent hiring or supervision is based on vicarious liability because such 10 argument “would render the distinction between direct and vicarious liability completely 11 illusory”), overruled in part on other grounds by Hayes v. Cty. Of San Diego, 57 Cal. 4th 622 12 (2013)). 13 The plaintiffs cite to the California Supreme Court’s decision in C.A. v. William S. Hart Union 14 High School District to contend that a public entity can be vicariously liable for negligent hiring 15 and supervision if there is a “special relationship” between the plaintiffs and the defendants.29 53 16 Cal. 4th 861, 877 (2012). The court in William found that a school district could be vicariously 17 liable for negligently hiring, retaining, and supervising a guidance counselor who abused the 18 plaintiff. Id. at 865. The court based its holding on finding that there is a “special relationship” 19 between school districts and students. Id. at 877. “Absent such a special relationship, there can be 20 no individual liability to third parties for negligent hiring, retention or supervision of a fellow 21 employee, and hence no vicarious liability under section 815.2.” Id. 22 The plaintiffs contend that they sufficiently alleged a special relationship because they 23 “notified Defendants four times that Jacob was suffering a mental health crisis.”30 They cite no 24 cases to support that theory. Their allegations do not plausibly plead a special relationship. The 25 court gives leave to amend for the plaintiffs to allege more facts. See Hardin, 2018 WL 2984834 26

27 29 Id. at 17–18. 1 (dismissing negligent supervision claim against public entity with leave “[a]lthough it is not clear 2 that [the plaintiff] will be able to cure this claim by amendment”). The court doubts that the 3 deficiencies can be cured (but gives that opportunity to allow a full record). For many reasons, no 4 matter how detailed the reports to the police, a special relationship cannot be established in 5 circumstances such as these. There is an established framework for analyzing excessive-force 6 cases, both under federal or state law. The criteria for special relationships — which turn on 7 factors such as foreseeability of harm, the consequence to the community of imposing a duty, and 8 burden — do not fit cases involving a police response to a call for assistance. Put another way, a 9 school’s relationship with its students (who are in loco parentis) is different than a police 10 department’s relationship to the community. Both have a duty, but the nature of the relationship 11 imposes different responsibilities. 12 13 3. Intentional Infliction of Emotional Distress (IIED) 14 The plaintiffs claim IIED as a survival claim.31 The defendants move to dismiss.32 The court 15 grants the motion. 16 In California, “[a] cause of action for intentional infliction of emotional distress exists when 17 there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or 18 reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering 19 severe or extreme emotional distress; and (3) actual and proximate causation of the emotional 20 distress by the defendant's outrageous conduct.” Kelley v. Conco Cos., 196 Cal. App. 4th 191, 215 21 (2011). “A defendant's conduct is outrageous when it is so extreme as to exceed all bounds of that 22 usually tolerated in a civilized community.” Id. (internal quotation marks omitted). 23 The plaintiffs do not allege any acts directed at them. Burns v. City of Concord, 14-cv-00535- 24 LB, 2014 WL 5794629, at *17 (N.D. Cal. Nov. 6, 2014) (dismissing IIED claim because plaintiffs 25 “do not allege that Defendants directed their conduct at either of [the plaintiffs]”); see also Lopez 26

27 31 Id. at 19. 1 v. County of Los Angeles, 15-cv-017450-MMM, 2015 WL 3913263, at *12 (C.D. Cal. June 25, 2 2015) (same). The plaintiffs also cannot allege a survival ITED claim on behalf of Jacob because 3 “emotional distress damages do not survive the death of the person who suffered them.” Burns, 4 2014 WL 5794629 at *17; see also Copeland v. County of Alameda, 12-cv-04286-JST, 2014 WL 5 1266198, at *3 (N.D. Cal. March 21, 2014) (citing Berkley v. Dowds, 152 Cal. App. 4th 518, 530 6 || (2007)).%3 7 The court dismisses the claim with prejudice as to any survival claim and without prejudice as 8 to any claim that the parents can assert on their own behalf. 9 10 CONCLUSION 11 The court grants the motion to dismiss with leave to amend (except the court dismisses the 12 || survival IZED claim with prejudice).

IT IS SO ORDERED. 15 Dated: March 26, 2020 Ld EC 16 5 LAUREL BEELER nited States Magistrate Judge 18 19 20 21 22 23 24 25 26

33 Damages in survival actions include pre-death pain and suffering. Chaudhry v. City of Los Angeles, 28 751 F.3d 1096, 1105 (9th Cir. 2014).