Horton v. County of San Diego

Opinion

1 2 3 4

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 MICHELLE HORTON, Case No.: 21-cv-00400-H-BGS 12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. CITY OF LA MESA’S MOTION FOR 14 JUDGMENT ON THE PLEADINGS COUNTY OF SAN DIEGO; EVAN

15 SOBZCAK; JACOB MACLEOD; [Doc. No. 21.] UNKNOWN SAN DIEGO SHERIFF’S 16 DEPARTMENT PERSONNEL; CITY OF 17 LA MESA; and UNKNOWN LA MESA POLICE DEPARTMENT PERSONNEL, 18 Defendants. 19

20 On August 27, 2021, Defendant City of La Mesa filed a motion for judgment on the 21 pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. No. 21.) On September 22 13, 2021, Plaintiff filed a response in opposition to La Mesa’s motion for judgment on the 23 pleadings. (Doc. No. 23.) On September 16, 2021, the La Mesa filed its reply. (Doc. No. 24 25.) The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), determines the 25 matter is appropriate for resolution without oral argument, submits the motion on the 26 parties’ papers, and vacates the hearing. For the reasons below, the Court grants La Mesa’s 27 motion for judgment on the pleadings. 28 /// 1 Background 2 The following factual background is taken from the allegations in Plaintiff’s 3 complaint. On May 30, 2020, Plaintiff’s children were peacefully participating in mass 4 protests in La Mesa, California. (Doc. No. 1, Compl. ¶¶ 1-2, 17-18.) Plaintiff was waiting 5 to meet up with her children, so they could go home. (Id.) At the relevant time, Plaintiff 6 was standing on a sidewalk, near a well-lit gas station, at the corner of Spring Street and 7 University Avenue in La Mesa. (Id. ¶ 17.) 8 Plaintiff alleges that while standing there, law enforcement officers, believed to 9 include Defendants Evan Sobzcak and Jacob MacLeod, shot her in the breast with a less- 10 lethal projectile while driving past her. (Id.) Plaintiff alleges that, when shot, she was 11 unarmed; not engaged in any criminal, raucous, or destructive activity; did not pose any 12 threat of harm to anyone; and was not resisting or fleeing arrest. (Id. ¶ 19.) Plaintiff alleges 13 that she was not immersed in a crowd of unruly protestors, nor was she near anyone 14 engaged in criminal, raucous, or destructive activity. (Id.) 15 On March 5, 2021, Plaintiff filed a complaint against Defendants County of San 16 Diego, Sobzcak, MacLeod, and La Mesa, alleging claims for: (1) 42 U.S.C. § 1983 – 17 excessive force; (2) 42 U.S.C. § 1983 – Monell;1 (3) Bane Act, California Civil Code § 18 52.1(b); (4) battery; and (5) negligence. (Doc. No. 1, Compl.) By the present motion, 19 Defendant La Mesa moves pursuant to Federal Rule of Civil Procedure 12(c) for judgment 20 on the pleadings on all of Plaintiff’s claims against La Mesa. (Doc. No. 21-1 at 4, 7.) 21 Discussion 22 I. Legal Standards for a Rule 12(c) Motion for Judgment on the Pleadings 23 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but 24 early enough not to delay trial—a party may move for judgment on the pleadings.” 25 “‘Judgment on the pleadings is properly granted when[, accepting all factual allegations in 26 the complaint as true,] there is no issue of material fact in dispute, and the moving party is 27

28 1 entitled to judgment as a matter of law.’” Chavez v. United States, 683 F.3d 1102, 1108 2 (9th Cir. 2012). The Ninth Circuit has explained that the standard for deciding a Rule 12(c) 3 motion “is ‘functionally identical’” to the standard for deciding a motion to dismiss under 4 Federal Rule of Civil Procedure 12(b)(6). Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 5 Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Magazine Inc., 6 867 F.2d 1188, 1192 (9th Cir. 1989)); accord Chavez, 683 F.3d at 1108. 7 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 8 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 9 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 10 646 F.3d 1240, 1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires that 11 a pleading stating a claim for relief contain “a short and plain statement of the claim 12 showing that the pleader is entitled to relief.” The function of this pleading requirement is 13 to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 14 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 15 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 16 facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial 17 plausibility when the plaintiff pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 19 Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a 20 formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting 21 Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 22 devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). 23 Accordingly, dismissal for failure to state a claim is proper where the claim “lacks a 24 cognizable legal theory or sufficient facts to support a cognizable legal theory.” 25 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 26 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 27 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 28 claimant. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 1 938, 945 (9th Cir. 2014). But a court need not accept “legal conclusions” as true. Iqbal, 2 556 U.S. at 678. Further, it is improper for a court to assume the claimant “can prove facts 3 which it has not alleged or that the defendants have violated the . . . laws in ways that have 4 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 5 Carpenters, 459 U.S. 519, 526 (1983). 6 In addition, a court may consider documents incorporated into the complaint by 7 reference and items that are proper subjects of judicial notice. See Coto Settlement v. 8 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). If the court dismisses a complaint for 9 failure to state a claim, it must then determine whether to grant leave to amend. See Doe 10 v. United States, 58 F.3d 494, 497 (9th Cir. 1995); see Telesaurus, 623 F.3d at 1003 (9th 11 Cir. 2010). 12 II. Analysis 13 A. Plaintiff’s Monell Claim 14 In the complaint, Plaintiff alleges a Monell claim against Defendant La Mesa. (Doc. 15 No. 1, Compl. ¶¶ 33-40.) Defendant La Mesa argues that Plaintiff’s Monell claim should 16 be dismissed because Plaintiff does not allege that any employee of the City of La Mesa 17 committed a constitutional violation against her. (Doc. No. 25 at 2-5.) 18 “[A] municipality cannot be held liable solely because it employs a tortfeasor—or, 19 in other words, a municipality cannot be held liable under § 1983 on a respondeat superior 20 theory.” Monell, 436 U.S. at 691; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060, 21 1073 (9th Cir. 2016) (“[A] municipality may not be held liable for a § 1983 violation under 22 a theory of respondeat superior for the actions of its subordinates.”). Rather, 23 “municipalities may only be held liable under section 1983 for constitutional violations 24 resulting from official county policy or custom.” Benavidez v. Cty. of San Diego, 993 F.3d 25 1134, 1153 (9th Cir. 2021); see also Monell, 436 U.S. at 692 (Section 1983 “imposes 26 liability on a government that, under color of some official policy, ‘causes’ an employee 27 to violate another’s constitutional rights.”). 28 A Monell claim is derivative of a claim against a municipal employee and requires 1 an underlying civil rights claim against a municipal employee. Lockett v. Cty. of Los 2 Angeles, 977 F.3d 737, 740 (9th Cir. 2020); see also Santor v. Harwell, No. 1:19-CV-1593 3 AWI SKO, 2020 WL 5017616, at *15 (E.D. Cal. Aug. 25, 2020) (“Without a constitutional 4 violation by an employee of a governmental entity, there is no Monell liability.”). In light 5 of this, several courts have held a plaintiff cannot bring a Monell claim against a 6 municipality if the tortfeasors at issue are not employees of that municipality. See, e.g., 7 Buckheit v. Dennis, No. C 09-5000 JCS, 2010 WL 3751889, at *5 (N.D. Cal. Sept. 24, 8 2010) (“Plaintiff cannot plead a Monell claim against the County. The arresting officers 9 were not County employees. Plaintiff has not cited a single case that extends Monell 10 liability to employees of another municipality.”); Smith v. Cty. of Stanislaus, No. CV 11- 11 1655-LJO-SKO, 2012 WL 1205522, at *5 (E.D. Cal. Apr. 11, 2012) (“To state a Monell 12 claim against the County, Ms. Smith must allege that an employee of the County violated 13 her constitutional rights. As set forth above, however, grand jury members are not County 14 employees. Accordingly, Ms. Smith has failed to state a Monell claim against the County, 15 because the alleged wrongful acts were performed by the grand jury members, not County 16 employees.”). 17 In the complaint, Plaintiff alleges that law enforcement officers, believed to include 18 Defendants Sobzcak and MacLeod, shot her in the breast with a less-lethal projectile while 19 driving past her even though she was unarmed; not engaged in any criminal, raucous, or 20 destructive activity; did not pose any threat of harm to anyone; and was not resisting or 21 fleeing arrest. (Doc. No. 1, Compl. ¶¶ 17, 19.) Defendants Sobzcak and MacLeod are the 22 underlying tortfeasors with respect to Plaintiff’s Monell claim. (See id. ¶¶ 17, 34-35.) But 23 Plaintiff does not allege that Defendants Sobzcak and MacLeod are employees of 24 Defendant La Mesa. To the contrary, Plaintiff alleges that Defendants Sobzcak and 25 MacLeod “are each individuals who, at all times relevant hereto, were County [of San 26 Diego] employees engaged in the course and scope of their employment as Department 27 Deputies, and acting under color of state law.” (Id. ¶ 12) 28 Because the alleged torfeasors at issue, Defendants Sobzcak and MacLeod, are not 1 employees of Defendant La Mesa, Plaintiff’s Monell claim against Defendant La Mesa 2 fails as a matter of law.2 See, e.g., Buckheit, 2010 WL 3751889, at *5; Smith, 2012 WL 3 1205522, at *5; Santor, 2020 WL 5017616, at *15. As such, the Court dismisses Plaintiff’s 4 Monell claim against Defendant La Mesa without leave to amend. 5 C. Plaintiff’s State Law Claims 6 In the complaint, Plaintiff alleges three state law claims against La Mesa for: (1) 7 violation of the Bane Act, California Civil Code § 52.1; (2) battery; and (3) negligence. 8 (Doc. No. 1, Compl. ¶¶ 41-56.) Defendant La Mesa argues that all of Plaintiff’s state law 9 claims against it should be dismissed because there is no statutory basis for holding La 10 Mesa vicariously liable for the alleged conduct of the individual defendants at issue. (Doc. 11 No. 21-1 at 7.) 12 “[California Government Code §] 815 establishes that public entity tort liability is 13 exclusively statutory.” C.A. v. William S. Hart Union High Sch. Dist., 53 Cal. 4th 861, 14 868 (2012). Section 815 provides: “Except as otherwise provided by statute: (a) A public 15 entity is not liable for an injury, whether such injury arises out of an act or omission of the 16 public entity or a public employee or any other person.” Cal. Gov’t Code § 815. 17 As the statutory basis for asserting liability against the City of La Mesa, Plaintiff 18 cites to California Government Code § 815.2 in her complaint. (Doc. No. 1, Compl. ¶¶ 45, 19 51, 56.) California Government Code § 815.2 provides: “A public entity is liable for injury 20 proximately caused by an act or omission of an employee of the public entity within the 21 scope of his employment if the act or omission would, apart from this section, have given 22

23 2 The Court does not find persuasive Plaintiff’s citation to Silberberg v. Lynberg, 186 F. Supp. 2d 24 157, 170 n.11 (D. Conn. 2002), (Doc. No. 23 at 7), as it is a non-binding out-of-circuit district court decision. District courts within the Ninth Circuit have held that a Monell claim cannot proceed against a 25 municipality if the tortfeasors at issue are not employees of that municipality. See Buckheit, 2010 WL 3751889, at *5; Smith, 2012 WL 1205522, at *5. In addition, Silberberg involved “a cooperative law 26 enforcement operation” called the “Valley Street Crime Unit (‘VSCU’)” that involved at least six different towns. 186 F. Supp. 2d at 161 (“The VSCU is a law enforcement body created by an interlocal agreement 27 among municipalities in the Naugatuck Valley area, and involving personnel from each of the member 28 municipalities and from the Connecticut State Police.”). Plaintiff fails to adequately explain how the 1 rise to a cause of action against that employee or his personal representative.” 2 In her state law claims, Plaintiff seeks to hold Defendant La Mesa vicariously liable 3 for the acts of the individual defendants, Defendants Sobzcak and MacLeod, pursuant to 4 Section § 815.2. But Defendant La Mesa can only be vicariously liable under Section 5 815.2 for the acts “of an employee.” Cal. Gov’t Code § 815.2. Plaintiff does not allege 6 that the individual defendants, Defendants Sobzcak and MacLeod, are employees of 7 Defendant La Mesa. To the contrary, Plaintiff alleges that Defendants Sobzcak and 8 MacLeod “are each individuals who, at all times relevant hereto, were County [of San 9 Diego] employees engaged in the course and scope of their employment as Department 10 Deputies, and acting under color of state law.” (Doc. No. 1, Compl. ¶ 12.) As such, 11 Plaintiff’s reliance on Section 815.2 to assert liability on Defendant La Mesa is deficient 12 as a matter of law. 13 Plaintiff notes that California law defines “an employee” as “an officer, judicial 14 officer as defined in Section 327 of the Elections Code, employee, or servant, whether or 15 not compensated, but [not] an independent contractor.” Cal. Gov’t Code § 810.2. (Doc. 16 No. 23 at 7.) But this is of no consequence. Plaintiff does not assert that she can adequately 17 allege that Defendants Sobzcak or MacLeod constitute “employees” of Defendant La Mesa 18 under the definition set forth in Section 810.2.3 As such, Plaintiff has failed to adequately 19 allege a statutory basis for holding Defendant holding La Mesa vicariously liable for the 20 alleged conduct of the individual defendants with respect to Plaintiff’s state law claims. 21

22 3 In her opposition, Plaintiff attempts to assert that “right to control” by itself is sufficient to establish 23 that an individual defendant is an “employee” of a public entity. (Doc. No. 23 at 7-8.) To support this 24 assertion, Plaintiff cites to Townsend v. State of California, 191 Cal. App. 3d 1530, 1535 (1987). Townsend does not support Plaintiff’s assertion. In Townsend, the California Court of Appeal noted that 25 the Restatement defined the term “servant” as “‘. . . [a] person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to 26 the other’s control or right to control.’” Townsend, 191 Cal. App. 3d at 1535 (quoting Rest. 2d. Agency § 220(1)). Thus, both Townsend and the Restatement defined the term “servant” as someone who is not 27 only subject to a “right to control,” but who is also “employed to perform services.” Id. Plaintiff does not 28 allege that the individual defendants, Defendants Sobzcak and MacLeod, are or were employed by 1 || As a result, the Court dismisses Plaintiff’s state law claims against La Mesa without leave 2 || to amend. 3 Conclusion 4 For the reasons above, the Court grants Defendant City of La Mesa’s motion for 5 ||judgment on the pleadings without leave to amend. Because the Court has dismissed all 6 || of Plaintiff's claims against Defendant City of La Mesa without leave to amend, the Court 7 ||dismisses Defendant City of La Mesa from the action with prejudice. The action will 8 || proceed against the remaining Defendants: County of San Diego, Evan Sobzcak, and Jacob 9 || MacLeod. 11 || DATED: September 23, 2021 | | | | | | MARILYN‘. HUFF, Distri ge 13 UNITED STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28