Jose Murguia v. Langdon

• Court: District Court, E.D. California
• Decided: October 1, 2021
• Docket: 1:19-cv-00942
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MURGUIA, for himself and for the No. 1:19-cv-00942-DAD-BAM Estates of Mason and Maddox Murguia, 12 Plaintiff, 13 ORDER GRANTING DEFENDANTS’ v. MOTIONS TO DISMISS 14 HEATHER LANGDON, et al., (Doc. Nos. 38, 40, 41, 43) 15 Defendants. 16

17 18 Before the court are four motions to dismiss filed by defendants City of Visalia and 19 Officer Hernandez (Doc. No. 38), defendant First Assembly of God of Visalia (“First Assembly”) 20 (Doc. No. 40), defendants Cerda, Lewis, Torres, and County of Tulare (collectively “county 21 defendants”) (Doc. No. 41), and defendants Davis, Garcia, Valencia, and City of Tulare 22 (collectively “city defendants”) (Doc. No. 43). Pursuant to General Order No. 617 addressing the 23 public health emergency posed by the COVID-19 pandemic, the motions were taken under 24 submission on the papers. (Doc. Nos. 39, 42, 44.) For the reasons explained below, the court will 25 grant the motions to dismiss. 26 BACKGROUND 27 The factual background of this case has been discussed at length in the court’s prior order 28 granting defendants’ previous motions to dismiss. (Doc. No. 35.) In its prior order, the court 1 synthesized plaintiffs’ original 131-page complaint with considerable difficulty. Indeed, in 2 dismissing plaintiffs’ original complaint with leave to amend the court cautioned plaintiffs to 3 comply with Rule 8’s requirements for a short and plain statement of their claims showing that 4 they are entitled to relief, or risk having an amended complaint dismissed with prejudice. (Doc. 5 No. 35 at 20.) Despite the court’s instruction, plaintiffs’ first amended complaint (“FAC”) is 98- 6 pages in length and asserts thirty-six causes of action. (Doc. No. 36.) In any event, the court will 7 only briefly repeat plaintiffs’ undeniably tragic factual allegations here. 8 Plaintiff Jose Murguia and defendant Heather Langdon married in 2004 and had three 9 children. (FAC at ¶ 24.) Following reports of domestic violence committed by Langdon against 10 Jose, the state court issued a TRO against Langdon on January 5, 2015 and then “awarded sole 11 physical and legal custody of their three children to Jose.” (Id. at ¶¶ 25–26.) The couple 12 terminated their marriage in April of 2015. (Id. at ¶ 27.) However, in Spring of 2017 plaintiff 13 Murguia and defendant Langdon started seeing each other again and Langdon become pregnant 14 with twins. (Id. at ¶ 31.) On January 12, 2018, Langdon gave birth to twin boys, Mason and 15 Maddox, but there was no formal custody order for the twins. (Id. at ¶ 33.) 16 On December 5, 2018, defendant Langdon was experiencing an ongoing and escalating 17 mental health crisis. (Id. at ¶ 17.) Defendant Langdon, plaintiff Murguia, and their twin infants 18 (“decedents”) had been living together in plaintiff Murguia’s home with the couple’s three older 19 children since August of 2018. (Id.) Plaintiff Murguia called 911 on December 5, 2018 and 20 requested psychological help for Langdon. (Id.) The Tulare County Sheriff’s officers were the 21 first to respond. (Id. at ¶ 18.) The officers did not take defendant Langdon into custody. Instead, 22 plaintiffs’ neighbor took Langdon and the decedents to the First Assembly church. (Id.) Shortly 23 after Langdon and the decedents arrived at First Assembly, the church called the Visalia Police 24 Department (“VPD”). (Id. at ¶ 20.) Rather than taking Langdon into custody or placing her 25 under a § 5150 hold, the VPD officers drove Langdon and the decedents to a shelter for women. 26 (Id.) The shelter refused to admit Langdon because “Langdon was disruptive and in the shelter’s 27 opinion, acting ‘crazy.’” (Id. at ¶ 21.) The shelter then called the Tulare Police Department 28 (“TPD”) twice in order to get help dealing with Langdon. (Id.) Allegedly, the TPD called Child 1 Welfare Services (“CWS”) and “falsely told them that Langdon had gone to a hospital for a psych 2 evaluation and that the hospital concluded that Langdon did not meet the criteria for an 3 involuntary commitment.” (Id.) (emphasis in original.) CWS told the TPD officers that it could 4 take custody of the decedents, but only if Langdon was taken into custody. (Id. at ¶ 22.) The 5 TPD officers refused to take Langdon into custody. (Id.) Believing that Langdon was not 6 capable of finding her own shelter, the TPD officers arranged for a motel to give a free night’s 7 lodging to her and the decedents. (Id.) The TPD officers then drove defendant Langdon and the 8 decedents to the motel, where defendant Langdon drowned the decedents sometime thereafter. 9 (Id. at ¶ 23.) 10 On June 30, 2020, the court granted defendants’ motions to dismiss plaintiffs’ original 11 complaint but also granted plaintiffs leave to amend. (Doc. No. 35.) Plaintiffs filed their FAC on 12 July 30, 2020. (Doc. No. 36.) On August 20, 2020, both defendant City of Visalia and defendant 13 First Assembly each filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 14 (Doc. Nos. 38, 40.) On September 3, 2020, the county defendants also filed a motion to dismiss 15 under Rule 12(b)(6) (Doc. No. 41) and on September 18, 2020, city defendants did the same 16 (Doc. No. 43). Plaintiffs filed their oppositions to City of Visalia, First Assembly, and county 17 defendants’ motions on September 22, 2020 (Doc. Nos. 45, 46, 47) and their opposition to city 18 defendants’ motion on October 5, 2020 (Doc. No. 54). County defendants, City of Visalia, and 19 First Assembly each filed replies on September 29, 2020 (Doc. Nos. 49, 50, 51) and city 20 defendants filed their reply on October 12, 2020 (Doc. No. 55). 21 LEGAL STANDARD 22 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 23 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 24 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 25 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 26 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) 28 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state 1 a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 2 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the 3 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 5 In determining whether a complaint states a claim on which relief may be granted, the 6 court accepts as true the allegations in the complaint and construes the allegations in the light 7 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 8 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff 9 “can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways 10 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 11 Carpenters, 459 U.S. 519, 526 (1983). 12 DISCUSSION 13 Defendants City of Visalia and Officer Hernandez, First Assembly, county defendants, 14 and city defendants each move to dismiss plaintiffs’ respective claims against them pursuant to 15 Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Below, the court will 16 address the pending motions with respect to plaintiffs federal and state law claims separately. 17 A. Federal Claims 18 Plaintiffs bring twelve separate federal claims pursuant to 42 U.S.C. § 1983 for violation 19 of their constitutional rights. (FAC at ¶¶ 119–339) (claims 1–12.) Plaintiffs’ twenty-four 20 additional claims are all brought under state law. (FAC at ¶¶ 340–502) (claims 13–36.) 21 Plaintiffs’ federal claims are brought against both the individual defendants as well as against 22 City of Visalia, City of Tulare, and County of Tulare pursuant to Monell v. Dept. of Social 23 Services, 436 U.S. 658, 691 (1978). As was the case when the court issued its previous order 24 (Doc. No. 35), “the sole issue posed by the pending motions to dismiss this [case] is whether 25 plaintiffs have adequately alleged that any of the individual defendants’ conduct deprived them of 26 a constitutional right.” (Id. at 10.) The court concluded in its prior order that plaintiffs had not 27 adequately alleged a constitutional violation in their original complaint. With respect to the FAC, 28 the court finds that plaintiffs have again failed to adequately allege constitutional violations 1 against the individual defendants. Moreover, because a Monell claim requires an underlying 2 constitutional violation as an essential element of the claim, the court concludes plaintiffs’ Monell 3 claims against the municipal entity defendants must also be dismissed. The court will address the 4 federal claims brought against each group of defendants in turn below. 5 1. Claims Against the Individual Defendants 6 Plaintiffs bring the same federal claims against each individual defendant. Defendants 7 move to dismiss those claims, arguing that plaintiffs have failed to allege facts sufficient to state a 8 claim upon which relief could be granted. Specifically, plaintiffs bring their claims under § 1983, 9 alleging violations of the due process clause of the Fourteenth Amendment, violations of their 10 Fourth Amendment right to be free from unreasonable seizure, and violations of their First 11 Amendment right to familial association. To succeed on a § 1983 claim, a plaintiff must allege 12 and ultimately show that: (1) the conduct complained of was committed by a person acting under 13 color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory 14 right. Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (citing Tatum v. City & 15 County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006)). Relevant to plaintiffs’ claims 16 here, the Ninth Circuit has explained as follows: 17 “[T]he general rule is that [a] state is not liable for its omissions.” Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th 18 Cir. 2000). In that vein, the Fourteenth Amendment’s Due Process Clause generally does not confer any affirmative right to 19 governmental aid, even where such aid may be necessary to secure life, liberty, or property interests. DeShaney v. Winnebago Cnty. 20 Dep’t of Soc. Servs, 489 U.S. 189, 196 (1989). As a corollary, the Fourteenth Amendment typically “does not impose a duty on [the 21 state] to protect individuals from third parties.” Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007). 22 There are two exceptions to this rule: (1) when a “special 23 relationship” exists between the plaintiff and the state (the special relationship exception), DeShaney, 489 U.S. at 198–202; and (2) 24 when the state affirmatively places the plaintiff in danger by acting with “deliberate indifference” to a “known or obvious danger” (the 25 state-created danger exception), L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). If either exception applies, a state’s omission or 26 failure to protect may give rise to a § 1983 claim. 27 Id. 28 1 The special-relationship exception “applies when a state ‘takes a person into its custody and holds 2 him there against his will.’” Id. at 972 (quoting DeShaney, 489 U.S. at 200); see also Henry A. v. 3 Willden, 678 F.3d 991, 998 (9th Cir. 2012) (“[W]hen a custodial relationship exists between the 4 plaintiff and the State such that the State assumes some responsibility for the plaintiff’s safety and 5 well-being.”). “The types of custody triggering the exception are ‘incarceration, 6 institutionalization, or other similar restraint of personal liberty.’” Id. at 972. “The special- 7 relationship exception does not apply when a state fails to protect a person who is not in custody.” 8 Id. The other exception, the state-created danger exception, has two requirements: (1) there must 9 be “affirmative conduct on the part of the state in placing the plaintiff in danger,” and (2) the state 10 must act “with deliberate indifference to a known or obvious danger.” Id. at 974 (internal 11 quotations and citations omitted); see also Henry A., 678 F.3d at 1002; Kennedy v. Ridgefield, 12 439 F.3d 1055, 1062–64 (9th Cir. 2006). 13 In their FAC, as in their original complaint, plaintiffs assert a constitutional right to life 14 and to familial companionship. (See, e.g., FAC at ¶ 207.) The Ninth Circuit recognizes that a 15 parent has a Fourteenth Amendment liberty interest in the companionship and society of his or 16 her child, Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010), “and that a child’s interest in 17 [their] relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty 18 interest.” Curnow By & Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) 19 (internal citation and quotation marks omitted). Likewise, “the First Amendment protects those 20 relationships, including family relationships, that presuppose ‘deep attachments and commitments 21 to the necessarily few other individuals with whom one shares not only a special community of 22 thoughts, experiences, and beliefs, but also distinctively personal aspects of one’s life.’” Lee, 250 23 F.3d at 685. Plaintiffs also allege that the individual defendants named in this action were acting 24 under color of state law. (See, e.g., FAC at ¶ 120.) Thus, the lone issue posed by the pending 25 motions to dismiss is whether plaintiffs have adequately alleged that any of the individual 26 defendants deprived plaintiffs of their constitutional rights. 27 ///// 28 ///// 1 a. County of Tulare Officers 2 Plaintiffs bring their first and second claims under § 1983 against defendants Cerda and 3 Lewis, both officers with the Tulare County Sherriff’s Department, asserting violations of 4 plaintiffs’ substantive due process rights under of the Fourteenth Amendment1, violations of their 5 right to be free from unreasonable seizures under the Fourth Amendment, and violations of their 6 right to familial association under the First Amendment. (FAC at 29, 33.) The County 7 defendants move to dismiss those claims, arguing that plaintiffs have failed to allege an exception 8 to the rule that the failure to protect an individual against private acts of violence does not 9 constitute a violation of the Due Process Clause of the Fourteenth Amendment. (Doc. No. 41-1 at 10 13.) 11 In this regard, plaintiffs advance three arguments in response to the pending motion to 12 dismiss. First, plaintiffs argue that a person may be held liable under § 1983 if he omits to 13 perform an act which he is legally required to perform that causes the deprivation of which 14 complaint is made. (Doc. No. 46 at 7) (citing Preschooler II v. Clark Cnty. Sch. Bd. Of Trs., 479 15 F.3d 1175, 1183 (9th Cir. 2007)). Plaintiffs contend that under various internal policies and 16 California statutes, defendants were legally obligated to assist the decedents, the omission of

17 1 Plaintiffs also bring claims for violation of their procedural due process rights. (See, e.g., Doc. No. 47 at 20–21.) Although somewhat unclear, the basis for their claims in this regard appears to 18 be that defendants had a duty to call the decedents’ father but did not give him notice or an 19 opportunity to be heard about getting the decedents back. (Id. at 20.) For the reasons articulated throughout this order, no such duty existed as a matter of law. Plaintiffs also appear to contend 20 that defendants were mandatory reporters under California law and thus “had to investigate and report when a reasonable person would consider a child in danger.” (Id.) However, as plaintiffs 21 note, in determining what procedural due process is constitutionally due under the Fourteenth Amendment to the United States Constitution, courts look to whether there is a protected liberty 22 interest and whether there is a denial of adequate procedural protections. Thornton v. City of St. 23 Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). As to the protected liberty interest, courts ask “whether there exists a liberty or property interest which has been interfered with by the state.” 24 Ky. Dep’t of Corr. V. Thompson, 490 U.S. 454, 460 (1989). Notwithstanding the failure of plaintiffs to allege what liberty interest was interfered with by the state, they also fail to specify 25 “the particular outcome that must be reached if the substantive predicates of [a mandatory reporter] have been met.” Slusher v. City of Napa, No. 15-cv-2394-SBA, 2015 WL 8527411, at 26 *6 (N.D. Cal. Dec. 11, 2015) (noting that there, the plaintiffs “do not allege that any of the cited 27 authority mandates a particular outcome––or what that outcome would be.”) In the absence of such allegations, the court cannot conclude that plaintiffs have alleged a plausible claim for 28 violation of their procedural due process rights. 1 which led to the violation of plaintiffs’ constitutional rights. Second, plaintiffs argue that 2 defendants had de facto custody over the decedents and therefore the “special-relationship” 3 exception to the omission doctrine applies. (Id. at 11.) Third, plaintiffs argue that through their 4 actions defendants created a more dangerous situation for the decedents and therefore the “state- 5 created danger” exception applies. (Id. at 11–12.) 6 i. Failing to Perform a Legally Required Act 7 Plaintiffs assert that the FAC “alleges multiple mandatory duties that, if performed by 8 defendants, would have saved the twins.” According to plaintiffs, under Preschooler II, 479 F.3d 9 at 1183, these omissions are actionable. Specifically, plaintiffs argue that the County of Tulare 10 Sherriff’s Department policies required defendants to be alert to signs of mental health issues 11 such as “known history of mental illness,” “[t]hreats of or attempted suicide,” and “[d]elusions, 12 hallucinations, perceptions unrelated to reality or grandiose ideas.” (Doc. No. 46 at 9.) Plaintiffs 13 also point out that The Commission on Peace Officer Standards and Training (“POST”), which 14 the County of Tulare Sherriff’s Department requires its officers to participate in, required 15 defendants to consider similar factors that might raise red flags as to Langdon’s mental state. 16 (Id.) Lastly, plaintiffs argue that California Welfare & Institutions Code §§ 305, 627, 5008 17 (h)(1)(a), and 5150 required defendants to act in this situation and they failed to do so. (Id. at 18 17.) For all of these reasons, plaintiffs aver that defendants were required by law to act and that 19 their failure to do so led to the alleged constitutional harms being suffered. 20 The Ninth Circuit has held that “a person ‘subjects’ another to the deprivation of a 21 constitutional right, within the meaning of § 1983, ‘if he does an affirmative act, participates in 22 another’s affirmative act, or omits to perform an act which he is legally required to do that causes 23 the deprivation of which the complaint is made.’” Preschooler II, 479 F.3d at 1183 (quoting 24 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (citation omitted). Here, plaintiffs have not 25 pointed to any law, statute, or regulation that legally required defendants to act in this situation. 26 Plaintiffs cite California Welfare and Institutions Code § 305, which provides: “Any officer may, 27 without a warrant take into temporary custody a minor . . . when the officer has reasonable cause 28 for believing . . . that the minor has an immediate need for medical care, or the minor is in 1 immediate danger of physical or sexual abuse, or the physical environment or the fact that the 2 child is left unattended poses an immediate threat to the child’s health or safety.” However, the 3 plain language of this statute clearly states only that an officer “may” act under such 4 circumstances, not that the officer “must” act. Thus, § 305 does not create any mandatory duty. 5 Plaintiffs also cite California Welfare and Institutions Code § 627 (see Doc. No. 46 at 17), 6 which states: “When an officer takes a minor before a probation officer at a juvenile hall or to 7 any other place of confinement pursuant to this article, he shall take immediate steps to notify the 8 minor’s parent, guardian, or a responsible relative that such minor is in custody and the place 9 where he is being held.” Cal. Welf. & Inst. Code § 627(a). It is unclear in what way plaintiffs 10 believe this statute would apply under the circumstances presented in this case. First, the 11 decedents were never taken to a place of confinement akin to those examples listed in the statute. 12 Second, there was no need or requirement to notify a parent because the decedents were at all 13 times with their mother. Thus, the court concludes that § 627(a) does not apply to situations like 14 the one at issue in this action. 15 Plaintiffs next cite California Welfare and Institutions Code §§ 5008(h)(1)(a) and 5150. 16 (Doc. No. 46 at 8.) California Welfare and Institutions Code § 5008(h)(1)(a) defines the term 17 “gravely disabled” as a condition “in which a person, as a result of a mental health disorder is 18 unable to provide for his or her basic personal needs for food, clothing, or shelter.” California 19 Welfare and Institutions Code § 5150 in turn states that “[w]hen a person, as a result of a mental 20 health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer 21 . . . may, upon probably cause, take, or cause to be taken, the person into custody for a period of 22 up to 72 hours for assessment, evaluation, and crisis intervention . . . .” As the court noted in its 23 previous order, “there is no mandatory duty to conduct a § 5150 assessment.” (Doc. No. 35 at 13 24 n. 6.) As with respect to § 305, an officer “may” take a person suspected of being a danger due to 25 their mental health disorder into custody, but the officer is not required by that statute to do so. In 26 short, none of the statutes cited by plaintiffs creates a mandatory duty that defendants failed to 27 adhere to in this case. 28 ///// 1 The internal policies cited by plaintiffs likewise do not create a legally mandatory duty 2 and plaintiffs have provided no legal support for their contention that they do. Indeed, California 3 law suggests just the opposite. California Government Code § 815.6 states in pertinent part: 4 “Where a public entity is under a mandatory duty imposed by an enactment that is designed to 5 protect against the risk of a particular kind of injury, the public entity is liable for an injury of that 6 kind proximately caused by its failure to discharge the duty unless the public entity establishes 7 that it exercised reasonable diligence to discharge the duty.” An enactment creates a mandatory 8 duty if it requires a public agency to take a particular action. County of Los Angeles v. Superior 9 Court, 102 Cal. App. 4th 627, 639 (2002). “An enactment does not create a mandatory duty if it 10 merely recites legislative goals and policies that must be implemented through a public agency’s 11 exercise of discretion.” Id. The policies that plaintiffs appear to refer to are not enactments 12 imposing mandatory duties. Rather, they are more akin to legislative goals and policies within 13 the department’s discretion. See, e.g., Asberry v. Salinas Valley State Prison Facility-D Male 14 Dentist “G.,” No. 19-cv-06311-YGR, 2021 WL 121124, at *2 (N.D. Cal. Jan. 13, 2021) (“[S]ome 15 of these regulations appear to be general declarations of policy goals, and thus do not impose a 16 mandatory duty within the meaning of section 815.6.”); Bearden v. Alameda County, No. 19-cv- 17 04264-SI, 2020 WL 1503656, at *5 (N.D. Cal. Mar. 30, 2020) (“The County of Alameda’s 18 internal workplace violence prevention policy is not an enactment and thus cannot qualify as the 19 basis for a § 815.6 claim.”); Quiroz v. Cate, No. 11-cv-0016-LHK, 2012 WL 3236490, at *3 20 (N.D. Cal. Aug. 6, 2012) (“[T]hese policy regulations appear to be general declarations of policy 21 goals, and thus do not impose a mandatory duty within the meaning of § 815.6.”). Comparing the 22 alleged policy involved here to those involved in the cases cited above, the court concludes that 23 the Tulare County Sheriff’s Department policy did not establish a mandatory legal duty falling 24 within the definition expressed in Preschool II. Plaintiffs have simply pointed to no “mandatory 25 duty ‘phrased in explicit and forceful language.’” Bearden, 2020 WL 1503656, at *5 (quoting 26 Collins v. Thurmond, 41 Cal. App. 5th 879, 914 (2019)). 27 For all of the reasons expressed above, the court finds plaintiffs have not alleged that 28 defendants omitted to perform acts which they were legally required to perform. Accordingly, 1 plaintiffs have failed to state a cognizable claim under this theory of liability. 2 ii. Special-Relationship Exception 3 In its previous order, the court stated that 4 according to the complaint, there was no formal custody order regarding the decedent children, and at the time of these events they 5 lived with both Murguia and Langdon. . .. In other words, the complaint lacks allegations of affirmative conduct on the part of 6 TCSD deputies. Rather, the children were always in Langdon’s custody and it cannot be alleged that the deputies placed them there. 7 8 (Doc. No. 35 at 11) (citing Enyart ex rel. Chally v. Kerper, No. 97-cv-1725, 1999 WL 803319, at 9 *5 (D. Or. Oct. 8, 1999)). 10 In an apparent effort to circumvent the court’s reasoning in this regard, plaintiffs now 11 contend in their FAC that by separating the decedents from their father, defendants “assumed de 12 facto custody and control over the twins, [creating] a special relationship and a duty to protect.” 13 (Doc. No. 46 at 6.) Plaintiffs also argue that juveniles are always in some form of custody 14 because of their incapacity to provide self-care. (Doc. No. 46 at 17.) Furthermore, according to 15 plaintiffs, defendants were “authorized to take temporary custody because ‘the fact that the child 16 is left unattended poses an immediate threat to the child’s health or safety.’” (Id.) (citing Cal. 17 Welf. & Inst. Code § 305). Lastly, defendants cite the decision in Doe v. United States Youth 18 Soccer Association., Inc., 8 Cal. App. 5th 1118, 1129–30 (2017) for the proposition that “[a] 19 special relationship is created when ‘the plaintiff is particularly vulnerable and dependent upon 20 the defendant who, correspondingly, has some control over the plaintiff’s welfare.’” (Id. at 18.) 2 21 /////

22 2 Plaintiffs’ reliance on the decision in United States Youth Soccer is misplaced. Although that 23 decision did state that a special relationship exists when a plaintiff is particularly vulnerable and dependent on a defendant who has some control over the plaintiff’s welfare, it concerned a 24 negligence claim brought under state law, not a § 1983 claim. United States Youth Soccer Assn., Inc., 8 Cal. App. 5th at 1129. Although the test for negligence and that applicable to a § 1983 25 failure to act claim both use the term “special relationship,” they are applicable to wholly different scenarios, with the § 1983 test dealing with situations akin to “incarceration” or 26 “institutionalization.” See DeShaney, 489 U.S. at 200. Moreover, even if United States Youth 27 Soccer Assn., Inc. did apply here, the defendants in that case acted as “quasi-parents” by assuming responsibility for the safety of players whose parents were not present. Id. at 1130. 28 Here, the decedents’ mother was at all times present with them. 1 In contrast, the county defendants argue that “[t]here is simply no authority for the 2 proposition that in temporarily separating the parents or not stopping Langdon from leaving with 3 the twins, the TCSD ‘took custody’ of the twins.” (Doc. No. 41-1 at 12.) 4 With respect to the Tulare County officers, the court finds plaintiffs’ arguments to be 5 unpersuasive. Nothing in the FAC suggests that the county defendants ever took custody of the 6 decedents and the analysis the court conducted in its previous order holds just as true now. See 7 DeShaney, 489 U.S. at 190 (“No [affirmative duty to protect] existed here, for the harms 8 petitioner suffered occurred not while the State was holding him in its custody, but while he was 9 in the custody of his natural father, who was in no sense a state actor.”). Once again, there are no 10 factual allegations supporting plaintiffs’ argument that the decedent children “were ever in 11 custody.” (Doc. No. 35 at 11.) Even if juveniles are, in some sense, always in a sort of custody 12 as plaintiffs now assert, the court noted in its previous order that the decedents were always in the 13 custody of their mother and the facts alleged in the FAC do not suggest otherwise. The county 14 defendants allegedly responded to plaintiff Murguia’s 911 call and then allowed Langdon to leave 15 with the decedents, while simultaneous preventing plaintiff from intervening, but neither the 16 decedents nor Langdon were ever put into any form of custody by the county defendants. (FAC 17 at ¶¶ 73–78.) Ultimately, merely alleging in conclusory fashion that the decedents were in de 18 facto custody is not sufficient to negate plaintiffs’ factual allegations showing that Langdon 19 always maintained custody of the children. 20 iii. State-Created Danger Exception 21 Plaintiffs’ complaint also fails to allege facts supporting application of the state-created 22 danger exception. 23 In its previous order, the court concluded that because the children were always in 24 Langdon’s custody “it cannot be alleged that the deputies placed them there.” (Doc. No. 35 at 25 11.) The court cited the decision in Kerper, in which the court found the state was not liable 26 under the state-created danger exception because it did not place the plaintiff, who was sexually 27 abused while in the custody of her convicted sex offender father, in her father’s custody in 28 ///// 1 violation of the conditions of his probation. (Doc. No. 35 at 11) (citing Kerper, 1999 WL 803319 2 at *5.) 3 Plaintiffs now argue that defendants increased the level of danger faced by the decedents 4 in “separating them from a mentally competent father and knowingly entrusting them to their 5 violent, deranged mother.” (Doc. No. 46 at 20.) Plaintiffs attempt to assert that Langdon no 6 longer had custody pursuant to California Family Code § 3010(b), which states that “[i]f one 7 parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is 8 entitled to custody of the child.” (FAC at ¶ 102.) Defendants in contrast argue that “Courts have 9 jurisdiction to award custody of children, not law enforcement officers.” (Doc. No. 41-1 at 19.) 10 Defendants further contend that they played no part in creating the danger that the decedents 11 faced “nor did [county defendants] do anything to render them any more vulnerable to [the 12 dangers].” (Id. at 13.) 13 Plaintiffs are correct that officials may remove a child from the custody of their parent 14 without prior judicial authorization; however, officials may do so only if the information they 15 possess at the time of the seizure “is such as provides reasonable cause to believe that the child is 16 in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably 17 necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). 18 The allegations of the FAC reflect that defendants in this case never terminated Langdon’s 19 custody of her children, as explained in this court’s previous order. Indeed, as the Supreme Court 20 in DeShaney stated, “had they moved too soon to take custody of the [children] away from their 21 [mother], they would likely have been met with charges of improperly intruding on the parent- 22 child relationship.” DeShaney, 489 U.S. at 202; see also Wallis, 202 F.3d at 1140 (concluding 23 that a reasonable jury could find that the officers were liable because they “did not have 24 reasonable cause to remove the children without a court order.”). Thus, nothing in the allegations 25 of the FAC changes the court’s previous analysis, which concluded that the complaint lacked 26 allegations of affirmative conduct on behalf of the officers. (Doc. No. 35 at 11.) The decedents 27 were in their mother’s custody before the officers arrived on the scene, and they remained in her 28 custody after the officers intervened. Accordingly, for the same reasons stated in the court’s 1 previous order, plaintiffs have not sufficiently alleged that the “state-created danger” exception 2 applies to their claims. 3 Because the FAC does not allege facts supporting a cognizable failure to protect claim 4 against Tulare County officers Lewis and Cerda, their motion to dismiss all federal claims 5 brought against them will be granted. 6 b. Child Welfare Services Social Worker Torres 7 In their first and second causes of action, plaintiffs also bring the same federal claims 8 against defendant Torres, a social worker at Child Welfare Services (“CWS”). (FAC at ¶ 6.) 9 Specifically, plaintiffs assert violations of their substantive due process rights under of the 10 Fourteenth Amendment, violations of their right to be free from unreasonable seizures under the 11 Fourth Amendment, and violations of their right to familial association under the First 12 Amendment. (Id.) County defendants argue that plaintiffs have failed to allege facts supporting 13 an exception to the rule against liability based upon an alleged failure to act with respect to 14 defendant Torres. (Doc. No. 41-1 at 20.) 15 In opposing this aspect of the motion to dismiss, plaintiffs contend that defendant Torres 16 “increased the [decedents’] danger when she falsely told Garcia that Langdon had no history of 17 child abuse” and “deliberately ignored the statutory and policy duties to immediately investigate 18 in person.” (Doc. No. 46 at 20.) Plaintiffs argue that defendant Torres had a “statutory duty to 19 investigate all allegations that a child may be in danger of suspected abuse, neglect, or 20 exploitation.” (Doc. No. 46) (emphasis in original.) Plaintiffs assert that California Welfare and 21 Institutions Code § 16504 requires CWS to carry out an immediate “in-person response” in 22 situations like the one at issue here. (Id. at 30.) 23 As an initial matter, the argument that defendant Torres increased the level of danger 24 posed to the decedents when she allegedly told Garcia that Langdon had no history of abuse is the 25 same argument plaintiffs made in opposition to defendants’ previous motions to dismiss. (See 26 Doc. No. 35 at 12.) Once again the court concludes that 27 [t]he children were in their mother’s custody before and after Torres failed to act and the complaint does not allege that the children were 28 ever in CWS’s custody. It therefore cannot be asserted that 1 defendant Torres affirmatively placed the decedents in danger under the facts alleged. 2 3 (Id.) (citing Kerper, 1999 WL 803319 at *5 and DeShaney, 489 U.S. at 190). 4 With respect to defendant’s alleged failure to investigate, California Welfare and 5 Institutions Code § 16504 states that “[a]n immediate in-person response shall be made by a 6 county child welfare services department social worker in emergency situations in accordance 7 with regulations of the departments.” However, § 16504 also states that “an in-person response is 8 not required when the county child welfare services department, based upon an evaluation of risk, 9 determines that an in-person response is not appropriate.” Notably, in their FAC, plaintiffs assert 10 that Torres “concluded that Langdon was not a danger to the twins, and set CWS’s investigative 11 response time for 10 days from the call.” (FAC at ¶ 105.) But the FAC then alleges that Torres 12 and her supervisor did a further assessment and “[t]he matter was then reclassified for immediate 13 in-person investigation because ‘the caregivers’ behavior is bizarre and dangerous to the 14 emotional health of the children.’” (Id. at ¶ 116.) The FAC does not specify who the referred to 15 supervisor was, nor does the FAC provide any specific factual allegations to support the 16 allegation that the situation was reclassified as an emergency requiring an immediate in-person 17 investigation. In other words, the allegations of the FAC do not support its conclusory assertion 18 that defendant Torres abused her discretion in determining that an in-person response was not 19 appropriate. Nevertheless, defendant Torres’ alleged failure to abide by § 16504 could only give 20 rise to a state negligence claim and does not provide a basis for a cognizable § 1983 claim. 21 DeShaney is once again instructive here. 22 In DeShaney the Supreme Court held that a social worker in Wisconsin could not be found 23 liable under § 1983 for her alleged failure to investigate and interfere with suspected child abuse. 24 DeShaney, 489 U.S. at 191. Relevant to plaintiffs’ case here, Wisconsin had established a child- 25 welfare system that placed upon the local departments of social services “a duty to investigate 26 reported instances of child abuse.” Id. at 208 (J. Brennan, dissenting). “Even when it [was] the 27 sheriff’s office or police department that receive[d] a report of suspected child abuse, that report 28 [was] referred to local social services departments for action.” Id. Had Justice Brennan’s dissent 1 won the day, the court would have held that “[i]n this way, Wisconsin law invites––indeed, 2 directs––citizens and other governmental entities to depend on local departments of social 3 services . . . to protect children from abuse.” Id. According to the dissent in DeShaney, through 4 its child protection program, Wisconsin “actively intervened in [the abused child’s] life . . . and 5 by virtue of this intervention, acquired ever more certain knowledge that [the abused child] was in 6 grave danger.” Id. at 210. In DeShaney, the social worker had compiled substantial evidence of 7 the child’s abuse and admitted that “[she] just knew the phone would ring some day and [the 8 abused child] would be dead.” Id. at 209. Nonetheless, the majority held that despite the state 9 statutory obligations and despite the knowledge of suspected abuse, the failure to intervene did 10 not support a cognizable § 1983 cause of action. Id. at 202–03; see also Seagrave v. City of Lake, 11 No. 89-cv-1834-EFL, 1995 WL 86552, at *5 (N.D. Cal. Feb. 21, 1995) (“Just as there is no 12 federal constitutional right to be free from private violence under the principles set out in 13 DeShaney, there is no such right to an investigation of reports of child abuse.”); Jimma v. Wash. 14 St. Dep’t of Hum. & Soc. Servs., No. 19-cv-1840-JCC, 2020 WL 832330, at *2 (W.D. Wash. Feb. 15 20, 2020) (concluding that failure to protect a child from abuse does not violate the Due Process 16 Clause “even ‘if the State knew that [the child] faced a special danger of abuse . . . and 17 specifically proclaimed, by word and by deed, its intention to protect [the child] against that 18 danger.’”); Engler v. Arnold, 209 F. Supp. 3d 988, 992–93 (N.D. Ohio 2016), aff’d, 862 F.3d 571 19 (6th Cir. 2017) (finding that even if the defendant acted “‘in derogation of his responsibilities 20 under Ohio law . . . the Due Process Clause of the Fourteenth Amendment . . . does not transform 21 every tort committed by a state actor into a constitutional violation.’”) (citation omitted). 22 The Supreme Court in DeShaney instructed that states, through their courts and 23 legislatures, may “impose such affirmative duties of care and protection upon [their] agents as 24 [they wish]. But not ‘all common-law duties owed by government actors were . . . 25 constitutionalized by the Fourteenth Amendment.’” Id. at 202 (quoting Daniels v. Williams, 474 26 U.S. 327, 335 (1986)). In this vein, as in DeShaney, any remedy plaintiffs seek here must be 27 through state channels, not federal claims brought pursuant to 42 U.S.C. § 1983. See, e.g., 28 Rudolph Alexander, Jr., The Legal Liability of Social Workers after DeShaney, 38 Social Work 1 64 (1993) (“Social workers employed in child protective services who heard of the ruling in 2 DeShaney do not really have a safeguard against lawsuits. Given the current state of the law, they 3 still may be sued and damages may be awarded, but this legal battle must occur at the state court 4 level.”). 5 Accordingly, as with their claims brought against the Tulare County Sherriff’s officers, 6 plaintiffs have failed to allege that they were deprived of a constitutional right by defendant 7 Torres’ alleged failure to act. The court will therefore grant the motion to dismiss filed on behalf 8 of defendant Torres with respect to the federal claims asserted against her in this action. 9 c. City of Visalia Officers 10 Plaintiffs assert their fifth and sixth claims against defendant Hernandez, a police officer 11 for the City of Visalia. (FAC at 45–51.) As with the county defendants, plaintiffs bring their 12 claims under § 1983, alleging violations of their Fourteenth Amendment due process rights, 13 violations of their Fourth Amendment right to be free from unreasonable seizure, and violations 14 of their First Amendment right to familial association. (Id.) 15 Defendant Hernandez is alleged to have breached his duties by ignoring plaintiff Murguia, 16 failing to call CWS, and by taking the twins and their mother to Lighthouse Shelter 17 (“Lighthouse”), an act that allegedly “increased the danger to the twins and reduced the 18 probability that Langdon would get the mental help she needed and wanted.” (Doc. No. 47 at 7.) 19 Plaintiffs contend that defendant Hernandez had a “mandatory duty to obtain an 20 ‘evaluation’ or professional analysis of Langdon’s ‘medical, psychological, education, . . . 21 conditions as may appear to constitute a problem.’” (Id. at 9) (citing Cal. Welf. Inst. Code 22 § 5008(a)). Plaintiffs also contend that the City of Visalia’s own policy required defendant 23 Hernandez to be alert to a variety of signs of mental health issues. (Id.) Lastly, plaintiffs argue, 24 once again, that California Welfare and Institutions Codes §§ 305 and 627 created mandatory 25 duties that defendant Hernandez failed to perform. (Id. at 11.) For the reasons articulated above, 26 however, neither the internal policy of the Visalia Police Department nor California Welfare and 27 Institutions Codes §§ 305, 627, and 5008 created any constitutionally mandated duty on the part 28 of defendant Hernandez. Accordingly, plaintiffs’ arguments in this regard remain unpersuasive. 1 Plaintiffs also argue that the FAC cures their previous failure to allege in their original 2 complaint that defendant Hernandez took custody of the decedents because they now allege that 3 he had de facto custody of the twins. (Doc. No. 47 at 15.) However, merely alleging de facto 4 custody in a conclusory fashion does not make it so. For the same reasons articulated above with 5 respect to the other officer defendants, the court concludes that plaintiffs have not sufficiently 6 alleged that defendants took plaintiffs into custody or created a special relationship with them. 7 “[P]laintiffs have simply failed to allege that any party involved in this tragic incident was taken 8 into custody and held by authorities against their will.” (Doc. No. 35 at 13) (citing Patel, 648 9 F.3d at 972). “Although VPD officers allegedly took Langdon to Lighthouse Shelter and left her 10 and the children there . . . this factual allegation is insufficient, even if proven, to establish that 11 they were taken into ‘custody’ for purposes of establishing a special relationship between the 12 decedents and the police.” (Id.) These allegations of the FAC at most allege that defendant 13 Hernandez drove Langdon and her two children to a shelter where they would be able to stay for 14 a night. In the case of a minor child, “custody does not exist until the state has so restrained the 15 child’s liberty that the parents cannot care for the child’s basic needs.” Patel, 648 F.3d at 974; 16 see also DeShaney, 489 U.S. at 201 (“[T]he State does not become the permanent guarantor of an 17 individual’s safety by having once offered him shelter.”). Because the decedents here were never 18 separated from the custody of their mother, the “special relationship” exception does not apply. 19 Finally, plaintiffs reassert their claims and arguments with respect to the state created 20 danger exception. (Doc. No. 47 at 12.) Hernandez was the officer who allegedly drove Langdon 21 and the decedents from the church to Lighthouse. Plaintiffs argue that defendant Hernandez 22 “could have delivered the twins to José and connected Langdon to psychiatric help. Instead, he 23 sent the twins away from their father, where they would be safe, and on to Lighthouse Shelter, 24 where they would be with a deranged Langdon[.]” (Id.) For the same reasons that the court will 25 grant the pending motion to dismiss with respect to the “special relationship” exception, the court 26 will also grant the pending motion as to plaintiffs’ claim based upon the “state created danger” 27 exception. The FAC fails to allege facts sufficient to find the state-created danger exception 28 applicable in this case. As noted above, under the facts alleged in the FAC, the decedent children 1 were always in their mother’s custody and the mother was never in the custody of the Visalia 2 Police Department. Officer Hernandez therefore played no affirmative role in placing the 3 decedent children in greater danger than they otherwise faced when originally with their mother. 4 See DeShaney, 489 U.S. at 190; Kerper, 1999 WL 803319 at *5. 5 For these reasons, the court concludes that plaintiffs have not alleged sufficient facts to 6 state a cognizable claim that the City of Visalia defendants deprived them of any constitutional 7 right. The court will therefore grant the motion to dismiss filed on behalf of the City of Visalia 8 defendants with respect to all federal claims. 9 d. City of Tulare Officers 10 Plaintiffs assert their ninth and tenth claims against defendants Sargent Garcia, Officer 11 Davis, and Officer Valencia of the City of Tulare Police Department (“city defendants”). (FAC at 12 56–62.) As with the county defendants and City of Visalia defendants, plaintiffs appear to bring 13 their claims against the city defendants under § 1983, alleging violations of their Fourteenth 14 Amendment due process rights, their Fourth Amendment right to be free from unreasonable 15 seizure, and their First Amendment right to familial association. (Id.) 16 Plaintiffs assert that the city officers knew that the decedents were in danger because they 17 had no competent adult caring for them and that the officers had to protect the decedents under 18 the same statutes and internal policies cited above. (Doc. No. 54 at 7–8.) Plaintiffs also aver that 19 the officers took de facto custody of the decedents when they drove them from Lighthouse to the 20 motel and that the officers enhanced the danger to the decedents by “taking them and their 21 deranged mother to a motel, an affirmative act that eliminated any chance that Langdon would get 22 the mental help she needed and led to the [decedents’] drowning.” (Id. at 8.) 23 First, plaintiffs’ arguments that city defendants had a mandatory duty to act pursuant to 24 internal policies and California statutes are all unpersuasive for the reasons addressed at length 25 above with respect to the other named individual defendants. 26 Second, plaintiffs’ arguments that city defendants had de facto custody over plaintiffs, 27 which would create a “special-relationship,” are likewise unpersuasive for the same reasons 28 addressed above with respect to the other individual defendants. The city defendants simply 1 never restrained the liberty of plaintiffs, and decedents were at all times in the custody of their 2 mother. 3 As to plaintiffs’ state-created danger arguments, plaintiffs argue that city defendants 4 increased the danger “by not assessing Langdon’s mental state, not having her evaluated by a 5 psych professional, either in the field or at a facility, not contacting Jose to take the twins, and 6 actively discouraging CWS from investigating the deferral or detaining the children 7 immediately.” (Doc. No. 54 at 13.) Additionally, plaintiffs assert that the officers increased the 8 decedents’ danger by “driving them away from Jose’s house, where the twins would be safe, and 9 driving Langdon and the twins to the Virginia Motor Lodge.” (Id. at 14.) The court looks at the 10 situation the decedents would have been in absent any interference by the city defendants. Based 11 on the allegations of the FAC, the decedents would have either been at the Lighthouse Shelter 12 with their mother or would have been removed from the shelter and forced to find some unknown 13 new location. Instead, the city defendants took the decedents and their mother to a motel to get 14 them a room and to avoid any additional altercations with third parties. Here, the risk to the 15 decedents was that they lived with an adult mother who was prone to psychiatric incidents and 16 delusions. Although defendants were “allegedly derelict in their failure to extricate” the 17 decedents from that situation, “no facts are alleged that suggest that [defendants] placed [the 18 decedents] in danger or affirmatively increased the risk of harm to [them] through their inaction.” 19 Slusher, 2015 WL 8527411 at *5. 20 The court concludes that plaintiffs have not alleged sufficient facts to state a cognizable 21 constitutional claim against city defendants. The court will therefore grant the motion to dismiss 22 filed on behalf of the individual city defendants with respect to all federal claims. 3 23 3 Plaintiffs also claim that their Fourth Amendment rights to be free from unreasonable seizures 24 were violated. (See, e.g., Doc. No. 54 at 22.) Plaintiffs assert that because defendants took de facto custody and control of the twins without calling Jose, defendants committed a wrongful 25 seizure. (Id.) Because the court concludes that defendants never took custody of the twins, this argument is without merit. Similarly, plaintiffs allege a violation of their First Amendment rights 26 to a familial relationship. (Doc. No. 46 at 21.) However, plaintiffs’ First Amendment rights to 27 familial associated “are measured by the same standard as Fourteenth Amendment rights to familial association based on the Ninth Circuit’s analysis” in Lee v. City of Los Angeles, 250 F.3d 28 668, 685 (9th Cir. 2001). Kaur v. City of Lodi, 263 F. Supp. 3d 947, 973 (E.D. Cal. 2017). 1 2. Monell Claims Against the City of Visalia, County of Tulare, and City of Tulare 2 Municipalities “may not be held vicariously liable for the unconstitutional acts of [their] 3 employees under the theory of respondeat superior.” Gillette v. Delmore, 979 F.2d 1342, 1348 4 (9th Cir. 1992). Rather, for a municipality to be liable under § 1983, a plaintiff must allege and 5 ultimately prove that an official municipal policy caused his or her constitutional deprivation. 6 Monell v. Dept. of Social Servs., 436 U.S. 658, 691 (1978). “Official municipal policy includes 7 the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so 8 persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 9 U.S. 51, 60 (2011). As the Ninth Circuit has stated: 10 To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a [§] 1983 plaintiff must establish: 11 (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts 12 to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy is the ‘moving force behind the constitutional 13 violation.’ 14 Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of 15 Canton v. Harris, 489 U.S. 378, 389–91 (1989)). 16 However, “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a 17 policy, practice, or custom of the entity can be shown to be a moving force behind a violation of 18 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). “[S]ome 19 evidence of constitutional violations is required to maintain the Monell claim” in this case. 20 Johnson v. City of Vallejo, 99 F. Supp. 3d 1212, 1222 (E.D. Cal. 2015). Plaintiffs here have 21 failed to adequately allege that any state actor deprived them of their constitutional rights. 22 Because no underlying constitutional violation has been alleged here, plaintiffs’ Monell claim 23 must also be dismissed. The court will therefore grant defendants’ motions to dismiss with 24 respect to all of plaintiffs’ Monell claims. 25 ///// 26 ///// 27 Because the court concludes that plaintiffs have not alleged a claim under the due process clause 28 of the Fourteenth Amendment, so too have they not alleged a cognizable First Amendment claim. 1 B. State Claims 2 This case was originally filed in this court based on federal question jurisdiction. The 3 court has concluded that defendants’ motions to dismiss must be granted as to all of plaintiffs’ 4 federal claims, leaving only state law causes of action remaining against them.4 Once all federal 5 claims have been dismissed from a case, whether to retain jurisdiction over any remaining state 6 law claims is left to the discretion of the district court. See 28 U.S.C. § 1367 (c)(3); Acri v. 7 Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997); Moore v. Kayport Package Exp., Inc., 8 885 F.2d 531, 537 (9th Cir. 1989). Generally, if federal claims are dismissed prior to trial, state 9 law claims should be remanded to state court “both as a matter of comity and to promote justice 10 between the parties, by procuring for them a surer-footed reading of applicable law.” United 11 Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also Carnegie-Mellon Univ. v. Cohill, 484 12 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated 13 before trial, the balance of factors to be considered . . . will point toward declining to exercise 14 jurisdiction over the remaining state-law claims.”); Acri, 114 F.3d at 1000. If the court declines 15 to exercise jurisdiction over the state-law claims in a case initially filed in federal court, the court 16 must dismiss those claims without prejudice. See Carnegie-Mellon Univ., 484 U.S. at 350–51 17 (“When the balance of these factors indicates that a case properly belongs in state court, . . . the 18 federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. . 19 .. [Where] the plaintiff [has] filed his suit in federal court, remand [is] not an option.”); Gini v. 20 Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994). The factors to be weighed in 21 making this determination are “the values of judicial economy, convenience, fairness, and 22 comity.” Id. at 350. 23 Because the court is not persuaded that plaintiffs have alleged any cognizable federal 24 claims, the court will not consider the merits of their state law claims. The court finds that the 25 exercise of supplemental jurisdiction is not warranted in this case. The court elects not to retain 26 4 The claims brought against First Assembly (FAC at 91–93) are all based in state law. Those 27 claims are therefore not addressed in this order, but the court will nonetheless grant First Assembly’s motion to dismiss (Doc. No.40) because the court will not retain supplemental 28 jurisdiction over the remaining state law claims. 1 the state matters because the parties have raised arguments related solely to California law. (See 2 FAC at ¶¶ 340–502.) These issues are best resolved by a state court. For the federal court to 3 address state law claims would be an attempt to divine how the California Supreme Court would 4 rule on a particular issue. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1391 (9th Cir. 1994). 5 Declining to exercise supplemental jurisdiction respects the dual sovereignty of the federal 6 government and the state of California, whose courts are better suited to these claims. Further, 7 given the extreme caseload under which this court currently labors, considerations of judicial 8 economy militate against the exercise of supplemental jurisdiction over the plaintiff’s state law 9 claims. All parties to this case are in California and represented by California lawyers, so any 10 concerns regarding fairness or convenience are negligible. 11 Accordingly, the court finds that the interest of justice is best served if the court does not 12 exercise supplemental jurisdiction over plaintiffs’ remaining state law claims. Plaintiffs’ state 13 law claims will therefore be dismissed without prejudice.5 14 C. Leave to Amend 15 Generally, “[c]ourts are free to grant a party leave to amend whenever ‘justice so 16 requires,’ and requests for leave should be granted with ‘extreme liberality.’” Moss v. U.S. Secret 17 Serv., 572 F.3d 962, 972 (9th Cir. 2009). There are several factors a district court considers in 18 whether to grant leave to amend, including undue delay, the movant’s bad faith or dilatory 19 motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 20 to the opposing party, and futility. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th 21 Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The court has now twice 22 considered the adequacy of the federal claims asserted in this action and it is evident that the 23 granting of further leave to amend would be futile. The undersigned recognizes the horrific and 24 5 The court also notes that any applicable statute of limitations under state law has been tolled 25 during the pendency of this action. See 28 U.S.C. § 1367(d) (tolling the limitation period for any claim asserted in a federal action by way of supplemental jurisdiction both while the claim is 26 pending “and for a period of 30 days after it is dismissed unless State law provides for a longer 27 tolling period”); Artis v. District of Columbia, 138 S. Ct. 594, 598 (2018) (“We hold that § 1367(d)’s instruction to ‘toll’ a state limitations period means to hold it in abeyance, i.e., to stop 28 the clock.”). 1 | tragic facts of this case. Perhaps this heartbreaking incident could possibly have been prevented 2 | had different courses of action been pursued. But, as in DeShaney, the harm was inflicted not by 3 | the State of California, but by Maddox and Mason’s mother. DeShaney, 489 U.S. at 202. “The 4 | most that can be said of the state functionaries in this case is that they stood by and did nothing 5 || when suspicious circumstances dictated a more active role for them.” Jd. The court will 6 | therefore deny further leave to amend. 7 CONCLUSION 8 For the reasons set forth above, the court grants defendants’ motions to dismiss (Doc. Nos. 9 | 38, 40, 41, 43) with the plaintiffs’ state law claims being dismissed without prejudice to their 10 || presentation in state court. The Clerk of the Court is directed to close this case. 11 | IT IS SO ORDERED. a Dated: _ September 30, 2021 Ll A 5 Aan 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24