Filed 12/11/14 Lindsey v. City of Fontana CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
BRUCE D. LINDSEY et al.,
Plaintiffs and Appellants, E058047
v. (Super.Ct.No. CIVRS1107119)
CITY OF FONTANA et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Holstein, Taylor and Unitt and Brian C. Unitt for Plaintiffs and Appellants.
Carpenter, Rothans & Dumont, Steven J. Rothans and Justin Reade Sarno for
Defendants and Respondents City of Upland et al.
Rinos & Martin, Linda B. Martin, Adrianna C. Paige and Alex Hackert for
Defendants and Respondents City of Fontana et al.
1 I
INTRODUCTION
Plaintiffs Bruce B. Lindsey and Linda F. Barbee appeal from a judgment entered
after the trial court sustained without leave to amend defendants’ demurrer to the fourth
amended complaint. Plaintiffs sued defendants, asserting that the Upland and Fontana
police departments and its officers had falsely implicated Lindsey in a plot to hire a hit
man to murder Barbee. On appeal, plaintiffs argue they have alleged sufficient facts to
state civil rights violations under federal and state laws. Defendants counter that
plaintiffs cannot amend the defects in their pleadings and no further amendments should
be allowed.
We conclude the trial court did not abuse its discretion. Furthermore, plaintiffs
have not alleged sufficient facts to support any claim against defendants. We affirm the
judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Fourth Amended Complaint
The original complaint was filed on August 3, 2011. A third amended complaint,
adding various state law claims was filed on May 14, 2012. This is the second appeal. In
May 2014, we affirmed the trial court’s order granting the anti-SLAPP motion to strike
2 (Code Civ. Proc., § 425.16), which was filed by another set of defendants1 and directed at
the first amended complaint. (Lindsey v. Davis (May 28, 2004, E056571) [nonpub.
opn.].)
In the meantime, plaintiffs filed a fourth amended complaint (FOAC) in August
2012, attempting to allege a single cause of action for violations of civil rights. (42
U.S.C. §§ 1983, 1988.) In October 2012, the trial court entertained defendants’
unopposed demurrers and Fontana’s motion to strike and sustained the demurrers without
leave to amend and granted the motion to strike. The facts, as summarized below, are
based on the allegations of the FOAC.
1. The Settlement Check and the Release
In October 2010, Lindsey was 57 years old and Barbee was 72 years old and in
poor health. Plaintiffs alleged they were an unmarried couple who shared a house on
Euclid Avenue in Upland. In 2010, Lindsey and Barbee were both represented by the
former defendants, Benson and his law firm. In July 2010, Benson and Davis had invited
Lindsey to join a business partnership with them. In October 2010, after Benson’s
business, The Med Spa, was shut down, purportedly as a front for prostitution, Benson
and Davis blamed Lindsey. At the same time, Benson, Davis, and Lindsey had agreed to
settle a business dispute about their short-lived partnership for $25,000. On October 27,
1 John L. Benson, Michael Davis, and the law firm of Blomberg, Benson, and Garret, Inc.
3 2010, Benson and Davis asked Lindsey and his lawyer to meet a courier named “Big
Mike” at Lindsey’s office at 2:00 p.m. so that Lindsey could sign a release to receive the
settlement check. Plaintiffs allege on information and belief that Big Mike was an
informant for the Fontana police and one of Benson’s criminal clients.
Before their meeting, Big Mike called Lindsey and asked him to come to a bar,
D.J.’s Lounge, in Montclair. When Lindsey and his lawyer arrived, Big Mike was
playing pool with another man. Big Mike insisted Lindsey shake hands with the pool
player. Big Mike displayed the check and the release. After Lindsey and his lawyer left
the bar to have the release notarized, they met Big Mike at Lindsey’s bank and exchanged
the release for the check. Lindsey and his lawyer had dinner and Lindsey went home,
where he retired to bed around 8:00 p.m. while Barbee was absent from the house.
2. The Police Conduct
In October 2010, David Janusz, a Fontana police officer, and the Department of
Justice were investigating Lindsey whom they suspected of soliciting Barbee’s murder.
The police believed Barbee may have been in danger from a hit man hired by Lindsey.
Around 2:30 p.m. on October 27, 2010, the Fontana undercover police and the DOJ
began surveillance of Barbee at home, and later at a restaurant. Plaintiffs allege that,
after Barbee finished having dinner with friends, she was unconstitutionally detained at
about 7:30 p.m. by Fontana police and DOJ officers who warned her that Lindsey had
4 hired a hit man to kill her. Plaintiffs contend the officers made misrepresentations in
order to obtain an emergency protective order2 (EPO) and to gain access to the Upland
residence. The police questioned Barbee for several hours about her assets, Lindsey’s
business, and his involvement with motorcycle gangs, guns, and drugs. When Barbee
would not cooperate, Officer Janusz falsified the application for an EPO. Eventually the
police told Barbee it was safe to return home because the hit man had “gone away.”
Around 11:15 p.m. the same night, about 12 or 13 officers from the Upland and
Fontana police departments and the DOJ pounded on the front door of the Upland house.
They broke through the locked door, handcuffed Lindsey, and searched the house without
a warrant. Lindsey was shown a photograph of the man who had been playing pool with
Big Mike, the courier. The man in the photograph was described as a known hit man,
hired to kill Barbee. The police refused to allow Lindsey to contact his lawyer. The
police ransacked the house, cut open a locked safe, and stole guns, cash, and valuables.
The police arrested Lindsey for possession of an unregistered assault rifle. (Pen. Code, §
12280, subd. (b).) The criminal charges against Lindsey were ultimately dismissed on
October 24, 2011.
Around 12:30 a.m. on October 28, 2010, a Fontana police officer drove Barbee to
the home of her friend, Ester Stamps, instructing Barbee not to contact anyone. Around
2 An EPO is issued under the Family Code statutes enacted for the prevention of domestic violence. (Fam. Code, § 6220.) The EPO in this case stated that Lindsey had solicited the murder of Barbee and they had a history of domestic violence.
5 2:00 a.m., the police said Barbee was free to return home. The police told Barbee they
had arrested Lindsey for gun possession. She was also advised not to worry because “the
hit man was gone.” Lindsey was released on bail but could not have contact with Barbee
for six days, causing her to be frantic and anxious. Lindsey and Barbee began seeing a
psychologist.
3. The Demurrers and Motion to Strike
The Fontana and Upland defendants filed general and special demurrers for failure
to state a cause of action and on the grounds of uncertainty. Fontana also filed a motion
to strike the claim for punitive damages.
Plaintiffs did not file timely opposition and, after the hearing, the court sustained
the demurrers without leave to amend and granted the motion to strike. The court entered
judgment on November 26, 2012.
III
FAILURE TO STATE A CAUSE OF ACTION
A. Standard of Review
The appellate court reviews a ruling on demurrer to determine whether the
complaint states a cause of action: “‘Because this matter comes to us after the trial court
sustained the defendant’s demurrer, “we must, under established principles, assume the
truth of all properly pleaded material allegations of the complaint in evaluating the
validity” of the decision below.’ [Citations.]” (Stop Youth Addiction, Inc. v. Lucky
Stores, Inc. (1998) 17 Cal.4th 553, 558.) A section 1983 claim must demonstrate facial
6 plausibility. (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678-679.) “[I]f a trial court sustains
a demurrer without leave to amend, appellate courts determine whether or not the
plaintiff could amend the complaint to state a cause of action.” (Cantu v. Resolution
Trust Corp. (1992) 4 Cal.App.4th 857, 879, fn. 9, citing Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) Plaintiff has the burden to show a complaint may be amended. (Hendy
v. Losse (1991) 54 Cal.3d 723, 742.) It is an abuse of discretion to deny leave to amend
only if an amendment is potentially effective. (CAMSI IV v. Hunter Technology Corp.
(1991) 230 Cal.App.3d 1525, 1542.)
B. Ruling on the TAC
Plaintiffs have struggled repeatedly to plead a legally sufficient claim. In the third
amended complaint (TAC), in addition to the first cause of action for civil rights
violations, plaintiffs alleged claims for battery, false imprisonment, and fraud.3 The trial
court prepared a detailed, written, 16-page ruling on defendants’ demurrers and Fontana’s
motion to strike. The ruling reviewed the history of plaintiff’s multiple pleadings. It
summarized the substance of plaintiffs’ claims: that the police had detained and
interrogated Barbee for hours, based on the pretext that Lindsey had hired a hit man to
kill her; that the police had obtained an EPO without Barbee’s consent; and that the
police had unlawfully entered Lindsey’s home, questioned him, refused to let him contact
3 Other causes of action for infliction of emotional distress and malicious prosecution do not appear in the appellate record. Page 26 of the TAC is missing.
7 a lawyer, searched the premises—including a tenant’s apartment—broke into a safe, and
seized an assault weapon and other items. Allegedly the police misconduct was
somehow prompted by Benson seeking revenge against Lindsey.
The ruling also recited at length the standard of review and legal principles
governing demurrers and explained in detail why the state law tort causes of action were
barred by the Government Code. The demurrers to those causes of action were sustained
without leave to amend.
Regarding the Title 42 United States Code section 1983 (section 1983) claim, the
ruling stated, “to survive a demurrer, the plaintiff must allege specific and nonconclusory
facts showing the defendant’s acts deprived him/her of a right, privilege or immunity
secured by the federal Constitution or federal law. Breneric Assocs. v. City of Del Mar
(1998) 69 Cal.App.4th 166, 180; Golden Gate Water Ski Club v. County of Contra Costa
(2008) 165 Cal.App.4th 249, 267-68.” After a comprehensive discussion of the
applicable law for section 1983 liability and the TAC, the trial court concluded that the
allegations were not sufficient to plead a Monell4 violation and to state a cause of action
under section 1983 for municipal liability. Citing Blank v. Kirwan, supra, 39 Cal.3d at
page 318, the court warned, “[u]nless Plaintiffs can plainly articulate a specific policy to
4 Monell v. Department of Social Services (1978) 436 U.S. 658, 690-691 [“constitutional deprivation through an official policy or custom.”]
8 support their Monell claims, the court will sustain the demurrer without leave to amend
. . . .”
As to the constitutional claims against individual officers, the trial court
concluded, “to allow the individual defendants to meaningfully respond to the complaint,
there needs to be more specific allegations with respect to which legal rights were
violated by what conduct of specific defendants. These defects may be curable, even
though Plaintiffs’ counsel seems to have some difficulty in articulating how it will be
done. The court will permit one final attempt to cure these defects. [Emphasis
added.]”
C. Leave to Amend
The FOAC represents plaintiffs’ fifth attempt to state a viable legal claim. On
appeal, plaintiffs are represented by appellate counsel, not by the trial counsel who
unsuccessfully drafted the previous versions of the complaint. Plaintiffs’ appellate
counsel acknowledges the imperfections of the FOAC and the need to amend it again.
Nevertheless, plaintiffs contend the facts that can be derived from the current complaint
are sufficient to state several causes of action if plaintiffs are given leave to amend and
are represented by “new counsel, sufficiently experienced in drafting pleadings.”
Under the abuse of discretion standard, the appellate court will reverse a trial court
ruling only upon a showing of “a clear case of abuse” and “a miscarriage of justice.”
(Blank v. Kirwan, supra, 39 Cal.3d at p. 331.) An appellant must show how it is possible
to amend the complaint to change the legal effect of the pleading. (Fuller v. First
9 Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.) “If the plaintiff does not
proffer a proposed amendment, and does not advance on appeal any proposed allegations
that will cure the defect or otherwise state a claim, the burden of proof has not been
satisfied. [Citations.]” (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th
598, 613-614; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) An appellate
court will reverse for abuse of discretion only if it determines that there is a reasonable
possibility that the pleading can be cured by amendment and a party did not have a fair
opportunity to correct a defective complaint. (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1227.)
Here, the trial court gave plaintiffs many opportunities to cure their defective
pleadings. In opposing the final demurrer, plaintiffs did not submit a proposed fifth
amended complaint, curing the defects. On appeal, they do not explain how another
amendment would improve the complaint—except to promise that a better lawyer could
organize the facts to tie them to the elements of the proposed causes of action. Plaintiffs
have not demonstrated how they were denied a fair opportunity to correct the defects in
their complaint. Plaintiffs have failed to show their ability to amend and cure their
pleadings.
In Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305,
a private antitrust action, defendants brought demurrers to each successive complaint
over the course of two years. The matter was dismissed on demurrer to the fourth
10 amended complaint after plaintiffs failed to allege an unlawful business practice and
injury. The appellate court indicated, “[Plaintiffs] demonstrate that they are unable or
unwilling to amend to cure the defects specified in various special demurrers to their
complaint which were sustained on similar grounds designated by two different trial
judges. . . . Leave to amend further is properly denied when a plaintiff fails to amend to
correct defects on the basis of which special demurrers to a previous complaint were
sustained, or as directed by the court when sustaining such demurrers.” (Id. at p. 327.)
In another case Titus v. Canyon Lake Property Owners Assn. (2004) 118
Cal.App.4th 906, plaintiff was denied leave to amend a fourth time. In Tudor v. City of
Rialto (1958) 164 Cal.App.2d 807, 814 the appellate court commented, “It is difficult to
establish any clear rule as to just how far a trial court should go in aiding a pleader by
detailed explanation of the defects in the pleading. However, whereas here the demurrer
itself and the authorities cited in support thereof before the trial court amply pointed out
the defects and plaintiffs in their amended complaint failed to in any degree supply the
deficiency shown, the trial court’s action in refusing to permit amendment to the
amended complaint will not be disturbed unless there has been a manifest abuse of
discretion.”
No bright-line rule exists regarding how many opportunities to amend a party must
be given. “Perfection in pleading” is not expected or required. (Lloyd v. California
Pictures Corp. (1955) 136 Cal.App.2d 638, 643.) However, it is not abuse of discretion
to deny leave to amend when a complaint is incapable of amendment. (Ibid.) If a party
11 refuses to take direction from the court and makes no further amendment to the pleading
at issue, dismissal with prejudice is justified. (Gonzales v. State of California (1977) 68
Cal.App.3d 621, 635, citing Hilltop Properties v. State of California (1965) 233 Cal.
App.2d 349, 361-362; Sutter v. Gamel (1962) 210 Cal.App.2d 529, 533; Chicago Title
Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 327.) Here, the court
repeatedly provided specific direction to plaintiffs about curing the deficiencies of their
complaint which they disregarded. (See Eustace v. Dechter (1938) 28 Cal.App.2d 706,
711; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 911.) Denial of leave to amend the
FOAC was not an abuse of discretion under these circumstances.
D. Section 1983
Plaintiffs admit their complaint is subject to general demurrer for failure to state a
claim and to special demurrer because it is uncertain and ambiguous. Nevertheless, they
argue that, based on reasonable inferences that can be made from the allegations of the
FOAC, they have valid claims that can be fixed if they are permitted one more chance to
amend. (Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713,
716.) We disagree.
The parties agree defendants were acting under color of law. The issue is whether
defendants’ conduct deprived plaintiffs of their rights, privileges, or immunities under the
Constitution or federal law: “Section 1983 allows individuals to sue state actors for
violating their federal constitutional or statutory rights. (Parratt v. Taylor (1981) 451
U.S. 527, 535, 68 L .Ed. 2d 420, 428, 101 S. Ct. 1908, overruled in part on other grounds
12 in Daniels v. Williams (1986) 474 U.S. 327, 330-331, 88 L.Ed.2d 662, 668, 106 S.Ct.
662.) Section 1983 ‘“is not itself a source of substantive rights,” but merely provides “a
method for vindicating federal rights elsewhere conferred.”’ (Graham v. Connor (1989)
490 U.S. 386, 393-394, 104 L.Ed.2d 443, 453-454, 109 S.Ct. 1865.)” (O’Dea v. Bunnell
(2007) 151 Cal.App.4th 214, 219.)
A complaint that offers “labels and conclusions” or “‘a formulaic recitation of the
elements of a cause of action will not do.’” (Ashcroft v. Iqbal, supra, 556 U.S. at p. 678,
129 S.Ct. 1937, 173 L.Ed.2d 868, citing Bell Atlantic Corp. v. Twombly (2007) 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929.) “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” (Ashcroft, at p. 678,
quoting Bell, at p. 557.) “The court need not, however, accept as true allegations that
contradict matters properly subject to judicial notice or by exhibit. [Citations.] Nor is the
court required to accept as true allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” (Sprewell v. Golden State Warriors (9th
Cir. 2001) 266 F.3d 979, 988.)
To give factual support to their section 1983 claims, plaintiffs allege that Upland
and Fontana police officers detained and interrogated Barbee for hours, during which
time they also conducted a warrantless search of plaintiffs’ residence while subjecting
Lindsey to excessive force. Based on those facts, plaintiffs assert they can state a cause
of action for violations of the Fourth and Fifth Amendments. Plaintiffs argue that the
EPO issued by the superior court did not justify detention and the warrantless search
13 because the police conduct did not serve an interest “beyond the normal need for law
enforcement.” (Henderson v. City of Simi Valley (9th Cir. 2002) 305 F.3d 1052, 1057.)
As further alleged in the FOAC, the reason the police entered plaintiffs’ residence
was to enforce the EPO and to search for weapons. The EPO was issued under the
Domestic Violence Prevention Act, Family Code section 6200 et seq., and to protect
Barbee from danger. Family Code section 6250 provides: “A judicial officer may issue
an ex parte emergency protective order where a law enforcement officer asserts
reasonable grounds to believe any of the following: [¶] (a) That a person is in immediate
and present danger of domestic violence, based on the person’s allegation of a recent
incident of abuse or threat of abuse by the person against whom the order is sought. [¶] .
. . [¶] (d) That an elder or dependent adult is in immediate and present danger of abuse as
defined in Section 15610.07 of the Welfare and Institutions Code, based on an allegation
of a recent incident of abuse or threat of abuse by the person against whom the order is
sought. . . .”
Plaintiffs alleged that the police believed that Lindsey may have been involved in
a plot to kill Barbee and that Lindsey possessed a firearm. Based on the threat to Barbee,
Fontana Police Officer Janusz followed the statutory procedures requiring a law
enforcement officer specifically to request an EPO from the superior court, reduce it to
writing, and sign it. (Fam. Code, §§ 6250.3 and 6270.) A person subject to an EPO shall
not possess a firearm. (Fam. Code, § 6389.)
Family Code section 6272 further provides: “(a) A law enforcement officer shall
14 use every reasonable means to enforce an emergency protective order. [¶] (b) A law
enforcement officer who acts in good faith to enforce an emergency protective order is
not civilly or criminally liable.” After the EPO was issued, the Fontana and Upland
police undertook to enforce it. The Upland police did not even participate in obtaining
the EPO; they were only involved in enforcement.
Although plaintiffs allege Officer Janusz falsified the grounds for requesting the
EPO, they do not allege that Janusz or the other defendants were acting in bad faith
because they knew Lindsey was not actually trying to kill Barbee. Plaintiffs ignore the
statutory immunity afforded for the good-faith enforcement of an EPO. Even if
defendants were ultimately wrong about the threat posed to Barbee, the allegations of the
complaint do not support a reasonable inference that defendants knew she was not in
danger but, nevertheless, conducted a massive, expensive, and pointless police action
against plaintiffs. Under these circumstances, the detention and the warrantless entry do
not give rise to constitutional violations and section 1983 liability.
As another basis for section 1983 liability, Lindsey contends he was subjected to
excessive force based on the conduct of a dozen or so armed officers who taunted him,
broke into his home, handcuffed him, and shoved him around. (Tennessee v. Garner
(1985) 471 U.S. 1, 8; Cameron v. Craig (9th. Cir. 2013) 713 F.3d 1012.) Barbee argues
that the Fontana police conduct was “calculated to intimidate and unnerve her,”
supporting her claim for excessive force.
Craig explains that the reasonableness of a particular search or seizure must be
15 assessed based on the objective facts and circumstances that confronted the officers or
officers. The courts typically consider three factors: (1) the severity of the crime at
issue; (2) whether the suspect poses an immediate threat to the safety of the officers or
others; and (3) whether the suspect is actively resisting arrest or attempting to evade
arrest by flight. (Cameron v. Craig, supra, 713 F.3d at p. 1021, citing Graham v.
Connor, supra, 490 U.S. at p. 396.)
In Cameron, numerous armed sheriff’s deputies participated in arresting the ex-
girlfriend of another deputy. Her purported offense was using his credit card to buy
furniture for herself and their two children after they broke up. The Ninth Circuit
recognized that her “‘suspected crimes were relatively minor and non-violent;’” there
was no reason to suspect her or her roommates posed a threat to officer safety; and she
was not resisting arrest. (Cameron v. Craig, supra, 713 F.3d at pp. 1021-1022.)
Nevertheless, Cameron’s ex-boyfriend led six to 10 deputies into her home with guns
drawn early in the morning. “Those deputies pointed weapons at Cameron, grabbed
Cameron by the arms and shoulders, pushed her in the back down a hallway, and then
tightly handcuffed her. On this view of the facts, a reasonable jury could find that the
deputies used excessive force.” (Id. at p. 1022.)
The facts and circumstances here differ significantly from Cameron. The EPO
was issued based on “immediate and present danger.” The suspected crime—solicitation
of murder—was extremely serious. Lindsey was also suspected of possessing a gun,
posing an immediate safety threat. Lindsey was uncooperative and refused entry to the
16 officers without a warrant. Barbee, of course, was held by the Fontana police for her own
protection and there are no allegations of physical force used against her. This is not a
case in which there is a jury question about “whether the force applied by the officers was
objectively reasonable under the totality of the circumstances.” (Santos v. Gates (9th Cir.
2002) 287 F.3d 846, 855.) Plaintiffs’ federal claim of excessive force is not supported
under these factual circumstances.5
E. Monell Claim
Plaintiffs also admit the FOAC fails to allege that Fontana or Upland “‘had a
deliberate policy, custom, or practice’” that resulted in the constitutional violations. (AE
ex rel. Hernandez v. County of Tulare (9th Cir. 2012) 666 F.3d 631, 636, citing Whitaker
v. Garcetti (9th Cir. 2007) 486 F.3d 572, 581.) The Monell pleading requirements
announced in Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1216 are: “First, to be entitled
to the presumption of truth, allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken as true must plausibly suggest
an entitlement to relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation.”
5 For the same reasons that the section 1983 claims fail, we conclude plaintiffs cannot state a new state law cause of action for constitutional violations under Civil Code section 52.1.
17 Plaintiffs argue that, although their “complaint does not directly indentify express
written policies of either city or police department, such policies, customs or practices
can be inferred from the facts.” We doubt it. Plaintiffs seem to argue, based on this
single incident, that they can allege defendants have a custom, policy, or practice of not
training their police officers adequately. Plaintiffs, however, have not—and apparently
cannot—allege facts showing a longstanding, widespread practice or custom. The
Supreme Court has cautioned that municipal liability “for a deprivation of rights is at its
most tenuous where a claim turns on failure to train.” (Connick v. Thompson (2011) ___
U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417, citing Oklahoma City v. Tuttle (1985)
471 U.S. 808, 822-823, 105 S.Ct. 2427, 85 L.Ed.2d 791; Marsh v. County of San Diego
(9th Cir. 2012) 680 F.3d 1148, 1159; Villegas v. Gilroy Garlic Festival Ass’n (9th Cir.
2008) 541 F.3d 950, 955.) The facts here offer no support, express or implied, for a
Monell claim.
F. State Tort Claims
Plaintiffs also seek to restore state tort claims which were eliminated when the
court sustained defendants’ demurrers to the TAC without leave to amend those causes of
action. These claims were likely time-barred because they were not filed until May 2012,
when the time to file expired in August 2011. (Gov. Code, § 945.6, subd. (a)(1).)
But, even if the state tort claims were timely, we reject plaintiffs’ argument that
the city defendants may still be vicariously liable for the police defendants’ use of
excessive force. (Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 264; Mary M. v. City of
18 Los Angeles (1991) 54 Cal.3d 202, 215; Gov. Code, § 820.4.) As we have discussed
above, the factual circumstances as alleged do not establish excessive force. The police
defendants were also immune from liability under Government Code section 821.6 for
conduct related to the enforcement of the EPO, even if they acted maliciously or without
probable cause. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-
1210.) Because the police defendants are immune, the city defendants are also immune
from liability for the state tort claims. (Gov. Code, § 815.2, subd. (b).)
IV
DISPOSITION
Plaintiffs cannot assert any viable claim against defendants. The trial court did not
abuse its discretion in sustaining the demurrer to the fourth amended complaint without
leave to amend. We affirm the judgment.
Defendants are the prevailing parties and are entitled to recover their costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
McKINSTER Acting P. J.
KING J.