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March 5, 1999


The opinion of the court was delivered by: Jensen, District Judge.


On December 23, 1998, the Court heard argument on defendants' motion for summary judgment. Michael D. Senneff appeared on behalf of defendants, and Richard A. Seltzer and Dennis Cunningham appeared on behalf of plaintiff. Having considered the arguments of counsel, the papers submitted, the applicable law and the record in this case, the Court hereby GRANTS defendants' motion.


A. Factual Background

The deceased, Maria Teresa Macias, was shot and killed by her ex-husband Avelino Macias on April 15, 1996. Mr. Macias followed Ms. Macias to her place of employment, in the city of Sonoma, where he killed her and shot and injured her mother, Sara Hernandez, before shooting and killing himself. This action was brought by Ms. Macias's successors in interest, her minor children, who are represented by their Guardian, Sara Hernandez ("plaintiff"), who also brought suit on her own behalf for the injuries she sustained at the hands of Mr. Macias and for the wrongful death of her daughter.

On April 24, 1995, Maria Teresa filed a declaration in the Sonoma County Superior Court realleging the details of her earlier report. A temporary restraining order was issued against Avelino, and Maria Teresa was warned that if she was not able to keep Avelino away from her children, the children would be taken from her.

In May or June of 1995, despite the TRO, Avelino began residing again at Maria Teresa's home. Plaintiff alleges that Avelino "forced himself back into" the home through "mental and emotional abuse, physical intimidation and threats to report Maria Teresa to the INS." Second Amended Complaint ("SAC") ¶ 25. In June of 1995, because of Avelino's return, Sonoma County Child Protective Services removed the children from Maria Teresa's custody.

In September of 1995, Maria Teresa's mother, Sara Hernandez, who had recently moved to the United States from Mexico, assisted Maria Teresa in once again evicting Avelino from the home. However, according to the plaintiff, "Avelino's aggressions continued during the next four months, and he repeatedly stalked, threatened, and sexually assaulted Maria Teresa. Avelino also began to openly boast that he would kill Maria Teresa and her mother." Id. ¶ 27.

On January 22, 1996, Maria Teresa obtained a second restraining order against Avelino, based in part on his murderous threats against Maria Teresa and Sara Hernandez. Yet plaintiff maintains that Avelino was undeterred by the restraining order: "He would phone Maria Teresa, he would come to her home and force his way into the home, he would tailgate her in his vehicle, he blocked her from leaving places, he would make lurid threats to her face, and he continued to threaten to kill Maria Teresa and her mother Sara Hernandez." Id. ¶ 28.

Plaintiff further alleges that "[a]ll of this conduct was reported to the defendants in repeated calls and personal contacts. Maria Teresa provided sworn statements, interviews, eyewitness, and, later, a detailed, written chronology and other evidence, all documenting Avelino's crimes against her, and her helplessness and her fear." Id. ¶ 29. Finally, plaintiff alleges that prior to the murder "Avelino boasted to friends and others in the community that the deputy sheriffs were on his side, that the Sheriff protected him and not Maria Teresa. Avelino would torment Maria Teresa with the same gibe." Id. ¶ 30.

B. Procedural at History

Plaintiff filed suit on October 9, 1996. As alleged in plaintiffs first amended complaint, defendants were the County of Sonoma, acting through its Sheriffs department, as well as Sheriff Mark Ihde and several of his deputies. Plaintiff alleged that Maria Teresa's death and Sara Hendandez's injuries were the result of a policy on the part of the Sonoma County Sheriffs department to discriminate against women, and in particular, women who are victims of gender-based violence, as well as against Latinos. Plaintiff alleged under 42 U.S.C. § 1983 that this policy deprived the deceased of her rights to due process and equal protection of law.

Defendants moved to dismiss plaintiffs first amended complaint on the ground that the complaint failed to make out either a due process or an equal protection cause of "action against either the County or the individual defendants. In its Order of March 31, 1997, the Court granted in part and denied in part defendants' motion to dismiss.

The Court found that, as a matter of law, plaintiff could bring no due process cause of action for the alleged failure of the defendants to arrest Avelino Macias. The Court concluded that it was bound by the United States Supreme Court decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), as interpreted by the Ninth Circuit in Balistreri v. Pacifica Police Department, 901 F.2d 696, 698 (9th Cir. 1990). In DeShaney, the Supreme Court ruled that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney, 109 S.Ct. at 1003. The Ninth Circuit applied the DeShaney holding in the domestic violence context in Balistreri finding that police did not violate the due process rights of a domestic violence victim by grossly mishandling her complaints of harassment and requests for protection. 901 F.2d at 700. The similarity between the police conduct alleged in Balistreri and the conduct alleged in this case compelled the Court to conclude that plaintiff had failed to state a due process claim upon which relief may be granted.

The Court also found in its March 31, 1997 Order that, although plaintiff had properly alleged an equal protection cause of action against Sonoma County, she had failed to meet the heightened requirements for pleading an equal protection cause of action against individual defendants. Plaintiff was given leave to amend her equal protection allegations against the individual defendants in order to establish a nonconclusory basis for her allegations that they intended to discriminate against women, victims of domestic violence and Latinos,

On April 30, 1997, plaintiff filed a second amended complaint ("SAC"), significantly streamlining her allegations. Sara Hernandez now sues only as a representative of her grandchildren. The second amended complaint drops each of the individual defendants except Deputy Sheriff Mark Lopez, the deputy who is alleged to have been most closely involved in Maria Teresa's complaints against her husband. As to Deputy Lopez, the SAC includes new allegations in order to satisfy the heightened pleading standard identified by the Court in its order of March 31, 1997.

Defendants Mark Lopez and the County of Sonoma again moved to dismiss plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12 (b)(6). In an Order dated August 8, 1997, the Court granted in part and denied in part the motion. Specifically, the Court granted defendants' motion to dismiss plaintiffs allegation of discrimination against Latinos in violation of 42 U.S.C. § 1983, but denied defendants' motion to dismiss allegations of discrimination against women and victims of domestic violence.

On October 31, 1997, the Court ordered discovery in this action to proceed in phases. The first phase was to he directed solely at the issue of whether or not the conduct of the defendants in this case caused the death of Maria Teresa Macias, or any injury to Sara Hernandez or the Macias children. The Court instructed the parties that it would hear a motion for summary judgment limited to the issue of causation following the completion of discovery on this issue.

Discovery on the issue of causation has now been completed. Pursuant to the Court's order, defendants filed a motion for summary judgment on the basis of causation on November 24, 1998. This motion is currently before the Court.

C. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R.Civ. P. 56(e).

In a motion for summary judgment, "[i]f the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986).

A moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric, 809 F.2d at 630 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548); Kaiser Cement, 793 F.2d at 1103-04.

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

The evidence the parties present must be admissible. Fed.R.Civ.P. 56 (e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial.

The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


In order to establish her claim under 42 U.S.C. § 1983 that defendant Mark Lopez violated Maria Teresa Macias' constitutional rights, plaintiff must show that: (1) the Maria Teresa Macias possessed a constitutional right of which she was deprived; (2) the acts or omissions of the defendant were intentional; (3) the defendant acted under color of law; and (4) the acts or omissions of the defendant caused the constitutional deprivation. See Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978),

Similarly, in order to establish municipal liability under 42 U.S.C. § 1983 against the County of Sonoma for failing to act to preserve constitutional rights, the plaintiff must show that: (1) Maria Teresa Macias possessed a constitutional right of which she was deprived; (2) the municipality had a policy or custom; (3) this policy or custom amounts to deliberate indifference to the Maria Teresa Macias' constitutional right; and (4) the policy or custom caused the constitutional deprivation. See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 386-389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

At this stage in the litigation, the Court is only confronted with the sufficiency of plaintiffs showing as to the fourth element in each of plaintiffs section 1983 claims; the element of causation. See Order of Oct. 31, 1997. For the purposes of this Order, therefore, the Court assumes without deciding that the other elements needed to establish a section 1983 violation exist.

A. Causation Under 42 U.S.C. § 1983

Before there can be any liability under section 1983, there must he "a direct causal link" between the personal conduct of Deputy Lopez or the municipal conduct of Sonoma County and the alleged constitutional deprivation, in this case the murder of Maria Teresa Macias on April 15, 1996. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). See also City of Springfield, Masa. v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987) ("The Court repeatedly has stressed the need to find a direct causal connection between the municipal conduct and the constitutional deprivation" (emphasis added)); Monell v. New York Dep't of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[I]t is only when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983" (emphasis added)); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981) ("Liability under § 1983 can be established by showing that the defendant [] either personally participated in a deprivation of the plaintiffs rights, or caused such a deprivation to occur").

As under traditional tort law, this required causal link consists of two separate elements: (1) actual cause, and (2) legal cause. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990); Arnold v. ...

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