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.
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.
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
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
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
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 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)).
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. ...