IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 27, 2011
MOHINDER MIKE SANWAL AND KIRAN SANWAL, TRUSTEES OF THE MOHINDER & KIRAN SANWAL LIVING TRUST, PLAINTIFFS,
COUNTY OF SACRAMENTO; SACRAMENTO COUNTY SHERIFF'S DEPARTMENT, SHERIFF SCOTT R. JONES; CONCORD POLICE DEPARTMENT; SACRAMENTO POLICE DEPARTMENT; CALIFORNIA HIGHWAY PATROL; FEDERAL BUREAU OF INVESTIGATION; FOLSOM POLICE DEPARTMENT; AND DOES 1-100, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiffs Mohinder Mike Sanwal and Kiran Sanwal, Trustees of the Mohinder & Kiran Sanwal Living Trust (the "plaintiffs") filed their verified complaint on January 20, 2011. (Complaint ("Compl."), Dkt. No. 1.) Defendant City of Sacramento (sued herein as Sacramento Police Department) (the "defendant" or "City") has moved to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 9.) Plaintiffs failed to file any written opposition or statement of non-opposition to the pending motion.*fn1
The matter came on for hearing on June 23, 2011.*fn2 Plaintiffs Kiran Sanwal and Mohinder Mike Sanwal appeared in propria persona. Attorney Sari Dierking appeared on behalf of the City. The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons that follow, the City's motion to dismiss is granted, but with leave to amend.
Plaintiffs are the alleged owners of an apartment complex located at 2410 Arden Way in Sacramento, California. (Compl. ¶¶ 1-2.) Plaintiffs allege four claims for relief, all of which arise from events at their apartment complex during a 70-hour hostage standoff, and which allegedly involved law enforcement personnel from various agencies. These claims are: (1) "Violation of Civil Rights Pursuant to Title 42 U.S.C. § 1983"; (2) "Violation of Civil Rights Pursuant to Title 42 U.S.C. § 1983"; (3) "Intentional Infliction of Severe Emotional Distress"; and (4) "Negligence per se -- Criminal Trespass in Violation of Cal. Penal Code § 594." (Compl.¶¶ 55-73.) Plaintiffs allege that the City's police department and other county, state, and federal law enforcement agencies caused extensive and unnecessary property damage to their apartment complex during the standoff and caused severe emotional distress to plaintiffs. (Id.) Plaintiffs allege that the law enforcement agencies have not paid for the property damage. (Id. at ¶¶ 39-49.) Plaintiffs seek compensatory and punitive damages, plus costs of suit. (Id. at 11.) Plaintiffs name the City as an entity defendant and broadly reference all "defendants" who were onsite during the hostage standoff at issue (e.g., Compl. at ¶¶ 22-39), but do not make any allegations against any specific individuals as employees or agents of the City.
II. LEGAL STANDARDS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)); accord Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 n.6 (9th Cir. 2011) (clarifying that "plausibility" is part of the pleading standard under Iqbal). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"). In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001)).
1. Plaintiffs' Section 1983 Claims
Plaintiffs allege violations of their constitutional rights. Such claims may be properly brought pursuant to 42 U.S.C. § 1983, which provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Generally, with respect to individualdefendants, "Section 1983 imposes civil liability upon an individual who under color of state law subjects or causes, any citizen of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws." Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C.§ 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Here, plaintiffs have not asserted any Section 1983 claims against any individual defendants related to the City. However, the complaint contains blanket allegations against all "defendants" who were onsite during the hostage standoff at issue. (E.g., Compl. at ¶¶ 22-39.) The complaint also broadly states that at all times, all defendants were acting under color of state law. (Id. ¶ 12 (". . . all Defendants acted under color of authority and/or state law. . . ."); ¶¶ 56-57 (". . . Defendants acted under color of state law . . . .").) It is possible that plaintiffs intend these allegations to be directed to individual City officers whose identities are currently unknown; however, while plaintiffs purport to sue 100 "Doe" defendants in this case, at present there are no specific factual allegations actually aimed at any "Doe" defendants-let alone "Doe" defendants affiliated with the City. (See id. ¶ 11 (defining Does 1-100 as "employees of the various Defendant law enforcement agencies") but see ¶¶ 16-49 (failing to assert any factual allegations as against any Doe defendants).) Accordingly, the complaint does not presently allege Section 1983 claims as against any individuals affiliated with the City.
Instead, the complaint merely alleges violations of 42 U.S.C. § 1983 ("Section 1983") by the City's police department. (Compl. at ¶¶ 55-61.) Municipalities may be liable under Section 1983, and police departments are, as a general matter, separately suable entities that may be liable for civil rights violations. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 n.2 ("Municipal police departments are 'public entities' under California law and, hence, can be sued in federal court for alleged civil rights violations.") (citing Shaw v. Cal. Dep't of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir. 1986)); accord Streit v. County of L.A., 236 F.3d 552, 565 (9th Cir. 2001).
Relevant here, in Monell v. Department of Social Services, 436 U.S. 658, the Supreme Court limited municipal liability and held that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. Instead, "[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690 (footnote omitted). The Court further stated that "it is when execution of a [local] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 693; see also Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997) ("[W]e have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury.").
The Ninth Circuit Court of Appeals has held that in order to establish municipal liability under Section 1983, "the plaintiff must establish: (1) that he [or she] possessed a constitutional right of which he [or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy was the moving force behind the constitutional violation." Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation and quotation marks omitted, modification in original); see also Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) ("To establish [municipal] liability, a plaintiff must establish that he was deprived of a constitutional right and that the city had a policy, practice, or custom which amounted to 'deliberate indifference' to the constitutional right and was the 'moving force' behind the constitutional violation.") (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996), cert. denied, 519 U.S. 1111 (1997)). With respect to the last element, "[t]here must be a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008) (en banc) (citation and quotation marks omitted). Additionally, the Court of Appeals has recognized that in addition to showing that a constitutional violation resulted from an express municipal policy or custom, "[a] plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citation and quotation marks omitted).
Here, plaintiffs' complaint does not allege facts sufficient to state a Section 1983 claim against the City. Plaintiffs allege that the City "is and at all times mentioned herein was a public entity responsible for providing law enforcement for Defendant County of Sacramento, including supervising, operating, and managing the police force." (Compl. ¶ 7.) Plaintiffs also allege that "the Sacramento Police Department" was dispatched to the scene of the hostage standoff, along with other law enforcement entities. (Compl. ¶ 26.) These are the only two allegations specifically referencing the City (and its police department); the majority of the complaint's allegations reference all various law enforcement "defendants" collectively. (E.g., id. at ¶¶ 27-39, 55-61.) Even if each of these collective allegations were charitably construed as allegations against the City, however, the complaint fails to allege that the City-or, for that matter, any of the law enforcement defendants-had a particular custom or policy that was the moving force behind violation(s) of plaintiffs' constitutional rights.*fn3 In other words, as the City's moving papers correctly note (Dkt. No. 9-1 at 3-4), the complaint does not allege the existence of a City policy that amounted to deliberate indifference to plaintiffs' constitutional rights. See Levine, 525 F.3d at 907. Likewise, the complaint does not allege any direct causal link between such a City policy and the alleged constitutional deprivation. See id.; Villegas, 541 F.3d at 957. While a claim of municipal liability under Section 1983 may be sufficient to withstand a motion to dismiss "even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice," Karim-Panahi, 839 F.2d at 624, plaintiffs' complaint stops short of making even this "bare" allegation. Here, the complaint does not contain even a "bare allegation" that the law enforcement officers involved in the hostage standoff acted pursuant to a custom or "policy." See Karim-Panahi, 839 F.2d at 624; accord Del Conte v. San Francisco Police Dept., No. C 06-05030 JSW, 2009 WL 2871052, at *3 (N.D. Cal. Sept. 1, 2009) (unpublished).
Finally, as currently drafted, the complaint does not give the City fair notice of the factual bases supporting a Section 1983 claim against it. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).) It is possible that plaintiffs intend all of their allegations to be directed to individual City officers whose identities are currently unknown; however, while plaintiffs purport to sue 100 "Doe" defendants in this case, at present there are no specific factual allegations actually aimed at any "Doe" defendants, let alone "Doe" defendants affiliated with the City. (See id. ¶ 11 (defining Does 1-100 as "employees of the various Defendant law enforcement agencies") but see ¶¶ 16-49 (failing to assert any factual allegations as against any Doe defendants).) In any event, plaintiffs have not clearly described which allegations are directed at the City or its agents, and the City does not have fair notice of the factual bases for the Section 1983 claims asserted against it.
Accordingly, the City's motion to dismiss the Section 1983 claims is granted, and the Section 1983 claims are dismissed as against the City. However, because plaintiffs are proceeding without counsel and entitled to leniency with respect to their pleadings, this dismissal is without prejudice.*fn4 Plaintiffs shall have the opportunity to amend their pleading to allege facts sufficient to support each element required to state a Section 1983 claim under the authorities described above. Such amendment should include identification of the City policy or policies alleged to have directly caused violation of plaintiffs' constitutional rights, how the alleged violation occurred, and which specific constitutional right(s) were allegedly violated. If plaintiffs intend to pursue Section 1983 claims against individual City officers or agents, plaintiffs' pleading amendments should include specific factual allegations describing the acts of individual defendants affiliated with the City, whether as named individuals or as individual "Doe" defendants.
2. Plaintiffs' Common Law Tort Claims
Plaintiffs allege state law tort claims for "Intentional Infliction of Severe Emotional Distress" ("IIED") and for "Negligence Per Se - Criminal Trespass" against all defendants, presumably including the City. (Compl. at ¶¶ 62-73.) As noted above, the City is a public entity. See Cal. Gov't Code § 811.2 ("'Public entity' includes the state . . . a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State."); Karim-Panahi, 839 F.2d at 624 n.2 ("Municipal police departments are 'public entities' under California law . . . .")
The Government Claims Act, which is also known as the California Tort Claims Act,*fn5 immunizes public entities from tort liability in all cases except those where liability is explicitly created by a particular statute. Cal. Gov't Code § 815(a).*fn6 The Government Claims Act "evinces the California Legislature's intent to channel government liability into a statutory scheme, rather than embrace blanket sovereign immunity from suit." Liberal v. Estrada, 632 F.3d 1064, 1087 (9th Cir. 2011). In California, a governmental entity can only be sued in tort pursuant to an authorizing statute or enactment. Van Ort, 92 F.3d at 840; accord D.K. ex rel. G.M. v. Solano County Office of Educ., 667 F. Supp. 2d 1184, 1198 (E.D. Cal. 2009) ("To state a cause of action, every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. . . . [Citations.] Since the duty of a governmental agency can only be created by statute, the statute claimed to establish the duty must be identified.") (internal citations omitted) (citing Cal. Gov't Code § 815; Lopez v. S. Cal. Rapid Transit Dist., 40 Cal.3d 780, 785 n. 2 (1985); Morris v. State of California, 89 Cal. App. 3d 962, 964 (1979); Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (1986)). Where a pleading "fail[s] to identify a statute creating liability" for a public entity, claims against that public entity "must be dismissed with leave to amend." D.K. ex rel. G.M., 667 F. Supp. 2d at 1198 (citing Searcy, 177 Cal. App.3d at 802.)
The undersigned notes that, pursuant to statute, in certain cases a public entity may be liable under California Government Code Section 815.2(a) for injuries proximately caused by an act or omission of an employee within the scope of the employee's employment.
E.g., Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002) (citing Cal. Gov't Code § 815.2 and holding that, as to state law tort claims, respondeat superior liability applies and the public entity employer is immune only insofar as the public employee is immune). Similarly, while "[u]nder California law, a public entity generally is immune from suit for injuries arising from acts or omissions of the entity or its employees[,] California law creates an exception, however, in cases where the public entity is 'under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury,' and the public entity is liable for causing that kind of injury while failing to exercise reasonable diligence in discharging its duty." Mendez v. County of San Bernardino, 540 F.3d 1109, 1123 (9th Cir. 2008) (citing Cal. Gov't Code §§ 815(a); 815.6) (internal citation omitted.) Indeed, the Legislative Committee Comment to Section 815.2 states, "Under this section, it will not be necessary in every case to identify the particular employee upon whose act the liability of the public entity is predicated. All that will be necessary will be to show that some employee of the public entity tortiously inflicted the injury in the scope of his employment under circumstances where he would be personally liable." The undersigned also notes, however, that as presently drafted the complaint does not reference Section 815.2 or any other statute upon which public entity liability may be premised in this case.
Plaintiffs have not alleged which particular statute(s), if any, permit them to bring state law tort claims against the City. Further, even if the complaint made proper reference to an authorizing statute, plaintiffs' practice of directing essentially every factual allegation at all "defendants" obscures the factual bases of the claims directed against the City. A pleading should give a defendant fair notice of the claims against him, as well as the factual allegations serving as the basis therefor.*fn7 Accordingly, the City's motion to dismiss is granted, and plaintiffs' state law tort claims are dismissed as against the City. However, such dismissal is without prejudice, and plaintiffs shall have the opportunity to amend their complaint so as to specify which statute(s), if any, authorize their tort claims against the City. Such amendment should also include clear statements of which factual allegations are directed at the City and any Doe defendants affiliated with it.
Plaintiffs have also failed to allege that they presented the City with a notice of claims. The Government Claims Act provides that a party seeking to recover money damages from a public entity or its employees must submit a claim to the entity before filing suit in court, generally no later than six months after the cause of action accrues.*fn8 See Cal. Gov't Code §§ 905, 911.2, 945.4, 950-950.2.
Timely presentation of claims is not merely a procedural requirement but is an element of the plaintiff's cause of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209, 164 P.3d 630, 634 (2007) ("Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, a condition precedent to plaintiff's maintaining an action against defendant, and thus an element of the plaintiff's cause of action") (citation and quotation marks omitted). A plaintiff may sue a public entity and its employees only after the entity has acted upon or is deemed to have rejected the claim. Id.; see also Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) ("The California Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely presentation of a written claim and the rejection of the claim in whole or in part."). A plaintiff's "failure to allege facts demonstrating or excusing compliance with the claims presentation requirement subjects a claim against a public entity" to dismissal for failure to state a claim.*fn9 State v. Superior Court (Bodde),32 Cal. 4th 1234, 1239 (2004); Karim-Panahi, 839 F.2d at 627; accord Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008) ("Although a plaintiff may include supplemental state law claims in a civil rights action brought in federal court pursuant to 42 U.S.C. § 1983, the state law claims are subject to dismissal for failure to allege compliance with the claim-filing requirement of the CTCA. The CTCA applies to state law claims wherever those claims are brought, and the requirement that a plaintiff must affirmatively allege compliance with the CTCA applies in federal court. 'Complaints that do not allege facts demonstrating either that a [tort] claim was timely presented or that compliance with the claims statute is excused are subject to [dismissal].'" (citing cases) (internal citations omitted).
Here, plaintiffs allege that they filed a Government Tort Claim against the County of Sacramento, but make no similar allegation with respect to filing a claim with the City or its police department. (Compl. ¶¶ 50-51.) As plaintiffs' tort claims seek money damages, a failure to allege claims presentation to the City is fatal to those claims. See e.g., Bodde, 32 Cal. 4th at 1239; Karim-Panahi, 839 F.2d at 627; Butler, 617 F. Supp. 2d at 1001.
Accordingly, the City's motion to dismiss plaintiffs' state law tort claims is granted, and the claims are dismissed as against the City. However, such dismissal is without prejudice. As plaintiffs are proceeding without counsel in this action and are entitled to leniency with respect to their pleadings, plaintiffs shall have the opportunity to amend their complaint. Such amendment should include factual allegations addressing plaintiffs' compliance with the claims-presentation requirement with respect to the City, to the extent that such allegations can be made in good faith and within the purview of Federal Rule of Civil Procedure 11(b). See Fed.R. Civ. P. 11 (providing that all of a plaintiff's claims must be warranted by existing law or a non-frivolous argument for extending, modifying or reversing existing law or for establishing new law, and that plaintiff's factual contentions must have evidentiary support, or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation).
Accordingly, for the foregoing reasons IT IS HEREBY ORDERED that:
(1) The City's Motion to Dismiss (Dkt. No. 9) is granted; and plaintiffs' claims are dismissed without prejudice as against the City.
(2) Plaintiffs are granted leave to file a First Amended Complaint within 45 days of the date of this order. This 45 day period shall give plaintiffs additional time to search for an attorney to represent them in this action. If plaintiffs are able to find an attorney to represent them in this action, the attorney shall file his or her appearance within 45 days of the date of this order, and may request additional time to prepare an amended pleading. If plaintiffs are unable to find an attorney within this period, and if plaintiffs wish to maintain this action and proceed without counsel, plaintiffs themselves remain obligated to file the First Amended Complaint within 45 days of the date of this order.*fn10 A failure to do so may result in the dismissal of this action.
IT IS SO ORDERED.