“California public 5 entities are not subject to common law tort liability; all 6 liability must be pursuant to statute.”
How later courts described this case
- “California public 5 entities are not subject to common law tort liability; all 6 liability must be pursuant to statute.”
- finding notice provision applies 17 to a civil action for damages under Cal. Civ. Code § 52.1
- “[the statutes] should be given a 1 liberal construction to permit full adjudication on the 2 merits.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 CINDY WAGNER, No. 2:20-cv-00403-JAM-DMC
12 Plaintiff,
13 v. ORDER GRANTING IN PART AND
DENYING IN PART
14 SHASTA COUNTY; SHASTA COUNTY DEFENDANT’S MOTION FOR
SHERIFF’S DEPARTMENT; and DOES 1 JUDGMENT ON THE PLEADINGS
15 through 20, inclusive,
16 Defendants.
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On January 23, 2020, Cindy Wagner (“Plaintiff”) filed suit
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against Shasta County, the Shasta County Sheriff’s Department,
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and Does 1-20 in Shasta County Superior Court, alleging several
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civil rights violations under 42 U.S.C. § 1983 and California
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Civil Code § 52.1. See Compl., ECF No. 1. Shasta County
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(“Defendant”) removed the case to federal court, see Notice of
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Removal, ECF No. 1, on February 21, 2020, and now moves for
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judgment on the pleadings. Mot. for JOP (“Mot.”), ECF No. 21.
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Plaintiff filed an opposition, ECF No. 22, to which Defendant
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replied, ECF No. 23. For the reasons set forth below, the Court
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GRANTS in part and DENIES in part Defendant’s Motion for Judgment
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1 on the Pleadings.1
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3 I. FACTUAL ALLEGATIONS
4 On April 17, 2019, Cindy Wagner (“Plaintiff”) and her
5 husband were taken into custody at the Shasta County Jail due to
6 an alleged verbal dispute. Compl. ¶ 10, ECF No. 1. While in the
7 booking cell, Plaintiff was given a pen to write down the code
8 for telephone calls. Compl. ¶¶ 14, 16. When it was time to
9 handcuff Plaintiff and escort her out of the room, one of the
10 Shasta County Sheriff’s Deputies told her to leave the pen
11 behind. Compl. ¶ 16. In response, Plaintiff tossed the pen back
12 toward the room she was being escorted from. Compl. ¶ 17.
13 Plaintiff alleges that, as soon as she did this, the deputy who
14 was handcuffing her pulled her left hand behind her back, shoved
15 her face and head into the wall, threw her on the ground, and got
16 on top of her. Compl. ¶ 18. Several other deputies got on top
17 of Plaintiff as well. Compl. ¶ 19. At the time, Plaintiff
18 weighed 113 pounds and was 5’5” tall. Compl. ¶ 20.
19 Plaintiff sustained a large contusion and hematoma to her
20 forehead, a broken C-3 vertebra in her neck, a broken nose, a
21 concussion, and lacerations to her face and lip as a result of
22 the deputies’ use of force. Compl. ¶ 22. Despite these serious
23 injuries, the deputies dragged her to the jail’s infirmary only
24 to get the bleeding under control. Compl. ¶ 23. After the
25 infirmary visit, Plaintiff was escorted to a cell where she was
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27 1 This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
28 scheduled for September 15, 2020.
1 ordered to undress while the cell door was open. Compl. ¶ 24.
2 Sensing that she was seriously injured, Plaintiff pleaded for
3 help from her cell. Compl. ¶ 25. Eventually the deputies called
4 an ambulance and Plaintiff was transported to the Mercy Medical
5 Center Emergency Department. Compl. ¶ 26. After Plaintiff was
6 treated for her injuries, she was transported back to the jail
7 where she spent a night in custody. Compl. ¶ 28. She was
8 released the next day. Id.
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10 II. OPINION
11 A. Judicial Notice
12 Defendant requests that the Court take judicial notice of
13 Plaintiff’s August 2, 2019, tort claim against Defendant.
14 Request for Judicial Notice (“RJC”), ECF No. 21-2. Plaintiff
15 does not oppose this request. Rule 201 of the Federal Rules of
16 Evidence allows a court to take judicial notice of an
17 adjudicative fact that is “not subject to reasonable dispute,”
18 because it (1) “is generally known within the trial court’s
19 territorial jurisdiction”; or (2) “can be accurately and readily
20 determined from sources whose accuracy cannot reasonably be
21 questioned.” Fed. R. Evid. 201(a)-(b).
22 Plaintiff’s tort claim is part of Defendant’s claim file
23 and is a public document not subject to reasonable dispute. See
24 Clarke v. Upton, 703 F.Supp.2d 1037, 1042 (E.D. Cal. 2010)
25 (finding California Government Tort Claims and their rejections
26 the proper subject of judicial notice). It is the proper
27 subject of judicial notice only to the extent that the Court
28 takes judicial notice of the fact that this claim was filed.
1 The Court cannot and does not take judicial notice of the truth
2 or falsity of the allegations in the tort claim.
3 B. Legal Standard
4 A party may move for a judgment on the pleadings as soon as
5 the pleadings are closed, but no so late as to delay trial. See
6 Fed. R. Civ. Proc. 12(c). The time of filing is the principal
7 difference between a motion for judgment on the pleadings and a
8 motion to dismiss pursuant to Rule 12(b). Dworkin v. Hustler
9 Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Otherwise,
10 the motions are functionally identical. Id. Thus, a Rule 12(c)
11 motion may be based on either: (1) the lack of a cognizable
12 legal theory; or (2) insufficient facts to support a cognizable
13 legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
14 699 (9th Cir. 1990). A plaintiff need allege “only enough facts
15 to state a claim to relief that is plausible on its face.” Bell
16 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
17 For the purposes of a motion for judgment on the pleadings,
18 “the allegations of the non-moving party must be accepted as
19 true, while the allegations of the moving party which have been
20 denied are assumed to be false.” Hal Roach Studios, Inc. v.
21 Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989).
22 “Judgment on the pleadings is proper when the moving party
23 clearly establishes on the face of the pleadings that no
24 material issues of fact remains to be resolved and that it is
25 entitled to judgment as a matter of law.” Id. It is improper
26 when the court must go beyond the pleadings to resolve the
27 issue. Id. However, on a Rule 12(c) motion, a court may
28 consider “facts that are contained in materials of which the
1 court may take judicial notice.” Heliotrope Gen., Inc. v. Ford
2 Motor Co., 189 F.3d 971, 981 at n.18 (9th Cir. 1999) (internal
3 quotation marks and citation omitted).
4 C. Analysis
5 1. Monell
6 Municipalities can be sued directly under 42 U.S.C. § 1983
7 for an unconstitutional custom, policy, or practice. Monell v.
8 Dept. of Social Services, 436 U.S. 658, 690 (1978). To
9 establish municipal liability, a plaintiff must show (1) he
10 possessed a constitutional right and was deprived of that right,
11 (2) the municipality had a policy, (3) the policy amounts to
12 deliberate indifference to the plaintiff’s constitutional right,
13 and (4) the policy was the moving force behind the
14 constitutional violation. Sweiha v. Cnty. of Alameda, No. 19-
15 CV-03098-LB, WL 48482227 (N.D. Cal. 2019) (citing Plumeau v.
16 Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.
17 1997)).
18 A plaintiff can establish the existence of a policy or
19 custom with: (1) proof that a municipal employee committed the
20 alleged constitutional violation pursuant to a formal government
21 policy, or a “longstanding practice or custom,” which
22 constitutes the standard operating procedure of the local
23 government entity; (2) proof that the individual who committed
24 the constitutional tort was an official with final policy-making
25 authority and that the challenged conduct was thus an act of
26 official government policy; or (3) proof that an official with
27 “final policymaking authority” ratified a subordinate’s
28 unconstitutional decision or action and the basis for it.
1 Gillete v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
2 As an initial matter, Plaintiff asserts Monell claims
3 against Defendant Shasta County and the Shasta County Sheriff’s
4 Department. See Compl. ¶¶ 36, 37, 41, 52, 63, 75, 84, 113.
5 However, the Shasta County Sheriff’s Department must be
6 dismissed as a defendant. Although municipalities, such as
7 cities and counties, are amenable to suit under Monell,
8 departments of municipal entities are not “persons” subject to
9 suit under § 1983; therefore, the Sheriff’s Department—a local
10 law enforcement department—is not a proper party. Hervey v.
11 Estes, 65 F.3d 784, 791–92 (9th Cir. 1995). As such, Plaintiff
12 cannot pursue her remaining § 1983 claims against the Sheriff’s
13 Department. See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-
14 cv-1293, WL 117966 at *3 (E.D. Cal. 2017) (“Because the Solano
15 County Sheriff’s Department is not a ‘person’ within the meaning
16 of [§] 1983, plaintiffs cannot maintain their claims against it
17 under that statute as a matter of law.”).
18 In addition, Plaintiff alleges a Monell claim against
19 Defendant under a theory of respondeat superior. See Compl.
20 ¶¶ 36, 37. That theory fails as a matter of law. It is well
21 established that a city or county may not be held vicariously
22 liable for the unconstitutional acts of its employees under the
23 theory of respondeat superior. Board of Cty. Comm'rs. of Bryan
24 Cty. v. Brown, 520 U.S. 397, 403 (1997). Thus, Plaintiff’s
25 attempt to hold Defendant vicariously liable for the actions of
26 its employees is unavailing.
27 The remainder of Plaintiff’s Monell claims against
28 Defendant relies upon either proof of a longstanding
1 unconstitutional practice or custom or proof that an official
2 ratified a subordinate’s unconstitutional actions. See Compl.
3 ¶¶ 41, 52, 63, 75, 84, 113. However, Plaintiff more or less
4 repeats the same boilerplate allegation throughout the
5 complaint. That, “Defendants County and Sheriff are liable as
6 municipal entities and agencies for . . . maintaining a policy,
7 custom or practice of permitting or encouraging” some
8 unconstitutional act. And that, by either “failing to properly
9 hire, train, supervise, or discipline their individual officers”
10 or “failing to properly and adequately investigate complaints of
11 retaliation” they ratified the constitutional violations. Id.
12 These allegations, taken together, are insufficient to
13 support either the existence of an unconstitutional custom or
14 policy or the ratification of a subordinate’s unconstitutional
15 action and fail as a matter of law. An unwritten policy or
16 custom can form the basis of a Monell claim, but it must be so
17 “persistent and widespread” that it constitutes a “permanent and
18 well settled” practice. Monell, 436 U.S. at 691. And
19 “[l]iability for improper custom may not be predicated on
20 isolated or sporadic incidents; it must be founded upon
21 practices of sufficient duration, frequency, and consistency
22 that the conduct has become a traditional method of carrying out
23 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
24 The complaint must “put forth additional facts regarding the
25 specific nature of [the] alleged policy, custom, or practice.
26 AE ex rel. Hernandez v. Cnty of Tulare, 666 F.3d 631, 637 (9th
27 Cir. 2012).
28 Plaintiff presents one fact in support of the allegation
1 that Defendant has established unconstitutional customs and
2 ratified the unconstitutional acts of its subordinates.
3 Plaintiff alleges that, during her detention, jail personnel
4 told her that she “needed to do something” about the deputies’
5 behavior and that this was “not the first time this had
6 happened.” See Compl. ¶ 31; see also Opp’n at 3–4. This lone
7 factual assertion falls far short of establishing a practice “of
8 sufficient duration, frequency, and consistency such that the
9 alleged custom or practice has become a traditional method of
10 carrying out policy.” Harper v. Cnty of Merced, Case No. 1:18-
11 cv-00562, WL 5880786 at *6 (E.D. Cal. 2018). And Plaintiff’s
12 recitation of the basic elements of a Monell claim, supported
13 only by facts specific to her arrest also fails to do so.
14 Insofar as Plaintiff asserts a Monell claim under a theory
15 of ratification, an isolated constitutional violation can give
16 rise to municipal liability if ratified by a person with “final
17 policymaking authority.” Christie v. Iopa, 176 F.3d 1231, 1238
18 (9th Cir. 1999). But Plaintiff does not present any factual
19 allegations suggesting a county official approved or ratified
20 this alleged unconstitutional practice. To show ratification, a
21 plaintiff must prove “that the authorized policymakers approve a
22 subordinate’s decision and the basis for it.” Id. at 1239
23 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127
24 (1988)). Therefore, ratification requires knowledge of the
25 alleged constitutional deprivation. Id. Plaintiff merely
26 alleges that Defendant ratified the constitutional violation by
27 failing “properly and adequately investigate complaints of
28 retaliation.” See Compl. ¶¶ 37, 41, 52, 63, 75, 84, 113. This
1 conclusory allegation is insufficient to state a cognizable
2 claim. See Hicks v. Cnty of Stanislaus, Case No. 1:17-cv-01187,
3 WL 347790 at *6 (E.D. Cal. 2018) (dismissing a ratification
4 claim where the complaint contained “no factual allegations to
5 support the claim that the County ‘approved, ratified, condoned,
6 encouraged, south to cover up, and/or tacitly authorized’ the
7 conduct . . . .”).
8 Accordingly, the Court GRANTS Defendant’s request to
9 dismiss Plaintiff’s § 1983 municipal liability claims under
10 Monell. The Court also DISMISSES the Shasta County Sheriff’s
11 Department as a defendant.
12 2. Civil Code § 52.1
13 Plaintiff, in her sixth claim, alleges that Defendant has
14 violated California Civil Code § 52.1. See Compl. ¶¶ 91–94.
15 Section 52.1 authorizes a claim for damages “against anyone who
16 interferes, or tries to do so, by threats, intimidation, or
17 coercion, with an individual’s exercise or enjoyment of rights
18 secured by federal or state law.” Jones v. Kmart Corp., 17
19 Cal.4th 329, 331 (1998). However, California Governmental Code
20 § 945.4 (the “Government Claims Act”) provides that “no suit for
21 money or damages may be brought against a public
22 entity . . . until a written claim therefor has been presented
23 to the public entity and has been acted upon by the board, or
24 has been deemed to have been rejected by the board . . . .” The
25 purpose of the Government Claims Act is “to provide the public
26 entity sufficient information to enable it to adequately
27 investigate claims and to settle them, if appropriate, without
28 the expense of litigation.” Stockett v. Ass’n of Cal. Water
1 Agencies Joint Powers Ins. Auth., 34 Cal.4th 441, 446 (2004)
2 (internal quotation marks omitted). Consequently, a claim need
3 not contain the detail and specificity required of a pleading
4 but need only “fairly describe what [the] entity is alleged to
5 have done.” Id.
6 “Unless a specific exception applies, a suit for money or
7 damages includes all actions where the plaintiff is seeking
8 monetary relief, regardless whether the action is founded in
9 tort, contract or some other theory.” Lozada v. City and County
10 of San Francisco, 145 Cal.App.4th 1139, 1152 (2006) (internal
11 quotation marks and citations omitted). “Government Code
12 section 905 lists several exceptions to the general rule that
13 public entities must be provided notice of all claims for money
14 or damages.” Id. “[C]laims for damages for violations of
15 section [] 52.1 are not among them.” Gatto v. County of Sonoma,
16 98 Cal.App.4th 744, 763 (2002) (finding notice provision applies
17 to a civil action for damages under Cal. Civ. Code § 52.1).
18 Defendant argues that Plaintiff’s sixth claim for violation
19 of Civil Code § 52.1 is barred as a matter of law because
20 Plaintiff’s tort claim under the Government Claims Act did not
21 include a specific allegation that § 52.1 had been violated.
22 See Mot. at 7–8. Defendant’s position is “unduly restricting.”
23 Wormuth v. Lammersville Union School District, 305 F.Supp.3d
24 1108, 1128 (E.D. Cal. 2018). The Government Claims Act’s filing
25 requirement serves to alert a public entity that something
26 happened and point the entity’s investigation in the right
27 direction; it is not designed to eliminate meritorious claims.
28 Stockett, 34 Cal.4th at 449 (“[the statutes] should be given a
1 liberal construction to permit full adjudication on the
2 merits.”) (internal quotation marks and citation omitted). “A
3 complaint’s fuller exposition of the factual basis beyond that
4 given in the claim is not fatal, so long as the complaint is not
5 based on an entirely different set of facts.” Id. at 447
6 (internal quotation marks and citation omitted).
7 Plaintiff provided Defendant with fair notice of her action
8 for damages under California Civil Code § 52.1. See RJN at 4-7.
9 She filed her tort claim pursuant to the Government Claims Act
10 on August 2, 2019, and did not file the instant lawsuit in
11 Sacramento Superior Court until January 23, 2020. See RJN;
12 Compl.; see also Cal. Gov. Code § 911.2(a). Plaintiff’s timely
13 filing notified Defendant of all the relevant circumstances,
14 dates, and parties involved in the incident. See id. It
15 adequately alerted Defendant that something happened and
16 provided more than enough facts and details to point Defendant’s
17 investigation in the right direction. That Plaintiff simply did
18 not specify that she would later allege the incident amounted to
19 a violation of § 52.1 does not render her filing incomplete and
20 does not bar her § 52.1 claim against Defendant in this
21 complaint.
22 Accordingly, the Court DENIES Defendant’s request to
23 dismiss Plaintiff’s sixth claim for violation of California
24 Civil Code § 52.1.
25 3. Negligent Hiring, Training, and Supervision
26 Plaintiff’s seventh claim alleges negligence by Defendant
27 in the hiring, training, and supervision of its sheriff’s
28 deputies. See Compl. ¶ 98. Defendant argues that it is not
1 subject to a negligent hiring, training, and supervision claim
2 in the absence of a statute to impose direct liability on it.
3 See Mot. at 9–10. Defendant is correct. See Hernandez v. Cnty.
4 of Tulare, 666 F.3d 631, 638 (9th Cir. 2012) (“California public
5 entities are not subject to common law tort liability; all
6 liability must be pursuant to statute.”); see also Berman v.
7 Sink, 2013 WL 2360899 at *16 (E.D. Cal. 2013) (“There is no
8 dispute that the County is not subject to a direct claim for
9 negligent hiring, retention, supervision, training and staffing.
10 Such a direct negligence claim is subject to dismissal.”).
11 California state courts have reached the same result. See de
12 Villers v. Cnty. of San Diego, 156 Cal.App.4th 238, 253 (2007)
13 (“We find no relevant case law approving a claim for direct
14 liability based on a public entity’s allegedly negligent hiring
15 and supervision practices.”).
16 Plaintiff cites to no relevant statute imposing a mandatory
17 duty on Defendant that would give rise to a negligent hiring,
18 training, and supervision cause of action. This claim fails as
19 a matter of law. Accordingly, the Court GRANTS Defendant’s
20 request to dismiss Plaintiff’s seventh claim to the extent it
21 alleges Defendant negligently hired, trained, and supervised its
22 sheriff’s deputies.
23
24 III. ORDER
25 For the reasons set forth above, the Court GRANTS in part
26 and DENIES in part Defendant’s Motion for Judgment on the
27 Pleadings. The Court:
28 1. GRANTS Defendant’s Motion as to the Monell claims
eee mE EIEIO IER III IIE III IE IRI OIE IS ESE IE IGE IE eee eee
1 pursuant to 42 U.S.C. § 1983 without prejudice;
2 2. DISMISSES the Shasta County Sheriff’s Department as a
3 defendant with prejudice;
4 3. DENIES Defendant’s Motion as to the sixth claim for
5 |} violation of California Civil Code § 52.1; and
6 4, GRANTS Defendant’s Motion as to the seventh claim
7 against it for negligent hiring, training, and supervision
8 without prejudice.
9 IT IS SO ORDERED.
10 Dated: November 2, 2020
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