Rosemary H. Mullins v. County of Fresno

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4

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

7

8 ROSEMARY HINOJOSA MULLINS, as CASE NO. 1:21-cv-00405-AWI-SAB

an individual, and as guardian ad litem for

9 KAYLA ALICIA MULLINS (a minor),

ORDER GRANTING IN PART AND

10 Plaintiffs, DENYING IN PART DEFENDANTS’

v. MOTION TO DISMISS

11

COUNTY OF FRESNO, FRESNO

12 COUNTY SHERIFF’S DEPARTMENT; (Doc. No. 9)

and DOES 1 through 25,

13

Defendants.

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18 Plaintiff Rosemary Mullins filed this action in Fresno Superior Court on January 15, 2021

19 as an individual and as guardian ad litem for her minor granddaughter, Kayla Mullins, alleging

20 claims under state and federal law in connection with the fatal shooting of her son and Kayla

21 Mullins’s father, Kenneth Mullins (“Mullins”). Doc. No. 1-1 at 6.1 The action was removed to this

22 Court on March 12, 2021, Doc. No. 1, and an amended complaint (the “First Amended

23 Complaint” or “FAC”) was filed on April 9, 2021. Doc. No. 6. Defendants County of Fresno (the

24 “County”) and Fresno County Sheriff’s Department (the “Sheriff’s Department,” and together

25 with the County, “Defendants”) have brought a motion to dismiss certain claims in the FAC

26 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 See Doc. No. 9. The motion

27

1 Unless otherwise noted, page citations are to the page number in the CM/ECF stamp at the top of each page of

28 documents filed with the Court electronically.

1 has been fully briefed and the Court has deemed it suitable for decision without oral argument,

2 pursuant to Local Rule 230(g). For the reasons that follow, the motion will be granted in part and

3 denied in part.

4 BACKGROUND3

5 Kenneth Mullins was found sleeping at an automobile dismantling shop by the owner at

6 approximately 5:00 p.m. on March 6, 2020. Doc. No. 6 ¶ 5. The shop was closed for the day and

7 there were no other persons in the vicinity at the time. Id. The owner called the Sheriff’s

8 Department to report a trespasser, stating that he had had no contact with him. Id.

9 The Sheriff’s Department dispatched several deputies (including, reportedly, volunteer

10 deputies) to the scene and a “30-minute standoff” ensued, culminating in the shooting death of

11 Mullins. Doc. No. 6 ¶¶ 6-10. The Sheriff’s Department issued a statement describing what

12 transpired as follows:

13 Deputies arrived and surrounded the building. They used a loudspeaker to call out

to [Mullins] for approximately 30 minutes, but he never responded … A few

14 minutes later he exited the building. Two deputies staged nearby made contact with

[Mullins] and gave him commands. [Mullins] did not comply, and two deputies

15 fired their guns multiple times, striking [Mullins]. He was pronounced deceased at

the scene … A closer examination of Mullins showed he was not in possession of a

16 weapon.

17 Id. ¶ 7. As set forth in the FAC, Mullins was killed by “a perforation of the brain and penetration

18 of the skull caused by gunshot wounds to the head by Fresno County Deputy Sheriffs.” Id. ¶ 8.

19 Mullins “never threatened or sought to injure” anyone and was “unarmed and apparently in no

20 condition to protect himself[,] let alone injure another” at the time of his death. Id. The deputies

21 failed to “use pepper spray, a baton, a taser, or any other non-lethal weapon” and went “directly to

22 the use of lethal force rather than first seeking to use less lethal means.” Id. ¶ 9. According to

23 Plaintiffs, “[t]he deputies’ decision to shoot [] Mullins multiple times—including one or more ‘kill

24 shots’ to his head—evinced their intention to execute [him] for the act of trespassing, rather than

25 maim or otherwise disable [him] in order to apprehend him.” Id.

26

27 3 This section summarizes allegations set forth in the FAC. See Doc. No. 6.

28

1 Rosemary Mullins is Mullins’s biological mother and Kayla Mullins, a minor, is Mullins’s

2 only biological daughter. Doc. No. 6 ¶ 1. Rosemary Mullins brings this action as an individual and

3 as guardian ad litem for Kayla Mullins, alleging claims against the County and the Sheriff’s

4 Department under 42 U.S.C § 1983, Section 52.1 of the California Civil Code (“Bane Act”),

5 Section 337.30 of the California Civil Code and California common law. Id. ¶¶ 20-67.

6 LEGAL FRAMEWORK

7 Under Rule 12(b)(6), a cause of action may be dismissed where a plaintiff fails “to state a

8 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6)

9 may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged

10 under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240 , 1242 (9th Cir.

11 2011); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121−22 (9th Cir. 2008). To

12 survive a Rule 12(b)(6) motion for failure to allege sufficient facts, a complaint must include a

13 “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

14 P. 8(a)(2). Compliance with this rule ensures that the defendant has “fair notice of what the ...

15 claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

16 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted).

17 Under this standard, a complaint must contain sufficient factual matter to “state a claim to relief

18 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

19 U.S. at 570) (internal quotation marks omitted). A claim has facial plausibility when the plaintiff

20 pleads factual content that allows the court to draw the reasonable inference that the defendant is

21 liable for the alleged misconduct. Id. at 663 (citation omitted).

22 In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as

23 true and construed in the light most favorable to the nonmoving party. See Mollett v. Netflix, Inc.,

24 795 F.3d 1062, 1065 (9th Cir. 2015); Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th

25 Cir. 2008). Courts are not, however, “required to accept as true allegations that contradict exhibits

26 attached to the Complaint or matters properly subject to judicial notice, or allegations that are

27 merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” Seven Arts

28 Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoted

1 source and internal quotation marks omitted); and complaints that offer no more than “labels and

2 conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556

3 U.S. at 678; Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015).

4 If a motion to dismiss is granted, “a district court should grant leave to amend even if no

5 request to amend the pleading was made, unless it determines that the pleading could not possibly

6 be cured by the allegation of other facts.” Henry A. v Willden, 678 F.3d 991, 1005 (9th Cir. 2012)

7 (quoted source omitted).

8 DISCUSSION

9 The Court will address the arguments raised in Defendants’ motion to dismiss in turn.

10 I. FRESNO COUNTY SHERIFF’S DEPARTMENT AS A DEFENDANT

11 Defendants contend that the Sheriff’s Department should be dismissed as a defendant in

12 this action because “[d]epartments or sub-units of a municipal entity are generally not proper

13 parties in a Section 1983 lawsuit.” Doc. No. 9-1 at 13:9-13. Further, they contend that it is

14 unnecessary to sue both the County and the Sheriff’s Department to attain full relief and that doing

15 so “would lead to the possible result of an impermissible double recovery against a single funding

16 source.” Id. at 13:9-20. The Court will first address the question of whether the Sheriff’s

17 Department is properly named as a defendant on Plaintiffs’ Section 1983 claims and then address

18 the question of whether it is proper to name the Sheriff’s Department as a defendant on Plaintiffs’

19 state law claims.

20 A. Section 1983 Claims

21 A claim for civil rights violations under Section 1983 requires a “person” who acted under

22 color of state law. See 42 U.S.C. § 1983. Local governmental units, such as counties and cities, are

23 considered “persons” within the meaning of Section 1983. Will v. Michigan Dept. of State Police,

24 491 U.S. 58, 70 (1989); Cty. of Los Angeles v. Superior Ct., 68 Cal. App. 4th 1166, 1171 (1998).

25 Local government sub-units, however, are not generally considered “persons” within the meaning

26 of Section 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal.1996)

27 (stating that “naming a municipal department as a defendant is not an appropriate means of

28 pleading a § 1983 action against a municipality” and dismissing the Santa Clara Department of

1 Corrections from the action); see also Sanders v. Aranas, 2008 WL 268972, at *3 (E.D. Cal. Jan.

2 29, 2008) (finding that the Fresno Police Department cannot be sued under Section 1983 because

3 it is a sub-division of the City of Fresno) (Ishii, J.). The Court therefore agrees with Defendants

4 that, as a subdivision of Fresno County, the Fresno County Sheriff’s Department is not a proper

5 defendant on Plaintiffs’ Section 1983 claims. See Dean v. Barber, 951 F.2d 1210, 1214 (11th

6 Cir.1992) (affirming district court’s dismissal of claims against a county sheriff’s department);

7 Brockmeier v. Solano County Sheriff’s Dept., 2006 WL 3760276, *4 (E.D. Cal. 2006) (finding

8 that the Solano County Sheriff’s Department was not a proper defendant on Section 1983 claims).

9 Further, Plaintiffs concede this point. Doc. No. 10 at 9:17-18. The Sheriff’s Department will

10 therefore be dismissed as a defendant on the Section 1983 claims.

11 B. State Law Claims

12 Although Plaintiffs concede that the Sherriff’s Department is not subject to suit under

13 Section 1983, they argue that the Sheriff’s Department is properly named as a defendant on state

14 law claims pursuant to Section 811.2 of the California Government Code. Doc. No. 10 at 9:20-26.

15 Defendants, for their part, cite an order issued by this Court in Morales v. City of Delano, as well

16 as an order from another Eastern District court in Shannon v. County of Sacramento in support of

17 the proposition that the Sheriff’s Department is a duplicative defendant. Doc. No. 9-1 at 13:14-20.

18 In Morales v. City of Delano, this Court held—albeit in the context of a Section 1983

19 claim—that the City of Delano and the City of Delano Police Department (“Delano Police

20 Department”) were properly viewed as a single legal entity and that dismissal of the Delano Police

21 Department was further warranted by the “likelihood of improper double recovery from a single

22 funding source.” 2010 WL 2942645, at *5 (E.D. Cal. July 23, 2010). In Shannon v. County of

23 Sacramento, similarly, the court dismissed the Sacramento County Sheriff’s Department as a

24 defendant on a wrongful death claim on a finding that “[t]o attain full relief, it is unnecessary to

25 sue both a county and the county sheriff’s office for identical claims with identical theories of

26 liability.” 2016 WL 1138190, at *6 (E.D. Cal. Mar. 23, 2016).

27 Plaintiffs have set forth no allegations supporting an inference that the County and the

28 Sheriff’s Department are different legal entities or that they represent distinct sources of funding

1 for potential recovery. The Court will therefore follow the reasoning in cases such as Morales and

2 Shannon and dismiss the Sheriff’s Department as a redundant and unnecessary defendant on

3 Plaintiffs’ state law claims, in addition to dismissing it as a defendant on the Section 1983 claims.4

4 See Est. of Jackson v. City of Modesto, 2021 WL 4819604, at *22 & n.18 (E.D. Cal. Oct. 14,

5 2021) (finding “no utility or purpose” in naming both the City of Modesto and the Modesto Police

6 Department as defendants and dismissing the latter “as an unnecessary and redundant party”).

7 II. SECOND CAUSE OF ACTION FOR VIOLATION OF FOURTH AMENDMENT

8 Defendants argue that a claim for loss of familial companionship cannot properly be

9 brought under the Fourth Amendment and, that in any event, a claim for loss of familial

10 companionship under the Fourth Amendment in the second cause of action would be duplicative

11 of Plaintiffs’ claim for loss of familial companionship under the Fourteenth Amendment, as set

12 forth in the first cause of action. Doc. No. 9-1 at 13:22-14:10. Plaintiffs state in the opposition that

13 they are not asserting a claim for loss of familial companionship (or its equivalent) under the

14 Fourth Amendment, Doc. No. 10 at 10:4-13, and Defendants have therefore withdrawn this

15 portion of their motion to dismiss. Doc. No. 11 at 2:24-28.

16 III. FIRST CAUSE OF ACTION FOR VIOLATION OF FOURTEENTH

17 AMENDMENT

18 Defendants contend that a Section 1983 claim for excessive force can only be brought

19 under the Fourth Amendment and that Plaintiffs’ first cause of action, which is brought under the

20 Fourteenth Amendment, must therefore be dismissed to the extent it is based on an excessive force

21 violation. Doc. No. 9-1 at 14:13-28. Plaintiffs do not contest Defendants’ characterization of

22 applicable law but contend that they do not seek to state an excessive force claim under the

23 Fourteenth Amendment and that the first cause of action is brought only “to ‘vindicate their own

24 rights’ as the mother and daughter who were wrongfully deprived of their familial relationship

25 with [] Mullins.” Doc. No. 10 at 10:16-23.

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4 If Plaintiffs have a legitimate and legally relevant basis for naming both the County and the Sheriff’s Department as

27 separate defendants in this action, Plaintiffs may file a motion for reconsideration. Such motion must be supported by

citation to relevant authority and explain why Plaintiffs wish to pursue identical claims against both entities.

28 Otherwise, the Court remains of the view that naming a municipality and its sub-unit as separate defendants on the

1 The first cause of action, however, alleges as follows:

2 Defendants, and each of them, violated the Fourteenth Amendment rights of Mr.

Mullins, his mother, and his daughter when the Deputies used excessive and deadly

3 force under color of law against an unarmed man. Defendants’ conduct further

violated Plaintiffs’ Fourteenth Amendment rights by wrongfully depriving Mr.

4 Mullins of his life and his mother and daughter of their familial relationship.

5 Doc. No. 6 ¶ 30.

6

7 On their face, these allegations speak as much to excessive force as they do to loss of

8 familial companionship (the avowed predicate of Plaintiffs’ Fourteenth Amendment claim). The

9 Court agrees with Defendants (as Plaintiffs implicitly do) that excessive force claims are subject to

10 the reasonableness standard under the Fourth Amendment and will therefore dismiss the first

11 cause of action with prejudice to the extent it can be read to allege an excessive force claim under

12 the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989); Tennessee v.

13 Garner, 471 U.S. 1, 7–8 (1985); see also Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a

14 particular Amendment provides an explicit textual source of constitutional protection against a

15 particular sort of government behavior, that Amendment, not the more generalized notion of

16 substantive due process, must be the guide for analyzing these claims.”).

17 IV. MONELL LIABILITY

18 A. Applicable Law

19 Municipalities are considered “persons” under Section 1983 and therefore may be liable

20 for causing a constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978);

21 Castro v. Cty. of Los Angeles, 797 F.3d 654, 670 (9th Cir. 2015). A municipality, however,

22 “cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality

23 cannot be held liable under § 1983 under a respondeat superior theory.” Monell, 436 U.S. at 691

24 (emphasis original); see Castro, 797 F.3d at 670. Liability only attaches where the municipality

25 itself causes the constitutional violation through “execution of a government’s policy or custom.”

26 Monell, 436 U.S. at 694; Price v. Sery, 513 F.3d 962, 966 (9th Cir. Or. 2008).

27 “Allegations of Monell liability will be sufficient for purposes of Rule 12(b)(6) where they:

28 (1) identify the challenged policy/custom; (2) explain how the policy/custom is deficient; (3)

1 explain how the policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom

2 amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the

3 constitutional injury was likely to occur.” McFarland v. City of Clovis, 163 F. Supp. 3d 798, 802

4 (E.D. Cal. 2016) (Ishii, J.).

5 The Ninth Circuit has found that “[t]here are three ways to show a policy or custom of a

6 municipality”:

7 (1) by showing “a longstanding practice or custom which constitutes the ‘standard

operating procedure’ of the local government entity;” (2) “by showing that the

8 decision-making official was, as a matter of state law, a final policymaking

authority whose edicts or acts may fairly be said to represent official policy in the

9 area of decision;” or (3) “by showing that an official with final policymaking

authority either delegated that authority to, or ratified the decision of, a

10 subordinate.”

11 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cty. of

12 San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002)); see also Thomas v. County of Riverside,

13 763 F.3d 1167, 1170 (9th Cir. 2014). To elaborate, a “policy,” for purposes of Monell liability, is

14 a “deliberate choice to follow a course of action ... made from among various alternatives by the

15 official or officials responsible for establishing final policy with respect to the subject matter in

16 question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) (citation and internal quotation

17 marks omitted); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); whereas a

18 “custom,” for purposes of Monell liability, is a “widespread practice that, although not authorized

19 by written law or express municipal policy, is so permanent and well-settled as to constitute a

20 custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los

21 Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990); see also Bouman v.

22 Block, 940 F.2d 1211, 1231–32 (9th Cir. 1991). “Liability for improper custom may not be

23 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient

24 duration, frequency and consistency that the conduct has become a traditional method of carrying

25 out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified in other respects

26 by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001); see also McDade v. West, 223 F.3d 1135,

27 1141 (9th Cir. 2000).

28 A failure to train or inadequate training may form the basis for municipal liability under

1 Section 1983. Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014); Long, 442 F.3d

2 at 1186. Under such a theory, “[t]he issue is whether the training program is adequate and, if it is

3 not, whether such inadequate training can justifiably be said to represent municipal policy.” Long,

4 442 F.3d at 1186. “Only where a municipality’s failure to train its employees in a relevant respect

5 evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be

6 properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton,

7 Ohio v. Harris, 489 U.S. 378, 389 (1989); Long v. City & County of Honolulu, 511 F.3d 901, 907

8 (9th Cir. 2007). A “pattern of tortious conduct,” despite the existence of a training program, or

9 “highly predictable” constitutional violations due to a “failure to equip law enforcement officers

10 with specific tools to handle recurring situations” are circumstances in which liability for failure to

11 train may be imposed. See Board of County Comm’rs v. Brown, 520 U.S. 397, 407–10 (1997);

12 Long, 442 F.3d at 1186–87.

13 The Ninth Circuit previously held that “a claim of municipal liability under § 1983 is

14 sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare

15 allegation that the individual officers’ conduct conformed to official policy, custom, or practice.”

16 A.E. ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). The Ninth Circuit has

17 since made it clear, however, that claims of Monell liability must comply with the basic principles

18 set forth in Twombly and Iqbal in that: (1) the complaint “may not simply recite the elements of a

19 cause of action, but must contain sufficient allegations of underlying facts to give fair notice and

20 to enable the opposing party to defend itself effectively”; and (2) the “factual allegations that are

21 taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the

22 opposing party to be subjected to the expense of discovery and continued litigation.” A.E., 666

23 F.3d at 636–37 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

24 B. Discussion

25 Defendants contend that Plaintiffs’ allegations are conclusory and implausible and that

26 Plaintiffs fail to allege Monell liability through any method. Doc. No. 9-1, Part III.D. Further,

27 Defendants take the position that a Monell claim can be broken down and dismissed in parts based

28 on the method used to allege municipal liability for a given constitutional violation. See id. at

1 17:25-26 (calling for dismissal of the “official policy portion” of Plaintiffs’ Monell claim); 19:12-

2 13 (calling for dismissal of the “custom and practice portion” of the Plaintiffs’ Monell claim);

3 21:5-6 (calling for dismissal of the “failure to train portion” of Plaintiffs’ Monell claim); 22:12-13

4 (calling for dismissal of the “failure to discipline portion” of Plaintiffs’ Monell claim). Plaintiffs

5 reject Defendants’ piecemeal approach to Monell liability, Doc. No. 10 at 12:1-2, and contend that

6 “interrelated” factual allegations in the FAC cut across evidentiary categories and collectively

7 show “the customary use of excessive force over the years” on the part of the Sheriff’s

8 Department. Id. at 12:5-7.

9 Reviewing the FAC, Plaintiffs allege that, as the head of the Sheriff’s Department, Sheriff

10 Margaret Mims “publicly adopted policies that promote the customary use of excessive and deadly

11 force in situations … where less extreme procedures would accomplish the public’s interest,” Doc.

12 No. 6 ¶¶ 13-14; “became an outspoken critic of attempts to rei[]n in the use of excessive force

13 when she challenged legislation that sought to require sheriffs and other law enforcement

14 personnel to use deadly force only when there w[ere] no reasonable alternatives”; and bucked

15 “nationwide calls to de-escalate law enforcement encounters with unarmed civilians” by

16 emphasizing that “her deputies should have ‘maximum flexibility’ to use ‘whatever’ methods they

17 need to control suspects.” Id. ¶ 14. Further, Plaintiffs allege that the Sheriff’s Department has a

18 feature entitled “Officer Involved Shooting Myths” on its website that links to articles minimizing

19 police shootings. Id. ¶ 15.

20 In addition, Plaintiffs allege that the Sheriff’s Department fails to conduct background

21 checks sufficient to determine whether applicants are prone to misusing police power and fails to

22 train deputies in “de-escalating conflicts,” the “use of non-lethal force” and “how to avoid deadly

23 force at important steps during an encounter with a potentially dangerous person.” Doc. No. 6 ¶¶

24 16, 20-21. Similarly, Plaintiffs allege that, for financial reasons, the Sheriff’s Department

25 maintains a Deputy Reserve Unit of 20+ volunteer deputies who are permitted to carry firearms

26 and put in “life and death” situations despite insufficient training. Id. ¶¶ 17-18.

27 Plaintiffs also allege that the Fresno County Sheriff’s Department was among the worst

28 sheriff’s departments in California in the seven-year period from 2013 through 2019 with respect

1 to the rate of deadly force per arrest and the number of fatal shootings by deputies as a percentage

2 of total homicides. Doc. No. ¶ 23. And they allege that just 3% of complaints against the Sheriff’s

3 Department are decided in favor of civilians; that unlike most other jurisdictions, the Fresno

4 County Sheriff’s Department does not require body cameras on deputies; and that the Fresno

5 County Sheriff’s Department has one of the worst “accountability” ratings in California. Id. ¶ 24.

6 These are not—as Defendants contend—“conclusory” allegations. They are factual

7 allegations that collectively support a reasonable inference that the Sheriff’s Department had a

8 custom (and possibly policy) emanating from the top and permeating multiple relevant aspects of

9 the organization (including functions like hiring, training and discipline) that deemphasized de-

10 escalation and the use of non-lethal force, with disregard the safety (and constitutional rights) of

11 civilians. See Iqbal, 556 U.S. at 678. Moreover, these allegations support a plausible inference that

12 this policy or custom led to an elevated number of fatal shootings at the hands of deputies, such as

13 the one in question here, while giving fair notice, in the Court’s view, “of what [Plaintiffs’ Monell]

14 claim is and the grounds upon which it rests.” See Twombly, 550 U.S. at 555.

15 Finally, Defendants provide no authority that supports their contention that Plaintiffs’

16 Monell claim should be deconstructed and dismissed piecemeal based on the form of proof—or

17 more specifically, the types of allegations—offered to show “policy or custom.” See Doc. No. 11

18 at 3:8-19. In Baird v. Becerra, for example, the court simply found that plaintiffs’ challenge to a

19 firearm regulation under the Fourth Amendment was not legally cognizable and pared back causes

20 of action to the extent they relied on such a theory. 2020 WL 5107614, at *9 (E.D. Cal. Aug. 31,

21 2020). The Court does not see how limiting claims to cognizable rights is analogous to the

22 deconstruction of Plaintiffs’ Monell claim that Defendants propose here, and the other cases cited

23 by Plaintiffs on this point appear to be equally (if not more) irrelevant. The Court therefore

24 declines to dismiss any portion of Plaintiffs’ Monell claim.

25 V. STATUTORY BASIS FOR LIABILITY ON STATE LAW CLAIMS

26 A. Parties’ Arguments

27 Defendants contend that Plaintiffs’ third, fourth, fifth, sixth and seventh causes of action

28 must be dismissed because Plaintiffs “do not identify a statute or ‘enactment’ which establishes a

1 basis for liability against [the Defendants] for the state law claims alleging battery, negligence,

2 wrongful death, survival, or violation of California Civil Code section 52.1” or otherwise “plead

3 with particularity a statutory duty” on the part Defendants. Doc. No. 9-1 at 23:1-3, 24:15-17.

4 Plaintiffs argue that, under Section 815.2 of the California Government Code, Defendants

5 can have vicarious liability for “the negligent acts or omissions of their employees” in some

6 instances and that, as alleged in a proposed Second Amended Complaint (“SAC”) (as attached to

7 Plaintiffs’ opposition), Section 835a of the California Penal Code (addressing the use of deadly

8 force by law enforcement officers) provides a statutory basis for direct liability on the part of

9 Defendants as government entities. Doc. No. 10:9-22.

10 Defendants argue on reply that the FAC failed to allege Section 815.2 as the basis for

11 vicarious liability. Doc. No. 11 at 5:18-24. Further, they contend that Section 835a does not

12 provide a basis for direct liability against government entities and that, in any event, it was not

13 alleged as a basis for direct liability in the FAC. Id. at 5:25-6:11.

14 B. Discussion

15 Under the California Government Claims Act (Cal. Gov. Code, § 810 et seq.), “a public

16 entity is not liable for injury arising from an act or omission except as provided by statute.” Hoff

17 v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 932 (1998) (citation and internal quotation marks

18 omitted); Cal. Gov. Code, § 815, subd. (a). Thus, in California, “all government tort liability must

19 be based on statute.” Id. (citation and internal quotation marks omitted); Churchman v. Bay Area

20 Rapid Transit Dist., 39 Cal. App. 5th 246, 250 (2019). As to vicarious liability, Section 815.2(a) of

21 the California Government Code “expressly makes the doctrine of respondeat superior applicable

22 to public employers.” Hoff, 19 Cal.4th at 932. Specifically, a “public entity is liable for injury

23 proximately caused by an act or omission of an employee of the public entity within the scope of

24 his employment if the act or omission would … have given rise to a cause of action against that

25 employee or his personal representative.” Cal. Gov. Code § 815.2(a). Direct liability, for its part,

26 “must be based on a specific statute declaring [public entities] to be liable, or at least creating

27 some specific duty of care” on the part of public entities. Eastburn v. Reg’l Fire Prot. Auth., 31

28 Cal. 4th 1175, 1183 (2003); Leon v. County of Riverside, 64 Cal. App. 5th 837, 850 (2021). In

1 either case, a plaintiff must plead the statutory basis for a claim against a government entity.

2 Morse v. Cty. of Merced, 2016 WL 3254034, at *6 (E.D. Cal. June 13, 2016) (citing Susman v.

3 City of Los Angeles, 269 Cal. App. 2d 803, 808–09 (1969)); see also Lopez v. Southern Cal.

4 Rapid Dist., 40 Cal. 3d 780, 795 (1985). Failure to do so provides a ground for dismissal under

5 Rule 12(b)(6). See Keyes v. Santa Clara Valley Water Dist., 128 Cal. App. 3d 882, 885–86 (1982)

6 (complaint properly subject to general demurrer for failure to state a claim where the complaint

7 did not plead the statutory basis for liability).

8 As Defendants point out, Section 835a of the California Penal Code speaks to the conduct

9 and duties of peace officers, with no mention of the public entities employing such persons. See

10 Cal. Penal Code § 835a. It is therefore hard to see how it could be read to impose a duty on the

11 Defendants. See In re Groundwater Cases,154 Cal. App. 4th 659, 689 (2007) (“the enactment

12 allegedly creating the mandatory duty must impose a duty on the specific public entity sought to

13 be held liable” and that “the mandatory nature of the duty must be phrased in explicit and forceful

14 language” (citations and internal quotation marks omitted)). In any event, it is undisputed that

15 Section 835a is not alleged in the FAC, and it is similarly undisputed that the FAC does not

16 alleged Section 815.2 as a basis for vicarious liability.

17 The third cause of action, however, is expressly brought under Section 52.1 of the

18 California Civil Code, which at least one court in the Eastern District of California has read to

19 provide claims against public entities. See Morse v. Cty. of Merced, 2016 WL 3254034, at *6

20 (E.D. Cal. June 13, 2016) (stating “[i]t appears claims under § 52.1 may be brought against public

21 entities”) (citing Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947, 950 (2012) (Bane Act

22 claims brought against Los Angeles County)); see also Dorger v. City of Napa, 2012 WL

23 3791447, at *7 (N.D. Cal. Aug. 31, 2012) (stating a public entity may be considered a “person”

24 subject to liability under Section 52.1); Salazar v. Schwarzenegger, 2007 WL 9662364, at *6

25 (C.D. Cal. Oct. 23, 2007) (stating that statutory immunity “may shield a public entity from direct

26 liability premised on Civil Code § 52.1”). Defendants make no showing to the contrary. As such,

27 the fourth, fifth, sixth and seventh causes of action will be dismissed without prejudice to proper

28

1 repleading,5 see Lang v. County of Sonoma, 2012 WL 4674527, *5 (N.D. Cal. Oct. 2, 2012), but

2 the Court declines to dismiss the third cause of action for failure to plead a statutory predicate for

3 public entity liability.

4 VI. WRONGFUL DEATH CLAIM

5 A. Duplication of Seventh Cause of Action for Negligence

6 Defendants contend that the fourth cause of action for wrongful death should be dismissed

7 as duplicative because it is “premised on the same underlying conduct as the seventh cause of

8 action for negligence.” Despite the fact their elements can overlap, however, see Jacoves v. United

9 Merch. Corp., 9 Cal. App. 4th 88, 105 (1992), negligence and wrongful death are separate causes

10 of action under California law. Specifically, Section 377.60 “creates a new cause of action in favor

11 of [] heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of

12 a relative, and distinct from any the deceased might have maintained had he survived. ” Est. of

13 Bock ex rel. Bock v. Cty. of Sutter, 2012 WL 423704, at *14 (E.D. Cal. Feb. 8, 2012) (quoting

14 Ruiz v. Podolsky, 50 Cal.4th 838, 844 (Cal. 2010)) (internal quotation marks omitted). The Court

15 therefore declines to dismiss Plaintiffs’ wrongful death claim on the grounds that it is duplicative

16 of the negligence claim. See Enriquez v. City of Fresno, 2010 WL 2490969, at *7 (E.D. Cal. June

17 16, 2010) (Ishii, J.) (“The court also notes that, although Plaintiffs’ claims for negligence and

18 wrongful death are pled from the same facts, wrongful death and negligence are, in the abstract,

19 separate theories of recovery having separate elements. Thus, while the facts as currently pled may

20 be indistinguishable as to both claims, the facts as fully developed following discovery may favor

21 one claim over the other. The court will decline to dismiss Plaintiffs’ negligence claim on the

22 theory that it is redundant to Plaintiffs’ wrongful death claim.”)

23 B. Rosemary Mullins’s Standing for Wrongful Death Claim

24 Defendants argue that Rosemary Mullins fails to satisfy the standing requirements under

25 Section 377.60 for a wrongful death claim because it is undisputed that Mullins has a child—

26 Plaintiff Kayla Mullins—and Rosemary Mullins has failed to allege facts showing that she herself

27

5 The Court notes Defendants’ argument that there is no statutory basis for public entity liability for negligent hiring

28 and training. Doc. No. 9-1 at 23:17-25. The Court will, however, allow Plaintiffs an opportunity to reallege negligence

1 was “dependent” on Mullins. Doc. No. 9-1 at 25:8-27. Plaintiffs argue that Rosemary Mullins has

2 standing to bring this claim because the FAC alleges that “Mullins had long been a source of

3 financial support to both Plaintiffs, as well as being a caregiver to his father at the end of his life”

4 and, similarly, that Mullins “was a source of direct and indirect financial support, including being

5 a caregiver to his father during his illness.” Doc. No. 10 at 16:11-25.

6 The Court agrees that these allegations are insufficient to establish that Rosemary Mullins

7 has standing for a Section 377.60 claim, since the allegation as to end-of-life care pertains to

8 Mullins’s deceased father (not to Rosemary Mullins) and the Court cannot infer from the mere

9 allegation that Mullins was “a source of financial support” that Rosemary Mullins was dependent

10 on him for “necessities of life” prior to his death. Soto v. BorgWarner Morse TEC Inc., 239 Cal.

11 App. 4th 165, 189 (2015), as modified (Aug. 20, 2015) (citation and internal quotation marks

12 omitted). The Section 377.60 claim will therefore be dismissed for lack of standing to the extent it

13 is brought by Rosemary Mullins, without prejudice to repleading with factual allegations showing

14 the requisite type and level of dependency.

15 VII. STANDING FOR DECLARATORY OR INJUNCTIVE RELIEF

16 Defendants argue that Plaintiffs’ lack standing for declaratory or injunctive relief because

17 they have failed to allege current or future injury in connection with the use of excessive force by

18 deputies. Doc. No. 9-1 at 26:5-27:25. Plaintiffs, for their part, argue that: the point is moot since

19 the proposed SAC (as attached to the opposition) “drops the cause of action for Declaratory and

20 Injunctive Relief”; they have standing to seek injunctive relief on their Bane Act (Section 52.1)

21 claim; and it is too early in the case to rule out injunctive relief as a remedy. Doc. No. 10 at 16:27-

22 17:27.

23 Given Plaintiffs’ statement that they do not intend to prosecute a claim for declaratory

24 relief, the eighth cause of action will be dismissed without leave to amend. See Fed. R. Civ. Pro.

25 41(b); Reed v. Wilmington Tr., N.A., 2016 WL 3124611, at *7 (N.D. Cal. June 3, 2016). Further,

26 “[s]tanding must be shown with respect to each form of relief sought,” including injunctive relief.

27 Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). The Court agrees with

28 Defendants that Plaintiffs have not alleged—and cannot allege—the “imminent ‘prospect of future

1 injury’ ” at the hands of Fresno County Sheriff’s deputies required for standing under Article III of

2 the United States Constitution for injunctive relief. See Ervine v. Desert View Reg’l Med. Ctr.

3 Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014); see also City of Los Angeles v. Lyons, 461

4 U.S. 95, 103 (1982) (standing for injunctive relief requires that the “threat to the plaintiffs” of

5 future injury be “sufficiently real and immediate”). Nor does the Court see any justification for

6 reading Section 52.1 of the California Civil Code to fashion an exception to this well-settled

7 standing requirement, even if the language of Section 52.1 lent itself to such an interpretation

8 (which in the Court’s view, it does not). Cf. Burns v. Tristar Prod., Inc., 2014 WL 3728115, at *3

9 (S.D. Cal. July 25, 2014) (declining to follow case law purporting to create an exception to the

10 standing requirement for injunctive relief on the grounds that such case law “does not square with

11 Article III’s mandate”). Plaintiffs’ prayer for injunctive relief will therefore be dismissed with

12 prejudice. See Reinhardt v. Gemini Motor Transp., 869 F. Supp. 2d 1158, 1174 (E.D. Cal. 2012)

13 (Ishii, J.) (stating that the Ninth Circuit has held that Rule 12(b)(6) is the proper mechanism for

14 challenging a complaint’s request for relief that is unavailable as a matter of law (citing

15 Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 974–75 (9th Cir. 2010)).

16 CONCLUSION

17 For the foregoing reasons, Defendants’ motion to dismiss the FAC will be granted in part

18 and denied in part.

19 ORDER

20 Accordingly, IT IS HEREBY ORDERED that the motion to dismiss the First Amended

21 Complaint brought by Fresno County and the Fresno County Sheriff’s Department (Doc. No. 9) is

22 GRANTED IN PART and DENIED IN PART as follows:

23 1. The motion is GRANTED in that:

24 a. The Fresno County Sherriff’s Department is DISMISSED WITH PREJUDICE

25 from this case as a defendant;

26 b. The first cause of action for violation of rights under the Fourteenth

27 Amendment is DISMISSED WITH PREJUDICE to the extent it purports to

28 allege an excessive force claim;

1 c. The fourth, fifth, sixth and seventh causes of action are DISMISSED WITH

2 LEAVE TO AMEND for failure to allege a statutory predicate for public entity

3 liability;

4 d. The fourth cause of action is further DISMISSED WITH LEAVE TO AMEND

5 to the extent it is alleged by Rosemary Mullins;

6 e. The eighth cause of action for declaratory relief and the prayer for injunctive

7 relief are DISMISSED WITH PREJUDICE;

8 2. The motion is DENIED in all other respects;

9 3. Plaintiffs are GRANTED 21 days from the date of electronic service of this order to

10 file a Second Amended Complaint (“SAC”) consistent with the findings and analysis in

11 this order;

12 4. Defendants will have 21 days from the date of electronic service of any SAC to answer

13 or otherwise respond to the SAC;

14 5. If Plaintiffs do not file a SAC within 21 days of electronic service of this order, leave

15 to amend will be automatically and immediately withdrawn, with no further notice to

16 the Parties, and Defendants will then have an additional 21 days to answer the FAC

17 consistent with this order; and

18 6. This matter is referred back to the magistrate judge for further proceedings consistent

19 with this order.

20

IT IS SO ORDERED.

99 Dated: _November 15, 2021 Z : Cb □□

"SENIOR DISTRICT JUDGE

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