Estate of Nahal Connie Dadkhah v. City of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ESTATE OF NAHAL CONNIE Case No.: 3:24-cv-00097-RBM-DDL

DADKHAH, by and through its

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successor-in-interest, MANOUCHEHR ORDER GRANTING DEFENDANTS’

13 DADKHAH, and MANOUCHEHR MOTION TO DISMISS

DADKHAH, PLAINTIFFS’ COMPLAINT

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Plaintiffs,

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v.

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CITY OF SAN DIEGO, et al.,

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Defendants.

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20 Pending before the Court is Defendant City of San Diego and Chief David Nisleit’s

21 motion to dismiss Plaintiffs’ Complaint (“Motion”). (Doc. 7-1.) Plaintiffs Estate of Nahal

22 Connie Dadkhah (“Plaintiff Estate”) and Manouchehr Dadkhah (collectively, the

23 “Plaintiffs”) filed an opposition to Defendants’ Motion (“Opposition”). (Doc. 8.)

24 Defendants filed a reply brief (“Reply”). (Doc. 9.)

25 This case concerns the San Diego Police Department’s (“SDPD”) response to the

26 events preceding the death of Nahal Connie Dadkhan (“Connie”) allegedly at the hands of

27 Parrish Chambers on June 14, 2022. In Plaintiffs’ Complaint, they bring 28 U.S.C. § 1983

28 Monell and Fourteenth Amendment due process claims, as well as state law negligence and

1 Bane Act claims against the City of San Diego, SDPD Chief David Nisleit, 10 SDPD

2 officers who responded to the scene of the disturbance (“Doe Officers 1–10”), 5 SDPD

3 employees responsible for providing accurate and thorough information to Doe Officers

4 1–10 (“Doe Employees 1–5”), and 6 SDPD officers responsible for training and

5 supervising Doe Officers 1–10 (“Doe Officer Supervisors 1–6). (Doc. 1 ¶¶ 29–36.)

6 In their Motion, Defendants argue Plaintiffs fail to sufficiently plead a Monell claim

7 (First Cause of Action) because (1) there was no constitutional violation and (2) Plaintiffs

8 fail to identify any specific policy or custom, fail to point to deliberate indifference in

9 maintaining such policy or custom, and there is no direct causal link between a policy or

10 custom and the alleged constitutional violation. (Doc. 7-1 at 9–17.) With respect to a

11 constitutional violation (Second and Third Causes of Action) specifically, Defendants

12 argue Plaintiffs failed to establish a state-created danger claim. (Id. at 10–15.) Defendants

13 argue Plaintiffs failed to plead a Monell failure to train claim (First Cause of Action). (Id.

14 at 17–18.) Defendants contend all of the claims against Chief Nisleit are redundant because

15 an official capacity suit against him is a suit against the City of San Diego. (Id. at 18.)

16 Defendants argue Plaintiffs’ negligence claim (Fourth Cause of Action) fails because Doe

17 Employees 1–5 and Doe Officers 1–10 had no duty to Connie and Plaintiffs fail to plead

18 facts supporting gross negligence. (Id. at 18–22.) Defendants also argue Plaintiffs’

19 negligence claim as to Chief Nisleit fails because he had no special relationship with

20 Connie nor did any of his acts or omissions harm her. (Id. at 22–23.) Defendants argue

21 Plaintiffs’ Bane Act claim (Fifth Cause of Action) fails because (1) their due process claims

22 fail; (2) Plaintiffs did not allege facts supporting any threats, intimidation, or coercion; and

23 (3) Plaintiffs did not allege facts supporting a specific intent to violate Connie’s rights. (Id.

24 at 23–24.) Lastly, Defendants argue Doe Employees 1–5 and Doe Officers 1–10 are

25 entitled to state law immunity under California Government Code §§ 820.2, 845, and 846.

26 (Id. at 24–27.)

27 The Court finds this matter suitable for determination without oral argument

28 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Defendants’

1 Motion is GRANTED.

2 I. BACKGROUND

3 The facts and claims alleged in Plaintiffs’ Complaint are as follows.

4 A. Nahal Connie Dadkhah

5 Connie was a medical research assistant and production manager who volunteered

6 at a local mental health outreach center in her free time. (Doc. 1 (“Complaint”) ¶ 2.)

7 Connie resided in a unit on the second floor of a two-story condominium located in the

8 City of San Diego. (Id. ¶ 38.)

9 B. Before Police Were Called

10 “On June 14, 2022, at approximately 4:00 p.m., Connie’s neighbors observed an

11 agitated man, Parrish Chambers, on the stairs outside of Connie’s unit. Chambers was

12 yelling and rambling. Neighbors recognized Chambers from prior incidents.” (Id. ¶ 39.)

13 Neighbors observed Chambers outside for hours angry, yelling aggressively, and appearing

14 highly agitated. (Id. ¶ 40.)

15 C. Police Called

16 “At approximately 7:00 p.m., at least two of Connie’s neighbors called the police to

17 report to Doe Employees that Chambers was banging on Connie’s door and screaming. On

18 information and belief, no officers were dispatched.” (Id. ¶ 41.) These neighbors did not

19 act further because dispatch told them help was on the way. (Id. ¶ 42.) Between 7:00 to

20 8:00 p.m., individuals made approximately five additional calls to police warning the Doe

21 Employees about Chambers being outside of Connie’s apartment, but upon information

22 and belief, officers were not dispatched. (Id. ¶ 43.) At 7:53 p.m., a neighbor heard and

23 saw a man climb onto Connie’s balcony and break through her glass door and enter her

24 unit. (Id. ¶ 44.) At approximately 8:00 p.m., at least one other neighbor called the police

25 again and told Doe Employees she was extremely concerned about “Connie’s safety and

26 what was going on in her apartment.” (Id. ¶ 45.) Another neighbor called the police and

27 told Doe Employees she observed an active burglary, saw a man enter through a second

28 story sliding glass door, and bust down the door. (Id. ¶ 46.) While on the call, the neighbor

1 told a Doe Employee she heard a physical fight and thought the man was going to kill

2 Connie. (Id.)

3 D. High Priority

4 Doe Employees upgraded the call to a high priority. (Id. ¶ 47.) According to

5 SDPD’s Communications Division Priority System, priority one calls like Connie’s should

6 be “dispatch[ed] immediately.” (Id. ¶ 66.) For the past five years, SDPD has failed to meet

7 its public safety standards and key performance indicators for priority one calls. (Id. ¶ 68.)

8 In 2022, SDPD and the City’s average response time target for priority one calls was 14

9 minutes, but the actual average response time was 36.8 minutes. (Id. ¶ 69.) Defendant

10 Chief Nisleit acknowledged SDPD deficiencies in a memorandum issues two months after

11 Connie’s murder. (Id. ¶ 70.)

12 E. Arrival

13 At approximately 8:51 p.m., Doe Officers showed up with guns drawn and knocked

14 on Connie’s door. (Id. ¶ 48.) Doe Officers called out on a microphone for individuals to

15 come out of Connie’s apartment. (Id.) Uniformed and armed officers, patrol cars, and

16 amplified public announcements communicated to neighbors that the police were there to

17 help Connie and they should not enter the apartment themselves to try and save her. (Id.

18 ¶¶ 49–50.) A neighbor that lived in the apartment below Connie told at least one Doe

19 Officer that Connie was home, that a man broke into her apartment, and showed the officer

20 broken glass. (Id. ¶ 51.) On information and belief, that neighbor told the Doe Officer she

21 had seen Chambers assault Connie on previous occasions. (Id. ¶ 52.) On information and

22 belief, Doe Officers were outside of Connie’s apartment for approximately 15 minutes

23 before leaving. (Id. ¶ 53.)

24 F. Next Morning

25 “On the morning of June 15, 2022, Doe Officers returned to Connie’s apartment

26 after they received a call from a neighbor who was told by Chambers to call the police

27 because Connie was dead. Doe Officers found Connie dead in her apartment.” (Id. ¶ 54.)

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1 G. Past Incidents

2 On information and belief, Doe Officers and Doe Employees had actual or

3 constructive possession of information that, over the past two years, the police responded

4 to several incidents at Connie’s apartment that showed Chambers had prior instances of

5 violence, stalking, and abuse toward Connie. (Id. ¶ 60.) Upon information and belief, Doe

6 Officers and Doe Employees had actual or constructive possession of information

7 concerning a prior incident on November 2, 2021, where Chambers reportedly dragged

8 Connie by her hair into her SUV and drove away. (Id. ¶ 61.) Upon information and belief,

9 Doe Officers and Doe Employees had actual or constructive possession of information

10 concerning a prior incident on April 22, 2022, where Chambers showed up to Connie’s

11 apartment and yelled at, grabbed, pulled, and punched Connie. (Id. ¶ 62.) The information

12 from that incident indicated Connie was visibly injured and Chambers did not live with

13 Connie. (Id.) Upon information and belief, Doe Officers and Doe Employees had actual

14 or constructive possession of information concerning an April 22, 2022 incident instructing

15 officers to send at least 3 officers, a sergeant, and a K-9 unit if a call for service is made

16 for Connie’s address. (Id. ¶ 63.) Upon information and belief, Doe Officers and Doe

17 Employees had actual or constructive possession of information concerning Chambers’

18 criminal record and that a judge ordered him to stay away from Connie as a condition of

19 his probation. (Id. ¶ 64.)

20 H. Training

21 “Despite knowledge of the danger longer response times create, the City, Chief

22 Nisleit, Doe Officer Supervisors had insufficient and ineffectual policies, procedures,

23 training, and supervision in place to have addressed this foreseeable and preventable harm,

24 and/or their training of its officers to prevent the negligence and constitutional violations

25 that occurred here was deficient.” (Id. ¶ 71.) “Despite actual and constructive knowledge

26 of the risks posed by stalkers abusers like [Chambers], the City, Chief Nisleit, Doe Officer

27 Supervisors had insufficient and ineffectual policies, procedures, communication, training,

28 and supervision in place to ensure victims like Connie are protected from their abusers.”

1 (Id. ¶ 72.)

2 I. 42 U.S.C. § 1983 – Fourteenth Amendment, State-Created Danger (Monell)

3 (First Cause of Action)

4 Plaintiffs allege Connie had a constitutional right to be free from state-created

5 danger. (Id. ¶ 76.) Plaintiff Estate alleges this cause of action against the City of San

6 Diego, Chief Nisleit, and the Supervisory Does. (Id. ¶ 74.) Plaintiff Estate alleges these

7 Defendants “collectively committed affirmative acts, as well as deliberate failures to act,

8 placing Connie in particularized danger at the hands of” Chambers. (Id. ¶ 78.) Plaintiff

9 Estate alleges these Defendants made the following intentional decisions and omissions:

10 (1) Doe Employees failed to dispatch police officers immediately when multiple calls were

11 made about a known and dangerous individual; (2) Doe Employees failed to dispatch police

12 officers immediately when there were documented prior instances of violence at the same

13 location involving the same abuser and victim; (3) Doe Officers failed to respond to a call

14 in a timely manner and in accordance with the City and SDPD’s public safety standards

15 and key performance indicators when there were known and documented instances of

16 violence at the same location involving the same abuser and victim; (4) Doe Employees

17 and Doe Officers failed to communicate available information of prior instances of

18 violence and abuse; (5) Doe Employees and Doe Officers ignored or failed to respond in

19 accordance with available information of prior instances/reports of violence and abuse; and

20 (6) Doe Officers ignored obvious and known dangers expressed by witnesses such as

21 broken glass and prior instances of abuse/violence and failed to respond in an effective

22 manner to ensure Connie was safe. (Id. ¶ 83.)

23 Plaintiff Estate alleges Defendants maintained a policy of failing to train and

24 supervise their employees and agents to prevent violations of law and the kind of harm that

25 befell Connie. (Id. ¶¶ 87–88.) Plaintiff Estate alleges, despite Defendants’ knowledge that

26 such acts and omissions put abused women like Connie at risk, they nevertheless failed to

27 adequately supervise or train their employees and agents. (Id. ¶¶ 89–90.)

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1 J. 42 U.S.C. § 1983 – Fourteenth Amendment Substantive Due Process (Second

2 Cause of Action)

3 Plaintiff Manouchehr Dadkhah, as an individual, alleges this Fourteenth

4 Amendment substantive due process claim against Doe Officers and Doe Employees for

5 depriving him of his right to companionship with his daughter Connie. (Id. ¶ 92.)

6 Specifically, he had the right not to have his daughter placed in a position of actual,

7 particularized danger by virtue of the affirmative acts or deliberate omissions of

8 government agents. (Id. ¶ 93.) Defendants acted with deliberate indifference and both

9 objective and subjective knowledge and disregard of the known and obvious dangers posed

10 by Chambers. (Id. ¶ 94.)

11 K. 42 U.S.C. § 1983 – Fourteenth Amendment Substantive Due Process, State-

12 Created Danger (Third Cause of Action)

13 Plaintiff Estate alleges Connie had a constitutional right to be free from state-created

14 danger. (Id. ¶ 100.) Plaintiff Estate alleges Doe Officers and Doe Employees, collectively

15 committed affirmative acts, as well as deliberate failures to act, that placed Connie in

16 particularized danger at the hands of Chambers. (Id. ¶ 102.) Plaintiff Estate alleges Doe

17 Employees and Doe Officers acted with deliberate indifference and both objective and

18 subjective knowledge and disregard of the known and obvious dangers posed by Chambers.

19 (Id. ¶ 103.)

20 L. Negligence (Fourth Cause of Action)

21 As a successor in interest pursuant to California Code of Civil Procedure § 377.30,

22 Plaintiff Estate alleges Doe Officers and Doe Employees had a duty to use reasonable care

23 regarding members of the public and a duty to use reasonable care to protect Connie from

24 foreseeable harm from Chambers. (Id. ¶ 108.) Plaintiff Estate alleges Doe Officers and

25 Doe Employees breached their duties of care and caused harm to Plaintiff Estate. (Id.)

26 Plaintiff Estate also alleges Chief Nisleit, Doe Supervisors, and the City breached their

27 duty of care by negligently supervising and training Doe Officers and Doe Employees and

28 negligently maintaining dangerous and unconstitutional policies, procedures, and customs.

1 (Id. ¶ 109.)

2 M. Bane Act (Fifth Cause of Action)

3 As a successor in interest pursuant to California Code of Civil Procedure § 377.30,

4 Plaintiff Estate alleges Defendants’ due process violations are sufficient to constitute

5 violations of the Bane Act. (Id. ¶¶ 113–14.)

6 II. LEGAL STANDARD

7 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

8 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’”

9 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro

10 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). An action may be dismissed for failure to

11 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

12 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

13 pleads factual content that allows the court to draw the reasonable inference that the

14 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

15 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

16 acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

17 For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations

18 in the complaint as true and construe[s] the pleadings in the light most favorable to the

19 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031

20 (9th Cir. 2008).

21 III. DISCUSSION

22 The Court will first examine the claims against Chief Nisleit and then each of

23 Plaintiffs’ causes of action.

24 A. Claims Against Chief Nisleit

25 Defendants argue the claims against Chief Nisleit should be dismissed because they

26 are only brought against him in his official capacity and are therefore asserted against the

27 City itself. (Doc. 7-1 at 18; 18 n.4.)

28 “A suit against a governmental officer in his official capacity is equivalent to a suit

1 against the governmental entity itself.” Larez v. City of Los Angeles, 946 F.2d 630, 646

2 (9th Cir. 1991). “There is no longer a need to bring official-capacity actions against local

3 government officials, for under Monell...local government units can be sued directly for

4 damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167

5 n.14 (1985). “[I]f individuals are being sued in their official capacity as municipal officials

6 and the municipal entity itself is also being sued, then the claims against the individuals

7 are duplicative and should be dismissed.” Vance v. Cnty. of Santa Clara, 928 F. Supp. 993,

8 996 (N.D. Cal. 1996). Because all claims against Chief Nisleit are duplicative of Plaintiffs’

9 claims against the City, the Court DISMISSES all claims against Chief Nisleit.

10 B. Monell claim (First Cause of Action)

11 A municipal entity is liable under § 1983 only if the plaintiff alleges his

12 constitutional injury was caused by employees acting pursuant to a municipal policy or

13 custom. Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978).

14 A municipality may not be held vicariously liable under § 1983 simply based on allegedly

15 unconstitutional acts of its employees. Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir.

16 2014). Instead, the municipality may be held liable when its policy or custom “caused a

17 constitutional tort.” Monell, 436 U.S. at 691. Accordingly, to succeed on a Monell claim,

18 a plaintiff must show “(1) he possessed a constitutional right of which he was deprived; (2)

19 the municipality had a policy; (3) the policy amounts to deliberate indifference to the

20 plaintiff’s constitutional right; and (4) the policy is the ‘moving force behind the

21 constitutional violation.’” Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006).

22 1. Constitutional Violation (Second and Third Causes of Action)

23 Without a constitutional violation, “there can be no municipal liability.” Villegas v.

24 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008). Plaintiff Dadkhah and

25 Plaintiff Estate allege Fourteenth Amendment substantive due process violations in their

26 Second and Third Causes of Action, respectively, under the state-created danger doctrine.

27 (Doc. 1 ¶¶ 91–105.) The Court considers Plaintiffs’ Second and Third Causes of Action

28 first below because a constitutional violation is a prerequisite to a finding of municipal

1 liability under Monell.

2 “As a general matter ... a State’s failure to protect an individual against private

3 violence simply does not constitute a violation of the Due Process Clause.” DeShaney v.

4 Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). “Simply failing to

5 prevent acts of a private party is insufficient to establish liability.” Martinez v. City of

6 Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (citing Patel v. Kent Sch. Dist., 648 F.3d 965,

7 971 (9th Cir. 2011)). “The general rule is that a state is not liable for its omissions” and

8 the Due Process Clause does not “impose a duty on the state to protect individuals from

9 third parties.” Id. (citations omitted). There are two exceptions.

10 “First, a special relationship between the plaintiff and the state may give rise to a

11 constitutional duty to protect.” Id. (citing DeShaney, 489 U.S. at 198–202). However,

12 “[t]he special-relationship exception does not apply when a state fails to protect a person

13 who is not in custody.” Patel, 648 F.3d at 972. Because Connie was not in custody at the

14 time of the incident, this exception is not applicable here.

15 “Second, the state may be constitutionally required to protect a plaintiff that it

16 ‘affirmatively places ... in danger by acting with ‘deliberate indifference’ to a ‘known or

17 obvious danger.’” Martinez, 943 F.3d at 1271 (quoting Patel, 648 F.3d at 971–72). In

18 order for Plaintiffs to prove a state-created danger claim, they must establish three

19 elements. “First, [they] must show that the officers’ affirmative actions created or exposed

20 [Connie] to an actual, particularized danger that [Connie] would not otherwise have faced.

21 Second, [they] must show that the injury [Connie] suffered was foreseeable. Third, [they]

22 must show that the officers were deliberately indifferent to the known danger.” Martinez,

23 943 F.3d at 1271 (citing Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir.

24 2018)).

25 The parties do not address the foreseeability element. (See Docs. 7–9.) Thus, the

26 Court need not discuss that element and only addresses the affirmative act and deliberate

27 indifference prongs.

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1 i. Affirmative Acts

2 Defendants argue inaction, even in the face of a known or suspected danger, is not

3 enough to establish a constitutional deprivation. (Doc. 7-1 at 12.) For the Doe Employees,

4 Defendants argue Plaintiffs’ allegation that the neighbors who called the police did not act

5 further because dispatch told them help was on the way is conclusory. (Id. at 13.)

6 Defendants add, even if that were true, they did not create or increase Connie’s exposure

7 to danger because (1) neighbors continued to monitor the situation and were not precluded

8 from acting on their own, (2) it is highly speculative to claim the neighbors could have

9 saved Connie, and (3) the Doe Employees’ statements did not expose Connie to greater

10 danger. (Id.) For the Doe Officers, Defendants argue the only affirmative act is that their

11 presence with guns drawn and callouts communicated to neighbors not to enter Connie’s

12 apartment, but such acts did not create or increase the danger posed to Connie nor prevented

13 neighbors from acting on their own. (Id. at 13–14.) Plaintiffs argue Defendants knew

14 Chambers was a danger to Connie, neighbors and third parties relied on their

15 representations that help was on the way and failed to intervene due to police involvement,

16 and police announced their presence, including to Chambers. (Doc. 8 at 3–6.)

17 a) Case Law

18 “To satisfy the first requirement, a plaintiff ‘must show that the officers’ affirmative

19 actions created or exposed [him] to an actual, particularized danger that [he] would not

20 otherwise have faced.’” Murguia v. Langdon, 61 F.4th 1096, 1111 (9th Cir. 2023) (quoting

21 Martinez, 943 F.3d at 1271). “In examining whether an officer affirmatively places an

22 individual in danger, we do not look solely to the agency of the individual, nor do we rest

23 our opinion on what options may or may not have been available to the individual. Instead,

24 we examine whether the officers left the person in a situation that was more dangerous than

25 the one in which they found him.” Id. (quoting Munger v. City of Glasgow Police Dep’t,

26 227 F.3d 1082, 1086 (9th Cir. 2000)). “The critical distinction is not ... an indeterminate

27 line between danger creation and enhancement, but rather the stark one between state

28 action and inaction in placing an individual at risk.” Id. (quoting Penilla v. City of

1 Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997)). “Whether the danger already existed

2 is not dispositive because, ‘by its very nature, the doctrine only applies in situations in

3 which the plaintiff was directly harmed by a third party—a danger that, in every case, could

4 be said to have ‘already existed.’” Martinez, 943 F.3d at 1271 (quoting Henry A. v.

5 Willden, 678 F.3d 991, 1002 (9th Cir. 2012)).

6 Affirmative action is required. See Hernandez, 897 F.3d at 1133 (finding officers

7 engaged in affirmative acts increasing danger at rally by actively preventing attendees from

8 leaving through alternative exits and directing them to leave through a single exit into a

9 crowd of violent protesters); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 (9th Cir.

10 2006) (finding officer affirmatively placed plaintiff in danger she would not have otherwise

11 faced by informing her assailant of her family’s accusations against him and thereby

12 leaving her without an opportunity to protect herself); Munger, 227 F.3d at 1087 (finding

13 officers affirmatively placed intoxicated plaintiff in danger by ejecting him from bar late

14 at night into subfreezing temperatures); Penilla, 115 F.3d at 710 (finding plaintiff

15 sufficiently alleged officers took affirmative acts by cancelling a 911 call to paramedics,

16 dragging the plaintiff from his porch to an empty house, locking the door and leaving him

17 there alone after finding him in serious medical need); Wood v. Ostrander, 879 F.2d 583,

18 589–90 (9th Cir. 1989) (finding triable issue of fact as to whether officer affirmatively

19 placed passenger plaintiff in danger by stranding her in high crime area in middle of the

20 night after arresting driver and impounding vehicle).

21 Inaction is insufficient. For example, in Martinez, the plaintiff brought a state-

22 created danger claim against three police officers arising from two incidents of domestic

23 violence allegedly perpetrated by another police officer. 943 F.3d at 1265–69. Regarding

24 the first officer, the Ninth Circuit found that officer’s failing to inform the plaintiff of her

25 rights, failing to give her a domestic violence victim handout, failing to separate her from

26 her alleged abuser, and failing to arrest him, while a potential dereliction of duty, were not

27 affirmative acts that made the situation worse for the plaintiff. See id. at 1272. However,

28 the Ninth Circuit concluded a reasonable jury could find the first officer engaged in an

1 affirmative act placing plaintiff in greater danger by telling her alleged abuser about her

2 testimony relating to his prior abuse and that she was not the right girl for him. Id.

3 Regarding the second officer, the Ninth Circuit concluded that officer’s failing to separate

4 the plaintiff and her alleged abuser, failing to arrest him, failing to provide her information

5 that may have allowed her to escape further abuse, and failing to issue an emergency

6 protective order, were not affirmative acts placing her in more danger. See id. at 1272–73.

7 Regarding the third officer, the Ninth Circuit determined that the sergeant’s telling the

8 second officer positive comments about the character of the alleged abuser placed the

9 plaintiff in greater danger by emboldening her alleged abuser. See id. at 1273.

10 Additionally, the Ninth Circuit has addressed the state-created danger exception in

11 the context of a failed attempt to aid or rescue. In Estate of Amos ex rel. Amos v. City of

12 Page, police officers arrived on the scene after a car collision and one of the drivers, Amos,

13 had already disappeared into the desert. 257 F.3d 1086, 1089 (9th Cir. 2001). The officers

14 halted civilian search efforts for Amos and instructed the people who had stopped at the

15 scene to leave the accident site. Id. The officers discovered blood in Amos’ car, began

16 their own search, but then cut it short once their flashlights lost power. Id. A helicopter

17 also abandoned search efforts due to concerns with nearby power lines. Id. No subsequent

18 search was conducted until over a month later and Amos’ body was not discovered until

19 three years later. See id. Regarding the plaintiff’s state-created danger claim, the Ninth

20 Circuit found that the officers did not engage in an affirmative act that placed Amos in

21 greater danger. See id. at 1091–92. Specifically, the Ninth Circuit reasoned that the

22 officers did not interact with Amos, so they did not create or leave him more vulnerable to

23 a pre-existing danger. See id. at 1091. The Ninth Circuit then stated that “[a]lthough in

24 theory a very poor rescue attempt could make those needing rescue worse off than if the

25 attempt had not been made, the probability that the conduct of the police officers in this

26 case actually made Amos worse off is extremely speculative.” Id. (citing Jackson v. City

27 of Joliet, 715 F.2d 1200, 1205 (7th Cir. 1983) (“If the defendants deprived [Amos] of

28 anything it was of some right to competent rescue services. But ... there is no such right in

1 the Fourteenth Amendment.”)).

2 The Ninth Circuit then distinguished the case before it from Ross v. United States,

3 910 F.2d 1422 (7th Cir. 1990), in which the Seventh Circuit held a deputy sheriff

4 committed a constitutional tort by expressly preventing onsite private rescue personnel

5 from attempting to save a child in Lake Michigan because they were not “authorized” fire

6 department divers. Id. at 1091–92. The Ninth Circuit explained that, in Ross, the child’s

7 location and risk of death were known and well-equipped and trained private rescue

8 personnel were on the scene before the deputy sheriff barred any rescue attempt. Id. at

9 1092. The Ninth Circuit reasoned that the chances of a successful rescue in Ross were high

10 and the link between the deputy sheriff’s conduct and the child’s death was proximate. Id.

11 In Amos, however, the Ninth Circuit concluded police were not aware of Amos’

12 location and the extent of his injuries. Id. And the civilian rescue efforts consisted of no

13 more than a few passing by drivers who stopped, it was not alleged those drivers possessed

14 any special safety training or skills, and there was no reason to believe their rescue efforts

15 would have been successful had police not intervened. Id. The Ninth Circuit therefore

16 determined the probability the officers’ made Amos worse off was “extremely

17 speculative.” Id.; c.f. Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1082–83 (9th Cir.

18 2013) (finding officers affirmatively placed victim in increased danger by preventing her

19 ambulance from leaving following a gunshot wound due to securing a crime scene).

20 b) Analysis

21 For Doe Employees, Plaintiffs specifically allege they engaged in the following

22 affirmative acts: (1) failing to dispatch police immediately when multiple calls were made

23 about a known and dangerous individual; (2) failing to dispatch police immediately when

24 there were documented prior instances of violence at the same location involving the same

25 abuser and victim; (3) failing to communicate available information about prior instances

26 of violence and abuse; and (4) ignoring or failing to respond in accordance with available

27 information of prior reports of violence and abuse. (See Doc. 1 ¶ 83(A), (B), (D), and (E).)

28 For Doe Officers, Plaintiffs specially allege they engaged in the following affirmative acts:

1 (1) failing to respond to a call in a timely manner; (2) failing to communicate available

2 information about prior instances of violence and abuse; (3) ignoring or failing to respond

3 in accordance with available information of prior reports of violence and abuse; and (4)

4 ignoring the obvious and known dangers expressed by witnesses such as broken glass, prior

5 instances of abuse, and failing to ensure Connie was safe. (See Doc. 1 ¶ 83(C), (D), (E),

6 and (F).)

7 None of these failures to act are affirmative actions that placed Connie in more

8 danger than she otherwise faced from Chambers. See Martinez, 943 F.3d at 1272–73.

9 However, Plaintiffs also allege neighbors did not act further because dispatch told them

10 help was on the way, and that the presence of uniformed, armed officers making public

11 announcements communicated to neighbors they should not try to enter Connie’s

12 apartment themselves. (See Doc. 1 ¶¶ 42, 49–50.) Plaintiffs allege these actions led

13 neighbors to rely on those representations and prevented them from entering Connie’s

14 apartment to try to save her. (See id. ¶¶ 57–58.) These references appear to refer to the

15 actions of Doe Employees and Doe Officers, respectively. Yet these actions are not

16 affirmative acts that placed Connie in increased danger than she already faced from

17 Chambers. Doe Employees and Doe Officers did not interact with Connie, even if they

18 were aware of her location, that Chambers burglarized her home, and the risk of potential

19 injuries from a neighbor’s reporting a physical fight and belief that Chambers was going

20 to kill Connie. (See id. ¶ 46.) See Estate of Amos ex rel. Amos, 257 F.3d at 1091–92.

21 It is also highly speculative that unspecified neighbors or civilians could have

22 successful intervened to prevent harm to Connie. See id. Notably, there are no allegations

23 concerning the timing of Connie’s death and thus whether any actions by police officers or

24 neighbors could have done anything to help protect Connie from Chambers. Also, the

25 Court is not persuaded by Plaintiffs’ argument comparing this case to one in which police

26 officers disclose a victim’s complaint to an alleged abuser. (Doc. 8 at 5–6.) Police making

27 public announcements and ordering individuals to come out of the apartment are not

28 equivalent to providing a perpetrator notice of a victim’s complaint. See Martinez v. High,

1 91 F.4th 1022 (9th Cir. 2024) (finding officer’s notifying alleged abuser of plaintiff’s

2 confidential domestic violence report placed her at risk of violent retaliation).

3 To be clear, Doe Employees or Doe Officers actions in failing to timely respond to

4 prevent Chambers from entering Connie’s apartment or thereafter ensuring Connie was

5 safe by entering her apartment are deeply regrettable. However, they did not affirmatively

6 “expose[] [Connie] to an actual, particularized danger that [she] would not otherwise have

7 faced.” Murguia, 61 F.4th at 1111.

8 ii. Deliberate Indifference

9 Defendants argue that the Doe Employees, in taking calls from the neighbors and

10 elevating the call to a high priority, did not intend to expose Connie to any risk. (Doc. 7-1

11 at 14–15.) Defendants argue that the Doe Officers, by responding to the call with guns

12 drawn, knocking on Connie’s door, calling out on the microphone, communicating with

13 neighbors, calling Connie’s phone, and remaining on the scene for 15 minutes,

14 demonstrated a thoughtful and rational response to the calls received, not deliberate

15 indifference. (Id.) Defendants add that the Doe Officers were “required to weigh the

16 competing interests of making a warrantless entry and potential of a violent confrontation.”

17 (Id. at 15.) Plaintiffs do not respond to Defendants’ deliberate indifference arguments.

18 “Deliberate indifference is ‘a stringent standard of fault, requiring proof that a

19 municipal actor disregarded a known or obvious consequence of his action.’” Patel, 648

20 F.3d at 974 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410

21 (1997)). “[T]he standard we apply is even higher than gross negligence—deliberate

22 indifference requires a culpable mental state.” Id. (citing L.W. v. Grubbs, 92 F.3d 894,

23 898–900 (9th Cir. 1996)). “When assessing non-detainee failure-to-protect claims, we

24 apply a purely subjective deliberate indifference test.” Murguia, 61 F.4th at 1111 (citing

25 Herrera v. L.A. Unified Sch. Dist., 18 F.4th 1156, 1161 (9th Cir. 2021)). “The state actor

26 must ‘recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the plaintiff to

27 such risks without regard to the consequences to the plaintiff.’” Patel, 648 F.3d at 974

28 (citing Grubbs, 92 F.3d at 899). “In other words, the state actor must ‘know[ ] that

1 something is going to happen but ignore[ ] the risk and expose[ ] [the plaintiff] to it.’”

2 Murguia, 61 F.4th at 1111 (citing Grubbs, 92 F.3d at 900); see also Herrera¸18 F.4th at

3 1162 (finding plaintiff failed to proffer facts defendant subjectively recognized child could

4 drown in pool as defendant believed child was still in the locker room and three lifeguards

5 were responsible for student safety in the pool).

6 The Court finds Plaintiffs’ failure to respond to Defendants’ arguments concerning

7 deliberate indifference means Plaintiffs concede the issue of deliberate indifference. See

8 Allen v. Dollar Tree Stores, Inc., 475 F. App’x 159, 159 (9th Cir. 2012) (finding district

9 court did not err in granting motion to dismiss harassment and retaliation claims where

10 party failed to respond to the argument those claims were time-barred in its opposition to

11 the motion to dismiss); Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F.

12 Supp. 2d 1125, 1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to respond in an

13 opposition brief to an argument put forward in an opening brief constitutes waiver or

14 abandonment in regard to the uncontested issue.”); see also Kroeger v. Vertex Aerospace

15 LLC, Case No. CV 20-3030-JFW(AGRx), 2020 WL 3546086, at *8 (C.D. Cal. June 30,

16 2020) (collecting cases).

17 But even if Plaintiffs had responded, the Court cannot conclude that Doe Employees

18 and Doe Officers acted with subjective deliberate indifference. Plaintiffs allege Doe

19 Employees and Doe Officers were actually or constructively aware of several prior

20 incidents of domestic abuse by Chambers against Connie. (See Doc. 1 ¶¶ 60–63.) Plaintiffs

21 allege Doe Employees and Doe Officers were actually or constructively aware Chambers

22 did not live with Connie. (See id. ¶ 62.) And Plaintiffs allege Doe Employees and Doe

23 Officers were actually or constructively aware of Chambers’ criminal record and that a

24 judge ordered him to stay away from Connie as a probation condition. (Id. ¶ 64.)

25 Additionally, it can reasonably be inferred that Doe Employees and Doe Officers were

26 aware of the calls from concerned neighbors, including two reports concerning a man

27 breaking into Connie’s apartment by breaking a sliding glass door, and a neighbor hearing

28 a physical fight and their belief the man was going to kill Connie. (See id. ¶¶ 41–46.)

1 Armed with this knowledge, Doe Employees upgraded the call to a high priority and

2 dispatched officers. (See id. ¶¶ 6–7, 47.) Thus, it cannot be said that Doe Employees

3 disregarded a known or obvious risk to Connie.

4 It is reasonable to infer that Doe Officers were aware of this same information.

5 However, a neighbor also told at least one Doe Officer that Connie was home, a man broke

6 into her apartment, and showed the Doe Officer broken glass. (See id. ¶ 51.) That neighbor

7 informed the Doe Officer she had seen Chambers assault Connie on previous occasions.

8 (Id. ¶ 52.) The Court reasonably infers Doe Officers were aware of this information as

9 well. Yet they did not sit idly by. Doe Officers arrived with guns drawn, knocked on

10 Connie’s door, and called out on a microphone for individuals to come out of the apartment.

11 (See id. ¶ 48.) Doe Officers waited outside Connie’s apartment for approximately 15

12 minutes before leaving. (Id. ¶ 53.) While Doe Officers’ decision not to enter Connie’s

13 apartment under the circumstances is highly questionable, it cannot be said that their

14 actions convey that they “actually intend[ed] to expose [Connie] to such risks without

15 regard to the consequences to the [Connie].” Patel, 648 F.3d at 974 (citing Grubbs, 92

16 F.3d at 899).

17 2. Official Policy or Custom

18 Defendants argue Plaintiffs fail to identify any specific custom or practice and fail

19 to show that it was the moving force behind a constitutional violation. (Doc. 7-1 at 15.)

20 Defendants argue Plaintiffs cannot establish a custom because they fail to allege any other

21 instances beyond the SDPD’s failing to meet its stated goal for response times. (Id. at 16.)

22 Defendants argue Plaintiffs allege no facts that Chief Nisleit made a decision that violated

23 their rights or that such action was taken in his role as a final policymaker. (Id.) Defendants

24 argue that, even if there is a policy of delayed arrival, neither the City nor Chief Nisleit

25 condone it, they took actions to improve it, and Plaintiffs cannot establish the policy was

26 adhered to with deliberate indifference. (Id. at 16–17.) Defendants also argue Plaintiffs

27 fail to explain how a policy of failing to respond in a timely manner was the moving force

28 behind a constitutional violation. (Id. at 17.)

1 A policy is a “deliberate choice to follow a course of action ... made from among

2 various alternatives by the official or officials responsible for establishing final policy with

3 respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir.

4 2008); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). The only policy

5 Plaintiffs specifically discuss is the SDPD’s Communications Division Priority System’s

6 policy that priority one calls should be dispatched immediately. (See Doc. 1 ¶ 66.)

7 However, Plaintiffs do not take issue with that policy, but rather whether it was followed.

8 Thus, Plaintiffs’ claim concerns an alleged unconstitutional custom, not an unconstitutional

9 policy.

10 A custom is a “widespread practice that, although not authorized by written law or

11 express municipal policy, is so permanent and well-settled as to constitute a custom or

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

13 Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). “Proof of

14 random acts or isolated events is insufficient to establish custom.” Oyenik v. Corizon

15 Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017) (quoting Navarro v. Block, 72 F.3d 712,

16 714 (9th Cir. 1995)). Rather, “[l]iability for improper custom … must be founded upon

17 practices of sufficient duration, frequency and consistency that the conduct has become a

18 traditional method of carrying out policy.” Id. (quoting Trevino v. Gates, 99 F.3d 911, 918

19 (9th Cir. 1996)). The Ninth Circuit has explained that “[w]hile one or two incidents are

20 insufficient to establish a custom or policy, we have not established what number of similar

21 incidents would be sufficient to constitute a custom or policy.” Oyenik, 696 F. App’x at

22 794 (citing Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989) (one prior

23 instance of unconstitutional conduct insufficient for custom) and Meehan v. Cty. of Los

24 Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (same)). Some district courts have concluded

25 that “more [than two] incidents may permit the inference of a policy, taking into account

26 their similarity, their timing, and subsequent actions by the municipality.” Est. of Mendez

27 v. City of Ceres, 390 F. Supp. 3d 1189, 1209 (E.D. Cal. 2019) (quoting Cnty. of Stanislaus,

28 2018 WL 5879725, at *5)).

1 Plaintiffs allege that, for the past five years, SDPD has failed to meet its public safety

2 standards and key performance indicators for priority one calls. (Doc. 1 ¶ 68.) In 2022,

3 SDPD and the City’s average response time target for priority one calls was 14 minutes,

4 but the actual average response time was 36.8 minutes. (Id. ¶ 69.) Defendant Chief Nisleit

5 acknowledged SDPD deficiencies in a memorandum issues two months after Connie’s

6 murder. (Id. ¶ 70.)

7 Not only do Plaintiffs fail to state a constitutional claim in this case, they also do not

8 point to prior instances of constitutional violations to support their Monell custom claim

9 concerning Defendants’ delayed response time to priority one calls. See Oyenik, 696 F.

10 App’x at 794. Nor do Plaintiffs explain how Defendants’ delayed response time was a

11 moving force behind Connie’s death. See Long v. Cnty. of Los Angeles, 442 F.3d 1178,

12 1190 (9th Cir. 2006) (“The plaintiff’s burden is to establish ‘that the injury would have

13 been avoided’ had proper policies been implemented.”) (citing Gibson v. Cnty. of Washoe,

14 290 F.3d 1175, 1196 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los

15 Angeles, 833 F.3d 1060 (9th Cir. 2016)).

16 3. Failure to Train

17 Defendants argue that Plaintiffs’ failure to train allegations are vague and conclusory

18 and do not identify any specific training program, deficiencies in such a program, a pattern

19 of similar violations, nor a constitutional violation attributable to a lack of training. (Id. at

20 17–18.) Plaintiffs do not respond to Defendants’ argument.

21 A failure to train or inadequacy of training “may serve as the basis for § 1983 liability

22 only where the failure to train amounts to deliberate indifference to the rights of persons”

23 with whom the municipal employees come into contact. City of Canton v. Harris, 489 U.S.

24 378, 388 (1989). The question is “whether that training program is adequate; and if it is

25 not, the question becomes whether such inadequate training can justifiably be said to

26 represent [municipal] policy.” Id. at 390. There may be situations where “in light of the

27 duties assigned to specific officers or employees the need for more or different training is

28 so obvious, and the inadequacy so likely to result in the violation of constitutional rights,

1 that the policymakers of the [municipality] can reasonably be said to have been deliberately

2 indifferent to the need.” Id. In such situations, “the failure to provide proper training may

3 fairly be said to represent a policy for which the [municipality] is responsible, and for which

4 the [municipality] may be held liable if it actually causes injury.” Id. Put another way, a

5 failure to train can be shown where “a violation of federal rights may be a highly

6 predictable consequence of a failure to equip law enforcement officers with specific tools

7 to handle recurring situations.” Long, 442 F.3d at 1186 (citing Brown, 520 U.S. at 409).

8 In non-obvious cases, there must be proof the program inadequacies “resulted from

9 conscious choice—that is, proof that the policymakers deliberately chose a training

10 program which would prove inadequate.” Okla. City v. Tuttle, 471 U.S. 808, 823 (1985).

11 “If a program does not prevent constitutional violations, municipal decisionmakers may

12 eventually be put on notice that a new program is called for. Their continued adherence to

13 an approach that they know or should know has failed to prevent tortious conduct by

14 employees may establish the conscious disregard for the consequences of their action—the

15 ‘deliberate indifference’—necessary to trigger municipal liability.” Brown, 520 U.S. at

16 407. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily

17 necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick

18 v. Thompson, 563 U.S. 51, 62 (2011) (citing Brown, 520 U.S. at 409). There must also be

19 an “affirmative link between the policy and the particular constitutional violation alleged.”

20 Tuttle, 471 U.S. at 823. In other words, the deficiency in the program “must be closely

21 related to the ultimate injury.” Harris, 489 U.S. at 391. The plaintiff must show the

22 constitutional injury would have been avoided if the municipal entity properly trained its

23 employees. Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001).

24 The Court finds Plaintiffs’ failure to respond to Defendants’ argument concerning

25 failure to train means Plaintiffs concede this issue. See Allen, 475 F. App’x at 159. In any

26 event, Plaintiffs’ Complaint has two paragraphs addressing a potential failure to train (see

27 Doc. 1 ¶¶ 71, 72), but Plaintiffs do not identify any specific training program, a lack thereof,

28 or a deficiency in any such program. Thus, Plaintiffs’ failure to train allegations are

1 conclusory and they have not stated a failure to train claim.

2 For the foregoing reasons, The Court GRANTS Defendants’ Motion with respect to

3 Plaintiffs’ Monell claim (First Cause of Action) and Fourteenth Amendment substantive

4 due process claims (Second and Third Causes of Action).

5 B. Negligence Claim (Fourth Cause of Action)

6 “[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff

7 must show that [the] defendant had a duty to use due care, that he breached that duty, and

8 that the breach was the proximate or legal cause of the resulting injury.” Hayes v. Cnty. of

9 San Diego, 57 Cal. 4th 622, 629 (2013) (citations omitted). Defendants argue that Doe

10 Employees and Doe Officers had no duty to protect Connie under California law as there

11 was no special relationship between them and Connie. (Doc. 7-1 at 18–21.) Plaintiffs do

12 not respond to Defendants’ argument.

13 “As a rule, one has no duty to come to the aid of another. A person who has not

14 created a peril is not liable in tort merely for failure to take affirmative action to assist or

15 protect another unless there is some relationship between them which gives rise to a duty

16 to act.” Williams v. State of California, 34 Cal. 3d 18, 23 (1983). “A law enforcement

17 officer’s duty to protect the citizenry is a general duty owed to the public as a whole. …

18 Thus, absent a special relationship creating a special duty, the victim of a crime that the

19 police might have prevented cannot recover.” Von Batsch v. Am. Dist. Tel. Co., 175 Cal.

20 App. 3d 1111, 1121–22 (1985). “The breach of duty may be an affirmative act which

21 places the person in peril or increases the risk of harm.” Williams, 34 Cal.3d at 24. A

22 breach of duty may also occur “if an officer voluntarily assumes a duty to provide a

23 particular level of protection, and then fails to do so.” Zelig v. Cnty. of Los Angeles, 27

24 Cal. 4th 1112, 1129 (2002). Or a breach of duty may occur if police “took affirmative steps

25 to aid the individual and by the acts lulled the individual into a false sense of security.”

26 M.B. v. City of San Diego, 233 Cal. App. 3d 699, 705 (1991) (citing Mann v. State of

27 California, 70 Cal. App. 3d 773 (1977)).

28 “Recovery has been denied, however, for injuries caused by the failure of police

1 personnel to respond to requests for assistance, the failure to investigate properly, or the

2 failure to investigate at all, where the police had not induced reliance on a promise, express

3 or implied, that they would provide protection.” Williams, 34 Cal. 3d at 25; see also Minch

4 v. Dep’t of California Highway Patrol, 140 Cal. App. 4th 895, 905 (2006) (“[I]t is not

5 enough to assert that the law enforcement officers took control of the situation.”); Adams

6 v. City of Fremont, 68 Cal. App. 4th 243, 279 (1998) (“A long line of cases have held that

7 a special relationship with a person in peril is not established simply because police officers

8 responded to a call for assistance and took some action at the scene.”); Lopez v. City of San

9 Diego, 190 Cal. App. 3d 678, 681–82 (1987) (finding plaintiffs’ allegations insufficient

10 where police arrived on scene of shooting and delayed operation for over an hour to

11 neutralize shooter and rescue victims); Hartzler v. City of San Jose, 46 Cal. App. 3d 6, 10

12 (1975) (finding appellants failed to plead sufficient facts to support a special relationship

13 despite police’s responding to 20 of appellant’s calls about her husband and arresting him

14 on one prior occasion). “In most instances, these general rules bar recovery when plaintiffs,

15 having suffered injury from third parties who were engaged in criminal activities, claim

16 that their injuries could have been prevented by timely assistance from a law enforcement

17 officer.” Zelig, 27 Cal. 4th at 1129 (citations omitted). “And the circumstance that an

18 officer may have offered special protection on one occasion does not, by itself, give rise to

19 a continuing special relationship and duty at a later date—or with other officers.” Id. at

20 1129–30 (citation omitted).

21 The Court finds Plaintiffs’ failure to respond to Defendants’ arguments concerning

22 negligence means Plaintiffs concede these issues. See Allen, 475 F. App’x at 159. In any

23 event, as explained supra at III.B.1.i., Plaintiffs have not sufficiently alleged that Doe

24 Employees or Doe Officers engaged in affirmative acts that increased the danger posed to

25 Connie. Plaintiffs have also failed to allege that Doe Employees or Doe Officers made a

26 specific promise to provide Connie a particular level of protection on this occasion or lulled

27 Connie into a false sense of security. See Zelig, 27 Cal. 4th at 1129; M.B., 233 Cal. App.

28 3d at 705 (1991). In fact, neither Doe Employees nor Doe Officers interacted with Connie

1 during the incident. Thus, the Court finds Doe Employees nor Doe Officers did not have

2 a special relationship with Connie and thus had no duty to aid Connie. Accordingly, the

3 Court GRANTS Defendants’ Motion with respect to Plaintiffs’ negligence claim. The

4 Court therefore need not address the parties’ remaining arguments on the negligence claim.

5 C. Bane Act (Fifth Cause of Action)

6 Defendants argue that Plaintiffs’ Bane Act claim fails because (1) Plaintiffs’

7 Fourteenth Amendment claims fail; (2) they did not allege facts to support any threats,

8 intimidation, or coercion; and (3) they did not allege any specific intent to violate Connie’s

9 rights. (Doc. 7-1 at 23–24.) Plaintiffs respond that the specific intent requirement can be

10 met by showing a reckless disregard. (Doc. 8 at 9.)

11 To state a Bane Act claim, a plaintiff must sufficiently allege (1) a constitutional

12 violation and (2) a specific intent to violate the plaintiff’s rights. See Reese v. Cnty. of

13 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City & Cnty. of San

14 Francisco, 17 Cal. App. 5th 766, 798–801 (2017)). “[I]t is not necessary for the defendants

15 to have been “thinking in constitutional or legal terms at the time of the incidents, because

16 a reckless disregard for a person’s constitutional rights is evidence of a specific intent to

17 deprive that person of those rights.” Id. at 1045 (quoting United States v. Reese, 2 F.3d

18 870, 885 (9th Cir. 1993)).

19 For the reasons discussed supra at III.B.1, Plaintiffs failed to sufficiently allege a

20 constitutional claim. But even if Plaintiffs had stated a constitutional claim, they fail to

21 allege how Defendants engaged in conduct evincing a reckless disregard for Connie’s

22 constitutional rights. See Reese, 888 F.3d at 1045. Thus, the Court GRANTS Defendants’

23 Motion with respect to Plaintiffs’ Bane Act claim.

24 D. State Law Immunity

25 Defendants argue they are entitled to immunity from Plaintiffs’ state law claims

26 under California Government Code §§ 820.20, 845, and 846. (Doc. 7-1 at 24–27.)

27 Under California Government Code § 820.20, “[e]xcept as otherwise provided by

28 statute, a public employee is not liable for an injury resulting from his act or omission

1 where the act or omission was the result of the exercise of the discretion vested in him,

2 whether or not such discretion be abused.” However, § 820.2 “applies only to policy

3 decisions, not to operational decisions.” Mendez v. City of Los Angeles, 897 F.3d 1067,

4 1084 (9th Cir. 2018). None of the alleged actions underlying Plaintiffs’ negligence nor

5 Bane Act claims (and by virtue Fourteenth Amendment claims) concern policy decisions.

6 Under California Government Code § 845, “[n]either a public entity nor a public

7 employee is liable for failure to establish a police department or otherwise to provide police

8 protection service or, if police protection service is provided, for failure to provide

9 sufficient police protection service.” § 845 “was designed to prevent political decisions of

10 policy-making officials of government from being second-guessed by judges and juries in

11 personal injury litigation.” Mann, 70. Cal. App. 3d at 778. It “was not intended to provide

12 immunity against a particular police officer’s negligence in the performance of his duty in

13 a particular situation.” Wallace v. City of Los Angeles, 12 Cal. App. 4th 1385, 1402 (1993).

14 Because Plaintiffs’ claims concern the alleged negligence or recklessness of Doe

15 Employees and Doe Officers during this particular incident, § 845 is inapplicable.

16 Under California Government Code § 846, “[n]either a public entity nor a public

17 employee is liable for injury caused by the failure to make an arrest or by the failure to

18 retain an arrested person in custody.” Plaintiffs do not allege Defendants were negligent

19 due to failing to arrest Chambers. Thus, § 846 is inapplicable here.

20 IV. CONCLUSION

21 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss in

22 its entirety with leave to amend. Plaintiffs may file a first amended complaint on or before

23 July 12, 2024.

24 IT IS SO ORDERED.

25 DATE: June 24, 2024

26 _____________________________________

HON. RUTH BERMUDEZ MONTENEGRO

27

UNITED STATES DISTRICT JUDGE

28