Jeanne Rodriguez v. County of San Bernardino

Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 1 of 14 Page ID #:335

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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Case No.: 5:21-cv-01471-MEMF (SHKx)

11 JEANNE RODRIGUEZ, KAYLA FERRER,

and THE ESTATE OF JIMMY RAY ROBERT

12 FERRER, by and through its successor in ORDER GRANTING MOTION TO DISMISS

THIRD AMENDED COMPLAINT [ECF NO.

interest, JEANNE RODRIGUEZ,

13 32]

Plaintiff,

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v.

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COUNTY OF SAN BERNARDINO, a public

17 entity, UNNAMED COUNTY DEPUTY

SHERIFFS, individuals, and DOES 1 through

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50, inclusive,

19 Defendants.

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Before the Court is the Motion to Dismiss filed by Defendant County of San Bernardino.

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ECF No. 32. For the reasons stated herein, the Court GRANTS the Motion. To the extent that

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Plaintiffs desire to amend their Third Amended Complaint as to any of the claims dismissed with

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leave to do so, they are ORDERED to do so within thirty (30) days of this Order.

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Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 2 of 14 Page ID #:336

1 I. Factual Background1

2 On August 17, 2020, Jimmy Ray Robert Ferrer (“Jimmy Ferrer”), was confronted by San

3 Bernardino County Deputy Sheriffs (“Deputies”). Id. ¶ 7. During this encounter, Jimmy Ferrer used

4 a spray device against one or more of the Deputies, but “in no other way presented any danger of

5 lethal force.” Id. In response, one or more of the Deputies shot Jimmy Ferrer multiple times, causing

6 his death. Id. Plaintiff Jeanne Rodriguez (“Rodriguez”) is the mother of decedent Jimmy Ferrer.

7 TAC ¶ 41. Plaintiff Kayla Ferrer (“Kayla Ferrer”) is the daughter of decedent. Id. ¶ 42.

8 II. Procedural History

9 On August 27, 2021, Rodriguez and Kayla Ferrer (collectively, “Plaintiffs”) filed this action

10 against Defendants County of Los Angeles (the “County”), Unnamed Deputies, and Does 1 to 50

11 (collectively, “Defendants”). See generally ECF No. 1. Rodriguez brings this action on behalf of

12 herself; Kayla Ferrer brings this action on behalf of herself and as successor-in-interest to her father.

13 TAC ¶ 6.

14 On June 8, 2022, Plaintiffs filed an amended complaint. ECF No. 19. On June 23, 2022,

15 Plaintiffs filed a Second Amended Complaint (“SAC”) and retroactively obtained the Court’s

16 permission to do so on July 25, 2022. ECF Nos. 22 (SAC), 28 (Order Granting Joint Stipulation to

17 File SAC). On August 9, 2022, the parties stipulated to for an extension of time to file a Third

18 Amended Complaint (“TAC”), which the Court granted. ECF Nos. 29 (Stipulation to File TAC); 30

19 (Order Granting Joint Stipulation to File TAC).

20 On August 22, 2022, Plaintiffs filed the operative Third Amended Complaint. ECF No. 31.

21 The TAC is brought against the same Defendants and alleges the following causes of action: (1)

22 negligence–wrongful death; (2) negligence–survival action; (3) violation of 42 U.S.C. § 1983; and

23 (4) violation of the Ralph Act, CAL. CIV. CODE § 51.7. See generally TAC.

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1 Because the Court is presented with a Motion to Dismiss—where generally the Court is required to accept as

28 true the facts alleged in the Complaint—unless otherwise indicated, the following facts are derived from the

Third Amended Complaint. ECF No. 31 (“TAC”).

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Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 3 of 14 Page ID #:337

1 On September 6, 2022, the County filed the instant Motion to Dismiss as to all of Plaintiffs’

2 claims.2 ECF No. 32 (“Motion” or “Mot.”). The Motion was fully briefed as of September 22, 2022.

3 See ECF No. 36 (“Opposition” or “Opp’n”); ECF No. 37 (“Reply”). On October 3, 2022, the Court

4 deemed this matter appropriate for resolution without oral argument and vacated the hearing set for

5 October 6, 2022. ECF No. 39; see C.D. CAL. L.R. 7-15.

6 III. Applicable Law

7 A. Standard Governing 12(b)(6) Motions

8 Under Federal Rule of Civil Procedure Rule 12(b)(6), a party may file a motion to dismiss

9 for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). The purpose

10 of Rule 12(b)(6) is to “enable defendants to challenge the legal sufficiency of claims asserted in a

11 complaint.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). A district

12 court may properly dismiss a claim under Rule 12(b)(6) if the complaint fails to allege sufficient

13 facts to support a cognizable legal theory. Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d

14 1156, 1159 (9th Cir. 2016).

15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to

16 ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

17 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard generally only

18 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED.

19 R. CIV. P. 8(a)(2). The purpose of Rule 8(a)(2) is to “give the defendant fair notice of what the . . .

20 claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. “The plausibility standard

21 is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

22 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. While a complaint does not need detailed

23 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

24 more than “threadbare recitals of the elements of a cause of action.” Id. “Determining whether a

25 complaint states a plausible claim for relief is ‘a context-specific task that requires the reviewing

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27 2 The Motion to Dismiss is filed solely by the County and only addresses the Plaintiffs’ allegations against the

County. Therefore on this motion, this Court does not determine the sufficiency of the allegations against the

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Deputies except as needed to determine the sufficiency of the allegations against the County.

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1 court to draw on its judicial experience and common sense.’” Ebner v. Fresh, Inc., 838 F.3d 958,

2 963 (9th Cir. 2016) (quoting Iqbal, 556 U.S. at 679).

3 When evaluating a complaint under Rule 12(b)(6), the court “must accept all well-pleaded

4 material facts as true and draw all reasonable inferences in favor of the plaintiff.” Caltex, 824 F.3d at

5 1159; Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (“We

6 accept factual allegations in the complaint as true and construe the pleadings in the light most

7 favorable to the nonmoving party.”). This tenet, however, is “inapplicable to legal conclusions.”

8 Iqbal, 556 U.S. at 678.

9 B. Section 1983 Liability

10 As stated above, the Plaintiffs have brought a claim under Section 1983 of Title 42 of the

11 United States Code. Section 1983 creates a cause of action against a “person who, under color of any

12 [state law], subjects, or causes to be subjected, any [person] to the deprivation of any rights,

13 privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983

14 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge

15 actions by governmental officials.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A plaintiff

16 bringing a claim under Section 1983 must show that “(1) the action occurred ‘under color of state

17 law’ and (2) the action resulted in the deprivation of a constitutional right or federal statutory right.”

18 Id. (citation omitted).

19 Pursuant to Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978), and its

20 progeny, municipalities can only be sued under Section 1983 in limited circumstances. To establish

21 Monell liability under Section 1983, a plaintiff must sufficiently allege that: “(1) [he was] deprived

22 of [his] constitutional rights by defendants and their employees acting under color of state law; (2)

23 the defendants have customs or policies which amount to deliberate indifference to [his]

24 constitutional rights; and (3) these policies are the moving force behind the constitutional

25 violations.” Lee v. City of Los Angeles, 250 F.3d 668, 681–82 (9th Cir. 2001). The Ninth Circuit

26 applies a two-part test to determine whether Plaintiffs have sufficiently alleged these elements:

27 First, to be entitled to the presumption of truth, allegations in a complaint or

counterclaim may not simply recite the elements of a cause of action, but must

28 contain sufficient allegations of underlying facts to give fair notice and to enable the

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Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 5 of 14 Page ID #:339

opposing party to defend itself effectively. Second, the factual allegations that are

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

to require the opposing party to be subjected to the expense of discovery and

2 continued litigation.

3 AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca,

4 652 F.3d 1202, 1216 (9th Cir. 2011)).

5 C. Leave to amend

6 A district court should generally grant leave to amend freely. Cervantes v. Countrywide

7 Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). However, “a district court may dismiss

8 without leave where a plaintiff’s proposed amendments would fail to cure the pleading deficiencies

9 and amendment would be futile.” Id.

10 IV. Discussion

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A. The Court shall consider Plaintiffs’ TAC despite their failure to timely serve

Defendants.

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Pursuant to Federal Rules of Civil Procedure Rule 4(m), a complaint is subject to dismissal

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without prejudice if it is not served within ninety (90) days. Plaintiffs fil ed this action on August 27,

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2021 and served the County on April 28, 2022, exceeding the designated time period for service.

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The Court exercises its discretion to consider Plaintiffs’ TAC and the merits of this Motion.

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See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (“On its face, Rule 4(m) does not tie the

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hands of the district court after the 120–day period has expired. Rather, Rule 4(m) explicitly permits

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a district court to grant an extension of time to serve the complaint after that 120–day period.”). “In

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making extension decisions under Rule 4(m) a district court may consider factors like a statute of

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limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Id.

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(internal quotations omitted).

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The Court considers that Plaintiffs did eventually complete service and the parties proceeded

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with litigating the action, even after Plaintiffs’ untimely service. Furthermore, the Court finds that

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the delay in service caused little to no prejudice to Defendants. For these reasons, the Court shall

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allow the parties to continue litigating this action and shall address the merits of this Motion below.

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Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 6 of 14 Page ID #:340

1 B. The Plaintiffs’ First Cause of Action—for negligence—is inadequately pleaded.

2 Both Plaintiffs bring a claim for negligence–wrongful death against the County. The County

3 seeks to dismiss this claim, arguing that Plaintiffs failed to meet the heightened pleading requirement

4 for state law claims against a public entity. Mot. at 19–20. Specifically, the County argues that

5 Plaintiffs fail to state a specific statutory duty that the County owed Jimmy Ferrer. Id. Plaintiffs, in

6 response, do not dispute the heightened pleading requirement and maintain that their claim is

7 adequately pleaded. Opp’n at 11–12.

8 “The elements of the cause of action for wrongful death are the tort (negligence or other

9 wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the

10 heirs.” Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 226 (2006).

11 California Government Code section 815.2 “makes a public entity vicariously liable for its

12 employee’s negligent acts or omissions within the scope of employment.” Eastburn v. Reg’l Fire

13 Prot. Auth., 80 P.3d 656, 658 (Cal. 2003); Hoff v. Vacaville Unified Sch. Dist., 968 P.2d 522, 526

14 (Cal. 1998). However, “liability of the employer only attaches if and when it is adjudged that the

15 employee was negligent,” and, although “public entities always act through individuals, that does not

16 convert a claim for direct negligence into one based on vicarious liability.” Munoz v. City of Union

17 City, 16 Cal. Rptr. 3d 521, 549–50 (Ct. App. 2004) (disapproved of on other grounds). “Since the

18 enactment of the California Tort Claims Act in 1963 (§ 810 et seq.), a governmental entity can be

19 held vicariously liable when a police officer acting in the course and scope of employment uses

20 excessive force or engages in assaultive conduct.” Mary M. v. City of Los Angeles, 814 P.2d 1341,

21 1348 (Cal. 1991). For the doctrine of respondeat superior to apply, a plaintiff must prove the

22 Deputies conduct was committed within the scope of employment. Id. at 209.

23 1. The Court must consider whether Plaintiffs’ negligence claim against

the County survives under a theory of vicarious liability.

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The Court finds that while the TAC does not explicitly state that the negligence claim against

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the County is brought under the theory of respondeat superior or vicarious liability, the Court may

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infer this from the factual allegations themselves. Where the “claims focus on the alleged negligent

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acts or omissions of [the officers] at the scene,” it is clear that a theory of vicarious liability is being

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1 pursued against the County. Munoz, 120 Cal. App. 4th at 1112 (“Thus, it is clear from respondents’

2 pleading that at least two separate theories of liability were pursued against Union City: one under

3 the doctrine of respondeat superior, or vicarious liability, for [Defendant]’s actions at the scene, and

4 one for direct liability for not having done more to prevent the confrontation from developing, either

5 through the promulgation of clearer police procedures, or by better officer training and

6 supervision.”). Here, Plaintiffs’ allegations under the first cause of action concern Jimmy Ferrer’s

7 interaction with the individual Deputies and not with the policies of the County, thus the Court may

8 infer that they are bringing a claim for vicarious liability. TAC ¶ 7.

9 2. Plaintiffs have pled sufficiently detailed facts regarding the individual

10 Deputies’ conduct under Rule 8

11 The County alleges that the TAC is insufficiently specific and therefore fails under Rule 8.

12 To the contrary, the Plaintiffs allege that:

13 7. DECEDENT’S death occurred on August 17, 2020, after DECEDENT was

confronted by DEFENDANTS UNKNOWN SAN BERNARDIN O COUNTY

14 DEPUTY SHERIFFS during which time PLAINTIFFS are informed and believe and

thereon allege, that the DECEDENT used a spray device against one or more of the

15 UNKNOWN DEPUTIES but in no other way presented any danger of lethal force.

One, or more, of the UNKNOWN DEPUTIES responded to the use of the spray with

16 lethal force by shooting DECEDENT JIMMY RAY ROBERT FERRER to death.

When discovery is obtained from DEFENDANT COUNTY OF SAN

17 BERNARDINO, PLAINTIFFS will be able to more specifically allege the names of

the deputy sheriffs who confronted DECEDENT with lethal force and fired the lethal

18 shot that killed DECEDENT JIMMY RAY ROBERT FERRER, exercising excessive

and unnecessary force. It is unknown at this time by PLAINTIFFS whether or not the

19 shooting was carried out by one or more than one deputy. This shooting constituted

excessive force and was unnecessary and the DECEDENT was unlawfully shot

20 multiple times by DEFENDANTS UNKNOWN SAN BERNARDINO COUNTY

DEPUTY SHERIFFS causing his death while on E ast Mair, in the City of Barstow,

21 California, San Bernardino County . . .

22 TAC ¶ 7.

23 These facts are sufficient at the motion to dismiss stage.

24 3. Plaintiffs have failed to identify the statutory duty owed by the County

25 To state a claim for negligence, a plaintiff must show: (1) “a legal duty to use due care”, (2)

26 “breach of such legal duty”; and (3) “the breach being a proximate or legal cause of the resulting

27 injury.” Ladd v. Cnty. of San Mateo, 911 P.2d 496, 498 (Cal. 1996). “Under established law, police

28 officers have a duty to use reasonable care in deciding to use and in fact using deadly force.” Brown

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1 v. Ransweiler, 89 Cal. Rptr. 3d 801, 817 (2009) (internal quotations omitted). Although they attempt

2 to articulate a statutory duty in their Opposition, the TAC does not articulate the statutory duty owed

3 by the County. This claim therefore fails on this basis.

4 4. Plainiffs have met the heightened requirements under California law

5 The County alleges that the Plaintiffs have not alleged what conduct they considered

6 negligent. This argument is related to the matter above. Although the Plaintiffs have pointed to

7 specific conduct by the Deputies, in the absence of a statement of the statutory duty owed, it is not

8 reasonable to infer what conduct by the Deputies is alleged to be negligent.

9 The Court does not reach the second and second third elements of the wrongful death claim,

10 but notes that in addition to pleading the tort of negligence, Plaintiffs must also plead “the resulting

11 death, and the damages, consisting of the pecuniary loss suffered by the heirs.” See Quiroz, 45 Cal.

12 Rptr. at 226.

13 For these reasons, the Court GRANTS the Motion as it relates to the first cause of action

14 against the individual Deputies. If Plaintiffs wish to still pursue this claim, they are advised to

15 address the deficiencies cited above in a Fourth Amended Complaint.

16 C. Kayla Ferrer’s Second Cause of Action—for negligence—is inadequately

pleaded.

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Kayla Ferrer brings a second claim for negligence–survival action, on behalf of the estate of

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Jimmy Ferrer, against all Defendants in the TAC. TAC ¶¶ 34–38. The County argues that this claim

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“must be dismissed for failure to plead with particularity the [negligence claim] being asserted

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against it as required in California for claims against gove rnmental entities.” Mot. at 19. Kayla

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Ferrer argues that she has. Opp’n at 11–12.

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California Code of Civil Procedure § 377.30 provides: “A cause of action that survives the

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death of the person entitled to commence an action or proceeding passes to the decedent’s successor

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in interest, . . . and an action may be commenced by the decedent’s personal representative or, if

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none, by the decedent’s successor in interest.” “Thus, unlike a wrongful death action, a survival

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action is a cause of action that existed while the decedent is alive and survives the decedent.” Adams

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v. Superior Ct., 126 Cal. Rptr. 3d 186, 192 (2011). “A survivor claim is also a statutory cause of

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1 action; however, unlike a wrongful death claim, the survival statutes do not create a cause of action

2 but merely prevent the abatement of the decedent’s cause of action and provide for its enforcement

3 by the decedent’s personal representative or successor in interest.” San Diego Gas & Elec. Co. v.

4 Superior Ct., 53 Cal. Rptr. 3d 722, 728 (2007).

5 For the reasons stated above, see supra section IV.B., the TAC fails to allege the specific

6 statutory duty owed and the conduct alleged to be negligent.

7 Accordingly, the Court GRANTS the Motion as it relates to the second cause of action. If

8 Kayla Ferrer wishes to still pursue this claim, she is advised to address the deficiencies cited above

9 in a Fourth Amended Complaint.

10 D. Plaintiffs’ Third Cause of Action—under Section 1983—is inadequately pleaded.

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i. Rodriguez and Kayla Ferrer are proper plaintiffs under Section 1983.

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Defendants argue that Rodriguez and Kayla Ferrer are not proper plaintiffs under Section

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1983 because a violation of Jimmy Ferrer’s constitutional rights may no t be asserted by a third party.

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Mot. at 13–14. In their Opposition, Plaintiffs clarify that they are not alleging a violation of Jimmy

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Ferrer’s Fourth Amendment rights and are instead claiming that the County deprived them of their

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Fourteenth Amendment rights to companionship. Opp’n at 7.

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To the extent that Plaintiffs are bringing their Section 1983 claim for a personal violation of

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their Fourteenth Amendment rights, the Court finds they are permitted to do so. It is well-established

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in the Ninth Circuit “that parents can challenge under section 1983 a state’s severance of a parent-

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child relationship as interfering with their liberty interests in the companionship and society of their

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children.” Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds

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by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). In addition, children of a decedent

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are also entitled to assert “a substantive due process claim based on their loss of [] companionship.”

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Id.

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The Court finds that Kayla Ferrer and Rodriguez may bring a Section 1983 claim based on

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their loss of companionship shared with Jimmy Ferrer. The Court next considers whether Plaintiffs

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have alleged sufficient facts to support their claim.

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1 ii. Plaintiffs have adequately alleged a violation of their constitutional rights.

2 First, the Court finds that Plaintiffs have adequately pleaded the first element under Monell:

3 that they were deprived of their constitutional right to companionship under the Fourteenth

4 Amendment. TAC ¶¶ 43, 44. Furthermore, the Court finds that Plaintiffs have alleged that the

5 Deputies “were acting under the color of law.” TAC ¶ 45. Defendants do not dispute this. As such,

6 the Court proceeds to assess whether Plaintiffs have met the second and third elements under

7 Monell.

8 iii. Plaintiffs have failed to allege a custom or policy which amounts to deliberate

indifference of their constitutional rights.

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10 The second inquiry under Monell is the existence of customs and policies that amount to

11 deliberate indifference. The County argues that Plaintiffs have failed to plead sufficient facts in

12 satisfaction of Twombly and Iqbal. Mot. at 14–15. Plaintiffs argue that they have. Opp’n at 8–10.

13 Plaintiffs provide the following factual allegations pertaining to the existence of customs and

14 policies:

15 46. While engaged in the aforementioned conduct, DEFENDANTS and/or DOES 1-

50, and each of them, were acting under the color of law of a statute, ordinance,

16 regulation, custom, or practice that regulates or governs DEFENDANTS and their

employees.

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48. DEFENDANTS and/or DOES 1-50, and each of them, breached their duty of care

18 owed to DECEDENT by failing to manage, supervise, review, investigate and

monitor DEFENDANTS UNKNOWN SAN BERNARDINO COUNTY

19 DEPUTY SHEIRIFFS’ field conduct, behavior, activities, and psychological

profile. DEFENDANTS failings were in direct violation of DECEDENTS’

20 substantive rights under the United States Constitution.

21 TAC ¶¶ 46, 48.

22 They fail to identify any specific customs or policies.

23 The Court does not reach the third element of Monell liability, but notes that in addition to

24 pleading a specific custom, policy, or practice, the Plaintiffs need to plead sufficient facts to allege

25 that the identified custom, policy, or practice was a moving force. Although they point to a single

26 incident of unconstitutional activity against Jimmy Ferrer, it appears they do not allege how the

27 Deputies’ conduct is attributable to a wider County policy.

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1 For these reasons, the Court GRANTS the Motion as it relates to the Third Cause of Action.

2 If Plaintiffs wish to still pursue this claim, they are advised to address the deficiencies cited above in

3 a Fourth Amended Complaint.

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E. Plaintiffs’ Fourth Cause of Action—for violation of the Ralph Act—is

inadequately pleaded.

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i. Kayla Ferrer and Rodriguez may not individually bring a cause of action

6 under the Ralph Act.

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Defendants argue that Plaintiffs’ Fourth Cause of Action must be dismissed as to Rodriguez

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and Kayla Ferrer, individually. Mot. at 21. Plaintiffs concede this point and maintain that Kayla

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Ferrer may still bring a Ralph Act claim, as a successor in interest to the Estate of Jimmy Ferrer.

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Opp’n at 14–15.

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Under the Ralph Act, “all persons within the jurisdiction of [California] have the right to be

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free from any violence, or intimidation by threat of violence, committed against their persons or

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property because of political affiliation, or on account of any [listed] cha racteristic.” CAL. CIV. CODE

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§ 51.7(b)(1). “That section provides, inter alia, that all persons have the right to be free from any

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violence, intimidation or threat thereof ‘committed against their persons’ because of race, religion,

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sex or sexual orientation. The unambiguous language of this section gives rise to a cause of action in

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favor of a person against whom violence or intimidation has been committed or threatened.” Coon v.

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Joseph, 237 Cal. Rptr. 873, 878 (Ct. App. 1987)

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The TAC establishes that no “violence or intimidation” was “committed or threatened”

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against Kayla Ferrer and Rodriguez individually and “thus no cause of action exists in [their] own

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right.” See id. The Court finds—and Plaintiffs do not dispute—that the statute does not provide a

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remedy for third parties, such as Kayla Ferrer and Rodriguez, who did not themselves experience

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harm.

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For these reasons, the Court GRANTS the Motion WITHOUT LEAVE TO AMEND, as it

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relates to the Ralph Act claims brought by Kayla Ferrer and Rodriguez, individually. The Court will

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proceed to consider whether Kayla Ferrer has adequately alleged a Ralph Act claim on behalf of the

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Estate of Jimmy Ferrer.

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ii. Kayla Ferrer, on behalf of the estate of Jimmy Ferrer, fails to plead sufficient

1 facts in support of her claim.

2 The County argues that Kayla Ferrer fails to plead sufficient facts to establish that Jimmy

3 Ferrer was subjected to violence or intimidation by threat of violence due to his race. Mot. at 20.

4 Plaintiffs allege that they have. Opp’n at 13.

5 To prevail on a claim under the Ralph Act, a plaintiff must establish: (1) that the defendant

6 threatened or committed violent acts against the plaintiff or his property; (2) that a motivating reason

7 for the defendant’s conduct was his perception of plaintiff’s protected characteristic; (3) that the

8 plaintiff was harmed; and (4) that the defendant’s conduct was a substantial factor in causing the

9 plaintiff harm. Austin B. v. Escondido Union Sch. Dist., 57 Cal. Rptr. 3d 454, 470 (Ct. App. 2007).

10 California Civil Code section 51(e)(5) identifies “race, color” among protected characteristics. The

11 County’s Motion focuses on Kayla Ferrer’s failure to plead the second element of the Ralph Act.

12 The TAC states the following factual allegations in support of the Ralph Act claim:

13 67. DEFENDANTS UNKNOWN DEPUTY SHERIFFS and DOES 1-50 and each of them,

specifically deprived DECEENT of his life because of their a cts of violence which were

14 related to his race and national origin. Those acts of violence would not have occurred if

DECEDENT were not a member of a minority. Their behavior was in violation of the

15 Ralph Act Civil Code §51.7.

16 70. While engaged in the aforementioned conduct, DEFENDANTS and/or DOES 1-50, and

each of them, were acting under the color of law of a statute, ordinance, regulation,

17 custom, or practice that regulates or governs DEFENDANTS and their employees who

were engaging in acts of violence because of DECEDENT’S race and national origin.

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19 TAC ¶¶ 67, 70.

20 The Court finds that the TAC is devoid of sufficient factual allegations to establish that the

21 Deputies engaged in violence or intimidation based on Jimmy Ferrer’s race. In their Opposition,

22 Plaintiffs argue that the two aforementioned allegations are sufficient to establish their claim at this

23 stage of the pleadings. Opp’n at 13. The Plaintiffs rely on Shirazi v. Oweis, 2022 WL 445763 (N.D.

24 Cal. Feb. 14, 2022), which states that absent any further discovery, it would be difficult for Plaintiffs

25 to allege the specific racial animus involved. Id. at *7.

26 The County has not provided—and the Court has not identified—any binding precedent on

27 the sufficiency of racial discrimination allegations at the pleading stage. The Court finds Shirazi

28 persuasive and finds that Plaintiffs’ allegations would be sufficient, if not for a contradicting

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1 allegation that “[i]t is unknown why lethal force was used by [Deputies].” TAC ¶ 15. This allegation

2 undermines Plaintiffs argument that Jimmy Ferrer’s race was the reason for the Deputies’ conduct.

3 For these reasons, the Court GRANTS the Motion as it relates to the Fourth Cause of Action.

4 If Plaintiffs wish to still pursue this claim, they are advised to address the deficiencies cited above in

5 a Fourth Amended Complaint.

6 F. The Court grants Plaintiffs leave to amend.

7 The County argues that dismissal without leave to amend is warranted because Plaintiffs

8 have already “engaged in three attempts at amendment.” Mot. at 22. Plaintiffs respond that, given

9 the lenient standard to amend and their attempts to amend the complaints in good faith, they should

10 be given granted leave to amend the TAC. Opp’n at 16–17.

11 Federal Rule of Civil Procedure 15(a)(2) provides that a court “should freely give leave [to

12 amend a pleading] when justice so requires.” The Ninth Circuit has held that amendments should be

13 granted with “extreme liberality” in order to “facilitate decision on the merits, rather than on the

14 pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Accordingly,

15 the burden of persuading the court that leave should not be granted rests with the party urging that

16 position. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

17 While the Court acknowledges that Plaintiffs have had multiple opportunities to amend their

18 complaint, the Court has not yet had an opportunity to make a judicial determination as to the

19 sufficiency of the allegations. In each of the cases that the County cites, the district court had

20 previously opined on why the prior complaints were deficient before finally dismissing the claims

21 without leave to amend. See Mot. at 22–23.

22 For these reasons, the Court grants Kayla Ferrer and Rodriguez leave to amend the First and

23 Third Causes of Action and grants only Kayla Ferrer leave to amend the Second and Fourth Causes

24 of Action. The Court urges Plaintiffs to closely review this Court’s determination of the sufficiency

25 of the allegations, thoroughly consider any arguments raised by the Defendants in the good faith

26 meet and confer, and draft a Fourth Amendment Complaint that addresses these deficiencies.

27 Plaintiffs are advised that if the deficiencies noted above are not addressed in a Fourth Amended

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Case 5:21-cv-01471-MEMF-SHK Document 46 Filed 02/24/23 Page 14 of 14 Page ID #:348

1 Complaint, the Court may not provide a fifth opportunity to assert their claims given that it may then

2 appear to the Court that given so many attempts, future attempts would be futile.

3 V. Conclusion

4 For the reasons stated above, Defendant’s Motion to Dismiss is GRANTED. The Court

5 ORDERS as follows:

6 1. The Motion is GRANTED as to the First Cause of Action brought by Kayla Ferrer and

7 Rodriguez WITH LEAVE TO AMEND;

8 2. The Motion is GRANTED as to the Second Cause of Action brought by Kayla Ferrer as a

9 successor-in-interest to the Estate of Jimmy Ferrer WITH LEAVE TO AMEND;

10 3. The Motion is GRANTED as to the Third Cause of Action brought by Kayla Ferrer and

11 Rodriguez WITH LEAVE TO AMEND;

12 4. The Motion is GRANTED as to the Fourth Cause of Action brought by Kayla Ferrer and

13 Rodriguez, individually, WITHOUT LEAVE TO AMEND;

14 5. The Motion is GRANTED as to the Fourth Cause of Action brought by Kayla Ferrer as a

15 successor-in-interest to the Estate of Jimmy Ferrer WITH LEAVE TO AMEND;

16 6. Plaintiffs are ORDERED to file a Fourth Amended Complaint within thirty (30) days of the

17 date of this Order if they still desire to pursue any of the claims being dismissed with leave to

18 amend.

19

20 IT IS SO ORDERED.

21

22 Dated: February 24, 2023 ___________________________________

23 MAAME EWUSI-MENSAH FRIMPONG

24 United States District Judge

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