united states district court southern district of … · antonia torres; county agent trial: no...

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Gerald Singleton, State Bar No. 208783 [email protected] SINGLETON LAW FIRM, APC 560 N. Coast Hwy 101, Suite 4A Encinitas, California 92024 Tel. (760) 697-1330 Fax. (760) 697-1329

Shawn A. McMillan, Esq. (State Bar No. 208529) [email protected] THE LAW OFFICES OF SHAWN A. MCMILLAN, APC 4955 Via Lapiz San Diego, California 92122 Phone: (858) 646-0069 Fax: (206) 600-4582

Lance Rogers, State Bar No. 258088 [email protected] LAW OFFICES OF LANCE ROGERS, APC 835 Fifth Avenue, Suite 307 San Diego, CA 92101 Phone: (619) 333-6882 Fax: (619) 330-0601

Attorneys for all Plaintiffs

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Case: 1 3-cv-28 1 8-L-JMA

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO CITY OF CORONADO AND AFFILIATED DEFENDANTS' MOTION TO DISMISS

COUNTY OF SAN DIEGO, CITY OF CORONADO, CORONADO POLICE

Date: January 21, 2014

OFFICER PATRICK O'MALLEY; Time: 10:30 a.m.

CORONADO POLICE OFFICER ROBERT CLINE; COUNTY AGENT IAN Judge: M. James Lorenz BAXTER; COUNTY AGENT N. Courtroom: SB QUINTEROS; COUNTY AGENT

Magistrate Judge: Jan M. Adler

SUPERVISOR BENITA JEMISON; COUNTY AGENT ABIGAIL JOSEPH;

Complaint Filed: August 7, 2013;

COUNTY AGENT SUPERVISOR

Removed from State Court 11/27/13 ANTONIA TORRES; COUNTY AGENT Trial: No date set BROOKE GUILD; COUNTY AGENT SUPERVISOR ALFREDO GUARDADO; and DOES 1 through 50,

Defendants.

MICHAEL LEWIS, LAUREN TAYLOR, and minors C.L. and B.L., by and through their Guardian ad Litem,

Plaintiffs, V.

DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA

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TABLE OF CONTENTS

Introduction and Summary of Core Facts .....................................1

- The Misconduct of The Individual Defendants ...........................1

—The City of Coronado's Customs, Usages, and Practices Were The Moving Force Behind the Violation of Plaintiffs' Rights ................................2

- Plaintiffs' Claims Arising Under State Law .............................3

Governing Law ........................................................3

Argument...........................................................4

A. The Facts Which Support Plaintiffs' Federal Claims Are Not Vague or Ambiguous .......................................4

B. Defendants' Liability For The Unwarranted Seizure of Plaintiffs' Children is Co-Extensive With That of The County Defendants Because Defendants Directly Participated in The Seizure ............................... 5

1. The Law Governing The Rights of These Plaintiffs to Live Together Without Undue Government Interference is Clearly Established . ...................................... 5

2. Defendants O'MALLEY and CLINE Seized Plaintiffs' Children Without a Warrant .......................................7

3. Officers O'MALLEY and CLINE Failed to Intercede in The Unwarranted Seizure of Plaintiffs' Children Even Though They Knew or Should have Known The Seizure Was Unlawful ..............8

4. Defendants Incorrectly Apply the "Shocks the Conscience" Standard 9

C. Plaintiffs' Allegations Regarding The City of Coronado's Unconstitutional Practices and Customs Are Sufficient to Meet Federal Pleading Standards 10

1. The City's Practices, Customs, and/Procedures Were The Moving Force Behind The Violation of Plaintiffs' Rights ..............10

2. Plaintiffs' Specifically Allege the Nature and Scope of The City's Unconstitutional Practices ................................11

D. The State Law Causes of Action Have Merit And Leave To Amend In Order To Clear Up Any Ambiguity Should Be Granted ....................13

1. Plaintiffs Do Not Seek To Impose Liability On The City Of Coronado For The Misconduct Of The County Of San Diego Or Its Employees 13

2. Defendants O'MALLEY And CLINE Are Not Immune Under Sate Law..................................................14

IV. Conclusion ......................................................... 15

DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-LJMA

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DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA -ii-

I.

TABLE OF AUTHORITIES

2

3 1142 U.S.C. § 1983 . 13,22

5 E v. County of Tulare, 666 F.3d 631, 637 (9th cir. cal. 2012) .................... 12

6 AE v. County of Tulare, supra, 666 F.3d 636-637 (9th Cir. 2012) .................. 12

7 Anderson-Francois v. County of Sonoma, 415 Fed. Appx. 6, 9 (9th Cir. Cal. 2011) ..... 6

8 Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th cir. Iii. 2010) ..................... 4

9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) ......................... 4

10 Boarman v. County of Sacramento, 2013 U.S. Dist. LEXIS 46326, 13-14 (E.D. Cal. Mar. 29, 2013) ................................................. 12

11 Boyd v. Benton Cnty., 374 F.3d 773, 780-81 (9th Cir. 2004) ....................... 8

Bruner v. Dunaway, 684 F.2d 422, 425-26 (6th Cir. 1982) ......................... 8 13

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) ..................................... 8 14

Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) ............................. 8 15

Caylor v. City of Seattle, 2013 U.S. Dist. LEXIS 62486 (W.D. Wash. Apr. 30, 2013) ... 8

Chew v. Gates 27 F.3d 1432, 1444 (1994) .................................10, 13 17

Christie v. lopa 176 F.3d 1231, 1235 (1999) ................................... 11 18

City of Canton v. Harris, 489 U.S. 378, 392 (1989) ..........................11, 13

County Narcotics Intelligence & Coordination Unit 507 U.S. 163, 166-167 (1993) .... 11

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) ........................ 10

Crowe v. County of San Diego, 2010 U.S. App. LEXIS 894 22 (9th Cir. Cal. Jan. 14, 20 10) ................................................ 10

23 Cunningham v. Gates, 229 F.3d 1271, 1289-1290 (9th Cir. Cal. 2000) ............... 8

24 Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003) ..................... 4

25 Felder v. Casey, 487 U.S. 131, 138 (U.S. 1988) ................................. 1

26 Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. Cal. 2001) ....................... 13

27 IFredenburg v. County of Santa Clara, 407 Fed. Appx. 114, 115 (9th Cir. Cal. 2010) .... 6

OW

DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA -iii-

1 ' Garver v. Washoe County, 2011 U.S. Dist. LEXIS 137703, 18-19 (D. Nev. Nov. 28, 2011) ................................................... 6

2

3 opkins v. Bonvicino, 573 F.3d 752, 774 (9th Cir. Cal. 2009) ......................7

Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. Cal. 1988) .... 12

Lacey v. Maricopa County 693 F.3d 896, 914 (9th Cir. 2012) .....................14

Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. Cal. 2001) ..............10, 15

Maier v. J. C. Penney Corp., 2013 U.S. Dist. LEXIS 84246, 7-8

7 (S.D. Cal. June 13, 2013) ..................................................13

8 Mateos-Sandoval v. Cnty. of Sonoma, No. C11-5817, 2013 U.S. Dist. LEXIS 14119, 2013 WL 415600, at 5 (N.D. Cal. Jan. 31, 2013) .....................................12

Matson v. City of Rancho Cordova, 2013 U.S. Dist. LEXIS 112174, at p. 17-18 10 (E.D. Cal. Aug. 7, 2013) ..................................................12

11 JIMeyer v. Nebraska, 262 U.S. 390 (1923) ......................................5

12 Monell v. Dep't of Soc. Servs. 436 U.S. 658, 694 (1978) ......................10, 11

13 Owen v. Independence 445 U.S. 622, 638 (1980) ...............................11

14 O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) .............................8

15 Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35(1925) ............................5

16 Porter v. Osborn, 546 F.3d 1131, 1137 (9thCir. 1998) ..........................10

17 Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981) .............................8

18 Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. Cal. 2007) ........... 6

19 Santoskyv. Kramer, 455U.S.745,753,(1982) .................................5

20 Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986) ..................12

21 Sprint Fidelis Leads Prods. Liab. Litig. v. Medtronic, Inc. (In re Medtronic, Inc.), 623 F.3d 1200, 1212 (8th Cir. Minn. 2010) ............................................4

22

23 Stanley v. Illinois, 405 U.S. 645 (1972) ........................................ 5

Starry. Baca, 652 F.3d 1202, 1216 (9th Cir. Cal. 2011) ...........................4 24

Starry. Baca, supra, 652 F.3d at 1216 (9th Cir. Cal. 2011) .......................12 25

26 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) ............................4

27 Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991) ........................9

United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 995

28 (9th Cir. Cal. 2011) .......................................................4

DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA -iv-

I United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. Cal. 1994) .................8

2 Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) .......... 5, 6, 15

3 Federal Rules. Rule12(b)(6) ............................................................3

,rate cases: 5 Lrce v. Childrens Hospital Los Angeles, 211 Cal. App. 4th 1455, 1473 (2012) 5,6, 10

6

illan v. City of San Marino 147 Cal.App.4th 1033, 1050-1051 (2007) .............14

7 ackson v. City of San Diego 121 Cal.App.3d 579, 585 (198 1) ....................15

8 ames v. Superior Court, 87 Cal. App. 3d 985, 991 (Cal. App. 5th Dist. 1978) .........6

9 fabe v. San Bernardino County, 237 F.3d 1101, 1106 (9th Cir. Cal. 2001) ...........6

10 Mate Matutes: Cal. Civ. Proc. Code, §820.4 ...............................................14

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DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA -v-

I. Introduction and Summary of Core Facts

In chief, Defendants protest that Plaintiffs' Complaint was not timely filed;' and,

3

Plaintiffs failed to comply with California's Government Tort Claims Act.'

4 Secondarily, they argue the complaint is vague, and that the allegations generally fail to

5 state a claim for relief. But, obviously, the Complaint is not so vague that the moving

6 individual Defendants were disabled from ascertaining the basis for suit against them, nor

7 are the factual allegations so sparse that the fundamental nature of the claims is not readily

8 apparent. Thus, these particular objections should be disregarded out of hand - at least as to

9 Ithe individuals.

10 To the extent Defendants O'MALLEY and CLINE assert they are entitled to

ii immunity from liability for the unwarranted seizure of the children from their parents, there

12 are no facts appearing on the face of the complaint to support such a proposition. To the

13 contrary, as presently stated, the core allegations against the moving Defendants are clear

14 and unequivocal - and, are sufficient to sidestep any assertion of qualified immunity at this

15 stage in the proceedings.

16 - The Misconduct of The Individual Defendants

17 In early 2011, Michael Lewis and Lauren Taylor were living together as a family

18 with their two children B.L. and C.L. (Complaint, p. 2:8-11, 12). Coronado police officers

19 O'MALLEY and CLINE together and acting in concert with County Social Services agents

20 seized Plaintiffs' children, C.L. and B.L, without a warrant and in the absence of any

21 exigency. (Complaint, p. 3:24-28, 19; p.4:4-8, 111; p. 10:28-11:8, 150). At the time of

22

23 'Defendants have agreed to withdraw their Statute of Limitations objection as the Complaint was filed on August 7, 2013, not September 13, 2013 as suggested by Defendants in their motion. (See Memorandum of Points and Authorities, p. 1:7). In short, all parties agree that the Complaint

25 was filed within the statutory time period.

2Plaintiffs did, in fact, serve their Notice of Tort Claim, and the City rejected such claim. Presumably the City is aware of this, but has elected to posit its objection based on this technical pleading defect. Plaintiffs concede the point. This defect is a simple one to cure by amendment, and

' Plaintiffs hereby request leave to amend the complaint to do so if the Court desires such a 'technical'

28 amendment. Regardless, the defect does not impact the federal claims in any way. Felder v. Casey, 487 U.S. 131, 138 (U.S. 1988).

DEFENDANTS' MOTION TO DISMISS Case no. 13-cv-2818-L-JMA 1

1 seizure, there was no reasonable or articulable evidence to suggest that either child was in

2 immediate danger of suffering severe bodily injury or death at the hands of their parents in

3 the time it would have taken to obtain a protective custody warrant. (Id.) In seizing the

4 children, Defendants O'MALLEY and CLINE were, at all times acting within the course

5 and scope of their employment with the City of Coronado and under color of law.

6 (Complaint, p. 9:2-6,142). The law governing these Defendants' conduct was "[s]o well

7 established that any reasonable. . . CITY police officer facing similar circumstances as

8 those present here would know. . ." that it was a violation of Plaintiffs' respective rights to

9 seize and detain the children from the custody, care, and control of their parents without

10 first obtaining a protective custody warrant or other similar court order. (Complaint, p.

11 10:6-13,9[48).

12 —The City of Coronado's Customs, Usages, and Practices Were The Moving Force

13 Behind the Violation of Plaintiffs' Rights

14 The City of Coronado's improper procedures, customs and usages caused the

unlawful seizure of C.L. and B.L. from their home and the loving care of their 15 16 parents. (Complaint, p. 12:2-13:13, 155). These procedures, customs and usages include, but

17 are not limited to the following: 1) the policy of detaining and/or removing children from

18 their family and homes without exigent circumstances (imminent danger of serious bodily

19 injury), court order and/or consent; 2) the policy of removing and detaining children, and

20 continuing to detain them for an unreasonable period after any alleged basis for detention is

21 negated; 3) by acting with deliberate indifference in implementing a policy of inadequate

22 training and/or supervision, and/or by failing to train and/or supervise its officers,

23 AGENTS, employees; 4) the custom, policy, and/or practice of making reports to Child

24 Protective Services in all situations where marijuana is present in a family home regardless

25 of the legality of the use/possession and regardless of whether there is any evidence of

26 actual abuse or neglect of the child(ren); and, 5) the custom, policy, and/or practice of

27 seizing children from parents in all or most situations where marijuana is present in a

Wc


I family home regardless of the legality of the use/possession and regardless of whether there

2 is any evidence of actual abuse or neglect of the child(ren). (Id.)

3 On the face of the Complaint, the claims against defendants O'MALLEY, CLINE

4 and the City of Coronado arise from the unwarranted seizure of Plaintiffs' children. The

5 law governing Defendants' misconduct is clearly established, and has been so for at least a

6 Idecade. if not more.

7 There is no ambiguity as to what these Defendants did; and, as appears in greater

8 detail below, the stated facts are sufficient to support each of Plaintiffs' claims for relief.

9 Hence, at least as to the federal claims, the instant motion should be denied.

10 - Plaintiffs' Claims Arising Under State Law

11 With regard to the claims for relief arising under state law, Plaintiffs agree that their

12 omission of certain facts from paragraphs 59, 67, 76, 92, and 100 tends to render some of

13 the state law claims ambiguous. But, given Plaintiffs' incorporation by reference of the

14 'core' facts within each of those claims, the claims are not so ambiguous as to be

15 unintelligible. Regardless, the defect is curable by amendment.

16 To the extent Defendants challenge the state law claims on the basis of statutory

17 immunity, however, Defendants' objections fail. Defendants are not entitled to statutory

18 immunity for the warrantless seizure of Plaintiffs' children or any consequent harm flowing

19 from the event. Thus, with regard to Defendants objections based on statutory immunities,

20 the motion to dismiss should be denied.

21 In summary, Defendants' motion to dismiss should be denied as to all federal claims,

22 and should be denied as to all state law claims with the exception that Plaintiff should be

23 directed to amend the complaint to allege compliance with California's Tort Claims Act,

24 and to specify that the City of Coronado is only liable for the acts of its own police officer

25 employees, and not the acts of any County employee.

26 II. Governing Law

27 A complaint need not contain detailed factual allegations to avoid Rule 12(b)(6)

28 dismissal. Rather, the pleading suffices if (1) it contains "sufficient allegations of


Case no. 13-cv-2818-L-JMA 3

1 underlying facts to give fair notice and to enable the opposing party to defend itself

2 effectively;" and, (2) the factual allegations that are taken as true "plausibly suggest an

3 entitlement to relief, such that it is not unfair to require the opposing party to be subjected

4 to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216

5 (9th Cir. Cal. 2011). Probability is not the standard; Plaintiff need only plead enough facts

6 "to raise a reasonable expectation that discovery will reveal evidence." Bell Atlantic Corp.

7 v. Twombly, 550 U.S. 544, 570 (2007). Furthermore, in reviewing a motion to dismiss the

8 court must assume the truth of all factual allegations, and must construe all reasonable

9 inferences in the light most favorable to the Plaintiff. Thompson v. Davis, 295 F.3d 890,

10 895 (9th Cir. 2002). Where amendment would likely cure a pleading defect, "the standard

11 for granting leave to amend is generous." United States ex rel. Lee v. Corinthian Colleges,

12 655 F.3d 984, 995 (9th Cir. Cal. 2011).

13 With these precepts in mind, "a plaintiff's pleading burden should be commensurate

14 with the amount of information available to them." Bausch v. Stryker Corp., 630 F.3d 546,

15 561 (7th Cir. Iii. 2010); citing Sprint Fidelis Leads Prods. Liab. Litig. v. Medtronic, Inc. (In

16 re Medtronic, Inc.), 623 F.3d 1200, 1212 (8th Cir. Minn. 2010). At the outset of litigation,

17 "[a] plaintiff may not be privy to the facts necessary to accurately describe or identify any

18 policies or customs which may have caused the deprivation of a constitutional right." Doe

19 v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003). Thus, it is appropriate to allow

20 some measure of discovery before dismissing a claim for relief based on allegations of

21 unconstitutional customs and/or practices as outlined in greater detail infra.

22 III. Argument

23 A. The Facts Which Support Plaintiffs' Federal Claims Are Not Vague or

24 Ambiguous

25 Defendants argue that "Plaintiffs improperly combine all defendants together

26 collectively without providing any specific allegations against the individual Coronado

27 police officers that would give them fair notice of the grounds for the claims made against

them." (Memorandum of Points and Authorities, p. 5:15-7:5). In support, they cite a string


I of District Court cases holding that "Lumping defendants together" does not meet federal

2 pleading standards. (Id.) But, Plaintiffs did not merely "lump" defendants together.

3 A cursory review of the "Factual Allegations" section of the Complaint reveals that

4 Defendants O'MALLEY and CLINE got together with Defendants BAXTER and

5 QUINTEROS and, after consulting each other and agreeing to seize Lewis and Taylor's

6 children without a warrant, proceeded to do so. (See Complaint, 112, 9, 11, 42, 48, and 50).

7 These allegations state clearly and specifically what each defendant did. There is no

8 ambiguity. These specific factual allegations are incorporated by reference into each of the

9 applicable claims for relief.

10 In the first claim for relief, after such incorporation by reference, the Complaint

11 a1lees that the above mentioned conduct of Defendants O'MALLEY and CLINE violated

12 Plaintiffs' clearly established rights. (See Complaint, 19147 -53). Nothing more is required.

13 B. Defendants' Liability For The Unwarranted Seizure of Plaintiffs' Children is Co-Extensive With That of The County Defendants Because

14 Defendants Directly Participated in The Seizure

15 1. The Law Governing The Rights of These Plaintiffs to Live Together Without Undue Government Interference is Clearly Established.

16 Parents and children have a well-elaborated constitutional right to live together

17 without governmental interference. Santosky v. Kramer, 455 U.S. 745, 753, (1982); Stanley

v. Illinois, 405 U.S. 645 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35(1925);

20 Meyer v. Nebraska, 262 U.S. 390 (1923). The right is an essential liberty interest protected

21 by both the Fourth and Fourteenth Amendment guarantees that parents and children will

not be separated by the state without first obtaining a warrant except in an emergency.

Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). "Unwarranted" state 23

24 interference with the relationship between parents and children violates substantive due

process. Crowe v. County of San Diego, 2010 U.S. App. LEXIS 894 (9th Cir. 2010). see

26 also, Arce v. Childrens Hospital Los Angeles, 211 Cal. App. 4th 1455, 1473 (2012).

Officials cannot lawfully remove a child from its home absent "information at the 27

time of the seizure that establishes 'reasonable cause to believe that the child is in imminent 28


1 danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to

2 avert that specific injury." Mabe v. San Bernardino County, 237 F.3d 1101, 1106 (9th Cir.

3 Cal. 2001) quoting Wallis, supra, 202 F.3d at 1138; see also, Fredenburg v. County of

4 Santa Clara, 407 Fed. Appx. 114, 115 (9th Cir. Cal. 2010). "Imminent" means:

5 "impending; about to happen; immediate; threatening; ready to take place; near at hand;" all

6 to the extent that the event in question will occur at once unless speedy, swift and prompt

7 action is forthcoming. James v. Superior Court, 87 Cal. App. 3d 985, 991 (Cal. App. 5th

8 Dist. 1978). In the Ninth Circuit, the definition has been even further refined such that

9 government officials who seize a child without a warrant must have reasonable cause to

10

the child is likely to experience serious bodily harm in the time that would be

11

uired to obtain a warrant. Anderson-Francois v. County of Sonoma, 415 Fed. Appx. 6, 9

12 (9th Cir. Cal. 2011); citing, Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.

13 Cal. 2007). And, perhaps most importantly for purposes of this motion, speculative danger

14 is not enough. Garver v. Washoe County, 2011 U.S. Dist. LEXIS 137703, 18-19 (D. Nev.

15 Nov. 28, 2011).

16

Here, the Compliant establishes that there was no evidence to suggest Plaintiffs'

17 en were in immediate danger of sustaining severe bodily injury or death in the time it

18

I have taken to get a warrant. The Complaint's allegations make it clear, in fact, that

19 was no such danger. (Complaint, 1157, 11-12). Further, evidence of the lack of

20

nt circumstances can be found in the substantial delay between the initial police visit

21 to Plaintiffs' home and the return of the police to seize the children days later. Rogers v.

22 County of San Joaquin, 487 F.3d, supra, at 1296.

23

Notably, three days passed between the initial visit and search of Plaintiffs' home,

24 and O'MALLEY and CLINE's ultimate return to the home to seize the children. This delay

25 alone gives rise to the reasonable inference that the children were not in immediate danger.

26 "An official's prior willingness to leave the children in their home militates against a

27

ing of exigency... ." Arce v. Childrens Hospital Los Angeles, 211 Cal. App. 4th, supra,

28

1474; citing Rogers, supra, 487 F.3d at pp. 1294-1295. "Moreover, [officials] cannot


I Ilseize children suspected of being abused or neglected unless reasonable avenues of

2 investigation are first pursued, particularly where it is not clear that a crime has been—or

3 will be—committed." Id.

4 Plaintiffs sue under two distinct, and alternative, theories: 1) police and County

5 Social Services agents together seized Plaintiffs' children unlawfully; and, 2) even if the

6 police Defendants were not direct participants in the unwarranted seizure, they had a duty

7 to intervene on Plaintiffs' behalf to put a stop to the violation of their Fourth and

8 Fourteenth Amendment rights. Both of these theories should be analyzed separately; and,

9 the Court should only reach the second question if it finds against Plaintiffs on the first.

10 2. Defendants 0 'MALLEY and CLINE Seized Plaintiffs' Children Without a Warrant

11

12 Defendants suggest they merely "accompanied" County Social Services agents, and

13 that it was the County agents who seized the children. (Memorandum of Points and

14 Authorities, p. 2:13, p. 9:25-10:2). They also claim that "There are no allegations that the

15 police officers removed the children from their home." (Memorandum of Points and

16 Authorities, p. 9:25-26). Based on these purported "facts" Defendants assert they cannot be

held liable for the unwarranted seizure of Plaintiffs' children because they are not the ones 17

18 who actually took physical control of the children. Defendants' version of the facts is

19 self-serving, myopic, and ignores the express allegations of the complaint as well as the law

20 governing Defendants' conduct.

21 Here, before the children were seized, County agents sought O'MALLEY and

22 CLINE's advice and consent. (Complaint p. 3:4-6, 19). Once that advice and consent was

23 obtained, O'MALLEY and CLINE acted together with the County agents and "seized C.L.

24 and B.L. without a warrant..." (Complaint p. 4:4-8, 111). These allegations cannot be

25 ignored, and for purposes of the instant motion must be deemed true. The measure of

26 "participation" necessary to impose liability is exceedingly low. See, e.g., Hopkins v.

27 Bonvicino, 573 F.3d 752, 774 (9th Cir. Cal. 2009), ["Officer Nguyen was an integral

28 participant in this arrest because he provided Talib with the citizen's arrest form and


1 explained the procedure to her."] Here, Defendants O'MALLEY and CLINE did much

2 more than merely "accompany" the social workers to keep the peace or provide them a

3 form. O'MALLEY and CLINE actually assisted directly in seizing the children. Without

4 going one step further in the analysis, the motion should be denied as to Defendants

5 O'MALLEY and CLINE.

6

3. Officers 0 'MALLEY and CLINE Failed to Intercede in The Unwarranted Seizure of Plaintiffs' Children Even Though They Knew

7 or Should have Known The Seizure Was Unlawful

8

Police officers have a duty to intercede and intervene when they witness government

9

violating the constitutional rights of a suspect or other citizen. Thus, an officer

10 who fails to intercede and/or intervene when his colleagues deprive citizens of their Fourth

11 or Fourteenth Amendment rights to be free from the unwarranted seizure of their children,

12 may also be held responsible for subjecting that citizen to a deprivation of their

13 constitutional rights. See e.g., United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. Cal.

14 1994), citing: O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Byrd v. Clark, 783 F.2d

15 1002, 1007 (11th Cir. 1986); Bruner v. Dunaway, 684 F.2d 422, 425-26 (6th Cir. 1982),

16 cert. denied, 459 U.S. 1171 (1983); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981);

17 Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972).

18 Officers are involved in the alleged violation when they provide some affirmative

19 physical support at the scene of the violation and when they are aware of the plan to

20 commit the violation or have reason to know of such a plan. Boyd v. Benton Cnty., 374 F.3d

21 773, 780-81 (9th Cir. 2004). However, even where a police officer is not directly involved

22 in the violation, he may still be held liable for failing to intercede and intervene to stop the

23 violation, if he had an opportunity to intercede, but failed to do so. Cunningham v. Gates,

24 229 F.3d 1271, 1289-1290 (9th Cir. Cal. 2000); see also, Galloway v. County of Los

25 Angeles, 2012 U.S. Dist. LEXIS 127634, 15-16 (C.D. Cal. Aug. 15, 2012).

26 An officer who fails in his duty to intercede to prevent a constitutional violation is

27 just as liable as the government agent who commits the violation. Caylor v. City of Seattle,

28 2013 U.S. Dist. LEXIS 62486 (W.D. Wash. Apr. 30, 2013).


I

Here, Plaintiffs allege that the "law" was so clearly established at the time the

2 were seized that any reasonable police officer facing similar circumstances would

3 have known that "it was a violation of Plaintiffs' respective rights to seize and detain the

4 children from the custody, care, and control of their parents without first obtaining a

5 protective custody warrant or other similar court order." (Complaint, p. 10:6-13). Thus,

6 Defendants O'MALLEY and CLINE knew, or should have known, the law governing the

7 rights of parents and children to remain together without unwarranted government

8 interference. In addition, based on the prior investigation of this family as disclosed in the

9 report arising from it, O'MALLEY and CLINE knew that no daycare facility was being

10 operated in the home, and that there was no immediate danger in the home to the health and

11 safety of the children. (Complaint, p. 3:10-17, 1916-7).

12 With this knowledge in hand, officers O'MALLEY and CLINE had an obligation to

13 intercede on Plaintiffs' behalf when County Social Services agents consulted with them

14 seeking their advice and consent to seize the children. Instead of interceding to stop the

15 unwarranted and unlawful seizure, O'MALLEY and CLINE affirmatively agreed to seize

16 the children and assisted in the unlawful act. (Complaint, 1919, and 11). Under the

17 circumstances presented here, the motion to dismiss should be denied.

18 Defendants' reliance on Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991),

19 is misplaced. In Ting, the constitutional deprivation happened in a matter of seconds, and

20 none of the officers on scene had any advance knowledge that Officer Burns (the

21 defendant) was planning on shooting Ting. Id. The facts are quite different here. In this

22 case the Defendants met, conferred, and agreed upon their plan and course of action prior

23 to executing the plan.

24 4. Defendants Incorrectly Apply the "Shocks the Conscience" Standard

25 Defendants argue that O'MALLEY and CLINE cannot be liable for their

26 unwarranted seizure of the minor Plaintiffs, and suggest their conduct must have been

27 undertaken with the actual intent to harm Plaintiffs in order to incur liability.

28 1 (Memorandum of Points and Authorities, p.11: 23). Defendants misinterpret and misapply

DEFENDANTS' MOTION TO DISMISS Case no. 13.-cv-2818-L-JMA 9

1 Porter v. Osborn, 546 R3d 1131, 1137 (9th Cir. 1998), and County of Sacramento v. Lewis,

2 523 U.S. 833, 846 (1998).

3

First, neither of these cases apply to the constitutional deprivations claimed here.

4

neither case dealt with factual situations similar to the one presented here, i.e.,

5

children were seized after several days of deliberation, without a warrant or other

6

order, where there was no emergent situation at all, and the children were well cared

7

in a loving home.

8

Second, and most critical to the facts of this case, the standard for assessing claims

9 arising from the deprivation of familial companionship is "unwarranted interference," not

10 "shocks the conscience." Crowe v. County of San Diego, 2010 U.S. App. LEXIS 894 (9th

11 Cir. Cal. Jan. 14, 2010); citing Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. Cal.

12 2001). Plaintiffs' allegations meet the "unwarranted interference" standard applied in

13 Crowe.

14

C. Plaintiffs' Allegations Regarding The City of Coronado's Unconstitutional Practices and Customs Are Sufficient to Meet Federal

15

Pleading Standards

16

1. The City's Practices, Customs, and/Procedures Were The Moving Force Behind The Violation of Plaintiffs' Rights

17

18 Municipalities are subject to liability under Section 1983 when the municipality's

19 cy, regulation, custom, or usage - whether made by its lawmakers or by those whose

20 or acts may fairly be said to represent official policy - inflicts a constitutional injury.

21 onell v. Dep't of Soc. Servs. 436 U.S. 658, 694 (1978); Chew v. Gates 27 F.3d 1432, 1444

22 (1994); see also, e.g., Arce v. Childrens Hospital Los Angeles 211 Cal.App.4th 1455, 1483

23 (2012). The municipality's policy need only cause the constitutional violation - it does not

24 to be unconstitutional per Se. Chew v. Gates, 27 F.3d, supra, at 1444. Municipal

25 licy "causes" an injury where it is "the moving force" behind the constitutional violation.

id.' 26

27 3 A an aside," [u] nlike various government officials, municipalities do not enjoy

28 immunity from suit - either absolute or qualified - under § 1983." Leatherman v. Tarrant


I

Civil rights plaintiffs meet their burden by demonstrating the existence of a

2

icipal policy which leads to the violation of their constitutional rights. Monell v. Dept.

3 of Social Services, 436 U.S. , supra, at p. 690. Although a constitutional violation must

4 result from "official municipal policy," a county need not expressly adopt the policy.

5 Christie v. lopa 176 F.3d 1231, 1235 (1999). It is sufficient that the constitutional violation

6 occurred pursuant to a "longstanding practice or custom." Ibid. Even in the absence of an

7 explicit policy, municipal liability can still be found if the municipality fails to promulgate

8 an explicit policy, or fails to appropriately train its employees where the failure was the

9 result of the municipality's "deliberate indifference to the constitutional rights of its

10 inhabitants." City of Canton v. Harris, 489 U.S. 378, 392 (1989). Deliberate indifference

11 can be inferred where the need for adequate training is so obvious in light of the risk of a

12 constitutional violation that inadequate training represents the municipality's "policy." Id.

13 at 390. In order for a municipality to be liable for a lack of training, the focus must be on

14 adequacy of the training program in relation to the tasks the particular officers must

15 perform, and, " ...the identified deficiency must be closely related to the ultimate injury."

16 Id. at391.

17 Plaintiffs allege the City's policies, practices, customs, and training with regard to

18 the constitutional right of familial association and warrant requirements arising under the

19 Fourth and Fourteenth Amendments are both grossly inadequate, and that such inadequacy

20 caused the warrantless seizure of their children. These allegations are sufficient to state a

21 claim for relief under Monell.

22 2. Plaintiffs' Specifically Allege the Nature and Scope of The City's Unconstitutional Practices

23

24 Pleading the content or substance of the City's unconstitutional policies, practices,

and/or customs as Plaintiffs have done here, satisfies Rule 8's pleading requirements.

26

27 County Narcotics Intelligence & Coordination Unit 507 U.S. 163, 166-167 (1993); see also Owen v. Independence 445 U.S. 622, 638 (1980); and, Monell v. Dep't of Soc. Servs. 436

28 U.S., supra, at p. 701.


I

In the past, the "bare allegation that the individual officers' conduct conformed to

PA

ial policy, custom, or practice" sufficed to withstand a motion to dismiss.

3 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. Cal. 1988); citing,

4 Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986). However, with the

5 JqballTwombly clarification of the federal pleading standard, courts in the Ninth Circuit

6 now also evaluate Monell claims for (1) fair notice to enable the preparation of a defense,

7 and (2) facial plausibility such that permitting discovery would not be unjust. AE v. County

8 of Tulare, 666 F.3d 631, 637 (9th Cir. Cal. 2012); citing, Starr v. Baca, supra, 652 F.3d at

9 1216 (9th Cir. Cal. 2011).

10 The modern "fair notice" requirement is satisfied when the Plaintiff specifies "the

11 content of the policies, customs, or practices the execution of which gave rise to Plaintiff's

12 Constitutional injuries;" evidentiary fact pleading is not required. Matson v. City of Rancho

13 Cordova, 2013 U.S. Dist. LEXIS 112174, at p. 17-18 (E.D. Cal. Aug. 7,2013); citing, AE

14 v. County of Tulare, supra, 666 F.3d 636-637 (9th Cir. 2012) and Mateos-Sandoval v. Cnty.

15 of Sonoma, No. C11-5817, 2013 U.S. Dist. LEXIS 14119, 2013 WL415600, at5(N.D.

16 Cal. Jan. 31, 2013) [withdrawn and replaced on other grounds]. Furthermore where, as

17 here, constitutional injury of a routine type is alleged, plaintiffs allegation that the injury

18 arose from municipal customs, policies or practices is "inherently plausible." See, Boarman

19 v. County of Sacramento, 2013 U.S. Dist. LEXIS 46326, 13-14 (E.D. Cal. Mar. 29, 2013);

20 citing, Mateos-Sandoval v. Cnty. of Sonoma, supra, No. Cl 1-5817, 2013 U.S. Dist. LEXIS

21 14119, 2013 WL 415600, at 5 (N.D. Cal. Jan. 31, 2013). Plaintiffs are not required to plead

22 evidence to demonstrate a pattern or practice, e.g., by identifying other instances in which

23 someone was similarly treated by defendants. Id.

24 Plaintiffs' Complaint, as presently constituted, satisfies the above requirements in

25 that at least one specific unconstitutional procedure, custom or practice is fairly attributable

26 to the City of Coronado. (Complaint, 155.) Plaintiff plausibly alleges that the City has a

27 regularly established practice of removing children from their family homes without a

28 warrant or court order and in the absence of exigent circumstances. Id.


1

Moreover, Coronado's failure to implement an adequate training program in the face

2 of an obvious need for one, can itself represent a policy decision sufficient to incur liability

3

42 U.S.C. § 1983. See, e.g., City of Canton v. Harris, 489 U.S. 378, 389-390 (U.S.

4 1989); Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. Cal. 1994). Regardless, the specific

5 content of Coronado's defective policies, practices, and customs are set forth with

6 sufficient detail that the City is on fair notice of the basis for Plaintiffs' claims, and is

7 therefore enabled to articulate a defense.

8

The City's argument that none of the alleged customs, policies, or practices are fairly

9 attributable to the City because Plaintiff included the City in a collective definition of

10 "Monell Defendants," is unsupported and without merit. Rule 10 permits parties to

11 statements made elsewhere in the same pleading to facilitate concise pleading.

12

R. Civ. P. 10(c); Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. Cal. 2001). Each of

13 the Monell Defendants is charged with having at least one of the several unconstitutional

14 customs, policies, or practices described in Plaintiffs' Complaint. (Complaint, 154-55). No

15 more specificity is required because the content of the policies is clearly stated in the

16

t of the entire complaint; thus, giving rise to the inference of plausibility. See, e.g.,

17 aier v. J. C. Penney Corp., 2013 U.S. Dist. LEXIS 84246, 7-8 (S.D. Cal. June 13, 2013).

18

motion to dismiss the Monell claim should also be denied.

19

D. The State Law Causes of Action Have Merit And Leave To Amend In Order To Clear Up Any Ambiguity Should Be Granted

20 1. Plaintiffs Do Not Seek To Impose Liability On The City Of Coronado

21

For The Misconduct Of The County Of San Diego Or Its Employees

22

The City of Coronado argues that Plaintiffs "seek to hold the City vicariously liable

23

the actions of the County's employee[s]." (Memorandum of Points and Authorities, p.

24 15:2-18). However, it is apparent from the context of the core allegations contained in

25 paragraphs 2 through 12 of the complaint (which are incorporated by reference into each of

26 the claims for relief), that Plaintiffs intended to state claims against each of the municipal

27 defendants based solely upon the misconduct of their respective employees.

28


1

As presently stated, however, Plaintiffs agree that their inadvertent omission of this

2

renders the Complaint ambiguous as to the claims arising under state law. This is a

3 ' which is easily cured by amendment, and Plaintiffs request leave to do so.

4

2. Defendants 0 'MALLEY And CLINE Are Not Immune Under Sate Law

5

California Government Code, Section 821.6 provides no immunity from liability for

6 a warrantless seizure of children from their parents and family home.

7

The Complaint alleges claims for relief against Defendants O'MALLEY and CLINE

8

violation of Civil Code section 52. 1, battery, false imprisonment, negligence, and

9 tentional infliction of emotional distress - all of which are premised on the Defendants'

10 warrantless seizure of the children without exigent circumstances. Defendants argue that

11 they are immune from liability for their conduct pursuant to California Government Code,

12 section 821.6. (Memorandum of Points and Authorities, pp. 15:20-17:27). Defendants are

13 incorrect.

14 California Government Code, section 821.6 provides no immunity from liability for

15 false arrest or false imprisonment, i.e. a cause of action "under Civil Code section 52.1

16 based on an arrest without probable cause." Cal. Civ. Proc. Code, §820.4; Gillan v. City of

17 San Marino 147 Cal.App.4th 1033, 11050-1051 (2007).

18 Nor is an unwarranted seizure properly characterized as a part of the judicial

19 process. The Ninth Circuit Court of Appeal offers a helpful explanation on this issue. Even

20 a prosecutor who orders or counsels warrantless arrests steps outside of their role as an

21 advocate of the state before a neutral and detached judicial body. Lacey v. Maricopa

22 County 693 F.3d 896, 914 (9th Cir. 2012). Simply put, the procuring of an immediate,

23 warrantless seizure is not essential to the judicial process. Ibid. The same rule and

24 reasoning should apply here.

25 A cause of action based on an arrest without probable cause is analogous to

26 removing children from their parents without judicial authorization and in the absence of

27 exigent circumstances. Indeed, a claim arising from 'false arrest' protects Plaintiffs'

28 personal interest in freedom from restraint and protection against unwarranted seizures is


I based on the fundamental liberty interest of a parent and child to live together without

2 government interference. Jackson v. City of San Diego 121 Cal.App.3d 579, 585 (1981);

3 4sgari v. City of Los Angeles 15 Cal.4th 744, 757 (1997); Lee v. City of Los Angeles 250

4 F.3d 668, 685 (9th Cir. 2001); Anderson-Francois, supra, 415 Fed.Appx. at 9; citing Wallis

5 v. Spencer 202 F.3d 1126, 1136 (9th Cir. 2000). Therefore, California Government Code,

6 section 821.6 provides no immunity from liability for the claims for relief arising under

7 state law, at least to the extent those claims are based on the unwarranted seizure of the

8 children.

9 IV. Conclusion

10 With regard to Plaintiffs' federal claims the complaint is clear and unambiguous and

11 sets forth sufficient facts to state a claim for relief as to Defendants O'MALLEY, CLINE,

12 and the City of Coronado. With respect to the claims arising under state law, the complaint

13 suffers from two non-fatal pleading defects as follows: 1) Plaintiffs have failed to

14 specifically allege compliance with California's Government Tort Claims statute; and 2)

15 Plaintiffs' inadvertently failed to specifically state that they seek to impose liability on the

16 City of Coronado only for the bad acts of its own police officer employees - and not based

17 on the bad acts of County Social Services agents. Both of these defects are curable by

18 amendment and Plaintiffs should be permitted to file an amended pleading. However,

19 Defendants' assertion of immunity under California Government Code section 820.6, fails

20 in that there can be no such immunity for the unwarranted seizure of the children because

21 such seizure was not "essential to the judicial process." Defendants motion to dismiss on

22 this basis should therefore be. denied.

Date: January 2, 2014 The Law Offices of A. McMillan, APC.

26 .. /Sha.wnA. IikMi11an, Esq. -Qiinsé

27 1 .kSr Plaintiffs

28


Case no. 13-cv-2818-L-JMA 15

Shawn A. McMillan, Esq., SBN 208529 Stephen D. Darter, Esq., SBN 259689 Samuel H. Park, Esq., SBN 261136 THE LAW OFFICES OF SHAWN A. MCMILLAN, A.P.C. 4955 Via Lapiz San Diego, California 92122-3910 Phone: (858) 646-0069; Fax: (206) 600-4582

Attorneys for Plaintiffs, ARTEA DUNN and A.B., a minor

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA 333 West Broadway San Diego, CA 92101

Plaintiff: MICHAEL LEWIS, et al. Defendant: COUNTY OF SAN DIEGO, et al;

PROOF OF SERVICE Case Number: 13-cv-2818-L-JMA

I am employed in the County of San Diego, State of California. I am over 18 years of age and am not a party to the within action. My business address is 4955 Via Lapiz, San Diego, California 92122.

On January 3, 2014, I served the foregoing document(s) described as:

i.PLAINTIFFS' MEMORANDUM IN OPPOSITION TO CITY OF CORONADO AND AFFILIATED DEFENDANTS' MOTION TO DISMISS

on the interested parties in this action by placing a true copy of the original thereof enclosed in a sealed envelope addressed as follows: Please see attached service list.

LI BY PERSONAL SERVICE: I personally delivered the document(s) to the persons or offices of the addressee(s), identified in the attached Service List. For unrepresented parties, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening.

El BY MAIL: I placed a true and correct copy of the original thereof in a sealed envelope addressed as indicated above, and I caused such envelope to be deposited in the mail in San Diego, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing contained in the affidavit.

LI BY FACSIMILE: Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed in the attached Service List. No error was reported by the fax machine that I used. A copy of the record(s) of the fax transmission(s), which I printed out, is attached.

LI BY OVERNIGHT COURIER: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed in the attached Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.

BY ELECTRONIC SERVICE: I electronically filed with the Clerk of the Court a true and correct copy of the original as indicated above. I am informed that the Court's CM/ECF system automatically serves an electronic copy of the same documents to each of the registered users. In addition, I hereby certify that I have mailed the same documents as indicated above to all parties who are not registered for the CM/ECF system, if any such exist.

I declare under penalty of perjury under the laws of the State of California that thef ig-true and correct. Executed on January 3, 2014, at San Diego, California.

Service List Artea Dunn, et al. v. County of San Diego, et al. (Case Number: 13-CV-0209-JAH-KSC)

United States District Court, Southern District of California 333 West Broadway, San Diego, CA 92101

David L. Brodie, Esq. Attorneys for Defendants, COUNTY OF SAN Office of the County Counsel, DIEGO, a public entity; COUNTY AGENT County of San Diego IAN BAXTER; COUNTY AGENT N. 1600 Pacific Highway QUINTEROS; COUNTY AGENT Room 355 SUPERVISOR BENITA JEMISON; San Diego, CA 92101-2469 COUNTY AGENT ABIGAIL JOSEPH;

COUNTY AGENT SUPERVISOR Phone: (619) 531-4871

ANTONIA TORRES; COUNTY AGENT Fax: (619) 531-6005 Email: [email protected] BROOKE GUILD; COUNTY AGENT

SUPERVISOR ALFREDO GUARDADO

Steven E. Boehmer, Esq. (SBN 144817) Attorneys for Defendants CITY OF E-mail: [email protected] CORONADO, CORONADO POLICE Carrie L. Mitchell, Esq. (SBN 221845) OFFICER PATRICK O'MALLEY; E-Mail: [email protected] CORONADO POLICE OFFICER ROBERT McDOUGAL LOVE ECIUS CLINE BOEHMER & FOLEY 8100 La Mesa Blvd., Suite 200 La Mesa, California 91942

Telephone: (619) 440-4444 Facsimile: (619) 440-4907

PROOF OF SERVICE

united states district court southern district of … · antonia torres; county agent trial: no...

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