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taking judicial notice of contents of government claim
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Case No. CV 18-9025-DMG (KSx)
08-14-2019
Deana VARO, et al. v. LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE, et al.
Mark Kent Drew, P. Christopher Ardalan, Geoffrey S. Hickey, Jacqueline S. Leibl, Mircea Stefan Tala, Ardalan and Associates PLC, Newbury Park, CA, for Deana Varo, Joshua Perez, Vanessa Perez, Justin Perez, Calvin Perez, Elvis Pena. Richard D. Hoang, Brian K. Stewart, Collins Collins Muir and Stewart LLP, South Pasadena, CA, for County of Los Angeles, Los Angeles County District Attorneys Office.
Mark Kent Drew, P. Christopher Ardalan, Geoffrey S. Hickey, Jacqueline S. Leibl, Mircea Stefan Tala, Ardalan and Associates PLC, Newbury Park, CA, for Deana Varo, Joshua Perez, Vanessa Perez, Justin Perez, Calvin Perez, Elvis Pena.
Richard D. Hoang, Brian K. Stewart, Collins Collins Muir and Stewart LLP, South Pasadena, CA, for County of Los Angeles, Los Angeles County District Attorneys Office.
Proceedings: IN CHAMBERS - ORDER RE DEFENDANT'S MOTIONS TO DISMISS [16]
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
I.
BACKGROUND
This civil action arises out of events that took place during the course of Defendants’ criminal prosecution of Jonathan Quevedo for assaulting Plaintiffs Vanessa Perez and Elvis Pena. [Doc. # 12 ("FAC") at ¶ 3.] Perez and Pena were eating dinner at a restaurant on March 16, 2017, when Quevedo and another woman entered the restaurant. Id. at ¶ 27. Plaintiffs allege that after Perez and Pena made eye contact with Quevedo, he became angry and started screaming at them. Id. at ¶ 28. When Perez and Pena tried to diffuse the situation by leaving the restaurant, Quevedo ripped his shirt off, kicked Perez, punched Pena, and threw an object at Perez, which hit her in the forehead and caused substantial bleeding. Id. at ¶ 30. He also struck both Perez and Pena with a cane. Id. at ¶ 31.
Perez and Pena contacted the police about the incident, who eventually obtained surveillance camera footage from the restaurant, tracked Quevedo down, determined that he was a "documented" member of the Temple Street Gang, and arrested him. Id. at ¶¶ 36-37. After charging Quevedo with three counts of assault with a deadly weapon, and seeking sentence enhancements for his gang membership and previous felony convictions, Defendants subpoenaed Perez and Pena. Id. at ¶ 38. In response, Perez and Pena called Defendant Deputy District Attorney Giovanni Bartoletti, the prosecutor assigned to the case, and told him that they were frightened to participate in Quevedo's prosecution for fear that the Temple Street Gang would retaliate. Id.
Plaintiffs allege that Bartoletti told Pena and Perez that they had to comply with the subpoena or face criminal prosecution themselves. Id. That convinced Pena and Perez to meet Bartoletti and police officers at the Los Angeles County Superior Court in downtown Los Angeles, at which time they reiterated their fear of violent retribution. Id. at ¶ 40. According to Plaintiffs, Bartoletti promised that only their first names would be disclosed in open court or in any documents made available to Quevedo, and that LAPD officers would conduct "increased patrols" of their homes and places of business to keep them safe. Id. at ¶ 42.
After learning that Quevedo had been released from custody on bond, Bartoletti made the decision to seek a criminal protective order ("CPO") meant to prevent Quevedo from approaching Pena, Perez, or the other Plaintiffs. Id. at ¶¶ 48, 52. Bartoletti completed the CPO form, but included Plaintiffs’ names and addresses, and filed it with the Los Angeles County Superior Court. Id. at ¶ 52. Plaintiffs allege that he made no request to redact or withhold Plaintiffs’ information from the CPO. Id. After the judge granted Bartoletti's request and issued the CPO, Bartoletti served the CPO on Quevedo by "handing him a copy" that included Plaintiffs’ unredacted identifying information. Id. Plaintiffs were never notified that Quevedo learned of their names and addresses. Id. at ¶ 53.
On September 19, 2017, Quevedo ambushed Plaintiff Joshua Perez, Vanessa's son, outside his house and began yelling that Joshua "need[ed] to tell [his] mother" that "she better not show up to the fucking line up or [Quevedo was] going to hurt [them]." Id. at ¶ 60. Quevedo showed Joshua that he had a gun and said "I know where you guys work." Id. When Plaintiff Deana Varo and Joshua got into Joshua's car to drive away, Quevedo shot at the car "seven or eight times." Id. One bullet "grazed" Joshua, and three bullets "struck" Varo. Id. Both Joshua and Varo survived. Id.
Fearing for their lives, Plaintiffs then fled from their homes and entered protective custody "so that neither Quevedo, nor any individual associated with his gang, could attempt to exact any additional revenge or retribution." Id. at ¶ 61.
Plaintiffs initiated this action in Los Angeles County Superior Court on September 13, 2018. [Doc. # 1-1.] Defendants removed the case to this Court on October 19, 2018. [Doc. # 1.] Plaintiffs filed the operative First Amended Complaint on November 29, 2018. The 94-page FAC alleges 14 causes of action against Defendants for federal civil rights violations and tortious conduct. The County filed its Motion to Dismiss ("MTD") on December 13, 2018. [Doc. # 16.] The MTD is fully briefed. [Doc. # 18 ("Opp."), 19 ("Reply").]
II.
REQUEST FOR JUDICIAL NOTICE
In support of their MTD, the County seeks judicial notice of Plaintiffs’ Government Claims for Damages to Person or Property ("pre-lawsuit claims"), which Plaintiffs completed and filed as a prerequisite to filing this suit. [Doc. # 17 ("RJN").]
On a motion to dismiss, a court may consider documents attached to the complaint, documents incorporated by reference in a complaint, or documents subject to judicial notice. U.S. v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003). Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts may also take notice of "matters of public record." Reyn's Pasta Bella, LLC v. Visa USA , Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006).
Plaintiffs do not oppose Defendant's RJN. Moreover, Plaintiffs’ pre-lawsuit claims are matters of public record whose accuracy cannot reasonably be questioned. The Court therefore GRANTS the County's RJN.
III.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Pursuant to Rule 12(b)(6), a defendant may seek dismissal of a complaint for failure to state a claim upon which relief can be granted. A court may grant such a dismissal only where the plaintiff fails to present a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ).
To survive a Rule 12(b)(6) motion, a complaint must articulate "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Although a pleading need not contain "detailed factual allegations," it must contain "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In evaluating the sufficiency of a complaint, courts must accept all factual allegations as true. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Legal conclusions, in contrast, are not entitled to the assumption of truth. Id.
IV.
DISCUSSION
Defendant seeks to dismiss Plaintiffs’ causes of action for: violation of section 1983 for failure to train and supervise; violation of section 1983 for employing or ratifying an unconstitutional policy, practice, or custom; negligent hiring, training, supervision, oversight, or retention; and breach of contract.
A. Plaintiffs’ Claims Under 42 U.S.C. Section 1983 and Monell
Plaintiffs allege that Defendants Los Angeles District Attorney Jackie Lacey and the County of Los Angeles are liable pursuant to 42 U.S.C. section 1983, Monell v. New York City Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and City of Canton, Ohio v. Harris , 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), under two theories. The first, Plaintiffs’ fourth cause of action, is that these defendants were deliberately indifferent to deficiencies in the training and supervision of deputy district attorneys regarding the protection of confidential witness information. FAC at ¶¶ 112-130. The second, Plaintiffs’ fifth cause of action, is that they employed policies, or ratified practices, that allowed the improper disclosure of confidential witness information to occur. Id. at ¶¶ 131-146.
To state a valid section 1983 claim, Plaintiffs must plausibly allege that a person acting under color of state law deprived them of a federal constitutional or statutory right. City of Chicago v. Int'l Coll. of Surgeons , 522 U.S. 156, 180, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). The County argues that both of Plaintiffs’ section 1983 theories fail because neither is "based on the deprivation of a federal right" and Plaintiffs’ allegations supporting those theories are "only conclusory." MTD at 3-5.
1. Plaintiffs Have Alleged a Violation of the Constitutional Right to Informational Privacy
Plaintiffs base their section 1983 claims on the theory that Defendants violated their constitutional right to "informational privacy" by unnecessarily disclosing their identities and addresses to Quevedo by serving him with an unredacted CPO that showed him where to find Joshua and Varo. Opp. at 5-9. The County rejects that any such constitutional right exists, leaving the Court to resolve the following question: is there a constitutional right to privacy that prohibits the government from publicly disclosing the identities and addresses of victims, cooperating witnesses, and their relatives, to a criminal defendant who could foreseeably harm them. Based on the parties’ cited case law and the Court's independent review of the legal landscape, this particular question appears to be one of first impression.
Although the parties did not cite it, the Court is aware of one decision that addressed the issue of whether criminal informants (not victims or eyewitnesses) have constitutional rights that require "the preservation of their anonymity in some circumstances." Crain v. Krehbiel , 443 F. Supp. 202, 210 (N.D. Cal. 1977) (citing In re Quarles , 158 U.S. 532, 536, 15 S.Ct. 959, 39 L.Ed. 1080 (1895) ). The Crain court, however, expressly refrained from deciding whether "the Government's unnecessary disclosure of plaintiff's role in the [criminal] case without his consent would violate his possible constitutional rights as an informant." Id. It also noted that "a claim based on the constitutional rights of informants is very different from a claim based on any constitutional right of privacy, and because plaintiff has raised only the latter, the former is not properly before the Court." Id. at 211.
For its part, In re Quarles also states, somewhat cryptically, that "[t]he right of a citizen informing of a violation of law ... to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action." In re Quarles , 158 U.S. at 536, 15 S.Ct. 959. But that case appears to tie these informants’ rights to the Privileges and Immunities Clause, rather than any constitutional privacy right. Id. And subsequent decisions have interpreted Quarles to recognize "the government's right to prevent the disclosure of an informant's identity," rather than the informant's right to prevent disclosure of his identity. See State v. Boynton , 58 Haw. 530, 538, 574 P.2d 1330 (1978) (emphasis added); Black v. Sheraton Corp. of Am. , 47 F.R.D. 263, 265 (D.D.C. 1969), aff'd , 564 F.2d 550 (D.C. Cir. 1977) (citing Quarles while analyzing "whether or not the government should be compelled to disclose the identity of an informer, concerns the definition of an informer"); Morss v. Forbes , 24 N.J. 341, 361-62, 132 A.2d 1 (1957).
As a threshold matter, the County's matter-of-fact assertion that "[t]here is no right of privacy under the U.S. Constitution" is inaccurate and misleading. MTD at 3. It is true that the scope of the constitutional right to privacy is notoriously nebulous. In re Crawford , 194 F.3d 954, 958 (9th Cir. 1999) ("the Supreme Court has expressed uncertainty regarding the precise bounds of the constitutional ‘zone of privacy,’ "); Am. Fed'n of Gov't Employees, AFL-CIO v. Dep't of Hous. & Urban Dev. , 118 F.3d 786, 793 (D.C. Cir. 1997) ("numerous uncertainties attend th[e] issue" of a constitutional right to privacy); Kallstrom v. City of Columbus , 136 F.3d 1055, 1060 (6th Cir. 1998) ("the boundaries of the right to privacy have not been clearly delineated"). But the Ninth Circuit has clearly stated, and other circuits agree, that the right exists. Crawford , 194 F.3d at 958 (the "zone of privacy[’s]" "existence is firmly established"); Planned Parenthood of S. Arizona v. Lawall , 307 F.3d 783, 789–90 (9th Cir. 2002) ("This interest, often referred to as the right to informational privacy, applies" in two scenarios.) (internal citations and quotations omitted); James v. City of Douglas, Ga. , 941 F.2d 1539, 1544 (11th Cir. 1991) ; Eagle v. Morgan , 88 F.3d 620, 625 (8th Cir. 1996). Therefore, Court need not decide whether the right exists—it does—but only whether it applies to the present scenario.
Next, the County argues that the Ninth Circuit has only held that "privacy interests were implicated in avoiding disclosure of personal matters which involve medical records." MTD at 4 (citing Norman-Bloodsaw v. Lawrence Berkeley Lab. , 135 F.3d 1260, 1269 (9th Cir. 1998), and Seaton v. Mayberg , 610 F.3d 530, 537 (9th Cir. 2010) ). This is another misleading argument (and an implicit admission that constitutional privacy rights or "zones" exist). While the Ninth Circuit has established that the unauthorized disclosure of medical information implicates the constitutional right to privacy, it has not limited that right to such circumstances. See Seaton v. Mayberg , 610 F.3d 530, 537 (9th Cir. 2010) ("[w]e have recognized a constitutional right to the privacy of medical information"); Coons v. Lew , 762 F.3d 891, 900 (9th Cir. 2014), as amended (Sept. 2, 2014) ("The Supreme Court has recognized a fundamental privacy right in non-disclosure of personal medical information.").
The Ninth Circuit has derived the so-called right to informational privacy from Whalen v. Roe , which interpreted previous Supreme Court cases to have created "at least two different kinds" of privacy "interests," or "zone[s] or privacy." 429 U.S. 589, 598-99, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The first of those "interests" is "the individual interest in avoiding disclosure of personal matters." Id. at 599, 97 S.Ct. 869. A number of Ninth Circuit opinions credit that language with establishing a right to informational privacy that extends beyond medical information, even if no case has expressly defined the right's boundaries. See Crawford , 194 F.3d at 958 (stating that social security numbers’ disclosure "may implicate the constitutional right to informational privacy"); Tucson Woman's Clinic v. Eden , 379 F.3d 531, 551 (9th Cir. 2004) ("Individuals have a constitutionally protected interest in avoiding ‘disclosure of personal matters,’ including medical information.") (emphasis added) (citing Whalen v. Roe , 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ); Norman-Bloodsaw , 135 F.3d at 1269 (9th Cir. 1998) ("The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.") (emphasis added). These cases indicate that the right to information privacy in the Ninth Circuit protects more than just medical information.
Crawford , for example, applied the right to avoid disclosure of personal matters to the "indiscriminate public disclosure" of social security numbers and other identifying information. Crawford , 194 F.3d at 958. The court held that such disclosure could "implicate the constitutional right to informational privacy" because such disclosure exposes individuals to harms such as identity theft. Id. at 959 (reasoning that "the disclosure of [the appellant's]" social security number "surely implicates [his] informational privacy interests" because it would make "him vulnerable to being a victim of certain crimes").
Just because constitutional informational privacy rights exist in certain contexts, however, does not necessarily mean the government is liable for violating them in every case. Crawford ultimately held that, under the "intermediate scrutiny" analysis afforded to constitutional privacy rights, the government's interest in disclosure outweighed the individual's interest in nondisclosure. Id. at 960 ; see also Nelson v. Nat'l Aeronautics & Space Admin. , 568 F.3d 1028, 1043 (9th Cir. 2009) ("Where a constitutional right to informational privacy is implicated, we apply intermediate scrutiny, which requires the government to show that "its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest."). The Ninth Circuit looks to a number of factors when conducting that analysis, including:
the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.
Crawford , 194 F.3d at 959 ; Nelson v. Nat'l Aeronautics & Space Admin. , 530 F.3d 865, 877 (9th Cir. 2008), rev'd and remanded on other grounds by Nat'l Aeronautics & Space Admin. v. Nelson , 562 U.S. 134, 137, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) (employing the same test). Crawford was careful to explain, however, that the "list is not exhaustive, and the relevant considerations will necessarily vary from case to case." Crawford , 194 F.3d at 958. Furthermore, "[i]n most cases, it will be the overall context, rather than the particular item of information, that will dictate the tipping of the scales." Id.
The Court is aware of one district court that has questioned Crawford ’s continuing validity. The Court in Huling v. City of Los Banos stated that language from Seaton might have limited the right to informational privacy to only those "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." 869 F. Supp. 2d 1139 (E.D. Cal. 2012) (citing Seaton , 610 F.3d at 538 ). Seaton also acknowledged, however, that another panel of the Ninth Circuit "recognized a much broader right to informational privacy in Nelson "—the same right Crawford recognized. Seaton , 610 F.3d at 538. It refused to adopt that "broader right" because, at the time, the Supreme Court had granted review of the Ninth Circuit's Nelson decision, but had not yet rendered a decision. Id. (stating that it "is not entirely clear yet whether the constitutional right we have recognized" is more limited than Nelson announced). The year after Seaton was decided, the Supreme Court decided Nelson by "[a]ssuming, without deciding," that the challenged government action "implicate[d] a privacy interest of constitutional significance," but holding that the "interest, whatever its scope, d[id] not prevent the Government" from taking the challenged action. Nelson , 562 U.S. at 137, 131 S.Ct. 746. In other words, the Court reversed the Ninth Circuit's Nelson decision on grounds that did not disturb the circuit court's delineation of the constitutional right to informational privacy.
Since Seaton ’s reservations about adopting the Crawford / Nelson reasoning stemmed from the uncertainty posed by the pending appeal in Nelson , and the Supreme Court reached no decision on Crawford ’s or Nelson ’s recognition of an informational privacy right, this Court does not read Seaton to conflict with or abrogate Crawford.
Although the County cites Arakawa v. Sakata , 133 F. Supp. 2d 1223, 1228 (D. Haw. 2001), to support its argument, it is far more helpful to Plaintiffs. Arakawa echoed Crawford and held that "there is a constitutional right to privacy in the information released about Plaintiff in this case, specifically his [social security number.]" Id. at 1229 (holding that, despite the existence of that constitutional right, defendants were entitled to qualified immunity because that right was not clearly established). The court reached that conclusion, in part, because, under the Crawford test, it could not "conceive of any state interest in this case that would be sufficient to outweigh Plaintiff's privacy rights in his [social security number]." Id.
Crawford ’s and Arakawa ’s analyses, although grounded in different factual contexts, compel the conclusion that the particular facts of this case implicate the constitutional right to informational privacy. In other words, the right to informational privacy may prevent the government from disclosing to a foreseeably dangerous criminal defendant the identities and home addresses of victims, cooperating witnesses, and their relatives. If the nonconsensual disclosure of information that makes an individual "vulnerable" to identity theft "surely implicates" informational privacy rights, then the nonconsensual disclosure of information that exposes individuals to violent physical harm perforce implicates those same interests. The County argues that the information they disclosed—Plaintiffs’ names and addresses—is not as sensitive as social security numbers and therefore should not trigger the same constitutional concerns. But Crawford made explicit that "overall context, rather than the particular item of information ... will dictate the tipping of the scales." Crawford , 194 F. 3d at 959. Of course, the disclosure of names and addresses, in general, does not expose individuals to identity theft or violent crimes. But disclosing that same information in this context —one that makes a violent, gang-affiliated criminal offender aware of the names and addresses of people cooperating with the prosecution's case against him—is entirely different. In this context, that disclosure is enough to implicate informational privacy rights.
The County may still show that certain interests, after applying the Crawford factors tailored to these facts and this context, satisfy the intermediate scrutiny analysis afforded to informational privacy rights. But, for two reasons, the Court declines to conduct that analysis sua sponte at this stage. First, the parties did not adequately address the issue in their briefs. It would be unfair to both sides to decide the issue without proper briefing. Second, weighing the County's pro-disclosure interests will likely require a level of factual analysis that is inappropriate at the pleading stage.
The County moved to dismiss Plaintiffs’ section 1983 claims on the grounds that they have not alleged a violation of a federal right. It is enough, for now, for the Court to conclude that Plaintiffs have adequately and plausibly alleged facts sufficient to survive the pleading stage, as to the existence of a constitutional right to informational privacy that covers the narrow circumstances at issue here.
2. Plaintiffs Adequately Pled Their Fourth Cause of Action
The County also contends that Plaintiffs have failed to adequately plead that its failure to train and supervise deputy district attorneys regarding the disclosure of sensitive information amounted to unconstitutional deliberate indifference. MTD at 4 (citing City of Canton, Ohio v. Harris , 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). It simply concludes, without addressing any specific allegations, that Plaintiffs’ claims are "formulaic recitations of the elements" of a Canton claim, and that Plaintiffs "fail to allege adequate facts to survive the ‘facial plausibility’ standard set forth in" Iqbal . Id.
Plaintiffs’ allegations are sufficient. Courts reviewing allegations of constitutionally inadequate training consider whether "such inadequate training can justifiably be said to represent ‘city policy.’ " Canton , 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). But that "[c]ity policy need only cause the constitutional violation; it need not be unconstitutional per se. " Chew v. Gates , 27 F.3d 1432, 1444 (9th Cir. 1994). While the Ninth Circuit has recognized that Iqbal and Twombly heightened the traditionally lax pleading requirements for Monell claims, the standard is no stricter for Monell claims than for other allegations. See AE ex rel. Hernandez v. Cty. of Tulare , 666 F.3d 631, 637 (9th Cir. 2012). Moreover, whether a "local government entity has displayed a policy of deliberate indifference is generally a question for the jury. " Lee v. City of Los Angeles , 250 F.3d 668, 682 (9th Cir. 2001) (quoting Canton , 489 U.S. at 390, 109 S.Ct. 1197 ).
Plaintiffs allege that the County, through Lacey, assigns complicated felony matters to inexperienced and overburdened deputies without requiring a mandatory training program regarding whether and how to disclose confidential witness and victim information. FAC at ¶¶ 115, 118. They allege that to the extent such training was optional, but available, deputies like Bartoletti, did not undergo it before carrying out particularly sensitive duties related to information contained in CPOs. Id. at ¶ 115. And they allege that disclosures similar to the one in this case occur often enough that the need for training on this issue must have been obvious to Lacey, "who w[as], nevertheless, deliberately indifferent to the need." Id. at ¶ 116. Further, they allege that these training and supervision failures directly and proximately caused the disclosure of Plaintiffs’ information, which led to Quevedo's attack and Plaintiffs’ injuries. Id. at ¶ 124.
These allegations are more than formulaic recitations of a Canton claim's elements. They are "sufficient to state a claim for municipal liability based on failure to train and withstand a motion to dismiss." Johnson v. Shasta Cty. , 83 F. Supp. 3d 918, 932 (E.D. Cal. 2015) ; compare Victoria v. City of San Diego , 326 F. Supp. 3d 1003, 1016 (S.D. Cal. 2018) (finding inadequate allegations that "Defendants were deliberately indifferent to [his] rights to be free from arbitrary detainment and arrest without probable cause or reasonable suspicion" and "that Defendants’ plans and actions was caused by deliberate indifference by final decision-makers of the San Diego Police Department and the City of San Diego") with Johnson , 83 F. Supp. 3d at 931-32 (finding adequate allegations that Defendants failed to train officers regarding how to properly use their weapons in certain situations, how to investigate and evaluate excessive force, and how to file accurate police reports, as well as encouraged a "code of silence," and other specific behavior).
3. Plaintiffs Adequately Pled Their Fifth Cause of Action
The County's argument that Plaintiffs have inadequately pled their unconstitutional policy, practice, or custom cause of action is almost identical to their argument against Plaintiffs’ failure to train cause of action, and is similarly threadbare. See MTD at 5. Again, Plaintiffs have done enough to state a claim at this point.
To plausibly allege the existence of an unconstitutional policy, custom, or practice under Monell , Plaintiffs must allege that "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict[ed] [an] injury" on them. Hernandez v. City of San Jose , 241 F. Supp. 3d 959, 976 (N.D. Cal. 2017), aff'd in part, dismissed in part , 897 F.3d 1125 (9th Cir. 2018) (citing Monell , 436 U.S. at 694, 98 S.Ct. 2018 ). Here, Plaintiffs allege that Lacey, in her role as a policymaker for LACDA, "ratified," "maintained," or "enforced" a policy of seeking CPOs that fail to protect and conceal witness and victim information. FAC at ¶ 134. They also allege that this purported policy "likely and actually" results in the "disclosure(s) of witnesses and their families’ confidential personal information." Id. at ¶ 135. Of course, as explained above, a policy that requires, encourages, or permits deputies to pursue CPOs is not, in and of itself, unconstitutional, but Plaintiffs have plausibly alleged that it has the potential to, and actually does, result in constitutional violations in cases like this one. That is enough to survive a motion to dismiss.
The County's Motion to Dismiss is DENIED with respect to Plaintiffs’ section 1983 claims.
B. Plaintiffs’ Negligent Hiring Claim
Plaintiffs allege that the County negligently hired, trained, supervised, oversaw, or retained deputy district attorneys in violation of several provisions of the California Government Code ("negligent hiring cause of action"). FAC at ¶¶ 161-172. The County argues that Eleventh Amendment sovereign immunity protects them from liability under those provisions and that Plaintiffs failed to include allegations giving notice of the negligent hiring cause of action in their pre-lawsuit claim. MTD at 5-7.
1. The County is Not Immune from Suit Under the Eleventh Amendment
Eleventh Amendment sovereign immunity "grants a State immunity from suit in federal court." Lapides v. Bd. of Regents of Univ. Sys. of Georgia , 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The County's claim that sovereign immunity protects them here because the "District Attorney's office acts on behalf of the State [of California], including in training and preparing to prosecute criminal violations of state law." MTD at 5. Plaintiffs dispute whether the County was, in fact, acting on behalf of California when it took the specific actions that resulted in their injuries, but that is ultimately a distinction without a difference.
If the County was not acting on California's behalf, it would not be entitled to sovereign immunity at all. Del Campo v. Kennedy , 517 F.3d 1070, 1075–76 (9th Cir. 2008) ("State sovereign immunity ... ‘does not extend to counties and similar municipal corporations,’ even though they share some portion of state power.") (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ). If it was acting on behalf of California, it waived whatever Eleventh Amendment immunity it enjoyed by removing the case to this Court. Lapides v. Bd. of Regents of Univ. Sys. of Georgia , 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) ("[T]he State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity ...."); Embury v. King , 361 F.3d 562, 564 (9th Cir. 2004), as amended (May 17, 2004) ("By removing the case to federal court, the State waived its Eleventh Amendment immunity from suit in federal court."). Sovereign immunity is therefore unavailable here.
2. Plaintiffs’ Pre-Lawsuit Claim Substantially Complies with the California Government Code's Requirements
The County also claims that Plaintiffs’ negligent hiring cause of action must fail because they did not accurately present that cause of action in their pre-lawsuit claim. MTD at 6. California Government Code section 945.4 states that "no suit for money or damages may be brought against a public entity ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board."
As a general rule, "[i]f a plaintiff relies on more than one theory of recovery against [a] [governmental agency], each cause of action must have been reflected in a timely claim." Fall River Joint Unified Sch. Dist. v. Superior Court , 206 Cal. App. 3d 431, 434, 253 Cal.Rptr. 587 (1988). But California courts interpret the Government Code to allow plaintiffs to satisfy that requirement through "substantial compliance." See Connelly v. Cty. of Fresno , 146 Cal. App. 4th 29, 38, 52 Cal.Rptr.3d 720 (2006) ("Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim if it substantially complies with all of the statutory requirements ....") (internal quotations omitted).
The "purpose" of the Government Code's "claim statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." Phillips v. Desert Hosp. Dist. , 49 Cal. 3d 699, 705, 263 Cal.Rptr. 119, 780 P.2d 349 (1989) (internal citation omitted). The pre-lawsuit claim "need not contain the detail and specificity required of a pleading, but need only fairly describe what [the] entity is alleged to have done." Stockett v. Ass'n of Cal. Water Agencies Joint Powers Ins. Auth. , 34 Cal. 4th 441, 446, 20 Cal.Rptr.3d 176, 99 P.3d 500 (2004) (internal citation omitted). These statutes exist "to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions." Id. They "should not be applied to snare the unwary where its purpose has been satisfied. Id. These principles boil down to the following rule: substantial compliance occurs where the pre-lawsuit claim "fairly reflect[s]" the "fundamental facts" and "theories of liability set forth in the complaint." Id. at 448, 20 Cal.Rptr.3d 176, 99 P.3d at 504 (citing Blair v. Superior Court , 218 Cal. App. 3d 221, 267 Cal.Rptr. 13 (1990) ); see also White v. Superior Court , 225 Cal. App. 3d 1505, 1511, 275 Cal.Rptr. 706 (1990).
Although the pre-lawsuit claim does not explicitly state Plaintiffs’ intention to pursue a negligent hiring cause of action, the claim substantially complies with the Government Code's requirements. The pre-lawsuit claim states that the "prosecutor" in charge of Quevedo's case "should have known" that Plaintiffs’ information "would become public record if not withdrawn or redacted." [Doc. # 16-1, Ex. 2 ("Pre-Lawsuit Claim") at 2.] It also states that "the County" is "responsible" for the injuries caused by the disclosure. Id. at 3. Moreover, the pre-lawsuit claim includes exactly the same fundamental facts as the FAC—that Bartoletti's disclosure to Quevedo of Plaintiffs’ addresses and names allowed Quevedo to harm Plaintiffs. Even though the FAC arguably seeks to shift liability for Plaintiffs’ injuries from Bartoletti to the County and LACDA, such a shift does not bring the pre-lawsuit claim out of substantial compliance with the Government Code. See White , 225 Cal. App. 3d at 1511, 275 Cal.Rptr. 706 (finding substantial compliance when a plaintiff brought a negligent hiring cause of action that was absent from the pre-lawsuit claim because that cause of action "merely sought to show direct responsibility of San Francisco for Officer Sanford's conduct" and the plaintiff did not change "the fundamental facts about her injury."). Accordingly, even though Plaintiffs did not clearly state their negligent hiring theory in their pre-lawsuit claim, the claim substantially complies with the Government Code's requirements. The Court therefore DENIES the County's MTD as to Plaintiffs’ seventh cause of action.
C. Plaintiffs’ Breach of Contract Cause of Action Does Not Substantially Comply with the California Government Code's Requirements
Plaintiffs claim that Pena and Perez entered into a contract with Bartoletti, acting on behalf of the County, when they provided Bartoletti with confidential information for the purpose of obtaining a CPO in exchange for Bartoletti's promise to protect Plaintiffs’ privacy and safety. FAC at ¶¶ 258-59. Plaintiffs also claim that at least some of the remaining Plaintiffs were third-party beneficiaries of that contract. Id. at ¶ 260. Plaintiffs’ theory is that, by releasing Plaintiffs’ information to Quevedo, the County breached that contract.
It is not entirely clear to the Court which Plaintiffs’ contract rights are at issue here. Plaintiffs allege that "Vanessa Perez, Justin Perez, Calvin Perez, and Elvis Pena" are the third party-beneficiaries, despite the fact that they also allege that Elvis Pena and Vanessa Perez personally agreed to the purported contract. FAC at ¶¶ 258-60. They do not allege that Joshua Perez or Deana Varo were third-party beneficiaries, despite the fact that the breach of the purported contract caused them harm. The County is just as inconsistent. It states in its Notice of Motion that it seeks to dismiss the contract claim because there was no contract between "the County and Plaintiffs Joshua Perez, Deana Varo, Justin Perez, and Calvin Perez." MTD at Notice of Motion at 3. In its Reply, however, the County indicates that it seeks to dismiss the contract claim not only with respect to the third-party beneficiaries, but with respect to Vanessa Perez and Elvis Pena as well. Reply at 8. The parties’ confusion about their own arguments, however, is unimportant because Plaintiffs did not faithfully represent a contract cause of action in their pre-lawsuit claim.
The Court must dismiss this cause of action because Plaintiffs’ pre-lawsuit claim does not fairly reflect allegations regarding the breach of any contract. Unlike their negligent hiring cause of action, which merely shifted Plaintiffs’ theory of negligence liability from Bartoletti to the County and LACDA, Plaintiffs’ breach of contract cause of action creates a distinct theory of liability from the one fairly presented by the claim. The pre-lawsuit claim clearly conveys Plaintiffs’ intent to recover for physical and emotional harm, but makes no mention of injuries stemming from contract rights. Pre-Lawsuit Claim at 2. Nor does it include any language that would have put the County on notice that it needed to evaluate the underlying facts from a contract-law standpoint.
Furthermore, Plaintiffs cite no authority demonstrating that a pre-lawsuit claim that ostensibly provides notice of civil rights, state-law tort, and state statutory violations can fairly reflect a later breach of contract cause of action. See Stockett , 34 Cal. 4th at 448, 20 Cal.Rptr.3d 176, 99 P.3d at 504. In fact, cases cited by the California Supreme Court as examples of substantial compliance suggest the opposite. Plaintiffs’ breach of contract allegations, therefore, do not rise to the level of substantial compliance with the Government Code's requirements.
The California Supreme Court cited the following cases as examples of pre-lawsuit claims that fairly reflected later allegations in a complaint:
Shoemaker v. Myers , 2 Cal. App. 4th 1407, 1426, 4 Cal.Rptr.2d 203 (1992) (state health investigator's claim that his dismissal from government employment was an interference with his responsibility to carry out the law fairly reflected complaint's theory that his termination violated the whistle-blower statute, as "any interference with plaintiff's reporting duties implicated the whistle-blower statute"); Mouchette v. Bd. of Educ. , 217 Cal. App. 3d 303, 311, 266 Cal.Rptr. 1 (1990), disapproved on other grounds in Caldwell v. Montoya , 10 Cal. 4th 972, 984 n.6, 42 Cal.Rptr.2d 842, 897 P.2d 1320 (1995) (plaintiff's claim alleging he was permanently terminated and that his job functions were being performed by other employees "set forth the factual basis" for the complaint's theory he was illegally denied statutory reemployment rights); Smith v. County of Los Angeles , 214 Cal. App. 3d 266, 273–274, 262 Cal.Rptr. 754 (1989) (claim that county "cut into the hill" to create a road, removing support for residences, fairly reflected allegation in complaint that county removed slide debris that had provided hillside support); Stevenson v. San Francisco Hous. Auth. , 24 Cal. App. 4th 269, 276-78, 29 Cal.Rptr.2d 398 (1994) (claim that city negligently maintained public housing building and failed to discover plaintiff's injured father, a building resident, for seven days after an earthquake fairly reflected allegation in complaint that defendant had failed to inspect and/or disclose latent defects of the premises).
Stockett , 34 Cal. 4th at 448, 20 Cal.Rptr.3d 176, 99 P.3d at 504 n.5 (citations edited for format).
Plaintiffs request leave to amend the FAC in the event that the Court grants the County's motion with respect to the breach of contract cause of action. Opp. at 24-25. As a rule, courts should "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2) ; Moss v. Secret Serv. , 572 F.3d 962, 972 (9th Cir. 2009) (leave to amend should be granted with "extreme liberality"). Put differently, granting leave is appropriate unless "the pleading could not possibly be cured by the allegation of other facts.’ " Knappenberger v. City of Phoenix , 566 F.3d 936, 942 (9th Cir. 2009) (quoting Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc )).
Plaintiffs indicate that they could include curative allegations in a Second Amended Complaint, including allegations that the County waived any noncompliance defense by failing to provide Plaintiffs with a statutorily-required warning regarding any deficiencies in their pre-lawsuit claim. Opp. at 16. Accordingly, the Court GRANTS Plaintiffs leave to file a Second Amended Complaint that addresses the deficiencies identified in this Order.
The Court reaches no conclusion on the merits of this argument because, as the FAC makes no such allegations, it is not properly before the Court.
V.
CONCLUSION
In light of the foregoing, the County's Motion to Dismiss is GRANTED , in part, and DENIED , in part as follows:
1. The County's Motion to Dismiss is DENIED with respect to Plaintiffs’ fourth and fifth causes of action;
2. The County's Motion to Dismiss is DENIED with respect to Plaintiffs’ seventh cause of action; and
3. The County's Motion to Dismiss is GRANTED , with leave to amend, with respect to Plaintiffs’ fourteenth cause of action.
Plaintiffs shall file a Second Amended Complaint, or notify the County and the Court of their intention not to do so, within 15 days of the date of this Order. Defendants shall file their response within 15 days after the filing of the Second Amended Complaint or the expiration of Plaintiffs’ deadline for doing so.