GONZALEZ v. SANTA CLARA COUNTY (2025)

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Re: Dkt. No. 81

The City of Mountain View, Tom Schmidt, the Mountain View Police Department, Pablo Donato, the Mountain View Fire Department, and Mathew Gundersen (collectively “City defendants”) move to dismiss plaintiffs’ second amended complaint pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted. For the reasons discussed herein, their motion is granted with leave to amend.

BACKGROUND

Plaintiffs Laura Janeth Gonzalez and Pedro Rivera bring this civil rights action individually and as successors in interest of their decedent son Ayden Noe Rivera. Their minor son Ethan Noe Rivera is also a plaintiff. This action arises out of Ayden's tragic and untimely death at age nine, when he drowned in the swimming pool of a Mountain View apartment complex on July 6, 2022.

I. Factual Background

A. Ayden's death

Plaintiffs are the parents of Ayden Rivera, a nine-year old child with developmental disabilities who tragically drowned at an apartment complex in Mountain View in 2022.¹ Ethan is Ayden's younger brother who, at six-years old, witnessed Ayden's death. Ms. Gonzalez and Ethan are residents of Santa Clara County.

On July 6, 2022, Ayden and Ethan clambered over a low-lying fence and ventured into a swimming pool at an apartment complex located at 1895 Ednamary Way in Mountain View, California. Ayden “stepped onto a small, 3-inch-high brick planter located immediately next to a small, roughly 3-foot, 11-inch–high chain-link fence that separated the pool from the surrounding walkways.” According to plaintiffs, the design of the chain-link fence and placement of the slide facilitated Ayden's entry into the pool. Ayden lost his balance while reaching for a device and fell into the deep end of the pool. Ethan tried to help his older brother by reaching for a floating safety ring, but his efforts were thwarted because the ring was “enclosed in an outdated glass and metal case, which had been painted over and was not only located six feet off the ground” but also “obstructed by the pool fence.”

Ethan ultimately sought assistance from nearby painters, who pulled Ayden's body out of the pool, began administering CPR, and called 911. Officers from the Mountain View Police Department arrived on the scene and continued CPR until the ambulance arrived. Ayden was pronounced dead at 5:00pm the day of his drowning.

The plaintiffs allege that the City of Mountain View failed to undertake due diligence to ascertain the safety of swimming pools under its jurisdiction, including the pool where Ayden drowned. According to the second amended complaint, the City of Mountain View “had ordinances, policies or customs of allowing property owners to have ‘legal non-conforming use’ also known as ‘Grandfathered in’ properties or structures, whether these structures had become hazardous or posed serious safety concerns.” Incentivized by fees charged for “legal non-conforming use,” the City purportedly allowed property owners to seek permits to maintain properties and structures that posed safety risks, including pool enclosures at apartment complexes.

The plaintiffs allege that the Mountain View Fire Department was primarily responsible for inspecting multi-family homes for compliance with public health and welfare regulations. Defendant Tom Schmidt was also responsible for inspecting or overseeing inspections performed by code enforcement officers and the Mountain View Fire Department.

The plaintiffs allege that a City ordinance allowed inspections of multi-unit apartments every five years while exempting certain complexes without serious violations to be inspected only every eight years and to “self-certify” every two years during the interim period. They allege further that California regulations and Mountain View ordinances generally require that pool enclosures be surrounded by fences at least 5 feet tall. Despite that, Mountain View “listed pool fence/enclosures that did not prevent access of the pool by children that were not 60 inches in height made of metal bars as ‘not serious violations’ for purposes of their Multi Family Housing Program action item check-lists.”

According to plaintiffs, the 3-foot, 11-inch chain-link fence that enclosed the swimming pool at 1895 Ednamary Way fell under the purview of “grandfathered-in legal non-conforming structures.” The Mountain View Fire Department and Schmidt had inspected the swimming pool gate and fence at least seven times since 2002. In September 2013 and December 2013, the Fire Department and “Environmental Health from [the] City of Mountain View” reported that the pool's gate and fence were out of compliance and required a permit. In February 2014, Schmidt sent a Certificate of Code Compliance to the property informing it that it had achieved substantial compliance without mentioning the pool enclosure, thereby exempting the property from inspection for eight years and allowing the property to self-certify every two years during the interim. Except for the installation of a new pool pump and “other cosmetic repairs,” the plaintiffs allege that “[n]o changes, additions, or modifications large or small [were] made to the subject pool fence or pool area in general were made” between February 2014 and the date of Ayden's death.

B. The alleged conspiracy

Gonzalez and Rivera were separated and sharing custody of Ayden prior to his death. Approximately one month before Ayden's death, defendant Mountain View Police Officer Pablo Donato conducted a welfare check on Ayden at Rivera's home upon Gonzalez's request. Donato allegedly reported no concerns and advised Gonzalez to go through family court if she had further concerns. He thereafter became the lead officer investigating Ayden's death.

The plaintiffs contend that certain defendants thereafter engaged in a conspiracy against plaintiffs. For instance, they claim that the Mountain View Police Department posted on Facebook that Rivera along with a female family member had been arrested for Ayden's drowning, and that the post became a “bashing and defamatory platform session” incriminating both Gonzalez and Rivera. Moreover, the plaintiffs allege that the Mountain View Police Department and the City of Mountain View engaged in a conspiracy to undermine and thwart her prior litigation against the City of Mountain View. At one point, for instance, the plaintiffs allege that a police officer and Doe defendant intimidated Gonzalez when she attempted to rectify a “complete fabrication” in the police report filed by Donato. The officer was so “successful in his attempt to frighten and intimidate” Gonzalez, the complaint alleges, that she subsequently “refused to even attempt to file a civil complaint for the wrongful death of Ayden against the City of Mountain View, due to fear of her or her family becoming victims of violence, at the hands of the Mountain View Police officers.”

The plaintiffs allege that the Mountain View Police Department harassed and intimidated plaintiffs and their family as retaliation for the civil suit filed by her counsel. For instance, they allege that Donato and another police office both drove their police cars directly in front of Gonzalez as she was preparing to cross the street, “absolutely terrifying [her] ․ and prompting present counsel to send a Cease and Desist Letter to the Mountain View Police Department attorneys and the city of Mountain View.” Moreover, a Doe defendant affiliated with the Mountain View Police Department allegedly contacted Ethan's elementary school about his safety and welfare, prompting schoolteachers and administrators to reach out to Gonzalez “for completely trivial matters.” The plaintiffs also allege that two Mountain View police officers harassed Gonzalez's partner Angel Aguilar on largely spurious grounds as he was leaving a local Starbucks coffee shop in Mountain View.

C. Rivera's arrest

After Ayden's death, Pedro Rivera was arrested, charged, and detained for eight months for felony child endangerment. Defendant officer Pablo Donato was the lead investigating officer on the case. The second amended complaint alleges that the City defendants “ignored evidence showing that it would not have been possible for Pedro Rivera to have committed felony child endangerment at the time it was actually committed,” “fabricated evidence further incriminating Mr. Rivera,” and “failed to conduct even a rudimentary investigation into other persons who could have committed the murder and had a motive to do so.” Further, “Rivera's private defense counsel discovered the evidence that exonerated Pedro Rivera within seven days of beginning his investigation, and there is no reason the City of Mountain View and Mountain View Police Department could not have discovered the same evidence during his investigation of the child endangerment.” Officer Donato allegedly “l[ied] on his police report that was used to charge Pedro Rivera and Rocio Ochoa for the drowning of a 9-year-old Ayden Noe Gonzalez in order to make it seem that Pedro Rivera and Mrs. Ochoa were criminally negligent.”

On October 6, 2022, Officer Donato called Gonzalez and asked about Rivera's national origin and immigration status. On that same day, Donato arrested Rivera. The second amended complaint alleges that “[o]n August 1[3], 2024, Judge Brian Buck[e]lew of the Superior Court of Palo Alto ruled that Office Pablo Donato had misrepresented the statements given by ․ Gonzalez and also misrepresented the statements provided to him by Rocio Ochoa,” “ruled that there was no probable cause for any of the charges brought against Pedro Rivera,” and “noted that the death of Ayden was an accidental one and completely dismissed the case against Pedro Rivera.”

II. Procedural Background

1. State Court Litigation: On September 2, 2022, the plaintiffs filed a claim with the City of Mountain View consistent with the California Government Claims Act. The City rejected the claim on October 11, 2022, which was within the 45-day statutory window for doing so.

On June 12, 2023, plaintiffs commenced an action in Santa Clara County Superior Court against the County of Santa Clara, its Department of Environmental Health, and its Department of Planning and Development, asserting causes of action for negligence, negligence per se, and wrongful death. On December 8, 2023, the County filed a demurrer to the state court plaintiffs’ complaint and the demurrer was set for hearing before the assigned judge on January 23, 2024. On March 1, 2024, the state court sustained the County's demurrer without leave to amend on the ground that the County was immune from liability under Cal. Gov't Code § 816.6. On March 27, 2024, the County filed and served a Notice of Entry of Judgment. Plaintiffs did not file an appeal within the 60-day window thereafter for doing so.

2. Federal Court Litigation: On January 18, 2024, while the state court lawsuit was still pending in Santa Clara County Superior Court, plaintiffs filed this federal court action against the County of Santa Clara, its Department of Environmental Health, the City of Mountain View, its Planning and Developmental Department, Santa Clara County employee Lisa Flores, the Mountain View Police Department, the County of Santa Clara Superior Court, and Does 1–100. On March 22, 2024, the plaintiffs voluntarily dismissed the County of Santa Clara Superior Court as a party.

On April 3, 2024, plaintiffs filed a first amended complaint, adding as defendants Farhad Amirebrahimi, Tom Schmidt, Pablo Donato, the Mountain View Fire Department, and Matthew Gundersen. On June 14, 2024, defendants Schmidt, Donato, the Mountain View Fire Department, and Gundersen filed an answer. The City of Mountain View and the Mountain View Police Department filed a partial motion to dismiss the following claims against them: negligence, negligence per se, and wrongful death under Cal. Gov't Code § 820 and California common law; “Negligent/Reckless Inflection [sic] of Emotional Distress” under California common law; and “Negligent/Reckless/ Inflection [sic] of Emotional Distress” under California common law. The Court granted their motion to dismiss with prejudice, finding that the claims at issue were time-barred. Separately, the County of Santa Clara and county employee defendants Flores and Amirebrahimi moved to dismiss all claims against them. The Court granted the County defendants’ motion to dismiss with prejudice, finding that the claims were precluded by the final state court judgment. The County defendants were dismissed as parties to this action because no claims remained against them.

In December 2024, plaintiffs sought leave to file a second amended complaint, which defendants did not oppose and the Court granted. This operative complaint contains the following claims: (1) a § 1983 First Amendment retaliation claim against the City of Mountain View and the Mountain View Police Department; (2) a § 1985 conspiracy claim against the City of Mountain View and Mountain View Police Department; (3) a § 1986 “Neglect to Prevent Violation Of Civil Rights Laws” claim against the City of Mountain View and the Mountain View Police Department; (4) a § 1983 “Unconstitutional Custom, Policy or Procedure” claim against the “County of Santa Clara [sic] and [the] City of Mountain View”; (5) a § 1983 “Survival Action” against the City of Mountain View; (6) a § 1983 “Policy That Fails to Prevent Violations of Law” claim against the City of Mountain View; (7) a § 1983 state-created danger claim against the City of Mountain View; (8) a § 1983 malicious prosecution claim against the City of Mountain View and the Mountain View Police Department; (9) a § 1983 “Monell” claim against the City of Mountain View; (10) a California common law defamation claim against the City of Mountain View and the Mountain View Police Department; and (11) a § 1983 retaliation in violation of civil rights claim against the City of Mountain View and the Mountain View Police.²

The City defendants now move to dismiss all claims against them.

LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include a “short and plain statement of the claim showing that the pleader is entitled to relief.” If the complaint does not state a claim, the defendant may move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Dismissal is required if the plaintiff fails to allege facts allowing the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable” to the non-moving party. Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal conclusions “can provide the [complaint's] framework,” the Court will not assume they are correct unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).

Materials outside the complaint can be considered on a Rule 12(b)(6) motion if they are incorporated by reference therein or otherwise judicially noticeable. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A [district] court may [ ] consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.”). The Court may consider documents that are “not physically attached to the complaint” “if the [ ] ‘authenticity ․ is not contested’ and ‘the plaintiff's complaint necessarily relies’ on them.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998)). Federal Rule of Evidence 201 permits judicial notice of “a fact that is not subject to reasonable dispute” because it is “generally known.”

ANALYSIS

I. The requests for judicial notice are granted.

The City defendants request judicial notice of two court filings from the plaintiffs’ state court action. Plaintiffs also request judicial notice of the state court's order sustaining the demurrer and a portion of the August 13, 2024 preliminary examination transcript from the criminal action against Pedro Rivera.

Each of the documents at issue is available from a source whose accuracy cannot reasonably questioned. See Fed. R. Evid. 201(b). The Court will therefore take judicial notice of the existence and content of the documents at issue without taking judicial notice of the underlying truth of any factual assertions therein.

II. Plaintiff sues all defendants in their official capacity.

As a threshold matter, plaintiffs maintain that they are suing all defendants in their official capacities, including Tom Schmidt (a City of Mountain View building inspector), Pablo Donato (a Mountain View police officer), and Mathew Gundersen (a Mountain View firefighter), and that qualified immunity therefore poses no bar to their claims. See Dkt. No. 83, at 9. “Qualified immunity [ ] is a defense available only to government officials sued in their individual capacities. It is not available to those sued only in their official capacities” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010) (emphasis in original).

The defendants argue that the plaintiffs are suing the individual defendants in their individual capacities, citing Shoshone-Bannock Tribes v. Fish & Game Comm'n, Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994), which held that courts should generally presume that officials are being sued in their individual capacities because “[a]ny other construction would be illogical where the complaint is silent as to capacity, since a claim for damages against state officials in their official capacities is plainly barred.” Id. Here, plaintiffs seek damages from all defendants “jointly and severally” as to their claims pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1986. See SAC § XVIII. The complaint itself is ambiguous as to whether it sues Gunderson, Schmidt, and Donato in their individual or official capacities.³

Shoshone-Bannock Tribes does not require this Court to disregard plaintiffs’ unequivocal statement of the capacity in which they intended to sue the individual defendants. Shoshone-Bannock Tribes involved claims against state officials rather than city officials, and suing city officials in their official capacity, as plaintiffs say they intended to do here, is recognized as “another way of pleading an action against an entity of which an officer is an agent.” Cmty. House, Inc., 623 F.3d at 966. To be sure, it was duplicative for plaintiffs to sue both Gunderson, Schmidt, and Donato in their official capacities and the municipality and its departments. But since plaintiffs clearly and unequivocally maintain that this suit is only brought against each individual defendant in their official capacity, the Court will accept their position and treat all parties as having been sued in their official capacities. That means that all claims are effectively against the City of Mountain View and its fire and police departments.

III. Plaintiffs fail to state their first § 1983 First Amendment retaliation claim against the City of Mountain View and the Mountain View Police Department.

Plaintiffs’ first claim is a § 1983 claim against the City of Mountain View and the Mountain View Police Department for retaliation in violation of the First Amendment.

“To bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant's actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant's conduct—i.e., that there was a nexus between the defendant's actions and an intent to chill speech.” Arizona Students’ Ass'n v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). “[A] plaintiff must show that the defendant's retaliatory animus was ‘a but-for cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.’ ” Capp v. Cty. of San Diego, 940 F.3d 1046 (9th Cir. 2019) (quoting Hartman v. Moore, 547 U.S. 250, 260, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). “At the pleading stage, the complaint must simply allege plausible circumstances connecting the defendant's retaliatory intent to the suppressive conduct[,] and motive may be shown with direct or circumstantial evidence.” Koala v. Khosla, 931 F.3d 887, 905 (9th Cir. 2019) (internal quotations omitted).

Defendants first argue that this claim must fail because plaintiffs do not plausibly plead any predicate constitutionally protected activity by plaintiffs. But it is clear from the face of the complaint that plaintiffs allege retaliation for engaging in their First Amendment right to “free speech and/or petitioning the government for redress.”

Defendants separately argue that the third element—that the protected activity was a substantial motivating factor in the defendant's conduct—is not adequately pleaded because their “actions were taken in the reasonable course of conduct following a criminal investigation into an incident and with probable cause (nor are there allegations with respect to the nexus for the supposed retaliatory conduct).” But at the pleading stage the Court must accept plaintiffs well-pleaded allegations as true. The complaint specifically alleges that, soon after Gonzalez submitted a claim seeking redress from the City of Mountain View for her son's death, Mountain View police stopped Gonzalez's boyfriend outside a Starbucks on spurious grounds. It also pleads that an officer came to Gonzalez's home in Menlo Park and drove in front of her in an intimidating manner when she tried to cross the street on the day before she was scheduled to meet with officers to correct the police report that she had complained was factually inaccurate. For the purposes of Rule 12(b)(6), these allegations are sufficient to plead that the police officers’ conduct was motivated by Gonzalez's filing of a claim against the City and her attempt to correct the police report—both of which involved First Amendment-protected petitioning.

Though plaintiffs plead a predicate constitutional violation, in order to bring a claim for damages against the City and its police department under § 1983, plaintiffs must do more than demonstrate “an injury inflicted solely by [the city's] employees or agents.” Monell, 436 U.S. at 694. Instead, they “must [also] identify a practice, policy, or procedure that animates the constitutional violation at issue.” Id. at 865 (citing Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 & n. 55 (1978)). They must allege facts sufficient to plead that their constitutional injury was a product of the “government's policy or custom.” Id.

Municipalities may be held liable for their officials’ misconduct in three circumstances: (1) “when implementation of its official policies or established customs inflicts the constitutional injury,” (2) for “acts or ‘omission[s]’ ․ [that] amount to the local government's own official policy,” or (3) when the “final policy-making authority ․ ratified a subordinate's unconstitutional decision or action and the basis for it.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249–50 (9th Cir. 2010) (internal citations omitted), overruled in part on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). In relevant part, the second amended complaint states:

Sometime between receipt of the claims and after September 20, 2022 the City of Mountain View through its City attorney Jennifer Logue, City Manager Kimbra McCarthy, its city council members Lucas Ramirez, Mayor Alison Hicks, Vice Mayor Margaret Abe-Koga, Councilmember Ellen Kamei, Council member Sally Lieber, Councilmember Lisa Matichak, Councilmember Pat Showalter, Councilmember, the Mountain View Chief of Police Chris Hsiung, and other Mountain View Police officers, agents and employees realized the City's financial resources, pensions and city employee salaries were in potential jeopardy due to the sheer dollar amount of Plaintiffs claim and thus expressly or by implication agreed to work together and formulated a plan to avoid a $15,000,000 financial loss to the City Mountain View's budget by using tactics of intimidation, false arrest, coercion and fear to cause substantial interference with Plaintiffs ability to seek Judicial relief for the death of their Decedent Ayden and also to frighten Plaintiffs enough to scare them into not pursuing their claims.

SAC ¶ 85. These conclusory allegations do not plausibly allege a municipal policy or practice because they do not specify why the purported agreement falls within one of the three categories of municipal liability under Monell. See Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“ ‘[B]are assertions ․ amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional [ ] claim,’ for the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth.”) (quoting Iqbal, 556 U.S. at 681 and Twombly, 550 U.S. at 556 (2007)). To the extent plaintiffs contend that the identified city officials agreed to retaliate against plaintiffs as a matter of city policy or ratified the actions of city employees who engaged in such retaliation, plaintiffs must allege specific facts plausibly supporting their allegation that each identified city official participated in making these decisions by identifying, for example, when the decision was made, who was involved in the decision, and the precise scope of the decision.

Because plaintiffs’ allegations do not plausibly allege that any retaliation against plaintiffs occurred as a result of a municipal policy or practice, plaintiffs’ first claim is dismissed with leave to amend.

IV. Plaintiffs fail to state their second § 1985(3) conspiracy claim against the City of Mountain View and the Mountain View Police Department.

Plaintiffs allege that the City defendants conspired together to deprive them of their constitutional rights. “[T]o make out a violation of § 1985(3), ․ the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 828–29 (1983). A plaintiff must allege facts sufficient to establish a conspiracy. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929–30 (9th Cir. 2004) (affirming dismissal of § 1985 claim where plaintiff's complaint included no allegations describing the defendants’ agreement to violate her constitutional rights and failed to adequately allege a constitutional violation); see also Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989) (noting that a plaintiff “must state specific facts to support the existence of the claimed conspiracy”); Gressett v. Contra Costa Cnty., No. C-12-3798 EMC, 2013 WL 2156278, at *15-16 (N.D. Cal. May 17, 2013) (“Whether a plaintiff has alleged sufficient facts to show a conspiracy is generally a case[-]specific, fact-intensive inquiry. Courts look to a variety of factors, such as whether the plaintiff has set forth facts from which a motive can be inferred, facts showing acts taken in furtherance of the conspiracy, and facts showing specific agreement to be part of a conspiracy.”) (citations omitted). Additionally, because this claim is brought against the City and its department, plaintiffs must also identify a practice, policy, or procedure sufficient to establish Monell liability.

Here, plaintiffs allege that

[d]efendants acted in concert with the use of intimidation, force or fear and with the intent to dissuade, interfere with, hinder or discourage Plaintiffs from seeking to exercise their inalienable rights under the California Constitution along with their free speech rights under First Amendment and also Plaintiffs inalienable rights under the California Constitution of seeking and defending life, happiness and liberty along with Plaintiffs rights to equal protection and due process under the Fourteenth Amendment of United States Constitution. Defendants, while acting in concert an in furtherance of a preconceived plan, wrongfully and intentionally discriminated against, harassed, interfered with, intimidated, frustrated and retaliated against Plaintiff because of their protected categories as Spanish speaking Hispanic immigrants; thus, Defendants treated Plaintiff in an unequal and unfair manner without any rational or legitimate basis.

As noted already, “bare assertions ․ amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional [ ] claim,’ for the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth.” Moss, 572 F.3d at 969. The second amended complaint lacks factual allegations sufficient to plausibly allege a “conspiracy” and that said conspiracy resulted from a municipal policy or practice as required to state claim for municipal liability pursuant to Monell. See, e.g., Lacey v. Maricopa Cnty., 693 F.3d 896, 935–36 (9th Cir. 2012) (existence of conspiracy adequately alleged where, among other reasons, the complaint “detail[ed] reasons for why each [conspirator] had a motive”); Sanchez v. Aviva Life & Annuity Co., No. C-09-1454 FCD, 2010 WL 2606670, at *4 (E.D. Cal. June 28, 2010) (finding a conspiracy sufficiently alleged when the complaint included “detailed allegations regarding the nature of the conspiracy, the communication and interaction between [the members of the conspiracy], the nature and mechanics of the [acts taken in furtherance of the conspiracy], and the motives of the alleged[ ] conspiring parties.”); Gaetz v. City of Riverside, 722 F. Supp. 3d 1054, 1067–70 (C.D. Cal. 2024). An equal protection violation is not plausibly pleaded because the complaint does little more to support the claim than state that plaintiffs are Spanish-speaking and Hispanic. It includes no further facts suggesting a conspiracy or Monell liability regarding any equal protection violation.

Accordingly, plaintiffs’ Section 1985(3) conspiracy claim is also dismissed with leave to amend.

V. Plaintiffs fail to state their third § 1986 “Neglect to Prevent Violation [o]f Civil Rights Laws” claim against the City of Mountain View and the Mountain View Police Department.

“Section 1986 authorizes a remedy against state actors who have negligently failed to prevent a conspiracy that would be actionable under § 1985.” Cerrato v. S.F. Cnty. Coll. Dist., 26 F.3d 968, 971 n.7 (9th Cir. 1994). “A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Because the Court dismisses the § 1985 claim with leave to amend, this claim also fails and is dismissed with leave to amend.

VI. Plaintiffs fail to state their fourth § 1983 “Unconstitutional Custom, Policy or Procedure” claim and their fifth § 1983 “Survival Action” claim against the City defendants.

Plaintiffs’ fourth and fifth claims are brought under § 1983 and focus on the City's pool inspection policies and practices, alleging that the City “had a custom of being deliberately indifferent, arbitrary, knowingly and[/]or acting willfully blind whether older pool enclosures or fences endangered the health, safety and welfare of young children” and that the “consequences of these policies, practices and customs with respect to the Decedent[’s] ․ Fourteenth Amendment rights of depriving Decedent of life and liberty, Plaintiffs, and other individuals similarly situated.”

Defendants argue that these claims are precluded under the doctrine of collateral estoppel based on plaintiffs’ prior state court action against the County defendants. Because the City defendants were not parties to that action, the nonmutual issue preclusion standard applies. Accordingly, preclusion is “appropriate only if (1) there was a full and fair opportunity to litigate the identical issue in the prior action, (2) the issue was actually litigated in the prior action, (3) the issue was decided in a final judgment, and (4) the party against whom issue preclusion is asserted was a party or in privity with a party to the prior action.” Syverson v. Int'l Bus. Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007). That standard is not satisfied here because the issues in plaintiffs’ second amended complaint are not identical to those decided in the previous state action. The state action addressed only the County's liability under state law for Ayden's wrongful death, whereas this action involves the City's liability under federal constitutional law.

Defendants separately suggest that these claims do not sufficiently plead municipal liability under Monell because plaintiffs do not allege that the policies and practices of the City are themselves unconstitutional. But Monell requires only that a municipality's policies or practices be responsible for the plaintiffs’ constitutional injury, not that those policies or practices be inherently unconstitutional. See Clouthier, 591 F.3d at 1249–50. Plaintiffs’ second amended complaint identifies several related City policies that purportedly resulted in Ayden's death, including the policy of ignoring grandfathered-in legal nonconforming structures for financial incentive, the policy of exempting properties from being inspected for eight years or longer, the policy of providing property owners with a checklist specifying serious violations, the policy of labeling nonconforming pool enclosures as non-serious violations, and the policy of allowing property owners to self-certify every two years. If these policies were responsible for a constitutional injury, they could provide a basis for Monell liability whether or not they are otherwise constitutional.

The problem with plaintiffs’ fourth and fifth claims is not plaintiffs’ failure to identify a municipal policy but their failure to explain how any of these polices resulted in constitutional harm. Plaintiffs assert that the policies “unreasonably deprived Ayden of his right to enjoy bodily integrity life free from catastrophic injury or enjoy the benefits of pursuing happiness” under the Fourteenth Amendment, but they have identified no authority recognizing such a constitutional injury, and do not explain how the challenged policies otherwise violated any of Ayden's procedural or substantive due process rights.⁴

Because plaintiffs have not identified a constitutional harm that can be tied to any of the identified municipal policies, the Court dismisses the fourth and fifth claims with leave to amend.

VII. Plaintiffs fail to state their sixth § 1983 “Policy That Fails to Prevent Violations of Law” claim.

Plaintiffs’ sixth claim references both their First and Fourteenth Amendment theories and asserts that “the policies of the Defendants, [the] City of Mountain View, and [the] Mountain View Police Department were not adequate to prevent violations of law by its Departments, officers and employees.” To proceed on a claim premised on a failure to protect constitutional rights, however, a plaintiff must show not merely that the policy at issue was inadequate but that the policy “ ‘amounts to deliberate indifference’ to the plaintiff's constitutional right[,] and that the policy caused the violation, in the sense that the [municipality] could have prevented the violation with an appropriate policy.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (cleaned up).

Even assuming that plaintiffs state a cognizable First Amendment retaliation claim, plaintiffs do not assert facts plausibly asserting that the City defendants were deliberately indifferent to any violation of their constitutional rights and that this indifference led to that violation.⁵ Accordingly, this claim is also dismissed with leave to amend.

VIII. Plaintiffs’ fail to state their seventh § 1983 “State Created Danger” claim.

Plaintiffs’ state-created danger claim, which arises under the Due Process Clause of the Fourteenth Amendment, alleges that the City “acted affirmatively in creating the danger and peril to Decedent” via its pool inspection policies, by, among other things, “adopting the Multi Family Housing inspections program that was riddled with issues and did nothing to actually promote or protect the health and safety of the local residents and tenants in Mountain View when it came to private pool structures, enforcing its policies, customs and procedures, the lack of proper training when it came to identifying the danger a low chain link fence surrounding a pool posed to children.”

As the Ninth Circuit has explained, “[t]he Due Process Clause is a limitation on state action and is not a ‘guarantee of certain minimal levels of safety and security.’ ” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). “Simply failing to prevent acts of a private party is insufficient to establish liability.” Id. (citing Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011)). “The general rule is that a state is not liable for its omissions and the Due Process Clause does not impose a duty on the state to protect individuals from third parties.” Id. (cleaned up).

There are two exceptions to this general rule. First, a special relationship between the plaintiff and the state may give rise to a constitutional duty to protect. Second, the state may be constitutionally required to protect a plaintiff that it “affirmatively places ․ in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’

Id. (citations omitted); see also Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 (9th Cir. 2006) (holding that the officer “affirmatively created a danger to [the plaintiff] she otherwise would not have faced” by informing her assailant of the accusations her family had made against him before they “had the opportunity to protect themselves from his violent response to the news ․ [thus] creat[ing] ‘an opportunity for [him] to assault [the plaintiff] that otherwise would not have existed’ ” (alterations omitted) (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992))).

Accordingly, to succeed on their claim that the City affirmatively exposed Ayden to a greater risk of a known danger, plaintiffs must establish three elements: (1) that the City's affirmative actions created or exposed them to an actual, particularized danger that they would not otherwise have faced; (2) that the injury they suffered was foreseeable; and (3) that the City was deliberately indifferent to the known danger. Martinez, 943 F.3d at 1271. Here, plaintiffs allege that Ayden was affirmatively placed in danger by City officials’ acts of

discovering that the pool enclosure did not meet height requirements of state law and local ordinances, notifying the property owner that the pool fence did not meet height requirements, changing the local ordinances to avoid the need to have property owners make changes to non-complaint structures on their properties, reporting that the property owners were working on larger plan for the area without any intent by the owner to do so, then issuing a certificate of compliance for the property under California law certifying the property owner was in compliance with State law and local ordinances, then granting property owners an eight year exemption from city building, fire and or environmental property inspections, to which the eight year exemption period expired on the same year and that Decedent Ayden Noe Rivera gained access to the pool are via the non-compliant chain link fence and drowned.

Even if some of this conduct might involve the kind of “affirmative action” that can potentially support a state-created danger claim, plaintiffs’ allegations are insufficient to plead such a claim here because Ayden would have faced the same danger of the unsafe apartment pool absent the City's actions. At its core, plaintiffs’ complaint is that the City defendants failed to remedy that problem. As noted already, however, the Due Process Clause imposes no such obligation on government officials. Martinez, 943 F.3d at 1271; see also id. at 1272 (holding that a police officer's failure to inform domestic violence victim of her rights or options and failure to arrest the alleged perpetrator did not warrant application of the state-created danger exception); Owen v. City of Hemet, No. ED CV 19-1388-JWH(E), 2020 WL 7978503, at *9 (C.D. Cal. Dec. 15, 2020), report and recommendation adopted, No. ED CV 19-1388-JWH(E), 2021 WL 606820 (C.D. Cal. Feb. 16, 2021), aff'd, No. 21-55240, 2022 WL 16945887 (9th Cir. Nov. 15, 2022) (“Plaintiff does not allege facts showing that Defendants took any affirmative act that created any danger to Plaintiff above and beyond the danger Plaintiff allegedly experienced due to the purported wrongdoing of the private parties who owned or managed the [ ] property.”); Hill v. San Francisco Housing Authority, 207 F.Supp.2d 1021, 1031 (N.D. Cal. 2002) (finding insufficient plaintiffs’ allegations that defendant “failed to take steps which would have reduced the risk that plaintiffs would be injured in a fire caused by third persons”).

Accordingly, plaintiffs’ state-created danger claim is also dismissed with leave to amend.

IX. Plaintiffs’ eighth § 1983 malicious prosecution claim fails.

Plaintiffs’ eighth claim alleges that plaintiff Pedro Rivera was maliciously prosecuted in violation of the Fourth Amendment. The elements of a malicious prosecution claim are “(i) the suit or proceeding was ‘instituted without any probable cause’; (ii) the ‘motive in instituting’ the suit ‘was malicious,’ which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and (iii) the prosecution ‘terminated in the acquittal or discharge of the accused.’ ” Thompson v. Clark, 596 U.S. 36, 44 (2022).

Plaintiffs fail to plead facts to plausibly suggest that the prosecution was initiated without probable cause. See Bouari v. United States, No. 21-16762, 2023 WL 1794241, at *1 (9th Cir. Feb. 7, 2023). The existing complaint contains only a conclusory allegation that no probable cause existed, that the City defendants “ignored evidence showing that it would not have been possible for Pedro Rivera to have committed felony child endangerment at the time it was actually committed” and “fabricated evidence further incriminating Mr. Rivera,” that Rivera's counsel discovered the evidence that exonerated Pedro Rivera within seven days of beginning his investigation, and that they City defendants could have uncovered that evidence with even a rudimentary investigation. The complaint does not identify that evidence or include other nonconclusory factual allegations sufficient to plausibly allege that the proceeding was instituted without probable cause.⁶ Accordingly, this claim is dismissed with leave to amend.

X. Plaintiffs’ ninth claim, which is labeled as a § 1983 “Monell” claim against the City of Mountain View, fails.

Plaintiffs’ ninth claim focuses on the City's alleged policy, practice, or custom of unconstitutional misconduct in the investigation of criminal offenses, including “the failure to conduct more than a sketchy investigation of any given offense, the prosecution of defendants on minimal evidence, fabricating evidence, and the withholding of exculpatory evidence.” Plaintiffs fail to plausibly allege this claim with nonconclusory factual details beyond what was quoted in the preceding sentence. Plaintiffs have not shown that it was department policy or custom to engage in the alleged investigatory misconduct, and they “cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident of unconstitutional action by a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989). Accordingly, this claim fails and is dismissed with leave to amend.

XI. Plaintiffs’ tenth claim for defamation against the City of Mountain View and the Mountain View Police Department fails.

Plaintiffs’ tenth claim alleges that plaintiffs were defamed when “the City of Mountain and the Mountain View Police Department told thousands of People via multiple media outlets and social media that Pedro Rivera had been arrested for the endangering his son that led to his son's death.” “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” Jackson v. Mayweather, 10 Cal. App. 5th 1240 (2017). Defendants argue that the statements are true, which is an absolute defense to defamation liability, because Rivera was arrested for said charge. Plaintiffs argue that this is a “controverted issue of fact that should be presented to the Trier of fact” but plaintiffs’ complaint does not plausibly allege the statement was false.⁷ Accordingly, this claim is dismissed with leave to amend.

XII. Plaintiffs’ eleventh § 1983 “Retaliation in Violation of Civil Rights” claim against the City of Mountain View and the Mountain View Police fails.

Plaintiffs’ eleventh claim repackages their malicious prosecution claim as a First Amendment retaliation claim. “[A] plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” Nieves v. Bartlett, 587 U.S. 391, 402 (2019). As discussed above in Sections IX and X, plaintiffs’ eleventh claim fails because the complaint does not contain factual allegations sufficient to plausibly allege both that the officers lacked probable cause when they arrested Rivera and that it was a municipal policy or practice that caused the constitutional injury. At minimum, additional facts detailing the evidence that purportedly demonstrated the absence of probable cause and the relevant City defendants’ access to that evidence must be alleged to plausibly plead such a claim.

CONCLUSION

For the reasons discussed herein, plaintiffs’ second amended complaint fails to state a claim upon which relief can be granted. Accordingly, defendants’ motion to dismiss is granted with leave to amend. Any amended complaint addressing the deficiencies in the complaint must be filed within 21 days of this Order.

IS SO ORDERED.

FOOTNOTES

1.   For the purposes of defendants’ Rule 12(b)(6) motions, the Court accepts as true the allegations in the second amended complaint.

2.   Though the front cover of the second amended complaint lists 12 claims, only 11 claims are set forth in the body of the complaint.

3.   In fact, the complaint is ambiguous as to whether it sues Gunderson, Schmidt, or Donato at all, because it does not list them as a defendant to any of the specific causes of actions, which name only the City of Mountain View and the Mountain View police and fire departments. The Court assumes for the purpose of its analysis that the claims are also against the individually named officials.

4.   To the extent plaintiffs attempt to rely on a state-created danger theory, that issue is addressed in Section VIII.

5.   As explained earlier, the second amended complaint pleads no cognizable Fourteenth Amendment violation.

6.   That the prosecution ultimately concluded with a dismissal due to lack of probable cause is not enough on its own to plead this element. Rather, plaintiffs must plead that probable cause to institute the prosecution was lacking at the time it was instituted.

7.   Defendants also argue that their statements are privileged. California privileges “a fair and true report in, or a communication to, a public journal ․ of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” Cal. Civ. Code § 47. The purpose of this privilege “is to ensure the public interest is served by the dissemination of information about events occurring in official proceedings and with respect to verified charges or complaints resulting in the issuance of a warrant.” Burrill v. Nair, 217 Cal.App.4th 357, 397 (2013) disapproved of in part on other grounds in Baral v. Schnitt, 1 Cal. 5th 376, 391 (2016). Should this claim be included in a subsequent amended complaint, the parties should address whether defendants’ statements onsocial media constituted statements to “a public journal.”

P. Casey Pitts, United States District Judge