Opinion
D070078
04-20-2017
JOHN COBB, Plaintiff and Appellant, v. WILLIAM D. GORE et al., Defendants and Respondents.
John Cobb, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, and Mark M. Day, Deputy County Counsel, for Defendants and Respondents County of San Diego, Henry C. Coker, William D. Gore, Nicole Ing, Dan Nguyen, and Jaraal Wallace. Jan I. Goldsmith, City Attorney, and Stacy J. Plotkin-Wolff, Deputy City Attorney, for Defendant and Respondent City of San Diego.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00020053-CU-CR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed in part, reversed in part. John Cobb, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, and Mark M. Day, Deputy County Counsel, for Defendants and Respondents County of San Diego, Henry C. Coker, William D. Gore, Nicole Ing, Dan Nguyen, and Jaraal Wallace. Jan I. Goldsmith, City Attorney, and Stacy J. Plotkin-Wolff, Deputy City Attorney, for Defendant and Respondent City of San Diego.
I.
INTRODUCTION
Plaintiff John Cobb, appearing in propria persona, appeals a judgment of dismissal following the trial court's sustaining, without leave to amend, demurrers filed by the County of San Diego, William D. Gore, Henry C. Coker, Nicole Ing, Dan Nguyen, and Jaraal Wallace (the County defendants) and the City of San Diego (the City).
Cobb has not met his burden as the appellant to demonstrate reversible error with respect to the trial court's sustaining of the demurrers as to the vast majority of the operative pleading. However, as to Cobb's allegations that defendant Nguyen unlawfully obtained Cobb's DNA through an unconsented taking of a buccal swab sample, it appears that Cobb has sufficiently demonstrated the possibility of curing the defects in the operative pleading. We therefore reverse the judgment only insofar as it dismisses defendant Nguyen and does not permit Cobb an opportunity to amend the complaint to allege a civil rights claim against Nguyen based on this allegation. We affirm the judgment in all other respects.
II.
FACTUAL AND PROCEDURAL BACKGROUND
As we describe in further detail in part III, post, the pleadings in this case make it difficult for this court to set forth a cogent factual background. We therefore focus on the procedural history of the case.
This case stems from Cobb's allegations that the named defendants have engaged in a conspiracy against him over multiple decades. Cobb filed the initial complaint in June 2015. The County defendants and the City filed separate demurrers to the complaint. The trial court sustained the defendants' demurrers and granted Cobb 20 days to file an amended complaint.
Cobb filed a first amended complaint, the operative complaint, in November 2015. The first amended complaint ostensibly sets forth 15 federal and state causes of action. The document comprises 43 pages of text and includes at least 222 pages of exhibits and other documentation.
The causes of action are identified/titled as follows: (1) "Denial of the Right to Defend and Denial of Access to the Courts, as Guaranteed by Article 4 and the Fourteenth Amendment of the U.S. Constitution, in Violation of 42 U.S.C. § 1983; Against Individual Defendants"; (2) "Unreasonable Jailing and Search of Plaintiff, in Violation of Plaintiff's Fourth Amendment Right to Liberty and to Privacy, in Violation of 42 U.S.C. § 1983"; (3) "Abuse of Process in Violation of 42 U.S.C. § 1983; Against All Defendants"; (4) "Violation of the First and Fourteenth Amendment: Retaliation Due to Plaintiff's Lawful Speech and Petitioning of the Courts, in Violation of 42 U.S.C. § 1983; Against All Individual Defendants"; (5) "Violation of Federal Civil Rights: 42 U.S.C. § 1985(2) and (3) - Against All Individual Defendants"; (6) "Violation of the F[ir]st, Fourth and Fourteenth Amendment: Violation of 42 U.S.C. § 1986; Against All Individual Defendants"; (7) "Unlawful Custom and Practice in Violation of 42 U.S.C. § 1983; Against Defendants GORE, COKER, County and City"; (8) "Assault and Battery; Against Defendants Does 1-5, Nguyen, and County"; (9) "False Imprisonment; Against Defendants Does 1-10, County and City"; (10) "Civil Conspiracy; Against All Defendants"; (11) "Intentional Infliction of Emotion[al] Distress; Against All Defendants"; (12) "Negligence; Against All Defendants"; (13) "Negligent Employment / Retention / Supervision; Against Defendants GORE, COKER, County and City"; (14) "Violation of California Civil Rights Act; Against All Defendants"; and (15) "Injunction, Against All Defendants."
Both the County defendants and the City demurred to the first amended complaint. The trial court sustained the demurrers, without leave to amend, on the ground that the first amended complaint was, effectively, unintelligible. The court noted that although sustaining a demurrer based on uncertainty is a disfavored approach, "this is the rare case in which the court finds the FAC to be so bad that the defendants legitimately cannot discern what they are being sued for." The court further noted that Cobb had not made any "real effort" to comply with the requirement that he show how he could amend the complaint to assert a viable claim against the defendants. According to the court, the court had provided Cobb an opportunity to attempt to allege viable claims, but "[h]e essentially filed the same rambling, incoherent, farfetched set of allegations he did before." Thus, in the court's estimation, "[h]e has given it his best shot and no purpose would be served by further amendments."
The trial court entered judgment in February 2016. Cobb filed a timely notice of appeal.
III.
DISCUSSION
" 'A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] [¶] The complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] The properly pleaded material factual allegations, together with facts that may be properly judicially noticed, are accepted as true. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory.' " (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 853 (Lee), italics omitted.)
" 'Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. [Citation.] It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. [Citation.] Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The burden is on the plaintiff to demonstrate how he or she can amend the complaint. . . . Plaintiff can make this showing in the first instance to the appellate court.' " (Lee, supra, 107 Cal.App.4th at p. 854, italics omitted.)
Further, an appellate court presumes that the judgment from which an appeal is taken is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) The appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct a de novo review. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Further, an appellant's election to act as his or her own attorney does not entitle him or her to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-209.)
However, canon 3B(8) of the Code of Judicial Ethics provides judges with "the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law[ ] and the canons, to enable [self-represented] litigants[s] to be heard." (Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8), italics omitted.)
Cobb's briefing on appeal consists predominantly of conclusory statements, together with lengthy string citations. In addition, Cobb requests that this court "please read" or "refer" to various documents. While we can assume that Cobb is seeking reversal of the trial court's judgment, it is difficult to ascertain how, precisely, Cobb believes the trial court erred. We therefore look to the operative pleading in an attempt to determine whether there is any basis in the record for reversing the trial court's sustaining of the demurrers without leave to amend. As we shall explain, we find virtually none.
To put it simply, the first amended complaint is rambling, convoluted, and confusing. The claims that Cobb recites in the first amended complaint appear to arise out of Cobb's November 2013 arrest, which he contends was based on the fact that he "stole a sandwich and drink from the Sunshine Market" on November 11, 2013. Cobb appears to further allege that his arrest and the resulting prosecution was part of a coordinated conspiracy against him which, he appears to allege, began in 1993. Although it is not clear from the pleading, Cobb appears to complain about all of his interactions with the criminal justice system, and includes in his complaint references to incidents dating back to 1983. For example, in one paragraph, Cobb alleges:
"In 1983, COBB's public defender did not investigate COBB's mistaken entrance at nighttime into an alleged women's restroom to urinate, and this negligence resulted in COBB pleading to disturbing the peace."
At another point, Cobb alleges:
"It is alleged that Defendants CITY, COKER, ING, WALLACE, and GORE entered into a conspiracy with Judge Kathleen Lewis, the purpose of which was to; stop COBB's equal protection defense in the M178267 (P.C. § 484) case; to stop COBB's discovery regarding the 1993 battery cover-up case; and to stop witness Cilingir from testifying in court."
Cobb further alleges that "[t]hese conspirators accomplished this by unlawfully and purposefully placing and keeping COBB in jail without bail." Elsewhere, Cobb alleges that his "right to the equal protection of the law has been violated" because "Cobb was similarly situate[d] to himself in 2009, when the Superior Court ordered that COBB undergo a competency evaluation."
Another example of the types of allegations in the operative pleading includes the following: "COBB alleges that Judge Lewis, the Defendants, and each of them, have conspired with Jewish Judge Charles Rogers, and with Jewish Prosecutor Tracy Rogers (Judge Rogers' spouse), to keep COBB unlawfully convicted of the 2006 P.C. § 647(k)(1) crime . . . ." Also illustrative of the flavor of the pleading generally is the following allegation: "Further, it is alleged that Briggs, Woodley, T. Rogers, Garland, Kukas, McManus, Ing, and Lewis, have conspired together because they are female, and due to that COBB is a male, and this has constituted class based invidious discriminatory animus in violation of COBB's right to the equal protection of the law."
The remainder of the first amended complaint includes similar language and styling. Although the pleading is replete with "buzzwords" suggesting constitutional "deprivations," it contains little more than uncertain and conclusory allegations of an alleged "conspiracy" against Cobb. We agree with the trial court that it is difficult to understand in any meaningful way what Cobb alleges the defendants did wrong and how those wrongs would permit him relief under the law.
Further, Cobb has not demonstrated that if he were provided another opportunity to amend his complaint, he would be able to state legally cognizable claims against any of the named defendants, with the exception of one issue related to the allegation that his DNA was unlawfully seized while he was in custody through the taking of a buccal swab sample. (See Lee, supra, 107 Cal.App.4th at p. 854.) As we explain below, even construing the pleading in the light most favorable to Cobb, and attempting to make sense of Cobb's complaints against the defendants, there are legal barriers to virtually all of the claims that one might construe the complaint to be raising. A. No amendment can cure the defects in the pleading against the City
Cobb's claims against the City appear to be based solely on his allegations that attorneys from the San Diego City Attorney's Office participated in the "conspiracy" against Cobb, in that they prosecuted him with respect to the 2013 incident, as well as earlier incidents.
There is a significant obstacle to any claims that Cobb is attempting to make against the City based on the conduct of its employees who were acting in the course of their employment in prosecuting Cobb: attorneys who work for the Office of the City Attorney have absolute immunity for their actions related to prosecuting Cobb, under both state and federal law. (See Gov. Code, § 821.6 ["A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause"]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209 [applying Government Code section 821.6]; Imbler v. Pachtman (1976) 424 U.S. 409, 427 [state prosecutors are accorded absolute immunity from section 1983 claims and common law claims for conduct in initiating and pursuing a criminal prosecution].)
Government Code section 815.2, subdivision (b) extends an employee's immunity to that employee's public entity employer: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." Because the attorneys who prosecuted Cobb are absolutely immune from liability for their conduct in initiating and prosecuting those actions, the City is also absolutely immune. As a result, Cobb cannot demonstrate that he could cure the defects of his first amended complaint with respect to the City, such that he should be granted another opportunity to amend. The trial court's sustaining of the City's demurrer, without leave to amend, was proper. B. Cobb cannot demonstrate that amendment can cure most of the defects in the pleading against the County defendants; amendment may be possible only with respect to Cobb's contention that the taking of a buccal swab sample violated his civil rights
Cobb has also named a number of County-related defendants, including the County itself, as well as individuals employed by the Sheriff's office (defendants Gore and Nguyen) and attorneys employed by the Office of the Public Defender, including the Public Defender and two attorneys who apparently were assigned to represent Cobb (defendants Coker, Ing, and Wallace). There are impediments to virtually all of the claims that Cobb appears to be attempting to assert against these defendants that further amendment cannot cure.
1. Defendants Gore and Nguyen have absolute immunity with respect to federal claims for complying with a facially valid court order
Cobb appears to argue that Gore and Nguyen violated his civil rights by taking him into custody for a competency evaluation and not releasing him. However, the operative pleading concedes that the trial court ordered that Cobb be remanded into custody without bail, and includes a copy of the court's order. Those who place an individual in custody "who are charged with executing facially valid court orders enjoy absolute immunity from § 1983 liability for conduct prescribed by those orders." (Engebretson v. Mahoney (9th Cir. 2013) 724 F.3d 1034, 1042, italics added.) Gore and Nguyen are therefore immune from liability for their conduct related to taking Cobb into custody and maintaining him in custody pursuant to the court's facially valid court order. Given the concessions of the pleading, there is no way to amend the pleading to state a federal civil rights claim against these defendants based on this conduct.
2. The operative pleading demonstrates that Cobb cannot assert a cause of action against Gore and/or Nguyen for denial of access to the courts
The County defendants also interpret Cobb's complaint as possibly alleging civil rights claims against Gore and Nguyen based on a theory that during the brief period Cobb was held in custody in 2014, they denied him access to the courts or to resources to present a defense. Documents attached to the operative pleading demonstrate that Cobb successfully filed petitions for habeas corpus with this court and with the Supreme Court during the relevant time period. These petitions for redress contradict Cobb's allegations in this regard and demonstrate that he cannot state a claim for denial of access to the courts. In addition, during this time, Cobb was represented by appointed counsel, through the Office of the Public Defender. "Availability of legal assistance at government expense, if required, is a constitutionally permissible means of access [to the courts]. [Citation.] When such adequate access is provided . . . an inmate may not reject the method provided and insist on an avenue of his or her choosing." (United States v. Wilson (9th Cir. 1982) 690 F.2d 1267, 1271.)
3. Cobb may be able to amend to state a civil rights cause of action against Nguyen for claims related to his contention that Nguyen unlawfully obtained a buccal swab sample from Cobb
To the extent that Cobb appears to be alleging a claim against Gore and Nguyen for federal civil rights violations related to the seizure of his DNA through the taking of a buccal swab from Cobb's mouth, it appears from the allegations of the complaint, and Cobb's briefing on appeal, that Cobb has demonstrated the possibility that he could amend the complaint to state a viable cause of action for an alleged wrongful seizure as to defendant Nguyen. Specifically, although Penal Code section 296 allows for the taking of buccal swab samples from various classes of individuals, it is not clear from the allegations of the first amended complaint that Cobb has conceded facts in the operative pleading that would foreclose his claim that the buccal swab sample was unlawfully taken from him. Although the County defendants contend that Cobb is foreclosed from amending to state a claim for this conduct because he was required to provide a buccal swab sample pursuant to Penal Code section 296, it is not clear from the record on appeal that Cobb is, in fact, subject to the requirements of Penal Code section 296.
Law enforcement officers may lawfully take buccal swab DNA samples when a defendant is arrested for a felony offense. (Pen. Code, § 296, subd. (a)(2)(C) ["Commencing on January 1 of the fifth year following enactment of the act that added this subparagraph, as amended, any adult person arrested or charged with any felony offense"]; Maryland v. King (2013) ___ U.S. ___ (King).) "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." (King, supra, ___ U.S. at p. ___ .) The first amended complaint, however, does not admit that Cobb was arrested for a felony offense in 2013; in fact, documents attached to the complaint appear to demonstrate that Cobb was arrested for a misdemeanor offense.
In addition, the County defendants suggest that Cobb cannot amend to state a valid claim for unlawful buccal swab collection because the first amended complaint and attached documents indicate that Cobb "has prior misdemeanor sex offender convictions." Penal Code section 296, subdivision (a)(3) requires that anyone "who is required to register under Section 290 or 457.1 because of the commission of, or the attempt to commit, a felony or misdemeanor offense" is required to provide a buccal swab sample. However, a review of the record citations provided by the County defendants does not demonstrate that Cobb has suffered a conviction for any misdemeanor that would require him to register as a sex offender pursuant to Penal Code section 290. In the operative pleading, Cobb admits to pleading guilty only to a violation of Penal Code section 647, subdivision (k)(1) (currently section 647, subdivision (j)(1)), which is not one of the offenses listed in Penal Code section 290.
As a result, it is not clear from the record on appeal that Cobb is foreclosed from being able to plead a viable cause of action for relief based on his allegation that Nguyen obtained a buccal swab sample from Cobb without Cobb's consent and without statutory authority, and thereby violated Cobb's constitutional rights. We therefore conclude that the trial court's sustaining of the County defendants' demurrer without leave to amend to attempt to state a cause of action in this regard was an abuse of discretion. The judgment must be reversed insofar as it does not grant Cobb leave to amend his complaint to assert such a claim against Nguyen.
However, to the extent that Cobb is attempting to hold Gore liable for Nguyen's conduct, he has failed to demonstrate that he could amend the operative pleading to assert a viable cause of action against Gore. "A supervisor may be held liable under § 1983 if he or she was personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor's unlawful conduct and the constitutional violation." (Jackson v. City of Bremerton (9th Cir. 2001) 268 F.3d 646, 653, italics added.) Cobb has not suggested how he could amend to allege facts demonstrating that Gore was personally involved in the buccal swab sample taking, or that Gore engaged in unlawful conduct that in any way caused Nguyen to obtain a buccal swab sample from Cobb without consent. We therefore conclude that Cobb cannot amend to state a federal civil rights claim against defendant Gore.
4. Cobb cannot state a federal claim against the Public Defender defendants because his allegations demonstrate that they were not acting as "state actors," but rather, were acting in their role as legal counsel to Cobb
The operative pleading cannot be amended to state a federal civil rights cause of action against the Public Defender defendants Coker, Ing, and Wallace. Cobb argues, for example, that these individuals failed to obtain his release from custody, and acted in "conscious disregard of [his] liberty interest to leave him in jail." An essential element of a federal civil rights claim is that the defendant acted under color of state law. (See, e.g., Long v. County of Los Angeles (9th Cir. 2006) 442 F.3d 1178, 1185.) "[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." (Polk County v. Dodson (1981) 454 U.S. 312, 325.)
5. Any potential federal claims based on Cobb's 1993 and 2006 convictions are barred
As part of the sprawling list of wrongs that Cobb assigns to the County defendants, Cobb appears to argue that the County defendants somehow prevented him from overturning two of his prior criminal convictions, one in 1993 and the other in 2006. To the extent that Cobb is seeking damages related to these prior convictions, a civil rights action for damages is not cognizable. (See Heck v. Humphrey (1994) 512 U.S. 477, 486 (Heck).) "[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [42 United States Code] § 1983." (Heck, supra, at pp. 486-487, citation omitted, italics omitted.) The allegations in the first amended complaint do not demonstrate that any of the requisite scenarios identified in Heck has occurred in this case, and Cobb has not met his burden to indicate that he could allege that either of these convictions has been reversed, expunged, declared invalid, or called into question.
This principle also applies to conspiracy claims brought pursuant to 42 United States Code sections 1985 and 1986. (McQuillion v. Schwarzenegger (9th Cir. 2004) 369 F.3d 1091, 1097, fn.4; Guerrero v. Gates (9th Cir. 2006) 442 F.3d 697, 703 (Guerrero).)
In addition, any civil rights action based on either the 1993 or 2006 conviction would be barred by the two-year limitations period set forth in Code of Civil Procedure section 335.1. (See Guerrero, supra, 442 F.3d at p. 706, fn. 32 [statute of limitations applicable to civil rights claims under section 1983 is that of the forum state].)
6. Cobb cannot amend to state viable state law claims for assault and battery, false imprisonment, or general negligence against the County defendants for their conduct related to holding him in custody
Cobb argues that Gore and Nguyen may be held liable for state law claims for assault and battery, false imprisonment and general negligence, based on his allegations that they handcuffed him, took him into custody and declined to release him pursuant to Judge Lewis' order. Code of Civil Procedure section 262.1 "immunizes the Sheriff from liability for executing 'process and orders' [that] are regular on their face." (George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048, 1054.) The allegations of the first amended complaint, and the documents attached to the pleading, demonstrate that Gore and Nguyen were acting pursuant to a facially valid court order in remanding Cobb to custody without bail; they are therefore immune from liability for executing that order.
Further, to the extent that Cobb is attempting to assert state law claims against the Public Defender defendants for their failure to obtain his release from custody, the only claim for damages that he could bring against these defendants would be a malpractice claim, because they necessarily arise from the attorney client relationship resulting from these defendants' representation of Cobb in a criminal proceeding. Further, any malpractice claim must be supported by allegations that Cobb has been determined by a court to be actually innocent (see Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67 [elements of a cause of action for legal malpractice arising out of a criminal proceeding are (1) the attorney's duty to use a level of skill, prudence, and diligence commonly possessed and exercised by attorneys; (2) a breach of that duty; (3) a proximate causal connection between the breach and the injury; (4) actual loss or damage; and (5) actual innocence of the former criminal defendant].) A plaintiff cannot prove actual innocence unless and until he or she obtains exoneration by postconviction relief. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) The documents attached to the first amended complaint establish that Cobb ultimately pled guilty in the matter, and there is no indication in the record that Cobb has been exonerated. As a result, Cobb cannot establish that he can amend to plead actual innocence with regard to his 2014 conviction.
7. Cobb cannot assert state law claims against the County for general negligence or negligence in hiring, supervision or retention of employees
The County can be liable only as provided by statute, and there is no statutory cause of action for general negligence or negligent employment or supervision of employees. (See De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 253.) Therefore, Cobb cannot amend to assert claims against the County for general negligence or negligent employment or supervision of employees.
8. Cobb cannot assert other state or federal claims against the County
To the extent that Cobb is attempting to hold the County vicariously liable for the acts of its employees, an amendment to attempt to state such a claim would be futile, since we have determined that Cobb is unable to amend to state claims against the individual employees of the County. A public entity is "liable [only] for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee." (Gov. Code, § 815.2, subd. (a).) Thus, with respect to the claims against Gore, Nguyen, and the Public Defender defendants as to which Cobb has not demonstrated the ability to amend, Cobb necessarily cannot demonstrate that he could amend to allege a viable cause of action against the County based on its employees' conduct. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128.)
Although Cobb also argues that defendants Gore and Coker are independently liable for negligence in hiring, supervising and retention of their respective deputies, the County is the employer and therefore, would be the proper party to a negligence in hiring, supervising and/or retaining cause of action.
The only possible conduct for which Cobb could theoretically amend to state a cause of action against the County based on respondeat superior liability would be the alleged unlawful taking of a buccal swab sample from Cobb while he was in custody after his 2013 arrest, to the extent that defendant Nguyen's conduct may give rise to a cause of action against Nguyen, as described in part III.B.3, ante. "A municipality can be sued under section 1983 for 'constitutional deprivations visited pursuant to governmental "custom." ' (Monell[ v. New York City Dept. of Social Services (1978)] 436 U.S. [658,] 690-691.) However, 'Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, . . . a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.' (Id. at p. 691.)" (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1118 (Marshall).)
Thus, to establish a 42 United States Code section 1983 claim against the County, a plaintiff must prove that the governmental entity's employee committed a constitutional violation pursuant to "a formal governmental policy or a long-standing practice or custom which constitutes the standard operating procedure" of the entity. (See Marshall, supra, 238 Cal.App.4th at p. 1118.) To make such a showing, a plaintiff must demonstrate " 'that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged,' and establish a 'direct causal link between the municipal action and the deprivation of federal rights.' [Citation.] Courts are required to 'adhere to rigorous requirements of culpability and causation,' lest 'municipal liability collapse . . . into respondeat superior liability.' [Citation.] This is because, as the United States Supreme Court has 'repeatedly reaffirmed,' in enacting section 1983, 'Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights.' " (Marshall, supra, at pp. 1118-1119.) Cobb has not alleged that Nguyen's action, in taking the buccal swab sample in the absence of statutory authority to do so, was part of a policy or long-standing practice or custom of the County. Nor has Cobb suggested in briefing that he could amend to do so. Therefore, we conclude that the trial court did not abuse its discretion in sustaining the demurrer to the complaint, without leave to amend, with respect to the County.
Cobb does appear to allege that various defendants, including the County, have a "longstanding custom of conspiring to implement criminal prosecutions knowing that there was no probable cause" and similar allegations regarding the purported "conspiracy" against him. There is no suggestion in the operative pleading or the briefing on appeal that there exists a longstanding custom or practice of violating the rights of those in custody by taking buccal swab samples from defendants who are not covered by Penal Code section 296, however. --------
IV.
DISPOSITION
The judgment is reversed only insofar as the judgment is entered in favor of defendant Nguyen. Cobb is granted leave to amend the operative pleading only to assert a cause of action or causes of action related to his contention that defendant Nguyen may be held liable for violating Cobb's federal civil rights as a result of the allegedly unlawful collection of his DNA through the taking of a buccal swab sample.
The judgment is affirmed in all other respects and as to all other defendants.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.