Opinion
CV 23-7238-SSS(E)
12-23-2024
CHRISTINE GRALOW, Plaintiff, v. CITY OF PALOS VERDES ESTATES, ET AL., Defendants.
REPORT AND RECOMMENDATION OF OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Sunshine Suzanne Sykes, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On August 24, 2023, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. section 1983. On September 15, 2023, Plaintiff paid the filing fee.
On February 27, 2024, Plaintiff filed a First Amended Complaint (“FAC”). The FAC named as Defendants the City of Palos Verdes Estates (the “City”), Officer Jonathan Ix, Detective Sean Crisfield, Debra Baumgartner, Ellyza Baidiango, Justin-Villa Care and Ziba Hospice. The FAC asserted the following claims: (1) false arrest and false imprisonment, in alleged violation of the Fourth Amendment, against Defendants the City, Ix and Crisfield (collectively, the “City Defendants”); (2) malicious prosecution, in alleged violation of California Civil Code section 1038, against the City Defendants; (3) defamation, in alleged violation of California Civil Code sections 44 through 47, against Defendants Baumgartner, Baidiango, Ziba Hospice and Justin-Villa Care; (4) filing a false police report, in alleged violation of California Penal Code section 148.5, against Defendants Baumgartner, Baidiango, Ziba Hospice and Justin-Villa Care; (5) false arrest and false imprisonment, in alleged violation of the Bane Act (California Civil Code section 52.1), against the City Defendants; (6) intentional infliction of emotional distress, in alleged violation of California Civil Code section 1708.7, against Defendants Baumgartner, Baidiango and Justin-Villa Care; and (7) invasion of privacy, in alleged violation of California Penal Code section 637.2(b) , against Defendants Baidiango and Justin-Villa Care.
On March 5, 2024, Defendant Debra Baumgartner filed a “Special Motion to Strike First Amended Complaint” (“Motion to Strike”) pursuant to California Code of Civil Procedure section 425.16. On April 15, 2024, Plaintiff filed a “Motion for Leave to File Second Amended Complaint” (“Motion to Amend”). On May 22, 2024, the Magistrate Judge issued a “Report and Recommendation, etc.” addressing the Motion to Strike and the Motion to Amend. On June 20, 2024, the District Judge issued an “Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,” in which: (1) Defendant Baumgartner's Motion to Strike was granted only as to Plaintiff's claim for filing a false police report, and the Court struck that claim with prejudice and without leave to amend; (2) the Motion to Strike was denied without prejudice in all other respects; (3) Plaintiff's Motion to Amend was denied; but (4) Plaintiff was granted leave to file a Third Amended Complaint consistent with the Report and Recommendation and the Order.
On July 19, 2024, Plaintiff filed a Third Amended Complaint (“TAC”). The TAC names the City Defendants, Debra Baumgartner, Ellyza Baidiango and Justin-Villa Care as Defendants.
The TAC states that “Plaintiff dismisses Ziba Hospice as a defendant for all causes of action in this case” (TAC, p. 3). Thus, Ziba Hospice is no longer a Defendant in this action.
On August 2, 2024, Defendant Baumgartner filed an Answer to the TAC. On August 30, 2024, Defendants Baidiango and Justin-Villa Care each filed Answers to the TAC. On October 2, 2024, the City Defendants filed a “Motion to Dismiss, etc.” On October 31, 2024, Plaintiff filed an Opposition.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
In the TAC, Plaintiff alleges:
On August 26, 2022, Plaintiff and her mother Ruth Gralow (“Ruth”) planned to visit Ruth's sister, Mary Baumgartner (“Mary”), at Mary's home in the City (TAC, ¶ 24). Prior to the visit, Mary had suffered a stroke, was bedridden and could not speak (id., ¶¶ 24, 28). Due to her condition, Mary had a home health aide Ellyza Baidiango (“Baidiango”), who was employed by Justin-Villa Care (id.).
Upon their arrival, Plaintiff and Ruth entered Mary's home and walked downstairs to visit Mary (id., ¶ 28). Plaintiff “became worried that Mary was in pain and discomfort” and asked Baidiango to contact Mary's daughter, Debra Baumgartner (“Baumgartner”) (id., ¶¶ 30-31).
Baumgartner arrived at Mary's home with a male companion (id., ¶ 38). Baumgartner was “extremely inebriated,” “slurring her words,” and “behaving belligerently” (id.). Baumgartner “attempted to physically batter Plaintiff” and Baumgartner's friend had to restrain Baumgartner (id., ¶ 41).
Baumgartner called the police (id., ¶ 42). Officer Ix responded to the call (id., ¶ 44). Officer Ix contacted Plaintiff and Ruth in the driveway of Mary's house and had Plaintiff sit on the curb while Officer Ix went into the house (id.). Officer Ix interviewed Baidiango and Baumgartner (id., ¶ 45). Baidiango “accused Plaintiff of completely removing Mary's nasal cannula, while holding [Mary's dead husband's] picture and stating, ‘You need to be with your husband,' and ‘You don't want it in, I'll pull it out'” (id., ¶ 45, 49, 52). In addition, Baidiango told Officer Ix that Baidiango “witnessed Plaintiff remov[ing] oxygen tubes twice . . . believing both times that Plaintiff was attempting to murder her aunt. . . .” (id., ¶ 53). Officer Ix confirmed that Baidiango would have had a “clear and unobstructed view” when Plaintiff allegedly removed Mary's nasal cannula (id., Ex. 1, pp. 4-5). When questioned by Officer Ix, Plaintiff denied removing the oxygen tubes (id., ¶¶ 44, 49).
A more detailed account of the statements allegedly given to Officer Ix by Plaintiff, Baidiango and Baumgartner is set forth below.
Officer Ix arrested Plaintiff for attempted murder, aggravated assault and elder abuse (id., ¶¶ 44, 66). Detective Crisfield conducted a subsequent investigation, including talking to Baidiango, and forwarded the matter to the District Attorney's office. Plaintiff was held in a County jail for five days (id., ¶ 71). Ultimately, the “Torrance D.A.'s office” declined to prosecute (id., ¶ 49).
Plaintiff seeks compensatory and punitive damages (id., p. 32).
PLAINTIFF'S CLAIMS
Plaintiff asserts six claims in the TAC:
1. False arrest and false imprisonment, in alleged violation of the Fourth Amendment, against the City Defendants (TAC, ¶¶ 73-76).
2. Malicious prosecution, in alleged violation of California Civil Code section 1038, against the City Defendants (id., ¶¶ 77-78).
3. False arrest and false imprisonment, in alleged violation of the Bane Act (California Civil Code section 52.1), against the City Defendants (id., ¶¶ 79-83).
4. Defamation, in alleged violation of California Civil Code sections 44 through 47, against Defendants Baumgartner, Baidiango and Justin-Villa Care (id., ¶¶ 84-86).
5. Intentional infliction of emotional distress, in alleged violation of California Civil Code section 1708.7, against Defendants Baumgartner, Baidiango, Justin-Villa Care and Ix (id., ¶¶ 87-91).
6. Invasion of privacy, in alleged violation of California Civil Code section 1708.8(b), against Defendants Baidiango and Justin-Villa Care (id., ¶¶ 92-93).
STANDARDS GOVERNING MOTIONS TO DISMISS
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotations omitted). “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.” Id. The Court ordinarily must construe a pro se litigant's pleading liberally and hold a pro se plaintiff “to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
The Court must accept as true all non-conclusory factual allegations contained in the complaint and must construe the complaint in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). “Generally, a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion.” Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider “only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted); Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.”) (citations omitted; emphasis in original).
The Court may not dismiss a complaint without leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d at 1212 (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (citation and quotations omitted).
DISCUSSION
I. The TAC Fails to Plead a Cognizable Fourth Amendment Claim.
“In the Fourth Amendment context, an arrest is lawful . . . only if it is accompanied by probable cause to believe that the arrestee has committed, or is committing, an offense.” Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir. 2012) (citation and quotations omitted). Probable cause exists “if, under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.” Id. (citations and quotations omitted; original alterations).
Viewing the allegations in the TAC in the light most favorable to Plaintiff, Officer Ix had probable cause to arrest Plaintiff on August 26, 2022. According to TAC, Baidiango provided the following statement to Officer Ix:
At approximately 6:30 p.m., Baidiango heard extremely loud banging on the front door of Mary's house. Baidiango opened the door, and Plaintiff entered Mary's house uninvited. After various verbal altercations between Plaintiff and both Baidiango and Ruth, Plaintiff was left downstairs alone with Mary while Baidiango and Ruth remained upstairs. Plaintiff shouted to Ruth, “‘Don't go downstairs with your sister, let her go,'” and that Ruth was being selfish. Baidiango “walked back downstairs and was standing in the hallway, where she had a clear/unobstructed view of the master bedroom.” While Baidiango was standing in the hallway outside of Mary's room, Baidiango observed Plaintiff standing at Mary's bedside holding a framed photograph of Mary's deceased husband. Baidiango then
heard Plaintiff say, ‘“You don't want it in, I'll pull it out,' while looking directly at Mary.” Baidiango saw Plaintiff “completely remove the nasal cannula (oxygen tube) from [Mary's] nose/nostrils.” Baidiango heard Plaintiff say, “'You need to be with your husband,' while still holding/showing [Mary] the photograph and looking directly at [Mary].” Baidiango believed Plaintiff “was attempting to deprive [Mary] of oxygen for the purpose of ending her life.” Baidiango yelled at Plaintiff and told Plaintiff to resecure Mary's oxygen tube, “which she eventually did.” Plaintiff deprived Mary of oxygen for approximately one minute and thirty seconds. Shortly thereafter, Baidiango saw Plaintiff remove Mary's oxygen tubes a second time, while still holding Mary's deceased husband's photo and looking directly at Mary. Baidiango believed that Plaintiff again was attempting to deprive Mary of oxygen for the purpose of ending Mary's life. Baidiango told Plaintiff to resecure Mary's oxygen tube, and Plaintiff complied. Baidiango estimated that Plaintiff deprived Mary of oxygen for approximately ten to twenty seconds. Plaintiff walked upstairs and exited the house. Baidiango called Baumgartner and asked Baumgartner to return to the house. Thereafter, Baumgartner called the police.(TAC ¶¶ 45, 49, 52; TAC, Ex. 1, pp. 4-6).
While examining Mary's bedroom, Officer Ix allegedly observed the photograph of Mary's deceased husband and saw that Mary was lying in bed, could not communicate, and received oxygen through a nasal cannula (id., p. 6). Officer Ix stated that he confirmed Baidiango would have had an unobstructed view from approximately twenty feet away when Plaintiff allegedly removed the oxygen tubes from Mary (TAC, Ex. 1, pp. 4-5). Officer Ix also stated that he interviewed Plaintiff, who denied removing Mary's oxygen, but claimed that Mary had said “she ‘is ready to go'” (id., p. 6). Based on Baidiango's and Plaintiff's statements, as well as Officer Ix's own observations at the scene, a prudent person would have concluded that there was a fair probability that Plaintiff had committed a crime.
Plaintiff appears to argue an alleged lack of corroboration for Baidiango's statements. However, for purposes of probable cause, “a detailed eye-witness report of a crime is selfcorroborating; it supplies its own indicia of reliability.” United States v. Elliott, 893 F.2d 220, 223 (9th Cir.), cert. denied, 498 U.S. 904 (1990) (citations and quotations omitted); see also Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009) (report by a “citizen witness” is “generally presumed reliable”). In any event, additional corroboration existed here, including Officer Ix's personal observations and Plaintiff's statements to Officer Ix (see TAC, Ex. 1, pp. 4-6).
Contrary to Plaintiff's apparent argument, under the Fourth Amendment, probable cause to believe a person committed any criminal offense justifies an arrest, regardless of what offense(s) may have been alleged during or after the arrest. See Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004); Edgerly v. City and County of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010). Moreover, probable cause here existed for the crimes articulated by Officer Ix in the police report. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” People v. Lee, 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 410, 74 P.3d 176, 183 (2003). A person commits elder abuse when he or she “willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering. . . .” Cal. Penal Code § 368(a). A simple assault involves “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another,” and actual injury is not required. Cal. Penal Code § 240; People v. Navarro, 212 Cal.App.4th 1336, 1344, 152 Cal.Rptr.3d 109, 115 (2013). Based on Baidiango's presumptively reliable report that Plaintiff twice removed Mary's oxygen tubes while holding a photo of Mary's deceased husband and saying to Mary, “you need to be with your husband,” probable cause existed to arrest Plaintiff for any of these crimes.
Plaintiff's allegations regarding her interactions with Officer Ix prior to August 26, 2022 (see TAC, ¶¶ 17-23), are not relevant to the finding of probable cause. “If the facts known to an arresting officer are sufficient to create probable cause, the arrest is lawful, regardless of the officer's subjective reasons for it.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006) (citation omitted).
Plaintiff also appears to argue that Officer Ix, and later Detective Crisfield, did not conduct a sufficient investigation. However, “the police have no affirmative obligation to investigate a crime in a particular way.” See Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994). In addition, “[w]hile an officer may not ignore exculpatory evidence that would negate a finding of probable cause, once probable cause is established, an officer is under no duty to investigate further or to look for additional evidence which may exculpate the accused.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1147 (9th Cir. 2012) (citation and quotations omitted). There are no specific factual allegations plausibly demonstrating that Officer Ix or Detective Crisfield ignored exculpatory evidence that would have negated probable cause (see TAC, Ex. 1, pp. 4-6, 10-11).
Plaintiff's denials of any wrongdoing do not defeat the Motion. At issue here is whether there was probable cause to arrest and hold Plaintiff, not whether Plaintiff had in fact committed a crime. To the extent that Plaintiff argues inconsistencies in police and witness versions of the relevant events, none of the alleged inconsistencies negate the existence of probable cause.
Alternatively, Officer Ix and Detective Crisfield are entitled to qualified immunity. The defense of qualified immunity protects government officials from liability for civil damages as long as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable official would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (citations and quotations omitted).
A court must not define clearly established law “at too high a level of generality.” Id. (citations omitted). “It is not enough that a rule be suggested by then-existing precedent; the rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (citations and quotations omitted). “Such specificity is especially important in the Fourth Amendment context, where it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. (citation and quotations omitted); see also City of Escondido v. Emmons, 586 U.S. 38, 42-44 (2019) (in Fourth Amendment excessive force case, appellate court erred by defining, at too high a level of generality, the allegedly “clearly established” right simply as “the right to be free of excessive force”). To show that qualified immunity is unwarranted, a plaintiff must “identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” Dist. of Columbia v. Wesby, 583 U.S. 48, 64 (2018) (citations, ellipses and quotations omitted). “While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate.” Id. (citation and quotations omitted).
In the present case, Plaintiff has failed to identify any precedent placing “beyond debate” the alleged unlawfulness of any of Officer Ix's or Detective Crisfield's challenged actions. In any event, for the reasons set forth above, the undisputed facts show that reasonable officials in Officer Ix's and Detective Crisfield's positions would not have believed that any clearly established law demonstrated the unconstitutionality of their conduct. Accordingly, Officer Ix and Detective Crisfield are entitled to qualified immunity as a matter of law on the facts alleged in the TAC.
II. The TAC Fails to Plead a Cognizable Civil Rights Claim Against the City.
Plaintiff may not sue the City on a theory of respondeat superior, which is not a theory of liability cognizable under 42 U.S.C. section 1983. Ashcroft v. Iqbal, 556 U.S. at 676; Polk County v. Dodson, 454 U.S. 312, 325 (1981). A municipal entity may be held liable under section 1983 only if the alleged wrongdoing was committed pursuant to a municipal policy, custom or usage. See Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Dep't of Soc. Servs, 436 U.S. 658, 691 (1978). “Proof of a single incident of unconstitutional activity is not sufficient to impose liability [against a local governmental entity] unless proof of the incident includes proof that it was caused by an existing, unconstitutional [local government] policy, which policy can be attributed to a [local government] policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985); Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (same).
Plaintiff has failed to allege facts showing the City's liability under these standards. See Ashcroft v. Iqbal, 556 U.S. at 679 (legal conclusions must be supported by factual allegations); Warner v. County of San Diego, 2011 WL 662993, at *3-4 (S.D. Cal. Feb.14, 2011) (“formulaic recitations” of alleged municipal policy, practice or custom insufficient). Plaintiff generally alleges that the City has been “sued for federal civil rights violations multiple times,” including lawsuits filed by former City police officers in 2010 and 2013 (see TAC, ¶¶ 15-16). Plaintiff asserts that these prior lawsuits “provide details” about the City police department's “long history of engaging in discrimination and operating in violation of federal and state civil rights laws” and that the City employed former Police Chief Daniel Dreiling despite accusations of “white supremacist behavior” against Dreiling (id., ¶¶ 15-16). Plaintiff also asserts that the City “knew of a [police department] cultural workplace pattern of civil rights violations since at least 2010 and not only failed to act, but repeatedly rehired a known perpetrator to City leadership positions” (TAC, ¶ 75). Absent allegations of specific facts or circumstances supporting Plaintiff's vague and conclusory statements and linking those statements to the assertedly unconstitutional acts of Officer Ix and Detective Crisfield, Plaintiff's municipal liability claim against the City amounts to nothing more than groundless conjecture. There are no facts from which it plausibly can be inferred that a City policy, custom or practice caused the constitutional violations alleged here. Plaintiff makes no showing how the alleged white supremacist behavior by a former police chief was the “moving force” behind the alleged violation of Plaintiff's constitutional rights. Thus, Plaintiff has failed to allege a municipal liability claim against the City.
Moreover, a plaintiff cannot recover on a municipal liability claim unless the plaintiff's constitutional rights were violated. See, e.g., Yousefian v. City of Glendale, 779 F.3d 1010, 1016 (9th Cir.), cert. denied, 577 U.S. 825 (2015); Ramirez v. City of Buena Park, 560 F.3d 1012, 1025-26 (9th Cir. 2009); Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996), cert. denied, 519 U.S. 1122 (1997). As discussed above, Plaintiff has failed to state any claim for violation of her constitutional rights.
In light of the recommended disposition, the Court need not, and does not, address any other arguments raised in the Motion.
CONCLUSION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) dismissing the Third Amended Complaint; and (2) granting Plaintiff leave to file a Fourth Amended Complaint that is consistent with this Report and Recommendation.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
SUNSHINE SUZANNE SYKES UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Third Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that: (1) the Third Amended Complaint is dismissed; and (2) Plaintiff is granted leave to file a Fourth Amended Complaint consistent with the Report and Recommendation and this Order.
Plaintiff is granted thirty (30) days from the date of this Order within which to file a Fourth Amended Complaint. Any Fourth Amended Complaint shall be complete in itself and shall not refer in any manner to the prior Complaints. Any exhibits referenced in the Fourth Amended Complaint must be attached thereto. Any Fourth Amended Complaint may not include a claim for filing a false police report. Plaintiff may not add defendants without leave of Court. See Fed.R.Civ.P. 21. Failure timely to file a Fourth Amended Complaint that complies with this Order may result in the dismissal of the action. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for failure to follow court order).
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order and the Magistrate Judge's Report and Recommendation on Plaintiff and on all counsel of record.