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noting that William S. Hart "limited the viability of the type of vicarious liability claim at issue . . . to situations where the supervisory or administrative personnel have a 'special relationship' with the plaintiff"
Summary of this case from Figueroa v. Kern Cnty.Opinion
No. 2:10-cv-02842 LKK KJN PS
07-05-2012
CHRISTOPHER LINDSAY, Plaintiff, v. YOLANDA FRYSON, individually and in official capacity as Social Worker; YUBA CITY CHILD PROTECTIVE SERVICES, Defendants.
ORDER and FINDINGS AND RECOMMENDATIONS
Presently before the court are defendant County of Yuba's ("County") motions to dismiss plaintiff's Third Amended Complaint and for a more definite statement, filed pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e), respectively (Dkt. No. 41). Because oral argument would not materially aid the resolution of the pending motions, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and appropriate portions of the record in this case and, for the reasons stated below, recommends that the County's motion to dismiss be granted in part and denied in part.
This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
The undersigned summarily denies the County's motion for a more definite statement because the County did not materially brief the merits of that motion. This is the second time that the County filed a motion for a more definite statement and failed to brief the merits of that motion. (See Order & Findings & Recommendations, Jan. 3, 2012, at 2, Dkt. No. 35.) Contrary to the County's counsel's apparent understanding of Federal Rule of Civil Procedure 12, a motion for a more definite statement is not a "throw away" motion that can simply be tacked onto a motion to dismiss. If the County's counsel again file a motion but materially fail to brief that motion, the court may impose monetary sanctions personally on counsel pursuant to Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, Local Rule 110, or the inherent power of the court.
I. BACKGROUND
Plaintiff's Third Amended Complaint alleges claims against: (1) Yolanda Fryson,who is alleged to be have been a social worker employed by the County in the office of Yuba County Child Protective Services ("Yuba CPS") at all times material to plaintiff's claims; and (2) Yuba CPS, on whose behalf the County has appeared. (See Third Am. Compl. ¶¶ 4-5, 10-13.) Plaintiff's claims arise from an alleged failed blackmail scheme perpetrated by Fryson against plaintiff in September and October of 2008. (See id. ¶¶ 16-20.) In short, plaintiff alleges that Fryson used the color of her office and a badge in an attempt to extort $10,000 from plaintiff on the basis of Fryson's fraudulent assertion that allegations of child molestation and domestic violence had been filed against plaintiff. (See id. ¶¶ 17-18.) Because the allegations in the Third Amended Complaint are consistent with, and expand on, the allegations in the Second Amended Complaint, and because the parties and the court are familiar with the essential allegations at issue, the undesigned does not provide an extensive review of the allegations in the Third Amended Complaint here. The allegations material to the pending motion to dismiss will be discussed below as necessary.
Although Fryson filed an answer to plaintiff's original complaint (Fryson's Answer, Dkt. No. 5), she has not yet filed an answer to the Second Amended Complaint or the Third Amended Complaint. The undersigned recommends below that Fryson be ordered to file an answer to the Third Amended Complaint.
However, at the outset, the undersigned recounts the most recent procedural history of this case. The court granted the County's motion to dismiss the Second Amended Complaint in part. (Order, Apr. 12, 2012, Dkt. No. 39.) Relevant here, the court permitted plaintiff's claim alleging violations of plaintiff's Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983 and Monell v. New York Department of Social Services, 436 U.S. 658 (1978), to proceed as pled, but permitted plaintiff leave to add factual allegations to support that claim. (Id. at 2-4 & n.1.) Additionally, the court dismissed plaintiff's claim for negligent supervision, hiring, and retention with leave to amend. (Id. at 4.) Furthermore, the court dismissed plaintiff's claims of fraud and negligent infliction of emotional distress with leave to amend to the extent that plaintiff alleged those claims directly against the County, but ordered that those claims shall proceed as pled to the extent that those claims are premised on a respondeat superior theory of vicarious liability. (Id. at 4-5.)
On May 11, 2012, plaintiff filed a Third Amended Complaint, which alleges five claims for relief, four of which are alleged against Yuba CPS: (1) violation of plaintiff's due process rights under the Fourteenth Amendment to the U.S. Constitution (Third Am. Compl. ¶¶ 31-38); (2) negligent supervision, hiring, and retention (id. ¶¶ 39-51); (3) fraud (id. ¶¶ 52-57); and (4) negligent infliction of emotional distress (id. ¶¶ 69-74). On May 29, 2012, the County filed the pending motions.
The numbered list of claims that appears in the caption of the Third Amended Complaint does not match the numbered claims pled in the body of the Third Amended Complaint. The undersigned refers to the numbering of claims presented in the body of the Third Amended Complaint. Additionally, plaintiff mis-numbered his fifth claim for relief, mistakenly labeling it as his sixth claim for relief. The undersigned will refer to plaintiff's fifth claim for relief when discussing plaintiff's claim for negligent infliction of emotional distress.
Upon initial review of the court's docket, it appears that the County failed to timely file its motion to dismiss and motion for a more definite statement within 14 days of service of the Third Amended Complaint. See Fed. R. Civ. P. 15(a)(3). Plaintiff filed his Third Amended Complaint on May 11, 2012, and the County filed its motions on May 29, 2012. However, upon further review of the filing history it appears that although plaintiff filed his Third Amended Complaint on May 11, 2012, it was entered on the docket—and therefore electronically served on the County—on May 14, 2012. Accordingly, the County timely responded to the Third Amended Complaint.
II. LEGAL STANDARDS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "To survive a motion to dismiss, 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).
In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
III. DISCUSSION
A. Plaintiff's Municipal Section 1983 Claim
First, the County moves to dismiss plaintiff's first claim for relief, which alleges that the County violated plaintiff's due process rights provided by the Fourteenth Amendment. (County's Memo. of P. & A. In Supp. of Mot. to Dismiss ("County's Memo.") at 5-11, Dkt. No. 41, Doc. No. 41-1.) The undersigned recommends that the County's motion be denied insofar as it challenges plaintiff's municipal Section 1983 claim.
In resolving the County's motion to dismiss plaintiff's Second Amended Complaint, the court ordered that plaintiff's due process claim "shall proceed" as pled, stating: "Insofar as Plaintiff's first claim for relief alleges a violation of Plaintiff's Fourteenth Amendment due process rights, Plaintiff's claim shall proceed. Defendants' argument that Plaintiff 'is unable to show that any action or inaction by the COUNTY resulted in a custom, practice or policy,' fails." (Order, Apr. 12, 2012, at 2.) The court also suggested, but did not require, that plaintiff add to his Third Amended Complaint certain allegations from his opposition to the County's motion to dismiss the Second Amended Complaint (id. at 3 n.1), and plaintiff added such allegations (see Third Am. Compl. ¶¶ 28-30, 33). In short, the County has no basis to move to dismiss plaintiff's due process claim because: (1) the court already ordered that plaintiff's due process claim would proceed as previously pled; and (2) if anything, plaintiff's Third Amended Complaint contains more detailed allegations supporting plaintiff's due process claim than the Second Amended Complaint. Accordingly, the County's motion to dismiss should be denied to the extent it challenges plaintiff's municipal Section 1983 claim premised on alleged violations of plaintiff's Fourteenth Amendment due process rights.
B. Plaintiff's Three "Direct" Liability Claims Under California Law
The County moves to dismiss plaintiff's second, third, and fifth claims for relief, which allege claims of negligent supervision, hiring and retention, fraud, and negligent infliction of emotional distress ("NIED"), respectively. (County's Memo. at 11-12.) With the exception of plaintiff's claim of negligent supervision, hiring and retention, the County moves to dismiss these claims only to the extent that plaintiff alleged them directly against the County, as opposed to claims premised on a respondeat superior theory of vicarious liability. (See id. at 11:23-24; see also Order, Apr. 12, 2012, at 4-5 (ordering that plaintiff's fraud and NIED claims shall proceed to the extent that they are premised under a respondeat superior theory).) The County moves to dismiss plaintiff's direct claims on the grounds that such "common law claims are prohibited against public entities" pursuant to California Government Code § 815. (County's Memo. at 11-12.)
As the court has previously explained in this case, California's Government Claims Act immunizes public entities from tort liability in all cases except those where liability is explicitly created by a particular statute. See Cal. Gov't Code § 815(a) ; accord Hoff v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 932, 968 P.2d 522, 526 (1998) (stating that "in California, all government tort liability must be based on statute," and citing Cal. Gov't Code § 815(a)) (citation and quotation marks omitted). The court provided plaintiff with two opportunities to amend his complaints to assert a statutory basis for alleging direct claims of fraud, NIED, and negligent supervision, hiring, and retention against the County. However, plaintiff still has not asserted any statutory basis for alleging such direct liability claims against the County despite repeated opportunities to do so.
The parties do not dispute that the County is a public entity. See Cal. Gov't Code § 811.2 ("'Public entity' includes the state . . . a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State."); see also Third Am. Compl. ¶¶ 5, 12 (alleging that Yuba CPS is a public entity).
The Senate Legislative Committee Comments to California Government Code § 815 provide, in pertinent part:
This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. . . . [T]he practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts. The use of the word "tort" has been avoided, however, to prevent the imposition of liability by the courts by reclassifying the act causing the injury.
Rather than cite a statute that authorizes plaintiff's direct common law claims, plaintiff makes two interrelated, but insufficient and unpersuasive, arguments aimed at saving his direct claims. Plaintiff argues that his claims can proceed because the County "knew or should have known" about Fryson's prior misconduct and criminal behavior. (Pl.'s Opp'n at 5.) Plaintiff also relies on the California Supreme Court's recent decision in C.A. v. William S. Hart Union High School District (hereinafter, "William S. Hart"), 53 Cal. 4th 861, 270 P.3d 699 (2012). (Pl.'s Opp'n at 5; see also Third Am. Compl. ¶ 74.)
Plaintiff's arguments in favor of finding a basis for his direct liability claims fail. At the risk of belaboring the point, plaintiff simply has not cited a statute authorizing his direct liability claims against the County, whether based on a "knew or should have known" standard or otherwise. See, e.g., Eastburn v. Regional Fire Prot. Auth., 31 Cal. 4th 1175, 1183, 80 P.3d 656, 660 (2003) (holding that "direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care" other than the general duty of ordinary care found in California Civil Code § 1714); Zelig v. County of L.A., 27 Cal. 4th 1112, 1131, 45 P.3d 1171, 1184 (2002) (stating that "a public entity may be liable for an injury directly as a result of its own conduct or omission, rather than through the doctrine of respondeat superior, but only 'as . . . provided by statute.'") (emphasis in original) (citing Cal. Gov't Code § 815).
Furthermore, to the extent that plaintiff interprets William S. Hart as supporting his direct liability claims, plaintiff misreads that decision. William S. Hart did not involve the question of when a plaintiff may pursue a direct liability claim against a public entity. Instead, William S. Hart addressed the circumstances under which a plaintiff could pursue a vicarious liability claim, otherwise authorized by California Government Code § 815.2, against a school district where supervisory personnel knew or should have known about an employee's prior conduct or propensities to molest children. See William S. Hart, 53 Cal. 4th at 865, 270 P.3d at 701 (stating that the question presented on appeal was "whether the district may be found vicariously liable for the acts of its employees (Gov.Code, § 815.2)—not for the acts of the counselor, which were outside the scope of her employment, but for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor's propensities and nevertheless hired, retained and inadequately supervised her") (citations and footnote omitted). Plaintiff's reliance on William S. Hart is misplaced to the extent that plaintiff's direct liability claims are concerned.
At bottom, plaintiff has not satisfied the requirement of the Government Claims Act that a plaintiff provide a statutory basis for his or her direct claims against a public entity. Plaintiff failed in this regard despite being given multiple chances to state such a basis. Accordingly, plaintiff's direct liability claims for negligent supervision, hiring, and retention, fraud, and NIED should be dismissed with prejudice.
C. Plaintiff's Vicarious Liability Claim of Negligent Supervision, Hiring, and Retention
Finally, the County moves to dismiss plaintiff's claim for negligent supervision, hiring, and retention to the extent that it is premised on vicarious liability and California Government Code § 815.2, as opposed to direct liability. (County's Memo. at 12; see also Third Am. Compl. 47.) In essence, the County argues that a claim for negligent supervision, hiring, or retention is necessarily a direct liability claim such that a plaintiff cannot pursue that claim under a vicarious liability theory. (County's Memo. at 12 ("Plaintiff's negligent supervision, hiring and retention claim can only be made against the employer. . . . As it can only be a direct claim, it must be dismissed.").) Plaintiff does not directly address the County's argument in his opposition brief. (See Pl.'s Opp'n at 5.)
Pursuant to California Government Code § 815.2(a), a public entity may be sued in tort based on a respondeat superior theory of vicarious liability. See, e.g., Miklosky v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900, 188 P.3d 629, 644 (2008) (noting that "Section 815.2, subdivision (a), codifies the doctrine of respondeat superior as it applies to public entities"); Hoff, 19 Cal. 4th at 932, 968 P.2d at 526 (stating that through Section 815.2(a), "the California Tort Claims Act expressly makes the doctrine of respondeat superior applicable to public employers") (citing Mary M. v. City of L.A., 54 Cal. 3d 202, 209, 814 P.2d 1341, 1344 (1991)). Plaintiff alleges that the County is vicariously liable for its employee's acts pursuant to California Government Code § 815.2. (See Third Am. Compl. ¶¶ 5-6, 47.)
The County is correct insofar as it argues that a claim for negligent supervision, hiring, or retention by its nature typically concerns some direct, wrongful act by an employer. See Delfino v. Agilent Tech., Inc., 145 Cal. App. 4th 790, 815, 52 Cal. Rptr. 3d 376, 397 (Ct. App. 2006) ("Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability."); see also Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1113, 16 Cal. Rptr. 3d 521, 549 (Ct. App. 2004) (noting that the fact that "state public entities always act through individuals . . . does not convert a claim for direct negligence into one based on vicarious liability"). However, the County is not correct to the extent it argues that a claim for negligent supervision, hiring, or retention necessarily or always raises a direct liability claim, and the California Supreme Court has rejected that proposition.
Several district courts have concluded that a claim of negligent hiring, training, or supervision made against a public entity is properly treated as a direct claim, not a vicarious liability claim. See Estate of Bock v. County of Sutter, No. 2:11-cv-00536-MEC-GGH, 2012 WL 423704, at *12-13 (E.D. Cal. Feb. 8, 2012) (unpublished); Justin v. City & County of San Francisco, No. C05-4812 MEJ, 2008 WL 1990819, at *11 (N.D. Cal. May 5, 2008) (unpublished); Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1181 (E.D. Cal. 2008); Reinhardt v. Santa Clara County, No. C05-05143 HRL, 2006 WL 662741, at *6 (N.D. Cal. Mar. 15, 2006) (unpublished); Walker v. County of Santa Clara, No. C 04-02211 RMW, 2005 WL 2437037, at *9 (N.D. Cal. Sept. 30, 2005) (unpublished).
In C.A. v. William S. Hart Union High School District, relied on by plaintiff here and not addressed by the County, the California Supreme Court recently elaborated on the circumstances under which a plaintiff may sue a public entity for negligent hiring, retention, and supervision on the basis of vicarious liability. William S. Hart involved a plaintiff's claim for damages arising from a guidance counselor's sexual harassment and abuse of that minor plaintiff. The court considered whether a public school district could be held vicariously liable, consistent with California Government Code § 815.2, for the conduct of its supervisory and administrative personnel who knew or should have known of the guidance counselor's harassing and abusive propensities but nonetheless hired, retained, and inadequately supervised that counselor. See William S. Hart, 53 Cal. 4th at 865, 270 P.3d at 701. The California Supreme Court held that the plaintiff could legally pursue a vicarious liability claim against the district for negligent hiring, retention, and supervision of the guidance counselor where the claim was premised on the conduct of supervisory and administrative personnel who knew or should have known of the counselor's propensities for misconduct. The court distinguished claims like the one raised in William S. Hart, premised on the acts or omissions of supervisory or administrative personnel, from those asserted in the typical case such as Delfino or Munoz, which either "blurred" the line between direct and vicarious liability or alleged claims that were "inherently" vicarious in that they were alleged against the employer but premised on the acts of the bad acting employee. See William S. Hart, 53 Cal. 4th at 874-75, 270 P.3d at 708.
Critically, however, the California Supreme Court limited the viability of the type of vicarious liability claim at issue in William S. Hart to situations where the supervisory or administrative personnel have a "special relationship" with the plaintiff or a class of plaintiffs. The court reasoned that "a school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, analogous in many ways to the relationship between parents and their children." William S. Hart, 53 Cal. 4th at 869, 270 P.3d at 704 (citations and quotation marks omitted). The court explained that this special relationship imposes obligations beyond a general duty of ordinary care, such that "the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally." Id. at 870, 270 P.3d at 704-05 (footnote omitted). In discussing duty as a limitation on such claims, the court reiterated the role of the special relationship:
Turning to the duty element, we have explained that the potential legal responsibility of District administrators and supervisors for negligently hiring or retaining Hubbell arises from the special relationship they had with plaintiff, a student under their supervision, which relationship entailed the duty to take reasonable measures to protect plaintiff from injuries at the hands of others in the school environment. Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2 . . . .Id. at 877, 270 P.3d at 709.
Here, plaintiff's claim is roughly analogous to the claim in William S. Hart, but does not implicate the type of special relationship described by the California Supreme Court.
Plaintiff alleges that Fryson's supervisors at Yuba CPS had knowledge of Fryson's proclivity to act dishonestly and abuse her authority, citing Fryson's prior discipline for preparing false time sheets and mileage reports, her prior arrest for check fraud, and her prior conviction for grand theft. (See Third Am. Compl. ¶ 27.) Plaintiff further alleges that Fryson's long-time supervisor, Eric Runge, found Fryson to be intimidating and "stated that he believed FRYSON to be dishonest" prior to the events underlying plaintiff's claims. (Id.) Plaintiff contends that despite knowledge of these facts and circumstances, Fryson's supervisors retained Fryson as a paid employee during the pendency of an ongoing investigation into the writing of bad checks and permitted Fryson to retain one of two badges issued to her, all of which facilitated Fryson's attempted extortion of plaintiff. (See id. ¶¶ 27-28, 30, 41.)
Even considering these and other allegations in the Third Amended Complaint substantiating Fryson's supervisors' alleged knowledge of Fryson's propensity for dishonesty, misconduct, and abuse of authority, plaintiff has not identified a special relationship between Fryson's supervisors and plaintiff. In fact, plaintiff has not alleged a duty running from Fryson's supervisors to plaintiff at all. In attempting to define Yuba CPS's duty to plaintiff, which would only support a direct liability claim, plaintiff alleges that Yuba CPS breached its duty of care to plaintiff by: "(a) Failing to require [Fryson] to undergo proper training and supervision as concerns the due process and other civil and constitutional rights of parents and children whom they are investigating and charged with monitoring[;] and (b) Failing to confirm that [Fryson] was sufficiently trained to assure to [sic] conduct investigations without violating Plaintiff's constitutional rights." (Third Am. Compl. ¶ 43.) This alleged duty does not resemble the enhanced duty between a school district's supervisory and administrative personnel and its students. Accordingly, plaintiff cannot state a viable claim of negligent supervision, hiring, and retention under the vicarious liability theory permitted by William S. Hart.
This case is more analogous to de Villers v. County of San Diego, 156 Cal. App. 4th 238, 67 Cal. Rptr. 3d 253 (Ct. App. 2007), which involved claims against a county following a county toxicologist's murder of her husband using a lethal amount of drugs taken from the county coroner's office where the toxicologist worked. Among other claims, the plaintiffs in de Villers alleged that several of the county's employees who acted within the course and scope of their employment negligently hired and supervised the toxicologist, and that such negligence was a substantial factor in the husband's murder. The plaintiffs argued that such negligence by mangers and co-workers supported a vicarious liability claim against the county. Id. at 248-49, 67 Cal. Rptr. 3d at 260. Although decided in 2007, the California Court of Appeal held, consistent with William S. Hart, that in the absence of evidence that any of the county's employees had undertaken a special relationship with the murder victim, those employees could not be personally liable for the criminal acts of their co-worker, thereby defeating the plaintiffs' vicarious liability claim. See de Villers, 156 Cal. App. 4th at 249, 67 Cal. Rptr. 3d at 260. In William S. Hart, the California Supreme Court repeatedly distinguished de Villers as presenting a case where liability was limited by the lack of a special relationship of the type present in a school setting. See William S. Hart, 53 Cal. 4th at 874, 877, 270 P.3d at 707-08, 709-10.
As in de Villers, there are no allegations suggesting that Fryson's supervisors undertook or otherwise had a special relationship with plaintiff. Accordingly, plaintiff's vicarious liability claim of negligent supervision, hiring, and retention is subject to dismissal.
IV. SUMMARY OF POTENTIALLY SURVIVING CLAIMS
For the sake of clarity going forward, the undersigned lists below plaintiff's claims that shall proceed, as pled, assuming that the district judge adopts the undersigned's recommendations in full. To expedite this case, and given the County's inclination to challenge claims that have already been ordered to proceed, the undersigned will not order the filing of a fourth amended complaint as a "clean up" pleading. Instead, assuming the district judge adopts the recommendations made herein, the following claims shall proceed against the County:
• Plaintiff's first claim for relief, alleging a violation of plaintiff's Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983 and Monell.
• Plaintiff's third claim for relief, alleging fraud premised on a respondeat superior theory of vicarious liability.
• Plaintiff's fifth claim for relief, alleging negligent infliction of emotional distress premised on a respondeat superior theory of vicarious liability.
V. CONCLUSION
As stated above, IT IS HEREBY ORDERED that:
1. The County's motion to dismiss plaintiff's Third Amended Complaint is submitted without a hearing, and the July 12, 2012 hearing on that motion is VACATED.
2. The County's motion for a more definite statement is summarily denied. Counsel for the County, attorneys Carl L. Fessenden and Clayton T. Cook, are cautioned that if they again file a motion but materially fail to brief that motion, the court may impose monetary sanctions personally on counsel pursuant to Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, Local Rule 110, or the inherent power of the court. Counsel shall have an opportunity to be heard prior to the imposition of such sanctions.
It is FURTHER RECOMMENDED that:
1. The County's motion to dismiss (Dkt. No. 41) be granted in part and denied in part.
2. Plaintiff's claims of fraud and negligent infliction of emotional distress be dismissed with prejudice, but only to the extent that plaintiff alleged those claims "directly" against the County. Plaintiff's claims of fraud and negligent infliction of emotional distress shall proceed as pled to the extent plaintiff alleged those claims under a respondeat superior theory of vicarious liability.
3. Plaintiff's claim for negligent supervision, hiring, and retention be dismissed with prejudice, in its entirety.
4. The County's motion to dismiss be denied in all other respects.
5. The County and Fryson be ordered to file answers to the Third Amended Complaint, as narrowed, within 14 days of resolution of these findings and recommendations.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED and RECOMMENDED.
______________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE