1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

COLLEEN MCCULLOUGH,

7 Case No. 24-cv-03260-JCS Plaintiff, 8 v. ORDER GRANTING IN PART AND 9 DENYING IN PART MOTION TO

CITY AND COUNTY OF SAN DISMISS

10 FRANCISCO, et al., Re: Dkt. No. 21 11 Defendants.

12 13 I. INTRODUCTION 14 Plaintiff Colleen McCullough brings this excessive force action against San Francisco 15 Police Department (“SFPD”) Sergeant Brendan Caraway, SFPD Captain Mark Cota and the City 16 and County of San Francisco based on events that occurred at a March 2, 2024 pro-Palestine 17 demonstration, when Sergeant Caraway, in the presence of Captain Cota, struck McCullough’s 18 hand with a baton, breaking the metacarpal bone in her left hand in at least three places and 19 requiring surgery. Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 20 Amended Complaint (“Motion”), in which Defendants ask the Court to dismiss four of 21 McCullough’s ten claims (Claims Two, Four, Six and Nine) pursuant to Rule 12(b)(6) of the 22 Federal Rules of Civil Procedure. The Court finds that the Motion is suitable for determination 23 without oral argument and therefore vacates the motion hearing set for October 2, 2024 24 pursuant to Civil Local Rule 7-1(b). The Initial Case Management Conference set for the same 25 date will remain on calendar. For the reasons stated below, the Motion is GRANTED in part and 26 DENIED in part.1 27 1 II. FIRST AMENDED COMPLAINT 2 McCullough is a 27-year-old substitute teacher for Oakland Unified School District “who 3 has been devastated by the genocide occurring in Palestine.” First Amended Complaint, (“FAC”) 4 ¶ 11. On Saturday, March 2, 2024, she participated in “a peaceful march in support of Palestine 5 along with thousands of other concerned Bay Area residents.” Id. ¶ 12. According to 6 McCullough, similar peaceful marches “had been occurring regularly in San Francisco since 7 October 2023, when Israel began its genocidal attack on Palestinians in Gaza with the assistance 8 and material support of the United States of America[ ] . . . without major police interaction with 9 demonstrators.” Id. ¶¶ 13-14. 10 Around 3 p.m., the march turned down Montgomery Street in San Francisco and 11 encountered San Francisco Police Officers, including Captain Mark Cota and Sergeant Brendan 12 Caraway, who had erected a barrier of temporary metal parade fencing along the street that 13 prevented the demonstrators from passing the building that houses the Israeli Consulate. Id. ¶¶ 15- 14 17. McCullough was at the front of the march and was one of many demonstrators lined up 15 against the barrier. Id. ¶ 18. The demonstrators were “peacefully chant[ing] messages in support 16 of Palestine and . . . critical of the United States government in front of the officers.” Id. ¶ 20. 17 According to McCullough, “[w]ithout warning and without lawful provocation or 18 justification, Sergeant Caraway raised his baton up with his right hand and slammed it down 19 towards the barricade.” Id. ¶ 21. He “then observed Ms. McCullough’s left hand on the barricade 20 [and] raised his baton up, this time with both his right and left hand, and brought his baton 21 crashing down on . . . McCullough’s left hand with what appeared to be the force of his entire 22 upper body.” Id. ¶¶ 22-23. “The force of his precision strike pulverized the third metacarpal bone 23 in Ms. McCullough’s left hand.” Id. ¶ 24. 24 McCullough alleges that Sergeant Caraway “used force against at least six peaceful 25 demonstrators including . . . McCullough” in the presence of Captain Cota, who was standing to 26 Sergeant Caraway’s immediate right when Sergeant Caraway’s use of force occurred, but that 27 Captain Cota “failed to intervene in Sergeant Caraway’s excessive use of force despite being in a 1 The blow from Sergeant Caraway’s baton caused McCullough “excruciating pain” and she 2 immediately sought medical attention, going directly to the emergency room, where x-rays 3 revealed “a comminuted (meaning broken in more than three places) and displaced fracture of the 4 third metacarpal on her left hand[,]” which is her dominant hand. Id. ¶¶ 19, 27-28. McCullough 5 underwent hand surgery three days later. Id. ¶ 29. According to McCullough, “she is living in 6 pain as she recovers from surgery[,]” “is unable to work as she recovers, and . . . must rely on 7 assistance from others to perform activities of daily living.” Id. ¶ 30. She further alleges that it is 8 “unclear whether [she] will regain complete hand function.” Id. 9 McCullough alleges that although Sergeant Caraway knew that he struck her hand with his 10 baton “with great and exacting force, he falsified his use of force report and stated that none of his 11 uses of force against any peaceful demonstrator that day had resulted in injury.” Id. ¶ 32. She 12 further alleges that “Captain Cota, who was also in a position to observe the force used by 13 Sergeant Caraway and the likelihood of injury resulting from the extreme force, did not correct 14 Sergeant Caraway’s false report.” Id. ¶ 33. 15 According to McCullough, Sergeant Caraway “has an extensive history of using excessive 16 force[,]” which includes “punch[ing] an arrestee whom he believed was in possession of narcotics 17 numerous times in the face and head” in 2013; “chok[ing] out a man in front of his young child 18 after the man objected to [then-]Officer Caraway’s unsafe driving” that same year; “again 19 chok[ing] out a young man who was visiting San Francisco and skateboarding on Market Street” 20 while in plain clothes in 2015; and “striking the man in the face four times with his closed fist” 21 during an arrest for possession of narcotics while the man was subdued by other officer in 2023. 22 Id. ¶¶ 33-37. 23 Despite this history of excessive force, SFPD “promoted Brendan Caraway to Sergeant and 24 maintained him in that position.” Id. ¶ 38. Furthermore, the Chief of Police, who is employed by 25 the City and County of San Francisco and is “responsible for the imposition of discipline and 26 administration of corrective action when a police officer violates policy and/or the law[,]” “failed 27 to supervise, discipline, and/or train Sergeant Caraway to avoid using such needless and excessive 1 commendation. Id. ¶¶ 38-42. McCullough alleges that “[t]his repeated failure to supervise, 2 discipline, and/or train Sergeant Caraway amounts to ratification by the Chief of Police of 3 Sergeant Caraway’s multiple uses of excessive force.” Id. ¶ 43. 4 On April 8, 2024, McCullough presented a claim to the City and County of San Francisco 5 pursuant to California Government Code section 910 et seq. Id. ¶ 45. Because more than 45 days 6 have passed since she presented her claim, and the City and County of San Francisco has failed to 7 act, the claim is deemed denied by operation of law pursuant to California Government Code 8 section 911.6(c). Id. ¶ 46. 9 McCullough asserts the following claims in her First Amended Complaint: 1) excessive 10 force in violation of the Fourth Amendment and 42 U.S.C. § 121322 against Defendant Caraway 11 (Claim One); 2) retaliation in violation of the First Amendment and 42 U.S.C. § 1983 against 12 Defendant Caraway (Claim Two); 3) failure to intervene to prevent use of excessive force under 13 42 U.S.C. § 1983 against Defendant Cota (Claim Three); 4) Monell liability under 42 U.S.C. § 14 1983 for failure to train and supervise Defendant Caraway against Defendant City and County of 15 San Francisco (Claim Four); 5) violation of the Bane Act, Cal. Civ. Code § 52.1, against all 16 defendants (Claim Five); 6) violation of the Ralph Act, Cal. Civ. Code § 51.7, against Defendants 17 Caraway and Defendant City and County of San Francisco (Claim Six); 7) assault against all 18 defendants (Claim Seven); 8) battery against Defendant Caraway (Claim Eight); 9) negligent 19 hiring, training and retention, under California Government Code §§ 815.2, 820(a), and 820.8, 20 against Defendant City and County of San Francisco (Claim Nine); and 10) negligence under Cal. 21 Civ. Code § 1714 against all defendants (Claim Ten). 22 III. THE MOTION 23 In the Motion, Defendants ask the Court to dismiss the retaliation claim (Claim Two), the 24 Monell claim (Claim Four), the Ralph Act claim (Claim Six), and the negligent hiring, training, 25 and retention claim (Claim Nine) pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis 26 2 The caption of this claim cites 42 U.S.C. § 12132, which prohibits discrimination on the basis of 27 disability. As there are no allegations of disability discrimination in the complaint, the Court 1 that the factual allegations in the FAC are not sufficient to state a claim. Motion at 2. 2 With respect to the retaliation claim, Defendants contend McCullough has not plausibly 3 alleged that Defendant Caraway’s action was substantially motivated by McCullough’s 4 participation in protected activity. Id. at 2, 4-5. Defendants assert that the Monell claim is not 5 adequately alleged because McCullough fails to plead facts sufficient to support a plausible failure 6 to train or ratification theory. Id. at 2, 5-9. According to Defendants, McCullough also fails to 7 allege sufficient facts to support an inference that any defendant had an improper motive for her 8 Ralph Act claim. Id. at 2, 9-10. Finally, Defendants contend there is no viable negligent hiring, 9 training, and retention claim against the City and County of San Francisco under state law. Id. at 10 2, 10-11. 11 IV. ANALYSIS 12 A. Legal Standards Under Rule 12(b)(6) 13 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure 14 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 15 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 16 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage 17 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 18 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 20 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and 21 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the 22 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A 23 complaint must “contain either direct or inferential allegations respecting all the material elements 24 necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 25 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 26 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements 27 of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 1 must plead sufficient factual allegations to “allow[] the court to draw the reasonable inference that 2 the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570). 3 B. Claim Two (First Amendment Retaliation Claim) 4 1. Background 5 In support of Claim Two, McCullough alleges that she was “engaged in a protected 6 activity when she participated in a peaceful protest march in support of a ceasefire in Gaza[;]” that 7 “[t]he protected message of the march was one critical of the government including of the police 8 who impeded the march’s progress[;]” and that “Defendant Brendan Caraway acted under color 9 of law when he used unnecessary and unreasonable force to silence [her] speech.” FAC ¶¶ 51-53. 10 In the Motion, Defendants contend these allegations are too conclusory to raise a plausible 11 inference that “ ‘the protected activity was a substantial or motivating factor in [Sergeant 12 Caraway’s] conduct.’” Motion at 4 (quoting Index Newspapers LLC v. United States Marshals 13 Serv., 977 F.3d 817, 827 (9th Cir. 2020)). Defendants note that McCullough “does not allege 14 Sergeant Caraway holds views or made comments against the protest, against Plaintiff, or against 15 the alleged viewpoints of the march” and contends “[t]here are no facts to plausibly support an 16 inference that Sergeant Caraway had animus towards Plaintiff or her protected activities and acted 17 upon such animus in the alleged use of force.” Id. at 5. 18 In her Opposition, McCullough counters that the allegations are sufficient to give rise to a 19 plausible inference of retaliatory animus and a causal connection between that animus and her own 20 harm. Opposition at 4. According to McCullough, “[e]ven where another plausible justification 21 may exist for a defendant’s actions, a plaintiff may still prevail on a First Amendment retaliation 22 claim where the defendant was substantially motivated by plaintiff’s protective activity.” Id. 23 (citing O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016)). McCullough asserts that she has met 24 this pleading requirement based on the “timeline and a lack of other plausible legitimate motive” 25 for Sergeant Caraway’s use of force. Opposition at 5 (citing Watison v. Carter, 668 F.3d 1108, 26 1114 (9th Cir. 2012); Crump v. Bay Area Rapid Transit Dist., No. 17-CV-02259-JCS, 2018 WL 27 4927114, at *14 (N.D. Cal. Oct. 10, 2018), aff'd, 821 F. App’x 705 (9th Cir. 2020); Johnson v. 1 Cal. June 24, 2020)). She points to her allegations that just before Sergeant Caraway’s use of 2 force, the demonstrators were chanting pro-Palestine messages and messages critical of the United 3 States government in front of the police, including Defendants Caraway and Cota, as well as 4 allegations establishing that there was no lawful provocation or justification for Sergeant 5 Caraway’s use of force. Id. Thus, she contends, it is plausible to infer that “it was 6 [McCullough’s] political activity and speech that motivated Caraway’s outsized and violent 7 response.” Id. 8 In support of her position, McCullough points to Capp v. Cnty. of San Diego, in which the 9 court acknowledged that “speculation [about defendant’s motivation] is hardly unusual in 10 retaliation cases” and concluded that the First Amendment retaliation claim was sufficiently pled 11 based on allegations that (1) plaintiff engaged in a protected act, (2) defendants’ adverse actions 12 occurred after the protected activity, and (3) defendants were purely motivated by that protected 13 act when they took their adverse action. Id. at 5-6 (citing 940 F.3d 1046, 1055 (9th Cir. 2019)). 14 McCullough further asserts that retaliatory animus can be inferred “by comparing the level 15 of force used” by Sergeant Caraway to the peaceful nature of McCullough’s conduct. Id. at 6 16 (citing Anti Police-Terror Project v. City of Oakland, 477 F. Supp. 3d 1066, 1088 (N.D. Cal. 17 2020); Johnson v. City of Berkeley, No. 15-CV-05343-JSC, 2016 WL 928723, at *5 (N.D. Cal. 18 2016); Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, 466 F. Supp. 19 3d 1206, 1214); Don't Shoot Portland v. City of Portland, 465 F. Supp.3d 1150, 1155–1156 (D. 20 Or. 2020); Breathe v. City of Detroit, 484 F.Supp.3d 511, 518 (E.D. Mich. 2020)). 21 In their Reply, Defendants reiterate their position that McCullough fails to show that 22 protected activity was the “but-for” cause of Sergeant Caraway’s use of force, asserting that 23 McCullough relies on cases that apply a lower standard and are factually distinguishable. Reply at 24 2. Defendants contend Capp and Watison involved pro se plaintiffs whose pleadings were entitled 25 to liberal construction whereas McCullough is represented by counsel and therefore must be held 26 to a stricter standard. Id. According to Defendants, Capp is also factually distinguishable because 27 in that case, the plaintiff pled a lack of substantial justification for the defendants’ conduct and 1 from a similarly situated parent who did not exercise their First Amendment rights.” Id. at 3 2 (emphasis in original). 3 According to Defendants, McCullough does not allege a timeline that supports an 4 inference of but-for causation and in alleging she “placed her left hand on top of the barricade” she 5 concedes that she was “physically breaching” the metal barricade – providing a non-retaliatory 6 motive for Sergeant Carraway’s conduct. Id. at 4. Defendants argue that “the claim that 7 demonstrators were ‘peacefully’ chanting (FAC ¶ 18) does not mean demonstrators were obeying 8 lawful orders or commands. Nor does the Court need to accept as true Plaintiff’s legal conclusion 9 that Sergeant Caraway acted ‘without lawful provocation or justification’ (FAC ¶ 21).” Id. (citing 10 Iqbal, 556 U.S. at 678). 11 Defendants also distinguish cases McCullough relies upon that addressed retaliation 12 claims at the summary judgment stage of the case, arguing that “[c]ases discussing retaliatory 13 arrest claims at summary judgment offer no guidance on evaluating the sufficiency of pleadings at 14 motion to dismiss.” Id. at 2-3 (citing Crump v. Bay Area Rapid Transit Dist., No. 17-CV-2259- 15 JCS, 2018 WL 4927114 (N.D. Cal. Oct. 10, 2018), aff’d, 821 F.App’x 705 (9th Cir. 2020); 16 Johnson v. Cnty. of San Bernardino, No. EDCV 18-2523-GW-AFMX, 2020 WL 5224350 (C.D. 17 Cal. June 24, 2020)). 18 Finally, Defendants assert that the cases cited by McCullough involving “indiscriminate 19 force” are distinguishable. Id. at 4 n. 1 (citing Black Lives Matter Seattle-King Cnty. v. City of 20 Seattle, Seattle Police Dep’t, 466 F. Supp. 3d 1206, 1214 (W.D. Wash. 2020); Don’t Shoot 21 Portland v. City of Portland, 465 F. Supp. 3d 1150, 1155-56 (D. Or. 2020); Breathe v. City of 22 Detroit, 484 F. Supp. 3d 511, 518 (E.D. Mich. 2020); Anti Police-Terror Project v. City of 23 Oakland, 477 F. Supp. 3d 1066, 1088 (N.D. Cal. 2020); Johnson v. City of Berkeley, No. 15-CV- 24 05343-JSC, 2016 WL 928723 (N.D. Cal. 2016)). 25 2. Discussion 26 To establish a claim for retaliatory violation of the First Amendment, McCullough must 27 show (1) that she was engaged in a constitutionally protected activity; (2) that Sergeant Caraway’s 1 activity;” and (3) that “the protected activity was a substantial or motivating factor in [Sergeant 2 Caraway’s] conduct.” Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th Cir. 3 2020). Defendants do not dispute that the first two elements are satisfied but contend the third 4 element is insufficiently pled. The Court disagrees. 5 To satisfy the third element of a retaliation claim, “a plaintiff must show that the 6 defendant’s retaliatory animus was ‘a “but-for” cause, meaning that the adverse action against the 7 plaintiff would not have been taken absent the retaliatory motive.’ ” Capp v. Cnty. of San Diego, 8 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting Nieves v. Bartlett, 587 U.S. 391, 399 (2019)). 9 “Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a 10 chronology of events from which retaliation can be inferred is sufficient to survive dismissal.” 11 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). If a factfinder concludes that there was 12 no legitimate justification for [the defendant’s] actions, they [may] reasonably infer that those 13 actions were motivated by retaliatory animus.” Sanderlin v. Dwyer, No. 23-15487, 2024 WL 14 4033065, at *4 (9th Cir. Sept. 4, 2024). 15 For example, in Sanderlin, the Ninth Circuit found that the plaintiff adequately alleged the 16 third element of his retaliation claim based on allegations that an officer shot him in the groin with 17 a projectile at a demonstration where he was doing nothing more than holding up a sign – even 18 though the officer claimed that the demonstrator was intentionally blocking his access to other 19 demonstrators who were throwing objects at police offices and whom he was attempting to 20 apprehend. Id. The Ninth Circuit rejected the officer’s argument that the third prong of the 21 retaliation claim was insufficiently alleged on the basis that that argument “assume[d] the truth of 22 [the officer’s] version of the facts, and at [the pleading] stage of the proceedings, we must construe 23 the evidence in the light most favorable to [the plaintiff].” Id. (citing Hopson v. Alexander, 71 24 F.4th 692, 697 (9th Cir. 2023)). The court continued: 25 Whether or not [the plaintiff] was in fact obstructing officers, rather than engaging in the protected activity of peacefully protesting, will 26 turn on whether a factfinder eventually credits [the officer’s] description of the circumstances surrounding the shooting. According 27 to Sanderlin, he was merely standing peacefully on the sidewalk holding the sign. Resolving the disputed facts in Sanderlin’s favor, he 1 Id. 2 Sanderlin is on all fours with the factual allegations here. McCullough alleges that she 3 was peacefully protesting with a group of demonstrators chanting in support of Palestine and 4 criticizing the United States government when Sergeant Caraway brought his baton down on her 5 hand with extreme force and for no legitimate reason. And although Defendants contend 6 McCullough was “breaching” the barricade and speculate that she may have been disregarding 7 officers’ lawful orders or commands, that argument must fail because at the pleading stage it is 8 Plaintiff’s version of events that controls and not the competing version offered by Sergeant 9 Caraway that controls. Id. McCullough alleges that she was demonstrating peacefully, that she 10 merely “placed” her hand on the barricade, and that Sergeant Caraway’s use of force came 11 “[w]ithout warning and without lawful provocation or justification.” FAC ¶¶ 19-21. As in 12 Sanderlin, these allegations are sufficient at the pleading stage of the case to raise a plausible 13 inference that Sergeant Caraway’s conduct was substantially motivated by McCullough’s 14 protected activity. Therefore, the Court reject’s Defendants’ argument that Claim Two should be 15 dismissed for failure to state a claim. 16 C. Claim Four (Monell Claim) 17 1. Background 18 In Claim Four, McCullough asserts a claim against the City and County of San Francisco 19 (“the City”) under 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs. of the City of New York, 20 436 U.S. 658 (1978) based on its failure to properly train, supervise and/or discipline Defendant 21 Caraway to refrain from the use of excessive force. FAC ¶¶ 62-64.3 McCullough alleges in 22 support of this claim that Defendant Caraway had “a concerning and documented history of using 23 his bare hands to strike or choke non-violent persons” but nonetheless was promoted to Sergeant 24 and “continued this concerning pattern, apparently emboldened to continue his misconduct with 25 impunity.” Id. ¶ 64. According to McCullough, the City “failed to properly train and/or supervise 26 3 There is a typographical error in the numbering of the paragraphs of this claim. This claim 27 consists of six paragraphs and includes two paragraphs numbered “64”. The Court’s citation 1 and/or discipline defendant Caraway to refrain from the use of excessive force, and its failure is 2 the moving force behind defendant Caraway’s use of excessive force against plaintiff.” Id. ¶ 65. 3 McCullough further alleges that “[t]he Chief of Police ratified [Caraway’s] conduct by refusing on 4 multiple occasions to impose discipline or administer corrective action against defendant Caraway 5 and by promoting him and commending him despite his concerning history of using excessive 6 force against non-violent persons.” Id. ¶ 66. 7 In the Motion, Defendants contend McCullough’s allegations are too conclusory to 8 establish direct liability against the City under Monell, whether based on a theory of failure to train 9 or ratification. Motion at 5 (citing Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802 (9th Cir. 10 2018)). According to Defendants, McCullough’s failure to train allegations are deficient because 11 “she does not articulate any particular omission in the City’s training program or that any 12 policymaker knowingly maintained such a program [and] [s]he fails to allege facts to show any 13 City policymaker ‘disregarded the known or obvious consequence that a particular omission in 14 their training program would cause [municipal] employees to violate citizens’ constitutional 15 rights.’” Id. at 6 (citing Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014)). 16 Defendants further assert that McCullough’s reliance on a theory of ratification is 17 “grasping” because “the FAC . . . fails to plead facts to support an inference that any City 18 policymaker actually ratified Sergeant Caraway’s actions or knew the basis for them.” Id. at 7-9. 19 In particular, Defendants contend mere failure to discipline does not establish ratification. Id. at 8 20 (citing Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 788 (9th Cir. 2022)). Defendants further 21 challenge McCullough’s ratification allegations on the grounds that she has not alleged facts 22 showing that the final policymaker who was responsible for Defendant Caraway’s promotion and 23 commendation was aware of his purportedly unconstitutional conduct. Id. (citing Bennett v. Cnty. 24 of Shasta, 2:15-cv-01764-MCE-CMK, 2017 WL 3394128, at *4 (E.D. Cal. Aug. 8, 2017); Gavin 25 v. City of Los Angeles, 2:05-cv-09001-FMC-SSx, 2007 WL 9706236, at *11 (C.D. Cal. Aug. 8, 26 2007)). Moreover, Defendants contend, McCullough’s allegations about Defendant Caraway’s 27 past uses of force are insufficient because she assumes without alleging specific facts that these 1 In her Opposition, McCullough counters that she has adequately alleged Monell liability 2 based on: 1) “use of force training [that is] deficient such that Caraway has consistently used 3 excessive force against unarmed, non-violent persons. (FAC at ¶¶ 33-37.)”; 2) a custom or practice 4 of failure to discipline and supervise officers; and 3) ratification. Opposition at 7-12. 5 McCullough rejects Defendants’ argument that she is required to identify specific shortcomings in 6 the City’s training program, arguing that although that is one way of pleading Monell liability, it is 7 not the only one. Id. at 8. Rather, she asserts, Monell liability can be adequately alleged where 8 there are (1) “sufficient allegations of underlying facts to give fair notice and to enable the 9 opposing party to defend itself effectively” and (2) those facts “plausibly suggest an entitlement to 10 relief, such that it is not unfair to require the opposing party to be subjected to the expense of 11 discovery and continued litigation.” Id. (citing AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 12 631 (9th Cir. 2012)). Here, McCullough asserts, the “fair notice” requirement is met by her 13 allegations that the City’s use of force training is deficient such that Caraway has consistently used 14 excessive force against unarmed, non-violent persons and the specific examples of his misconduct 15 that have occurred over a decade. Id. (citing FAC at ¶¶ 33-37). 16 McCullough argues that Flores is not on point because that case involved only one other 17 incident, which was not sufficient to establish a “pattern” of misconduct. Id. at 9 (citing Flores, 18 785 F.3d at 1159). Furthermore, McCullough argues, because that incident was rape, the court in 19 Flores reasoned that it did not support a failure to train theory because “if the threat of prison time 20 does not sufficiently deter sexual assault, it is not plausible to assume that a specific instruction not to 21 commit sexual assault will provide such deterrence[.]” Id. (quoting Flores, 785 F.3d at 1160). In 22 contrast, “use of force . . . is a daily occurrence in the performance of an officer’s duties and may be 23 used in a lawful and permissible manner” and therefore, “[t]he municipality that employs the officers 24 must educate them against its impermissible use—policies, training, and discipline and the primary 25 deterrents.” Id. 26 Similarly, McCullough argues that a custom and practice of failure to supervise or 27 discipline can “‘can be inferred from . . . . evidence of repeated constitutional violations for which 1 v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015) (quoting Hunter v. Cnty. of 2 Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (internal quotation marks omitted in 3 Velazquez)). According to McCullough, Defendants don’t challenge the sufficiency of her 4 allegations that the failure to supervise and discipline is a custom or practice of the City. Id. 5 McCullough rejects Defendants’ argument that she has insufficiently pled ratification, 6 pointing to her allegations that “the Chief of Police is responsible for the imposition of discipline 7 and administration of corrective action when a police officer violates policy and/or the law” and 8 “that the Chief of Police repeatedly failed to discipline Caraway for his uses of strikes and choke 9 holds against nonviolent persons and even promoted him and gave him a commendation.” Id. 10 (citing FAC ¶¶ 39, ¶¶ 41-43). She also points to her allegations that “even when Defendant 11 Caraway committed misconduct in the presence of a supervisor and then lied about it on his use of 12 force report, the supervisor took no steps to intervene in Caraway’s misconduct or to correct his 13 false report.” Id. (citing FAC ¶¶ 25-26, 32). 14 McCullough also rejects Defendants’ assertion that she has not adequately alleged 15 ratification because she has not alleged facts showing that the relevant decision-makers were 16 aware of Defendant Caraway’s past use of force, asserting that her allegations “make[ ] clear that 17 the Chief of Police was both responsible for discipline and administration of corrective action and 18 failed to properly execute that responsibility.” Id. at 11 (citing FAC ¶¶ 39, 41-42). She notes that 19 complaints of excessive force that lead to great bodily injury or death are public records under Cal. 20 Pen. Code § 832.7(a) and also points to her allegations that Defendant Caraway “admitted that he 21 punched a subdued arrestee four times in the face” and was promoted soon after that admission. 22 Id. (citing FAC ¶¶ 37, 42). Therefore, she contends, the FAC raises a plausible inference that the 23 person in charge of disciplining Defendant Caraway was aware of these incidents and acted in 24 reckless disregard of that conduct. Id. 25 Finally, McCullough argues that while Defendants are “free to argue” that Defendant 26 Caraway’s past uses of force were not excessive, “at the pleading stage, it is common practice to 27 point the court to other complaints of similar unlawful conduct, without regard to whether a court 1 Sanchez v. Cnty. of Stanislaus, No. 118CV00977DADBAM, 2019 WL 1745868, at *4 (E.D. Cal. 2 Apr. 18, 2019)). 3 In their Reply, Defendants argue that McCullough’s reliance on Estate of Alejandro 4 Sanchez v. Cnty. of Stanislaus, 2019 WL 1745868 (E.D. Cal. Apr. 18, 2019) is misplaced and that 5 that case does not support the “relaxed standard” McCullough advances in support of her failure to 6 train theory of Monell liability. Reply at 5. Rather, they contend, McCullough must identify some 7 specific omission in the City’s training program to adequately plead Monell liability under this 8 theory. Id. at 6. Defendants further assert that McCullough did not plead a custom or practice 9 theory of Monell liability in her FAC and the allegations do not show any “persistent and 10 widespread” custom or practice caused the alleged constitutional violation, as is required to 11 establish Monell liability on this ground. Id. (citing Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 12 1996)). As to the ratification theory, Defendants reiterate their position that the FAC “does not 13 properly allege specific actions that the Chief took in connection with their ‘approval’ of the 14 misconduct that could support an inference that they actually ratified the previous instances of 15 alleged misconduct.” Id. at 7 (citing Nguyen v. Cnty. of Orange, No. 822CV01693DOCADS, 16 2023 WL 4682301, at *3 (C.D. Cal. June 8, 2023) (quoting Mitchell v. Cnty. of Contra Costa, 600 17 F. Supp. 3d 1018, 1033 (N.D. Cal. 2022))). 18 2. Discussion 19 It is well-established that “a municipality cannot be held liable solely because it employs a 20 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat 21 superior theory.” Monell, 436 U.S. at 692. A municipality may, however, be held liable for injury 22 caused by a constitutional violation where there is (1) an unconstitutional custom or policy behind 23 the violation of rights; (2) a deliberately indifferent omission, such as a failure to train or have a 24 needed policy; or (3) a final policy-maker’s involvement in, or ratification of, the conduct 25 underlying the violation of rights. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th 26 Cir. 2010). 27 Monell liability is sufficiently alleged where the complaint contains (1) “‘sufficient 1 effectively’” and (2) those facts must “‘plausibly suggest an entitlement to relief, such that it is not 2 unfair to require the opposing party to be subjected to the expense of discovery and continued 3 litigation.’” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631 (9th Cir. 2012) (quoting Starr 4 v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). The Court concludes that McCullough has 5 adequately alleged Monell liability based on an unconstitutional custom or practice of failure to 6 supervise or discipline officers. Therefore, it does not reach the question of whether her failure to 7 train and ratification theories are adequately alleged. 8 The pleading standard for “custom or practice” liability was addressed in Estate of 9 Alejandro Sanchez v. Cty. of Stanislaus, No. 18-00977, 2019 WL 1745868, at *4 (E.D. Cal. Apr. 10 18, 2019). There, the court recognized that “Monell claims ‘may not simply recite the elements of 11 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 12 to enable the opposing party to defend itself effectively.’” Id. (quoting AE ex rel. Hernandez v. 13 County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)). The court noted that in applying this 14 standard, some district courts have required not only “sufficient factual allegations” but also that 15 the plaintiff “identify the particular policy or custom that caused the constitutional violation 16 without resorting to conclusory statements.” Id. (citing cases). “Other courts have adopted a more 17 lenient pleading standard, holding that while a complaint must include a sufficient quantum of 18 factual material to plausibly suggest the existence of a policy or custom, the policy or custom itself 19 need not be specifically alleged, or may be alleged only generally.” Id. 20 The Sanchez court concluded that the latter approach is correct, finding that while “the 21 complaint must contain sufficient factual allegations to plausibly suggest a policy or custom, as 22 opposed to merely random, unconnected acts of misconduct . . . the details of the policy or custom 23 . . . [are] a subject more properly left to development through discovery.” Id. at *5. The court 24 reasoned that “[it] is a rare plaintiff who will have access to the precise contours of a policy or 25 custom prior [to] having engaged in discovery, and requiring a plaintiff to plead its existence in 26 detail is likely to be no more than an exercise in educated guesswork.” Id. (citations omitted). 27 This Court finds the reasoning of Sanchez persuasive and applies the approach taken in that case to 1 Monell liability based on a policy or custom of failure to supervise or discipline officers, 2 can be established based on “repeated constitutional violations for which the errant municipal 3 officers were not discharged or reprimanded.” Velazquez v. City of Long Beach, 793 F.3d 1010, 4 1027 (9th Cir. 2015) (quoting Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) 5 (internal quotation marks omitted in Velazquez). Here, McCullough has offered specific 6 allegations relating to multiple past uses of excessive force by Defendant Caraway, FAC ¶¶ 33-37, 7 and has further alleged that McCullough was not disciplined for these uses of force but instead, 8 was promoted and given a commendation. FAC ¶¶ 38-43, 63-65. These allegations are sufficient 9 to plausibly allege Monell liability based on a custom and practice of failure to supervise or 10 discipline. 11 Therefore, the Court DENIES the Motion as to McCullough’s Monell claim. 12 D. Claim Six (Ralph Act Claim) 13 1. Background 14 McCullough’s Ralph Act Claim is asserted under Cal. Civ. Code § 51.7, which states that 15 persons within California have the right to be free from any “violence, or intimidation by threat of 16 violence, committed against their persons or property because of political affiliation . . . . “ Cal. 17 Civ. Code § 51.7. In support of this claim, McCullough alleges that “Defendant Caraway was 18 substantially motivated by plaintiff’s political affiliation in standing with the innocent children and 19 adults being murdered with U.S.-supplied weapons in Gaza and participating in a march whose 20 message was critical of the United States government.” FAC ¶ 75. 21 In the Motion, Defendants contend this claim is insufficiently pled because McCullough 22 has not plausibly alleged that “her political affiliation was a motivating reason for Sergeant 23 Caraway’s conduct.” Motion at 9-10. Because her allegations as to Defendant Caraway’s 24 motivation are entirely conclusory, Defendants contend, this claim should be dismissed for failure 25 to state a claim. Id. (citing Lopez v. Cnty. of Los Angeles, No. EDCV 21-290 JGB (SHKx), 2021 26 WL 6752171, at *6 (C.D. Cal. Nov. 12, 2021); Ramirez v. City of San Jose, No. 21-CV-08127- 27 VKD, 2022 WL 875643, at *9 (N.D. Cal. Mar. 24, 2022); Arres v. City of Fresno, No. CV F 10- 1 02564-FLA (MAA), 2021 WL 4775638, at *12 (C.D. Cal. July 14, 2021)). 2 In her Opposition, McCullough argues that her allegations as to motivation are sufficient, 3 asserting that “courts in this district have long recognized that ‘as a practical matter, it would be 4 extremely difficult for Plaintiff to allege the individual defendants’ [subject] animus absent a 5 blatant comment by one of the defendants – which is highly unlikely – or some degree of 6 discovery.” Opposition at 12 (citing Jones v. Cnty. of Contra Costa, No. 13-CV-05552-TEH, 2016 7 WL 1569974, at *5 (N.D. Cal. Apr. 19, 2016); Shirazi v. Oweis, No. 5:21-CV-00136-EJD, 2022 8 WL 445763, at *7 (N.D. Cal. Feb. 14, 2022)). Therefore, she contends, “courts permit Ralph Act 9 claims to proceed where the complaint alleges that the plaintiff was politically affiliated, the 10 defendant engaged in violent, threatening and/or menacing actions against the plaintiff, and the 11 defendant was motivated by plaintiff’s political affiliation.” Id. at 12-13 (citing Shirazi, 2022 WL 12 445763, at *7; Black Lives Matter-Stockton Chapter v. San Joaquin Cnty. Sheriff's Off., 398 F. 13 Supp. 3d 660, 679 (E.D. Cal. 2019); Jones, 2016 WL 1569974, at *5). According to McCullough, 14 her allegations go beyond these conclusory allegations because she has alleged that Defendant 15 Caraway used extreme violence against a peaceful demonstrator, without any justification, giving 16 rise to an inference that he was motivated by McCullough’s political affiliation, as discussed 17 above. Id. at 13. 18 2. Discussion 19 To state a Ralph Act claim, McCullough must allege that Defendant Caraway (1) 20 committed or threatened a violent act against her; (2) was motivated by his perception of her 21 political affiliation; (3) that she was harmed; and (4) that Defendant Caraway’s conduct was a 22 substantial factor in causing her harm. Campbell v. Feld Entertainment, Inc., 75 F. Supp. 3d 1193, 23 1205 (N.D. Cal. 2014) (citing Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 24 880–81 (2007)). For the same reasons the Court concludes that McCullough has adequately 25 alleged retaliatory animus in connection with her First Amendment claim, discussed above, it also 26 finds that her allegations are sufficient to plausibly allege that Defendant Caraway was motivated 27 by McCullough’s political affiliation when he used force against here for the purposes of her 1 E. Claim Nine (Negligent Hiring, Training and Retention) 2 1. Background 3 In the FAC, McCullough brings a state law claim for negligent hiring, training and 4 retention against the City based on allegations that: 1) the City employs the Chief of Police; 2) 5 “The Chief of Police had a duty to hire, supervise, train, and retain employees and/or agents so 6 that employees and/or agents refrain from the conduct and/or omissions alleged” in the FAC; and 7 3) “The Chief of Police breached this duty, causing the conduct alleged” in the FAC. FAC ¶¶ 89- 8 91. McCullough further alleges that the Chief of Police was acting within the scope of his 9 employment, and therefore that the City is liable for this conduct pursuant to California 10 Government Code section 815.2. FAC ¶¶ 91-92. 11 In the Motion, Defendants argue that “there is no viable negligent hiring, training, and 12 retention claim against the City (Claim Nine) under state law.” Motion at 2. First, they contend, 13 the California Tort Claims Act permits liability against a public entity based on an injury 14 “aris[ing] out of an act or omission of the public entity” only where there is a “specific statute 15 either declaring the entity to be liable or creating a specific duty of care apart from the general tort 16 principles embodied in Civil Code section 1714.” Id. at 10 (citing Cal. Gov’t Code § 815(a); de 17 Villers v. Cnty. of San Diego, 156 Cal. App. 4th 238, 251 (2007)). According to Defendants, 18 “[c]ourts have consistently held that no statutory basis exists for alleging a claim of negligent 19 hiring or supervision against a governmental entity.” Id. (citing De Villers, 156 Cal. App. 4th at 20 255–56). 21 With respect to vicarious liability, Defendants argue that “such a claim is not recognized 22 by law.” Motion at 11 (citing Walker v. Cnty. of Santa Clara, No. C 04-02211 RMW, 2005 WL 23 2437037, at *9 (N.D. Cal. Sept. 30, 2005)). Furthermore, they assert, to the extent McCullough 24 “attempt[s] to plead vicarious liability against the City for alleged acts by the Chief of Police[,]” 25 that theory “also fails [because] [t]he City is immune from liability for acts or omissions of an 26 employee where the employee is immune from liability.” Id. (citing Cal. Gov’t Code § 815.2(b)). 27 According to Defendants, the Chief of Police is immune from liability for his personnel decisions, 1 therefore fall under Cal. Gov’t Code § 820.2, which provides that “a public employee is not liable 2 for an injury resulting from his act or omission where the act or omission was the result of the 3 exercise of the discretion vested in him, whether or not such discretion be abused.” Id. 4 McCullough does not dispute that under the California Tort Claims Act, the City cannot be 5 held directly liable as to this claim because there is no statutory basis for direct liability. 6 Opposition at 13. She argues, however, that the City may be vicariously liable on this claim based 7 on the acts of the Chief of Police. Id. (citing C.A. v. William S. Hart Union High Sch. Dist., 53 8 Cal. 4th 861, 865, (2012)). McCullough does not disagree with Defendants that vicarious liability 9 on this claim can only be established if the Chief of Police is not entitled to immunity under Cal. 10 Gov’t Code § 820.2 but contends this issue is prematurely raised and cannot be decided on the 11 pleadings. Id. at 13-14 (citing Elton v. Cty. of Orange, 3 Cal. App. 3d 1053, 1058 (1970)). Even if 12 the Court were to decide the issue, McCullough argues, it should not find that the Chief of Police 13 is entitled to immunity simply based on the fact that he made everyday decisions about hiring, 14 retention and supervision as immunity requires that the conduct involved policy level decisions. 15 Id. at 14. 16 In their Reply, Defendants reject McCullough’s reliance on C.A. v. William S. Hart Union 17 High Sch. Dist., 53 Cal. 4th 861, 865, (2012), arguing that in that case, vicarious liability was 18 found only because there was a special relationship between the plaintiff – a pupil of the school 19 district – and the school district administrators who hired and supervised the school counselor who 20 abused the plaintiff. Reply at 8-9. In contrast, Defendants contend, no special relationship has 21 been alleged here between the Chief of Police and McCullough and moreover, California law 22 “does not recognize a general duty of care on the part of supervisors with respect to negligent 23 hiring, retention, or training.” Id. (citing Est. of Hennefer v. Yuba Cnty., California, No. 24 222CV00389TLNKJN, 2023 WL 4108077, at *8–9 (E.D. Cal. June 21, 2023); H.B. v. City of 25 Torrance, No. CV1702373SJOGJS, 2017 WL 10518108, at *3 (C.D. Cal. Aug. 16, 2017); Est. of 26 Osuna v. Cnty. of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019)). For this reason, 27 according to Defendants, “[c]ourts have declined to find a special relationship between law 1 No. 2:13-cv-01671-MCE-EFB, 2014 WL 1027070, at *6 (E.D. Cal. Mar. 14, 2014); Lindsay v. 2 Fryson, No. 2:10-cv-02842-LKK-KJN, 2012 WL 2683019, at *7 (E.D. Cal. July 6, 2012); Fuentes 3 v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 4 2017)). 5 2. Discussion 6 The California Tort Claims Act provides that “[e]xcept as otherwise provided by statute[,]” 7 a public entity “is not liable for an injury, whether such injury arises out of an act or omission of 8 the public entity or a public employee or any other person.” Cal. Gov. Code § 815. Therefore, a 9 direct claim of negligence against a public entity must be “founded on a specific statute either 10 declaring the entity to be liable or creating a specific duty of care apart from the general tort 11 principles embodied in Civil Code section 1714[.]” de Villers v. County of San Diego, 156 Cal. 12 App. 4th 238, 251 (2007). It appears to be well-established that under California law, there is no 13 statutory basis for alleging a claim of negligent hiring or supervision against a governmental 14 entity. H.B. v. City of Torrance, No. CV1702373SJOGJS, 2017 WL 10518108, at *3 (C.D. Cal. 15 Aug. 16, 2017) (citing cases). Therefore, McCullough’s claim for negligent hiring, training and 16 retention against the City fails to the extent that it is based on a theory of direct liability, as 17 McCullough does not dispute. 18 On the other hand, the California Supreme Court has recognized that under some 19 circumstances, a public entity can be held vicariously liable for negligent hiring, retention and 20 supervision by its employees. C.A. v. William S. Hart Union, 53 Cal. 4th 861, 865 (2012). Under 21 California Government Code § 815.2(a), “[a] public entity is liable for injury proximately caused 22 by an act or omission of an employee of the public entity within the scope of his employment if 23 the act or omission would, apart from this section, have given rise to a cause of action against that 24 employee or his personal representative.” Vicarious liability does not apply, however, where the 25 “employee is immune from liability.” Cal. Gov’t Code § 815.2(b). 26 Defendants assert that the City is not subject to vicarious liability based on the acts of the 27 Chief of Police because any acts that he took with respect to hiring, training or retaining Officer 1 Government Code section 820.2, which provides that “a public employee is not liable for an 2 injury resulting from his act or omission where the act or omission was the result of the exercise of 3 the discretion vested in him, whether or not such discretion be abused.” However, the Court 4 agrees with McCullough that in light of the standards for determining whether discretionary 5 immunity applies set forth in Johnson v. State of California, 69 Cal. 2d 782, 787 (1968), the 6 question of whether the City is immune cannot be decided at the pleading stage because the 7 allegations in the FAC do not establish that these standards are met. See Elton v. Cnty. of Orange, 8 3 Cal. App. 3d 1053 (Cal. Ct. App. 1970). 9 As the court in Elton explained, under Johnson v. State of California, “the public agency 10 must demonstrate its employee in fact consciously exercised discretion in connection with the 11 negligent acts or omissions charged in order to invoke the ‘discretionary acts’ immunity 12 provisions of Government Code section 820.2.” Id. at 1058. To do so, “the state must make a 13 showing that such a policy decision, consciously balancing risks and advantages, took place[;]” it 14 is not enough to show that an “employee normally engages in ‘discretionary activity[.]’” Because 15 such a showing cannot be made at the pleading stage, it is premature to decide whether the City is 16 entitled to immunity under Section 820.2. See id. Nonetheless, it is McCullough’s burden under 17 Cal. Gov’t Code § 815.2(a) to allege facts that would be sufficient to show that the Chief of Police 18 (and therefore the City) can be held liable for negligent hiring, training and retention. 19 McCullough has not met her burden in the FAC. 20 To establish vicarious liability for negligent hiring, a plaintiff must establish that 21 “supervisory and administrative” employees of the government entity “who knew or had reason to 22 know of [an employee]’s dangerous propensities and acted negligently in hiring, supervising and 23 retaining [him or] her, would themselves be subject to liability to plaintiff for [her] injuries.” C.A. 24 v. William S. Hart Union, 53 Cal. 4th at 868-69. In William S. Hart, for example, the California 25 Supreme Court found that the school district could be held vicariously liable for the negligence of 26 school district administrators in the hiring and retention of a school counsel who abused the 27 plaintiff, who was a student in the district. Id. at 865. The court emphasized, however, that “[t]he 1 and duty, elements of liability that must be established in every tort action.” Id. at 876. 2 Under the facts of William S. Hart, the court found that the school district owed a duty to 3 the plaintiff with respect to the alleged negligence of the school administrators because “a school 4 district and its employees have a special relationship with the district’s pupils, a relationship 5 arising from the mandatory character of school attendance and the comprehensive control over 6 students exercised by school personnel, analogous in many ways to the relationship between 7 parents and their children.” Id. at 869 (citation and internal quotations omitted). In contrast, 8 California courts have not recognized a general duty of care owed to third parties on the part of 9 supervisors with respect to negligent hiring, retention, or training. Est. of Osuna v. Cnty. of 10 Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019). Thus, for example, in Estate of Osuna, 11 the court found in an excessive force case that the plaintiff had not stated a claim against the 12 county under a vicarious liability theory based on county administrators’ alleged negligence in 13 hiring, retaining and supervising officers who used excessive force against the plaintiff because no 14 special relationship was alleged that would have given rise to a duty of care, in contrast to the facts 15 of William S. Hart. Id. at 1182-1183; see also Fuentes v. City of San Diego, No. 3:16-cv-02871- 16 BEN-JMA, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (“Plaintiffs generally allege that 17 the City and/or SDPD have a duty to protect people from harm and exercise care in selection, 18 retention, training, and supervision of their employees. However, these alleged duties do not 19 resemble the enhanced duties imposed on school personnel that formed the basis for their special 20 relationship with the minor plaintiff in William S. Hart.”); Willis v. County of Sacramento, No. 21 2:13-cv-01671-MCE-EFB, 2014 WL 1027070, at *6 (E.D. Cal. Mar. 14, 2014) (distinguishing 22 William S. Hart and dismissing plaintiff's claim against the county sheriff for negligent hiring, 23 supervision, and retention “because Plaintiff did not allege that a duty existed between [the sheriff] 24 and Plaintiff”). 25 Here, McCullough has not alleged facts showing that the Chief of Police had a special 26 relationship with her such that he owed her a duty of care. Consequently, her reliance on William 27 S. Hart in support of her negligent hiring, training and retention claim against the City is 1 this claim, her claim against the City is also insufficiently pled. Therefore, the Court concludes 2 || that McCullough fails to state a claim as to Claim Nine. Because McCullough may be able to cure 3 this deficiency by amendment, she will be given an opportunity to amend her complaint as to this 4 || claim. 5 || V. | CONCLUSION 6 For the reasons set forth above, the Motion is GRANTED as to Claim Nine, which is 7 dismissed. The Motion is DENIED in all other respects. No later than October 30, 2024, 8 McCullough shall either file a Second Amended Complaint addressing the deficiencies discussed 9 || above with respect to Claim Nine or file a notice of her intent to proceed with the case without 10 amending as to that claim. 11 IT IS SO ORDERED. 12

13 Dated: September 30, 2024

15

JQSEPH C. SPERO

a 16 nited States Magistrate Judge

= 17

Z 18

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