I. INTRODUCTION

18 The Estate of Yaeli Mozzelle (Andrew) Galdamez and Galdamez’s mother, 19 Silvia Abigail Martinez (together, “Plaintiffs”), bring this action for wrongful death, 20 medical malpractice, and civil rights violations. Defendants County of Los Angeles 21 (“County”), Pomona Valley Hospital Medical Center (“Pomona Valley” or “PVH”), 22 and Dr. Kalpesh Bhavsar, M.D. each move to dismiss.1 For the reasons discussed 23 below, the Court GRANTS the Motions IN PART by dismissing the federal claims, 24 DECLINES to exercise supplemental jurisdiction over the remaining state law 25 claims, and REMANDS the action to the Los Angeles Superior Court.2 26

1 The County is sued as “County of Los Angeles by and through Department of Children and Family 27 Services”; Dr. Bhavsar is erroneously sued as “Dr. Kalpesh Bhavar, M.D.” (See Compl.) 28 2 Having carefully considered the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-05971-ODW-MRW Document 52 Filed 01/14/22 Page 2 of 10 Page ID #:433

1 II. BACKGROUND 2 The following facts are drawn from Plaintiffs’ Complaint, unless otherwise 3 noted, and only well-pleaded factual allegations are accepted as true for purposes of 4 this Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 5 In April 2016, when Andrew Galdamez (then known as Yaeli) was 6 approximately sixteen years old,3 Los Angeles County Department of Child and 7 Family Services (“DCFS”) removed Galdamez from Martinez’s home based on 8 allegations that Martinez struck him. (Compl. ¶¶ 2–3.) While in DCFS’s care and 9 custody, Galdamez, who had been born female, expressed his need to transition from 10 female to male. (Id. ¶ 4.) DCFS employees “failed to address [Galdamez’s] special 11 needs” during the transition process and failed provide “readily available” counseling 12 and guidance services from the LGBTQ community to support Galdamez’s transition. 13 (Id. ¶¶ 4–5, 8.) 14 On June 7, 2019, at the age of nineteen, Galdamez was admitted to Pomona 15 Valley after he accidentally overdosed on Tylenol and Advil; he “den[ied] any 16 suicidal intent.” (Id. ¶ 9.) He remained hospitalized for three days on a statutory 17 welfare hold under the care of Dr. Bhavsar and others. (Id. ¶ 10.) Bhavsar ultimately 18 found that Galdamez was no longer a threat to himself or others, and another Pomona 19 Valley doctor cleared Galdamez for discharge on June 9, 2019. (Id. ¶ 11.) In treating 20 and discharging Galdamez, Bhavsar and other Pomona Valley personnel failed to 21 provide Galdamez with proper treatment and follow-up care. (Id. ¶¶ 11, 13.) 22 Approximately three months later, on September 4, 2019, Galdamez accessed 23 Union Pacific Railroad (“UPR”) grounds and took his life by walking into the path of 24 an oncoming train operated by Metropolitan Transportation Authority (“MTA”). (Id. 25 ¶ 14.) After Galdamez was discharged and until his death on September 4, 2019, 26 DCFS personnel “failed to properly supervise” Galdamez’s case. (Id. ¶ 16.) 27 3 The Complaint inconsistently alleges that Galdamez was born in April 2000 and was fourteen years 28 old in April 2016 when DCFS took custody. (See Decl. Avi Burkwitz Ex. A (“Compl.”) ¶¶ 2–3, ECF No. 1-2.) This inconsistency is irrelevant for purposes of resolving this Motion.

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1 On September 4, 2020, Martinez initiated this action in the Los Angeles 2 Superior Court, individually on her own behalf, on behalf of Galdamez’s Estate, and 3 also as his successor in interest. (See id. ¶¶ 23–24.) The Complaint includes nine 4 causes of action asserted against the County, Pomona Valley, Bhavsar, UPR, MTA, 5 and additional DCFS and healthcare personnel: (1) negligence (wrongful death), 6 against all Defendants; (2) failure to protect from harm in violation of the Fourteenth 7 Amendment, 42 U.S.C. § 1983, against all Defendants; (3) medical malpractice, 8 against the County, Pomona Valley, and certain individuals; (4–6) negligence, against 9 the County, UPR, and MTA, respectively; (7) loss of consortium, against all 10 Defendants; (8) negligent supervision, training, hiring and retention, against all 11 Defendants; and (9) “Monell-Related claims,” against the County. (Id. ¶¶ 39–188.) 12 The County was served on June 24, 2021, and timely removed the case to this Court 13 based on federal question jurisdiction over the second and ninth causes of action. 14 (Notice of Removal (“NOR”) 2–4, ECF No. 1.) All Defendants except the County, 15 Pomona Valley, and Bhavsar have now been dismissed either voluntarily, (Order 16 Dismissing MTA, ECF No. 34), or involuntarily due to Plaintiffs’ failure to serve 17 them, (Min. Order, ECF No. 48). 18 The three remaining Defendants—the County, Pomona Valley, and Bhavsar 19 (“Defendants”)—move to dismiss Plaintiffs’ claims under Federal Rule of Civil 20 Procedure (“Rule”) 12(b)(6) for failure to state a claim (“Motions”). (See County 21 Mot., ECF No. 9; PVH Mot., ECF No. 10; Bhavsar Mot., ECF No. 38.) Plaintiffs 22 timely opposed the County’s and Bhavsar’s Motions. (See Opp’n County, ECF 23 No. 27; Opp’n PVH, ECF No. 35; Opp’n Bhavsar, ECF No. 43.)4 24 III. LEGAL STANDARD 25 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 26 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 27 4 Plaintiffs’ Opposition to Pomona Valley’s Motion was five days late and the Court therefore does 28 not consider it. (Opp’n PVH, ECF No. 35); see C.D. Cal. L.R. 7-12. Regardless, nothing in Plaintiffs’ untimely Opposition would alter the Court’s disposition of the Motions.

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1 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 2 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 3 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 4 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 5 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 6 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual 7 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 8 556 U.S. at 678 (internal quotation marks omitted). Detailed factual allegations are 9 not required, but a complaint with “a formulaic recitation of the elements” or “naked 10 assertions devoid of further factual enhancement” does not suffice. Id. (internal 11 alteration and quotation marks omitted). 12 The determination of whether a complaint satisfies the plausibility standard is a 13 “context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. at 679. A court is generally limited to the 15 pleadings and must construe all “factual allegations set forth in the complaint . . . as 16 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 17 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 18 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 19 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 20 When a district court grants a motion to dismiss, it should generally provide 21 leave to amend unless it is clear the complaint could not be saved by any amendment. 22 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 23 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 24 determines that the allegation of other facts consistent with the challenged pleading 25 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 26 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 27 denied . . . if amendment would be futile.” Carrico v. City & County of San 28 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).

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1 IV. DISCUSSION 2 Two of Plaintiffs’ nine causes of action arise under federal law: Claim Two, 3 arising under § 1983, brought against all Defendants for violation of the Fourteenth 4 Amendment; and Claim Nine, for “Monell-Related claims,” arising under § 1983 and 5 brought against the County only. (Compl. ¶¶ 76–96, 184–88.) In first considering 6 Plaintiffs’ two federal claims, the Court finds that neither the Estate nor Martinez as 7 an individual is a proper plaintiff here and, in any event, both federal claims are 8 defective. The Court therefore dismisses the federal causes of action. The remaining 9 seven claims arise under state law and accordingly rely on supplemental subject 10 matter jurisdiction. The Court declines to exercise supplemental jurisdiction over 11 these state law claims and remands the case accordingly. 12 A. Proper Plaintiff(s) 13 As a threshold issue, the Complaint does not specify which Plaintiff brings 14 Claims Two and Nine. Martinez alleges she brings the suit in three capacities: “for 15 herself personally, as [Galdamez]’s successor in interest and heir, [and] as the personal 16 representative of the [E]state.” (Id. ¶ 24.) However, Plaintiffs concede that Martinez 17 may not pursue this action as the personal representative of the Estate, as she has not 18 obtained authority from the Probate Court to act on the Estate’s behalf. (See Opp’n 19 County 7.) Thus, the question becomes whether Martinez may pursue the claims 20 (1) as Galdamez’s successor in interest and heir and (2) personally on her own behalf. 21 First, under California law, the successors in interest of an individual killed as a 22 result of a constitutional violation may assert a § 1983 claim on the decedent’s behalf. 23 Cal. Civ. Proc. Code § 377.30; 42 U.S.C. § 1988(a); Tatum v. City & County of San 24 Francisco, 441 F.3d 1090, 1093 n.2 (9th Cir. 2006). Martinez is Galdamez’s mother 25 and successor in interest under the law. See Cal. Civ. Proc. Code § 377.11, Cal. Prob. 26 Code § 6402. Thus, Martinez may assert Claims Two and Nine as Galdamez’s 27 successor in interest and heir based on the alleged violations of Galdamez’s 28 constitutional rights accruing before his death. See Tatum, 441 F.3d at 1093 n.2.

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1 As for Martinez’s ability to bring suit in a personal capacity, however, 2 “constitutional rights are personal and may not be asserted vicariously.” Broadrick v. 3 Oklahoma, 413 U.S. 601, 610 (1973). While the Complaint might ultimately support 4 claims for violation of Galdamez’s personal constitutional rights, it provides no 5 plausible inference that Martinez suffered any personal constitutional injury. (See 6 Compl. ¶¶ 82, 185.) Accordingly, to the extent Martinez seeks to assert these claims 7 personally, on her own behalf, they fail. 8 Claims Two and Nine are therefore dismissed to the extent they are brought on 9 behalf of the Estate or by Martinez personally. Accordingly, the Court considers 10 Claims Two and Nine as asserted only by Martinez in her capacity as Galdamez’s 11 successor in interest and heir. 12 B. 42 U.S.C. § 1983—Claims Two and Nine 13 Martinez brings Claim Two against the County, Pomona Valley, and Bhavsar 14 pursuant to § 1983, for “Failure to Protect from Harm in Violation of the Fourteenth 15 Amendment.” (Id. ¶¶ 76–96.) Martinez brings Claim Nine, entitled “Monell-Related 16 Claims,” against only the County. (Id. ¶¶ 184–88); see Monell v. Dep’t of Soc. Servs., 17 436 U.S. 658, 690 (1978) (holding that local governing bodies can be sued under 18 § 1983). Martinez grounds these claims on allegations that Defendants failed to have 19 minimally necessary policies and procedures for treating and supervising Galdamez; 20 she contends the County is derivatively liable for the negligence and failures of its 21 employees. (See id. ¶¶ 76–96, 184–88; Opp’n County 8.) 22 To state a claim under § 1983, plaintiffs must “plead that (1) the defendants 23 acting under color of state law (2) deprived plaintiffs of rights secured by the 24 Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 25 (9th Cir. 1986); see also Pistor v. Garcia, 791 F.3d 1104, 1114 (9th Cir. 2015) 26 (rearticulating these elements). A plaintiff may not hold a local governmental unit 27 liable under § 1983 solely for the acts of its employees under a “respondeat superior” 28 theory of liability, and instead must show that a municipal policy or custom caused the

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1 constitutional injury. Monell, 436 U.S. at 690–92; City of Canton v. Harris, 489 U.S. 2 378, 385 (1989) (discussing and applying Monell). 3 Claims Two and Nine fail as against Pomona Valley and Bhavsar because these 4 two Defendants are not state actors and did not act under color of state law. These two 5 claims also fail as against the County because there is no vicarious municipal liability 6 under § 1983 and no policy or custom is alleged to have caused a constitutional injury. 7 1. Acting under Color of State Law 8 A defendant has acted under color of state law where he has “exercised power 9 ‘possessed by virtue of state law and made possible only because the wrongdoer is 10 clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) 11 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). For instance, a state 12 employee is a state actor when he “acts under color of state law while acting in his 13 official capacity or while exercising his responsibilities pursuant to state law.” Id. 14 Private parties are generally not acting under color of state law. See Price v. Hawaii, 15 939 F.2d 702, 707–08 (9th Cir. 1991).5 16 Martinez does not allege Pomona Valley is a state actor but instead “a 17 not-for-profit independent organization.” (Compl. ¶ 27; see also PVH Reply 3, 7, 18 ECF No. 36 (noting Pomona Valley is a non-profit private hospital, “not a government 19 agency”).) Likewise, Martinez does not allege that Bhavsar is a state actor but instead 20 a staff member and psychiatrist affiliated with multiple hospitals, including Pomona 21 Valley, and sued in his individual capacity. (Compl. ¶ 28.) Furthermore, Martinez 22 does not oppose Bhavsar’s argument that he is not a state actor, and thereby concedes 23 the issue. (See Bhavsar Mot. 9–10 (arguing “Bhavsar is neither a state employee nor 24 was he acting under the color of state law”); see generally Opp’n Bhavsar.) As neither 25 Pomona Valley nor Bhavsar acted under color of state law, Claim Two is dismissed 26 as against Pomona Valley and Bhavsar. 27

28 5 Plaintiffs raise none of the limited exceptions to this general rule, see Price, 939 F.2d at 708–09, and have therefore waived them.

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1 Martinez affirmatively alleges that Pomona Valley and Bhavsar are private 2 parties and fails to raise any exception to the general rule that private parties are not 3 state actors, in the Complaint or in opposing the Motions. She has therefore waived 4 such a theory. See Heraldez v. Bayview Loan Servicing, LLC, No. CV 16-1978-R, 5 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016), aff’d, 719 F. App’x 663 6 (9th Cir. 2018) (“Failure to oppose constitutes a waiver or abandonment of the 7 issue.”). Consequently, no additional facts consistent with the Complaint could 8 possibly cure this deficiency, Schreiber Distrib. Co, 806 F.2d at 1401, and this 9 dismissal is therefore without leave to amend. 10 2. Municipal Liability under § 1983 11 Martinez alleges in Claims Two and Nine that the County failed to have 12 minimally necessary policies and procedures with respect to treating Galdamez. (See 13 Compl. ¶¶ 76–96, 184–88.) She also alleges that two specific County employees 14 “failed to provide necessary medical treatment.” (See id. ¶ 84.) Martinez argues the 15 County can be “derivatively liable for the negligent acts or omissions of its employees 16 within the scope of their employment,” and “liable as Supervisors . . . for the actions 17 of their subordinates.” (Opp’n County 8.) Martinez conflates the rules for derivative 18 liability for negligence with the rules for municipal liability under § 1983. 19 It is well established that a local governmental unit may not be held liable under 20 § 1983 for the torts of its employees. See Monell, 436 U.S. at 691–92. Thus, here, 21 Martinez’s allegations that certain County employees “failed to provide necessary 22 medical treatment” are insufficient to create liability against the County. To assert a 23 § 1983 claim against the County for a constitutional violation, Martinez “must go 24 beyond the respondeat superior theory of liability and demonstrate that the alleged 25 constitutional deprivation was the product of a policy or custom of the” County. 26 Kirkpatrick v. County of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (en banc) (quoting 27 Connick v. Thompson, 563 U.S. 51, 60 (2011)). However, Martinez’s consistent, 28 repeated allegations that the County did not have policies in place to treat Galdamez

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1 establish only the absence of any policy, and effectively defeat the notion that any 2 County policy caused a constitutional deprivation here. 3 Finally, a “policy of inaction” may qualify as a municipal policy within the 4 meaning of Monell. See Brown v. Lynch, 831 F.3d 1146, 1152 (9th Cir. 2016). 5 However, under this theory, Martinez must demonstrate that the alleged policy of 6 inaction which caused the constitutional injury “was adhered to with ‘deliberate 7 indifference to the constitutional rights of [the County’s] inhabitants.’” Castro v. 8 County of Los Angeles, 833 F.3d 1060, 1076 (quoting City of Canton, 489 U.S. 9 at 392); see also Connick, 563 U.S. at 61 (“Deliberate indifference is a stringent 10 standard of fault, requiring proof that a municipal actor disregarded a known or 11 obvious consequence of his action.” (internal quotation marks omitted)). Nothing in 12 the Complaint suggests that the County’s provision of care to Galdamez was the result 13 of any policy of inaction or deliberate indifference towards his constitutional rights, or 14 that the County disregarded a known or obvious consequence regarding a failure to 15 act. The mere fact that the County may have failed to act with respect to Galdamez 16 does not, without more, establish a municipal policy of inaction. See Brown, 831 F.3d 17 at 1152 (affirming rejection of “policy of inaction” theory where the plaintiff failed to 18 establish that policymakers were aware of the constitutional risks posed by a failure to 19 act). More is required to establish Monell liability. 20 Martinez simply does not allege facts establishing that the County had any 21 policy or custom, of action or inaction, which led to a constitutional deprivation, and 22 all well-pleaded allegations support the absence of any policy. Accordingly, there is 23 no basis consistent with the Complaint to find the County liable under § 1983 and 24 Claims Two and Nine against the County are dismissed without leave to amend. 25 C. Supplemental Jurisdiction 26 “A district court may decline to exercise supplemental jurisdiction if it has 27 dismissed all claims over which it has original jurisdiction.” Sanford v. 28 MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (internal quotation marks

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1 || omitted); 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims 2 || are eliminated before trial, the balance of factors to be considered under the pendent 3 || jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will 4 || point toward declining to exercise jurisdiction over the remaining state-law claims.” 5 || Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); Wade v. Reg’! Credit 6 || Ass’n, 87 F.3d 1098, 1101 (9th Cir. 1996) (“Where a district court dismisses a federal 7 || claim, leaving only state claims for resolution, it should decline jurisdiction over the 8 | state claims....”). Claims Two and Nine provide the only basis for original 9 | jurisdiction. As these claims have been dismissed, the Court to declines to exercise 10 || supplemental jurisdiction over the remaining state law claims and remands this action 11 || to state court. Accordingly, to the extent Defendants move for dismissal of the state 12 | law claims, the Motions are DENIED without prejudice. 13 Vv. CONCLUSION 14 For the foregoing reasons, the Court GRANTS Defendants’ Motions in part by 15 | DISMISSING without leave to amend Claim Two against Pomona Valley and 16 || Bhavsar, and Claims Two and Nine against the County. (ECF Nos. 9, 10, 38.) The 17 | Court DECLINES to exercise supplemental jurisdiction over the remaining state law 18 || claims and therefore DENIES the remainder of the Motions without prejudice. The 19 | Court REMANDS this action to the Superior Court of the State of California, County 20 |} of Los Angeles, 312 North Spring Street, Los Angeles, California, 90012, Case 21 |) No. 20STCV33881. All dates and deadlines are VACATED. The Clerk of the Court 22 || shall close this case. 23 IT IS SO ORDERED. 24 25 January 14, 2022 Sig 26 Se ff bpdliat 28 OTIS D. CisrRi II

UNITED STATES DISTRICT JUDGE

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