1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAMPSON MEIER, Case No. 21-cv-05504-DMR

8 Plaintiff,

ORDER ON MOTION TO DISMISS

9 v. FIRST AMENDED COMPLAINT

10 CITY OF BRISBANE, et al., Re: Dkt. No. 25 11 Defendants.

12 Defendants City of Brisbane (“Brisbane”) and Brisbane Police Officer Abraham Sevilla 13 move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff Sampson Meier’s 14 first amended complaint (“FAC”). [Docket No. 25.] This matter can be determined on the papers. 15 Civ. L.R. 7-1(b). For the following reasons, the motion is granted in part and denied in part. 16 I. BACKGROUND 17 A. Factual Allegations 18 Meier makes the following allegations in the FAC (Docket No. 24): Brisbane owned, 19 operated, and controlled the property and railroad tracks located near 3501 Bayshore Boulevard in 20 Brisbane. It erected “a dangerous fence on the property that violated mandatory directives, 21 statutes, ordinances, and laws requiring proper fencing . . . [and] posting of warning signs 22 regarding trespassing or dangerous conditions.” FAC ¶ 9. On October 10, 2020, Sevilla observed 23 Meier walking in the area known as the Brisbane Lagoon at 3501 Bayshore Boulevard. Meier was 24 on the opposite side of the fence from Sevilla. Sevilla took Meier into custody for trespassing by 25 ordering Meier to come to the fence and turn over his wallet and cell phone to Sevilla through the 26 fence. Sevilla then ordered Meier to climb the nine-foot fence even though two other officers 27 were present, including one on the same side of the fence as Meier. Additionally, there was a 1 Meier alleges that the fence was “adorned with sharp metal spikes and curved grates that 2 were designed to make climbing the fence more dangerous.” There were no warning signs posted 3 in the area disclosing the fence’s dangerous condition. Id. at ¶ 11. Meier further alleges that 4 Brisbane constructed the fence in violation of municipal code requirements regarding height 5 requirements and with prohibited features, “such as razor wire, barb [sic] wire, or similar materials 6 (sharp jagged metal spikes and curves lower portions) without approval,” and that Brisbane 7 “allowed the fence to be maintained in this dangerous condition[.]” Id. at ¶¶ 12-13. Meier 8 followed Sevilla’s order, climbed the fence, and was injured when he slipped, “severing tendons 9 and nerves in both hands on the sharp and jagged portions of the fence.” Id. at ¶ 15. 10 Meier brings the following claims: 1) negligence against Brisbane and Sevilla; 2) premises 11 liability against Brisbane; and 3) a 42 U.S.C. § 1983 claim for violation of the Fourth Amendment 12 based on the use of excessive force against Brisbane and Sevilla, including a claim for municipal 13 liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 14 (1978), based on Brisbane’s failure to train and failure to discipline. 15 B. Procedural History 16 Meier filed this lawsuit on March 2, 2021 against Defendants Brisbane; County of San 17 Mateo; Caltrans; and Sevilla. Meier dismissed his claims against the County of San Mateo on 18 May 24, 2021 and Defendants Brisbane and Sevilla removed the case to this court on July 16, 19 2021. [Docket No. 1-3 at ECF pp. 19-20.] Meier dismissed his claims against Caltrans on August 20 25, 2021. [Docket No. 15.] On October 28, 2021, the court granted in part and denied in part 21 Defendants’ motion to dismiss the complaint. [Docket No. 19 (Minute Order).] The court 22 dismissed Meier’s section 1983 claim against Brisbane with leave to amend and dismissed a 23 products liability claim with prejudice. Id. Meier timely filed the FAC. Defendants then filed 24 this motion. 25 II. LEGAL STANDARD 26 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 27 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 1 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 2 (per curiam) (citation omitted), and may dismiss a claim “only where there is no cognizable legal 3 theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to 4 relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 5 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 6 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual 7 content that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged 9 must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of 10 a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing 11 Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 12 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 13 2002). 14 As a general rule, a court may not consider “any material beyond the pleadings” when 15 ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted). 16 However, “a court may take judicial notice of ‘matters of public record,’” id. at 689 (citing Mack 17 v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents 18 whose contents are alleged in a complaint and whose authenticity no party questions, but which 19 are not physically attached to the pleading,” without converting a motion to dismiss under Rule 20 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 21 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept 22 as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr. 23 Court, 828 F.2d 1385, 1388 (9th Cir. 1987). 24 III. DISCUSSION 25 Defendants move to dismiss all of Meier’s claims except for the section 1983 claim against 26 Sevilla. They also move to dismiss Meier’s claim for punitive damages. 27 As to the Monell claim against Brisbane, Defendants argue that the FAC does not 1 supervision, and discipline, and does not allege that any such custom and practice caused the 2 alleged constitutional violation. Mot. 8-10. Meier does not respond to these arguments in his 3 opposition and thus has conceded his Monell claim. That claim is dismissed with prejudice. 4 A. Negligence 5 The FAC alleges that Sevilla acted negligently under California Government Code sections 6 815.2, 815.4, and 815.6 and that Brisbane can be held vicariously liable for its officers’ actions. 7 Id. at ¶ 22. Defendants argue that the references to sections 815.4 and 815.6 are not “sufficiently 8 pleaded.” Mot. 10. Defendants do not move to dismiss the negligence claim as to Sevilla.1 They 9 also do not challenge the reference to California Government Code section 815.2, which imposes 10 statutory liability on counties under the doctrine of respondeat superior for certain acts of county 11 employees. Therefore, they do not challenge the FAC with respect to Brisbane’s liability for 12 Sevilla’s alleged negligence.2 Instead, they challenge the alternative bases pleaded in the FAC for 13 holding Brisbane liable for Sevilla’s alleged negligence pursuant to sections 815.4 and 815.6. 14 15 1 In order to establish a negligence claim, Plaintiff must establish “(1) a legal duty to use due care; 16 (2) a breach of that duty; and (3) injury that was proximately caused by the breach.” Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1164 (N.D. Cal. 2009) (citing Ladd v. Cnty. of San Mateo, 17 12 Cal.4th 913, 917 (1996)). Under California law, “police officers have a duty not to use excessive force.” Id. (citing Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1101 (2004)). 18 The FAC alleges that Sevilla was negligent in using excessive force, among other things, and that he was injured as a result of Sevilla’s breach. See FAC ¶¶ 21, 23. 19

2 Section 815.2 states: 20

(a) A public entity is liable for injury proximately caused by an act or 21 omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, 22 have given rise to a cause of action against that employee or his personal representative. 23

(b) Except as otherwise provided by statute, a public entity is not 24 liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. 25

Cal. Gov’t Code § 815.2. “Since the enactment of the California Tort Claims Act in 1963 (§ 810 26 et seq.), a governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.” Mary M. 27 v. City of Los Angeles, 54 Cal. 3d 202, 215–16 (1991) (collecting cases; noting “[t]he decisions 1. California Government Code section 815.4 1 California Government Code section 815.4 provides that “[a] public entity is liable for 2 injury proximately caused by a tortious act or omission of an independent contractor of the public 3 entity to the same extent that the public entity would be subject to such liability if it were a private 4 person. Nothing in this section subjects a public entity to liability for the act or omission of an 5 independent contractor if the public entity would not have been liable for the injury had the act or 6 omission been that of an employee of the public entity.” 7 Defendants note that the FAC does not name any independent contractor alleged to have 8 committed “a tortious act or omission.” Mot. 10. Accordingly, they argue, there is no basis for a 9 claim under section 815.4. Id. 10 Meier does not dispute that the FAC does not identify an independent contractor but argues 11 that the FAC “alleges Doe defendants as additional liable entities causing [his] injury,” and that 12 “[t]his language incorporates any potential contractors that constructed the fence as agents or 13 partners for Defendants.” Opp’n 8 (citing FAC ¶¶ 6, 7). 14 Meier’s section 815.4 claim is dismissed. Should he obtain leave in the future to amend 15 the FAC to name additional Defendants who are independent contractors, he may seek leave to 16 add the section 815.4 basis for Brisbane’s liability at that time. 17 2. California Government Code section 815.6 18 California Government Code section 815.6 provides that “[w]here a public entity is under 19 a mandatory duty imposed by an enactment that is designed to protect against the risk of a 20 particular kind of injury, the public entity is liable for an injury of that kind proximately caused by 21 its failure to discharge the duty unless the public entity establishes that it exercised reasonable 22 diligence to discharge the duty.” 23 “Section 815.6 has three discrete requirements which must be met before governmental 24 entity liability may be imposed under Government Code section 815.6: (1) an enactment must 25 impose a mandatory duty; (2) the enactment must be meant to protect against the kind of risk of 26 injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the 27 mandatory duty must be a proximate cause of the injury suffered.” San Mateo Union High Sch. 1 Dist. v. Cty. of San Mateo, 213 Cal. App. 4th 418, 428 (2013) (quotation marks and citation 2 omitted). The first element requires that “the enactment at issue be obligatory, rather than merely 3 discretionary or permissive, in its directions to the public entity; it must require, rather than merely 4 authorize or permit, that a particular action be taken or not taken.” Id. 5 Meier alleges that Defendant Sevilla owed “mandatory duties” to Meier as a law 6 enforcement officer, including the duty to be professional and use reasonable force when taking 7 Meier into custody and to keep him safe once he was in custody, among others. FAC ¶ 19. The 8 FAC lists five purported mandatory duties from Brisbane Police Department policies or directives, 9 as well as the Fourth Amendment and the California Constitution regarding the use of force and 10 pain compliance techniques, keeping safe individuals in police custody, and ensuring that police 11 officers receive periodic training. FAC ¶¶ 19, 20. Defendants argue that even though the FAC 12 lists multiple “mandatory statutory duties,” it “does not allege whether any of these 13 ordinances/statutes/rules even allege a mandatory duty,” and that “even if they did, the FAC does 14 not allege what purported mandatory duty was breached, how the mandatory duty is alleged to 15 protect against the type of injury suffered by Plaintiff, or how his injury was proximately caused 16 by any breach.” Mot. 11. 17 In response, Meier states only that the FAC “lists several mandatory duties that Defendants 18 had regarding taking persons into custody; the use of force; keeping suspects safe; and training 19 regarding these duties,” but does not set forth the specific provisions or provide authority 20 supporting his assertion that they impose “mandatory” duties on police officers. These provisions 21 may in fact impose mandatory duties, but the FAC and opposition brief do not clearly establish 22 that they do. Accordingly, Defendants’ motion to dismiss Meier’s section 815.6 claim is granted 23 with leave to amend. 24 B. Premises Liability 25 Meier’s premises liability claim is based on California Government Code section 835, 26 which is “[t]he sole statutory basis for imposing liability on public entities as property owners.” 27 Cerna v. City of Oakland, 161 Cal. App. 4th 1340, 1347 (2008). Section 835 provides: caused by a dangerous condition of its property if the plaintiff 1 establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous 2 condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that 3 either:

4 (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the 5 dangerous condition; or

6 (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the 7 injury to have taken measures to protect against the dangerous condition. 8 9 Cal. Gov’t Code § 835. “To state a cause of action against a public entity under section 835, a 10 plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the 11 injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably 12 foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive 13 notice of the dangerous condition of the property in sufficient time to have taken measures to 14 protect against it.” Brenner v. City of El Cajon, 113 Cal. App. 4th 434, 439 (2003). 15 Neither side sets forth or discusses the elements of the claim. Defendants appear to 16 challenge the sufficiency of the FAC with respect to the first and second elements. See Mot. 5-7. 17 First, Defendants argue that Meier has not adequately alleged the existence of a “dangerous 18 condition” within the meaning of California Government Code section 835. 19 California Government Code section 830 defines dangerous condition as “a condition of 20 property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of 21 injury when such property . . . is used with due care in a manner in which it is reasonably 22 foreseeable that it will be used.” Cal. Gov’t Code § 830(a). A public entity may “protect against” 23 such a condition by “repairing, remedying or correcting a dangerous condition, providing 24 safeguards against a dangerous condition, or warning of a dangerous condition.” Cal. Gov’t Code 25 § 830(b). “‘The definition of dangerous condition is quite broad,’ and it can reach property that is 26 not dangerous in a colloquial sense.” Evans v. Bird Rides, Inc., No. 19-CV-01207-VC, 2019 WL 27 5864583, at *2 (N.D. Cal. Nov. 8, 2019) (quoting Cal. Gov’t Code § 830 comments) (holding 1 “strewn about” public sidewalks). “The existence of a dangerous condition is ordinarily a 2 question of fact but can be decided as a matter of law if reasonable minds can come to only one 3 conclusion.” Cerna, 161 Cal. App. 4th at 1347 (quotation marks and citation omitted). 4 Here, Defendants argue that there is no allegation that the fence was unsafe or defective or 5 that it “imposed a substantial risk of harm when used with due care and in a reasonably 6 foreseeable manner.” Mot. 5. According to Defendants, Meier’s claims are based on the 7 reasonableness of Sevilla’s order to climb the fence, not the physical condition of the fence itself. 8 Id. at 6. 9 Defendants’ position is not persuasive. The California Supreme Court has explained that 10 “[m]ost obviously, a dangerous condition exists when public property is physically damaged, 11 deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” 12 Bonanno v. Cent. Contra Costa Transit Auth., 30 Cal. 4th 139, 148 (2003). However, “public 13 property has also been considered to be in a dangerous condition because of the design or location 14 of the improvement, the interrelationship of its structural or natural features, or the presence of 15 latent hazards associated with its normal use.” Id. at 149 (emphasis removed) (quotation marks 16 and citation omitted) (discussing jury’s finding that bus stop was a “dangerous condition” due to 17 its location, which caused users to be at risk from immediately adjacent property); see Cerna, 161 18 Cal. App. 4th at 1347-48 (“[a] dangerous condition exists when public property . . . possesses 19 physical characteristics in its design, location, features or relationship to its surroundings that 20 endanger users”). 21 Under Bonnano, Meier need not allege a physical defect, damage, or deterioration in the 22 property at issue to allege a dangerous condition. Instead, he may allege a dangerous condition 23 due to design, location, and features that endanger those using the property. Meier plausibly 24 alleges the existence of a “dangerous condition” for which Brisbane may be held liable, i.e., the 25 presence of an unsafe fence on Brisbane’s property. The FAC alleges that Brisbane constructed 26 the fence in violation of municipal code requirements regarding height and prohibited features, 27 including razor wire, barbed wire, and “sharp jagged metal spikes” with curved lower portions, 1 designed to make climbing the fence more dangerous” but that Brisbane failed to post warning 2 signs or notices near the fence disclosing its dangerous condition, and that Brisbane “allowed the 3 fence to be maintained in this dangerous condition without requiring it to be brought into 4 compliance with the Municipal Code[.]” Id. at ¶¶ 11-13. 5 Schonfeldt v. State of California, 61 Cal. App. 4th 1462, 1468 (1998), cited by Defendants, 6 does not support a different outcome. In Schonfeldt, a teenager climbed a “freeway fence” and ran 7 across a freeway, where he was struck by a truck and severely injured. Id. at 1464. His parents 8 sued the State of California, arguing that there were “four alleged defects surrounding” the 9 freeway that “created a dangerous condition [under section 835] funneling [their son] to climb a 10 fence and attempt to run across the freeway.” Id. The four conditions were “(1) an unlit 11 pedestrian tunnel and muddy, narrow pedestrian walkways, (2) a freeway fence four feet, ten 12 inches high instead of recommended height of six feet, (3) a hole in the fence on the other side, 13 and (4) lack of signs warning freeway drivers that pedestrians may illegally attempt to cross the 14 freeway at the instant location.” Id. at 1464-65. The trial court granted the defendant’s motion for 15 judgment on the pleadings and the judgment was affirmed on appeal. Noting that “[p]ublic 16 entities have no duty . . . to prevent members of the public—including young children—from 17 scaling walls and fences erected for the purpose of keeping them out of areas of relative danger,” 18 the court held that “[n]one of the facts alleged . . . constitute[d] a dangerous condition, either by 19 themselves or in combination,” as the teenager “chose to do something no reasonable person using 20 due care would do under the circumstances alleged—jump a fence and run across a freeway.” Id. 21 at 1468. The court also rejected the claim that the fence, which was “slightly shorter than state 22 maintenance manual guidelines suggested,” established “a dangerous condition of the freeway.” 23 Id. 24 The basis for Defendants’ reliance on Schonfeldt is not entirely clear, since that case does 25 not hold that fences are not “dangerous conditions” as a matter of law and the case is 26 distinguishable on its facts, as Meier does not allege that he climbed a fence into a dangerous area. 27 Rather, he alleges that the condition of the fence itself was dangerous. Given that the issue of the 1 sufficient to plead the existence of a dangerous condition under section 835. See Cerna, 161 Cal. 2 App. 4th at 1347. 3 Defendants also argue that because the FAC fails to plead a dangerous condition, Meier 4 has not alleged a causal connection between any defect in the fence and his injuries. Mot. 7. 5 According to Defendants, “[t]he FAC contains no factual allegations that any physical defect of 6 the fence was the proximate cause of Plaintiff’s injuries.” Id. This argument is not persuasive as 7 it ignores the allegations in the FAC that the fence was constructed with “prohibited” features such 8 as razor wire, barbed wire, and “sharp jagged metal spikes” and that Meier “sever[ed] tendons and 9 nerves in both hands on the sharp and jagged portions of the fence.” See FAC ¶¶ 12, 15. The 10 FAC adequately alleges that the dangerous condition caused his injuries. See id. at ¶¶ 28, 29. 11 C. Punitive Damages 12 The FAC requests punitive damages. FAC 10(4). It does not specify whether Meier seeks 13 punitive damages against Brisbane, Sevilla, or both Defendants. Defendants move to dismiss the 14 request for punitive damages, arguing that punitive damages are not available as to Brisbane. 15 They also argue that the FAC does not allege facts to support an award of punitive damages as to 16 Sevilla. Mot. 11-13. 17 Meier does not respond to Defendants’ argument that punitive damages are not available as 18 to Brisbane and thus concedes the issue. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 19 271 (1981) (holding municipalities are immune from punitive damages under 42 U.S.C. § 1983); 20 Cal. Gov’t Code § 818 (public entities not liable for punitive damages). 21 As to Sevilla, a jury may assess punitive damages under Section 1983 when a defendant’s 22 conduct involves “reckless or callous indifference to the federally protected rights of others” 23 without regard to actual intent or malice. Smith v. Wade, 461 F.2d 30, 56 (1983). Here, the FAC 24 alleges that Sevilla “acted knowingly, maliciously, and with reckless or callous disregard for” 25 Meier’s “health and constitutional rights,” justifying an award of punitive damages. FAC ¶ 8. It 26 also alleges that Sevilla ordered Meier to climb a dangerous fence with “jagged sharp spikes and 27 curved grates.” Id. at ¶ 33. These allegations are sufficient to allege a claim for punitive damages 1 Regarding the negligence claim against Sevilla, punitive damages are available under 2 || California law if a plaintiff proves “by clear and convincing evidence that the defendant has been 3 || guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Malice “includes the willful 4 || and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). While 5 “punitive damages sometimes may be assessed in unintentional tort actions under Civil Code 6 section 3294,” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993), “[glenerally, 7 mere or even gross negligence will not support an award of punitive damages.” Molina v. J.C. 8 || Penney Co., Inc., No. C-14-04201-DMR, 2015 WL 183899, at *3 (N.D. Cal. Jan. 14, 2015) 9 (citations omitted); Zayas v. Ortega, No. 17-CV-02739-EMC, 2018 WL 11227735, at *21 (N.D. 10 Cal. Aug. 10, 2018), affd in part, appeal dismissed in part, 809 F. App'x 374 (9th Cir. 2020) 11 (granting summary judgment on claim for punitive damages where “only a negligence claim .. . 12 survives,” citing Lee v. Bank of Am., 218 Cal. App. 3d 914, 920, 267 Cal.Rptr. 387 (1990) (stating 5 13 || that “punitive damages are allowed only upon a showing of ‘oppression, fraud, or malice’ which 14 appellant failed to allege[;] [n]egligence, even if gross or reckless, cannot justify punitive 3 15 damages’’)). Meier offers no authority that punitive damages are available for a negligence claim 16 || based on similar facts. Accordingly, to the extent that the request for punitive damages is based 3 17 || on the negligence claim against Sevilla, it is dismissed with prejudice. 18 |l Iv. CONCLUSION 19 For the foregoing reasons, Defendants’ motion to dismiss the FAC is granted in part and 20 denied in part. Meier’s claims under California Government sections 815.4 and 815.6 are 21 dismissed with leave to amend. The Monell claim and Meier’s claim for punitive damages against 22 || Brisbane are dismissed with prejudice, as is the claim for punitive damages against Sevilla to the 23 || extent it is based on the negligence claim. Meier may file a second amended complaint by no later 24 || than fourteen days from the date of this order. He must plead his best case. 45 IT IS SO ORDERED. KE DISTRIG> > 26 || Dated: February 22, 2022 A ac Eo □□□ dda \ Pcl 28 United States\W4cise De Tide oN □□□