Case Number: BC526786 Hearing Date: May 21, 2014 Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Wednesday, May 21, 2014
Calendar No.: 7
Case Name: Lafitte, et al. v. County of Los Angeles, et al.
Case No.: BC526786
Motion: Motion for Judgment on the Pleadings
Moving Party: Defendants County of Los Angeles, Leroy Baca, Randy Barragan, and Deputy Cardenas
Responding Party: Plaintiffs Redone Lafitte, et al.
Notice: OK

Tentative Ruling: Motion for judgment on the pleadings is granted as to the 7th, 9th, and 10th COAs with 15 days leave to amend; and is otherwise denied.

Background –
On 11/6/13, Plaintiffs Redone Lafitte, Tierra Laffite, Tiffany Monique Laffite, Tisane Laffite, Sandra Cotton, Summer Key, Saone Seals, Quincy Williams, Antwanette Stone and Stephanie McMillan filed this action against Defendants County of Los Angeles, Leroy Baca, Randy Barragan, and Deputy Cardenas arising out of the death of Terry Laffitte. The Complaint asserts causes of action for (1) assault and battery/wrongful death, (2) negligence/wrongful death, (3) excessive force (42 U.S.C. § 1983), (4) excessive force (42 U.S.C. § 1983, Monell ), (5) rights of familial association (42 U.S.C. § 1983), (6) rights of familial association (42 U.S.C. § 1983, Monell), failure to properly screen and hire (42 U.S.C. § 1983, Monell), (8) failure to properly train, supervise, and discipline (42 U.S.C. § 1983, Monell), (9) violation of the Bane Act (Civil Code § 52.1), and (10) negligent infliction of emotional distress. On 2/25/14, Defendants filed an answer.

Factual Allegations of the Complaint –
Rodonna was Terry’s wife; Tierra, Tiffany, and Tyzhane were Terry’s daughters. ¶¶ 2-10. On 5/18/13, Barragan and Cardenas observed Terry riding a bicycle southbound on Miramonte Blvd. from 60th St. without a safety light attached. ¶ 26. Terry arrived at 6104 ½ Miramonte Blvd., Los Angeles, CA 90001, and began walking to his residence at the back of the property. ¶ 27. Barragan and Cardenas pursued Terry on foot into the backyard to cite Terry for riding a bicycle without any lighting equipment. ¶ 28. Barragan and Cardenas dragged Terry to the ground, struck him repeatedly and placed him in a headlock, and shot Terry in the back of the head despite Terry having been subdued and been fully cooperative (¶¶ 29-32): Terry was shot in the leg after already being shot in the head (¶ 33). At the time Terry was shot, he was unarmed and had not attempted to flee. ¶ 34. Violation of the use of lighting equipment on bicycles is an infraction punishable by a $25 fine. ¶ 37.

During the incident, Barragan and Cardenas kicked Cotton, Terry’s sister, when Cotton attempted to grab Terry’s hand (¶ 70); forcibly removed Stone from a room where she was hiding after hearing the gunshots and placed Stone in handcuffs outside of the house (¶ 71), and brandished their weapons at Williams and punched Williams in the face (¶ 72).

Motion for Judgment on the Pleadings –
Defendants move for judgment on the pleadings as to the 3rd through 10th COAs.

1. Request for Judicial Notice
Plaintiffs request judicial notice of a news article concerning the resignation of Baca as Sheriff. The RJN is denied.

2. Monell Claims
a. Excessive Force (3rd through 6th COAs)
Defendants argue that Plaintiffs fail to allege facts supporting a government policy or custom according to which Plaintiffs’ rights were violated. Monell, 436 U.S. at 694; Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249. Baca separately argues that no facts are alleged as to his personal involvement or a sufficient casual connection with Plaintiffs’ claims. See Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1207-8. The Court disagrees.

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 550). Plaintiffs allege that Baca was responsible for training all officers of the County, and that Barragan and Cardenas were trained by the County at the direction, special insistence, and under the control of Baca. ¶ 40. Plaintiffs allege that Baca and the County failed to take remedial steps despite being on notice that their officers repeatedly engage in a pattern and practice of violating people’s rights. ¶ 41. Plaintiffs allege that Baca and the County failed to arm and train its officers in the use of alternative force. ¶¶ 86-87. These are not mere recitations of the elements of a Monell claim. The motion for judgment on the pleadings is denied as to the 3rd through 6th COAs.

To the extent Defendants challenge whether Plaintiffs can meet the burden of establishing a Monell claim (see Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 918), this is an evidentiary issue and is not properly directed at the pleadings. To the extent Defendants argue that officers are not required to find and choose less intrusive alternatives (see Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915), the appropriate inquiry is whether Barragan and Cardenas acted reasonably (id. at 915-16). At the pleading stage, Plaintiffs allege facts that Barragan and Cardenas did not act reasonably. See, e.g., Complaint ¶¶ 34, 73-76.

b. Hiring (7th COA)
Defendants argue that Plaintiffs fail to allege a policy or custom pertinent to the screening and hiring of officers. This argument has merit. Plaintiffs only recite the conclusion that Baca and the County, as a matter of custom, practice, and policy, failed to adequately and properly screen and hire Barragan and Cardenas. See Complaint ¶¶ 109-113. This is insufficient. See Bd. of County Comm’rs of Bryan County, Okl. v. Brown (1997) 520 U.S. 397, 410-11. The motion for judgment on the pleadings is granted as to the 7th COA.

c. Training (8th COA)
Defendants argue that Plaintiffs fail to allege a training policy that amounts to deliberate indifference to the rights of persons with whom officers are likely to come into contact. See Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3d 463, 484. The Court disagrees. As stated in connection with the excessive force claims, Plaintiffs have sufficiently alleged facts establishing a training policy that amounts to deliberate indifference at the pleading stage. The motion for judgment on the pleadings is denied as to the 8th COA.

3. Bane Act Claim (9th COA)
Defendants argue that the 9th COA is an individual claim and cannot be asserted by a decedent’s successor in interest on a wrongful death theory. See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144. The 9th COA appears to be based on a wrongful death theory (Complaint ¶ 141), and Plaintiffs request leave to assert the 9th COA as a survival claim (see Medrano v. Kern County Sheriff’s Officer (E.D. Cal. 2013) 921 F.Supp.2d 1009, 1016). Therefore, the motion for judgment on the pleadings is granted as to the 9th COA.

4. Negligent Infliction of Emotional Distress (10th COA)
The 10th COA is based on Terry’s extended family members and neighbors present at the shooting of Terry. Complaint ¶¶ 139-140. Defendants argue that no facts are alleged to support a bystander negligent infliction of emotional distress claim (see Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68 (requiring a close relationship)) as to Cotton, Key, Seals, Williams, Stone, and McMillan (Trapp v. Schuyler Constr. (1983) 149 Cal.App.3d 1140, 1142 (stating that friends, housemates, or those in a “meaningful relationship” do not satisfy a “close relationship”)). However, Cotton is alleged to be Terry’s sister. See Complaint ¶ 70. Nevertheless, Plaintiffs concede that other Plaintiffs are not appropriate parties to the 10th COA. Therefore, the motion for judgment on the pleadings is granted as to the 10th COA to the extent asserted by Key, Seals, Williams, Stone, and McMillan.

5. Leave to Amend
Because this is the first challenge to the pleadings, the Court will grant Plaintiffs leave to amend to address the deficiency in the 7th COA, to clarify the basis of the 9th COA, and to remove the improper Plaintiffs in the 10th COA.