Filed 12/11/14 Lindsey v. City of Fontana CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



BRUCE D. LINDSEY et al.,

         Plaintiffs and Appellants,                                      E058047

v.                                                                       (Super.Ct.No. CIVRS1107119)

CITY OF FONTANA et al.,                                                  OPINION

         Defendants and Respondents.


         APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Holstein, Taylor and Unitt and Brian C. Unitt for Plaintiffs and Appellants.

         Carpenter, Rothans & Dumont, Steven J. Rothans and Justin Reade Sarno for

Defendants and Respondents City of Upland et al.

         Rinos & Martin, Linda B. Martin, Adrianna C. Paige and Alex Hackert for

Defendants and Respondents City of Fontana et al.


                                                             1
                                              I

                                    INTRODUCTION

       Plaintiffs Bruce B. Lindsey and Linda F. Barbee appeal from a judgment entered

after the trial court sustained without leave to amend defendants’ demurrer to the fourth

amended complaint. Plaintiffs sued defendants, asserting that the Upland and Fontana

police departments and its officers had falsely implicated Lindsey in a plot to hire a hit

man to murder Barbee. On appeal, plaintiffs argue they have alleged sufficient facts to

state civil rights violations under federal and state laws. Defendants counter that

plaintiffs cannot amend the defects in their pleadings and no further amendments should

be allowed.

       We conclude the trial court did not abuse its discretion. Furthermore, plaintiffs

have not alleged sufficient facts to support any claim against defendants. We affirm the

judgment.

                                             II

                   FACTUAL AND PROCEDURAL BACKGROUND

A. The Fourth Amended Complaint

       The original complaint was filed on August 3, 2011. A third amended complaint,

adding various state law claims was filed on May 14, 2012. This is the second appeal. In

May 2014, we affirmed the trial court’s order granting the anti-SLAPP motion to strike




                                              2
(Code Civ. Proc., § 425.16), which was filed by another set of defendants1 and directed at

the first amended complaint. (Lindsey v. Davis (May 28, 2004, E056571) [nonpub.

opn.].)

          In the meantime, plaintiffs filed a fourth amended complaint (FOAC) in August

2012, attempting to allege a single cause of action for violations of civil rights. (42

U.S.C. §§ 1983, 1988.) In October 2012, the trial court entertained defendants’

unopposed demurrers and Fontana’s motion to strike and sustained the demurrers without

leave to amend and granted the motion to strike. The facts, as summarized below, are

based on the allegations of the FOAC.

1. The Settlement Check and the Release

          In October 2010, Lindsey was 57 years old and Barbee was 72 years old and in

poor health. Plaintiffs alleged they were an unmarried couple who shared a house on

Euclid Avenue in Upland. In 2010, Lindsey and Barbee were both represented by the

former defendants, Benson and his law firm. In July 2010, Benson and Davis had invited

Lindsey to join a business partnership with them. In October 2010, after Benson’s

business, The Med Spa, was shut down, purportedly as a front for prostitution, Benson

and Davis blamed Lindsey. At the same time, Benson, Davis, and Lindsey had agreed to

settle a business dispute about their short-lived partnership for $25,000. On October 27,


          1
          John L. Benson, Michael Davis, and the law firm of Blomberg, Benson, and
Garret, Inc.



                                              3
2010, Benson and Davis asked Lindsey and his lawyer to meet a courier named “Big

Mike” at Lindsey’s office at 2:00 p.m. so that Lindsey could sign a release to receive the

settlement check. Plaintiffs allege on information and belief that Big Mike was an

informant for the Fontana police and one of Benson’s criminal clients.

       Before their meeting, Big Mike called Lindsey and asked him to come to a bar,

D.J.’s Lounge, in Montclair. When Lindsey and his lawyer arrived, Big Mike was

playing pool with another man. Big Mike insisted Lindsey shake hands with the pool

player. Big Mike displayed the check and the release. After Lindsey and his lawyer left

the bar to have the release notarized, they met Big Mike at Lindsey’s bank and exchanged

the release for the check. Lindsey and his lawyer had dinner and Lindsey went home,

where he retired to bed around 8:00 p.m. while Barbee was absent from the house.

2. The Police Conduct

       In October 2010, David Janusz, a Fontana police officer, and the Department of

Justice were investigating Lindsey whom they suspected of soliciting Barbee’s murder.

The police believed Barbee may have been in danger from a hit man hired by Lindsey.

Around 2:30 p.m. on October 27, 2010, the Fontana undercover police and the DOJ

began surveillance of Barbee at home, and later at a restaurant. Plaintiffs allege that,

after Barbee finished having dinner with friends, she was unconstitutionally detained at

about 7:30 p.m. by Fontana police and DOJ officers who warned her that Lindsey had




                                              4
hired a hit man to kill her. Plaintiffs contend the officers made misrepresentations in

order to obtain an emergency protective order2 (EPO) and to gain access to the Upland

residence. The police questioned Barbee for several hours about her assets, Lindsey’s

business, and his involvement with motorcycle gangs, guns, and drugs. When Barbee

would not cooperate, Officer Janusz falsified the application for an EPO. Eventually the

police told Barbee it was safe to return home because the hit man had “gone away.”

       Around 11:15 p.m. the same night, about 12 or 13 officers from the Upland and

Fontana police departments and the DOJ pounded on the front door of the Upland house.

They broke through the locked door, handcuffed Lindsey, and searched the house without

a warrant. Lindsey was shown a photograph of the man who had been playing pool with

Big Mike, the courier. The man in the photograph was described as a known hit man,

hired to kill Barbee. The police refused to allow Lindsey to contact his lawyer. The

police ransacked the house, cut open a locked safe, and stole guns, cash, and valuables.

The police arrested Lindsey for possession of an unregistered assault rifle. (Pen. Code, §

12280, subd. (b).) The criminal charges against Lindsey were ultimately dismissed on

October 24, 2011.

       Around 12:30 a.m. on October 28, 2010, a Fontana police officer drove Barbee to

the home of her friend, Ester Stamps, instructing Barbee not to contact anyone. Around

       2  An EPO is issued under the Family Code statutes enacted for the prevention of
domestic violence. (Fam. Code, § 6220.) The EPO in this case stated that Lindsey had
solicited the murder of Barbee and they had a history of domestic violence.



                                             5
2:00 a.m., the police said Barbee was free to return home. The police told Barbee they

had arrested Lindsey for gun possession. She was also advised not to worry because “the

hit man was gone.” Lindsey was released on bail but could not have contact with Barbee

for six days, causing her to be frantic and anxious. Lindsey and Barbee began seeing a

psychologist.

3. The Demurrers and Motion to Strike

       The Fontana and Upland defendants filed general and special demurrers for failure

to state a cause of action and on the grounds of uncertainty. Fontana also filed a motion

to strike the claim for punitive damages.

       Plaintiffs did not file timely opposition and, after the hearing, the court sustained

the demurrers without leave to amend and granted the motion to strike. The court entered

judgment on November 26, 2012.

                                             III

                     FAILURE TO STATE A CAUSE OF ACTION

A. Standard of Review

       The appellate court reviews a ruling on demurrer to determine whether the

complaint states a cause of action: “‘Because this matter comes to us after the trial court

sustained the defendant’s demurrer, “we must, under established principles, assume the

truth of all properly pleaded material allegations of the complaint in evaluating the

validity” of the decision below.’ [Citations.]” (Stop Youth Addiction, Inc. v. Lucky

Stores, Inc. (1998) 17 Cal.4th 553, 558.) A section 1983 claim must demonstrate facial

                                              6
plausibility. (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678-679.) “[I]f a trial court sustains

a demurrer without leave to amend, appellate courts determine whether or not the

plaintiff could amend the complaint to state a cause of action.” (Cantu v. Resolution

Trust Corp. (1992) 4 Cal.App.4th 857, 879, fn. 9, citing Blank v. Kirwan (1985) 39

Cal.3d 311, 318.) Plaintiff has the burden to show a complaint may be amended. (Hendy

v. Losse (1991) 54 Cal.3d 723, 742.) It is an abuse of discretion to deny leave to amend

only if an amendment is potentially effective. (CAMSI IV v. Hunter Technology Corp.

(1991) 230 Cal.App.3d 1525, 1542.)

B. Ruling on the TAC

       Plaintiffs have struggled repeatedly to plead a legally sufficient claim. In the third

amended complaint (TAC), in addition to the first cause of action for civil rights

violations, plaintiffs alleged claims for battery, false imprisonment, and fraud.3 The trial

court prepared a detailed, written, 16-page ruling on defendants’ demurrers and Fontana’s

motion to strike. The ruling reviewed the history of plaintiff’s multiple pleadings. It

summarized the substance of plaintiffs’ claims: that the police had detained and

interrogated Barbee for hours, based on the pretext that Lindsey had hired a hit man to

kill her; that the police had obtained an EPO without Barbee’s consent; and that the

police had unlawfully entered Lindsey’s home, questioned him, refused to let him contact


       3 Other causes of action for infliction of emotional distress and malicious
prosecution do not appear in the appellate record. Page 26 of the TAC is missing.



                                              7
a lawyer, searched the premises—including a tenant’s apartment—broke into a safe, and

seized an assault weapon and other items. Allegedly the police misconduct was

somehow prompted by Benson seeking revenge against Lindsey.

       The ruling also recited at length the standard of review and legal principles

governing demurrers and explained in detail why the state law tort causes of action were

barred by the Government Code. The demurrers to those causes of action were sustained

without leave to amend.

       Regarding the Title 42 United States Code section 1983 (section 1983) claim, the

ruling stated, “to survive a demurrer, the plaintiff must allege specific and nonconclusory

facts showing the defendant’s acts deprived him/her of a right, privilege or immunity

secured by the federal Constitution or federal law. Breneric Assocs. v. City of Del Mar

(1998) 69 Cal.App.4th 166, 180; Golden Gate Water Ski Club v. County of Contra Costa

(2008) 165 Cal.App.4th 249, 267-68.” After a comprehensive discussion of the

applicable law for section 1983 liability and the TAC, the trial court concluded that the

allegations were not sufficient to plead a Monell4 violation and to state a cause of action

under section 1983 for municipal liability. Citing Blank v. Kirwan, supra, 39 Cal.3d at

page 318, the court warned, “[u]nless Plaintiffs can plainly articulate a specific policy to




       4 Monell v. Department of Social Services (1978) 436 U.S. 658, 690-691
[“constitutional deprivation through an official policy or custom.”]



                                              8
support their Monell claims, the court will sustain the demurrer without leave to amend

. . . .”

           As to the constitutional claims against individual officers, the trial court

concluded, “to allow the individual defendants to meaningfully respond to the complaint,

there needs to be more specific allegations with respect to which legal rights were

violated by what conduct of specific defendants. These defects may be curable, even

though Plaintiffs’ counsel seems to have some difficulty in articulating how it will be

done. The court will permit one final attempt to cure these defects. [Emphasis

added.]”

C. Leave to Amend

           The FOAC represents plaintiffs’ fifth attempt to state a viable legal claim. On

appeal, plaintiffs are represented by appellate counsel, not by the trial counsel who

unsuccessfully drafted the previous versions of the complaint. Plaintiffs’ appellate

counsel acknowledges the imperfections of the FOAC and the need to amend it again.

Nevertheless, plaintiffs contend the facts that can be derived from the current complaint

are sufficient to state several causes of action if plaintiffs are given leave to amend and

are represented by “new counsel, sufficiently experienced in drafting pleadings.”

           Under the abuse of discretion standard, the appellate court will reverse a trial court

ruling only upon a showing of “a clear case of abuse” and “a miscarriage of justice.”

(Blank v. Kirwan, supra, 39 Cal.3d at p. 331.) An appellant must show how it is possible

to amend the complaint to change the legal effect of the pleading. (Fuller v. First

                                                  9
Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.) “If the plaintiff does not

proffer a proposed amendment, and does not advance on appeal any proposed allegations

that will cure the defect or otherwise state a claim, the burden of proof has not been

satisfied. [Citations.]” (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th

598, 613-614; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) An appellate

court will reverse for abuse of discretion only if it determines that there is a reasonable

possibility that the pleading can be cured by amendment and a party did not have a fair

opportunity to correct a defective complaint. (Schifando v. City of Los Angeles (2003) 31

Cal.4th 1074, 1081; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Angie M. v. Superior

Court (1995) 37 Cal.App.4th 1217, 1227.)

       Here, the trial court gave plaintiffs many opportunities to cure their defective

pleadings. In opposing the final demurrer, plaintiffs did not submit a proposed fifth

amended complaint, curing the defects. On appeal, they do not explain how another

amendment would improve the complaint—except to promise that a better lawyer could

organize the facts to tie them to the elements of the proposed causes of action. Plaintiffs

have not demonstrated how they were denied a fair opportunity to correct the defects in

their complaint. Plaintiffs have failed to show their ability to amend and cure their

pleadings.

       In Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305,

a private antitrust action, defendants brought demurrers to each successive complaint

over the course of two years. The matter was dismissed on demurrer to the fourth

                                             10
amended complaint after plaintiffs failed to allege an unlawful business practice and

injury. The appellate court indicated, “[Plaintiffs] demonstrate that they are unable or

unwilling to amend to cure the defects specified in various special demurrers to their

complaint which were sustained on similar grounds designated by two different trial

judges. . . . Leave to amend further is properly denied when a plaintiff fails to amend to

correct defects on the basis of which special demurrers to a previous complaint were

sustained, or as directed by the court when sustaining such demurrers.” (Id. at p. 327.)

       In another case Titus v. Canyon Lake Property Owners Assn. (2004) 118

Cal.App.4th 906, plaintiff was denied leave to amend a fourth time. In Tudor v. City of

Rialto (1958) 164 Cal.App.2d 807, 814 the appellate court commented, “It is difficult to

establish any clear rule as to just how far a trial court should go in aiding a pleader by

detailed explanation of the defects in the pleading. However, whereas here the demurrer

itself and the authorities cited in support thereof before the trial court amply pointed out

the defects and plaintiffs in their amended complaint failed to in any degree supply the

deficiency shown, the trial court’s action in refusing to permit amendment to the

amended complaint will not be disturbed unless there has been a manifest abuse of

discretion.”

       No bright-line rule exists regarding how many opportunities to amend a party must

be given. “Perfection in pleading” is not expected or required. (Lloyd v. California

Pictures Corp. (1955) 136 Cal.App.2d 638, 643.) However, it is not abuse of discretion

to deny leave to amend when a complaint is incapable of amendment. (Ibid.) If a party

                                             11
refuses to take direction from the court and makes no further amendment to the pleading

at issue, dismissal with prejudice is justified. (Gonzales v. State of California (1977) 68

Cal.App.3d 621, 635, citing Hilltop Properties v. State of California (1965) 233 Cal.

App.2d 349, 361-362; Sutter v. Gamel (1962) 210 Cal.App.2d 529, 533; Chicago Title

Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 327.) Here, the court

repeatedly provided specific direction to plaintiffs about curing the deficiencies of their

complaint which they disregarded. (See Eustace v. Dechter (1938) 28 Cal.App.2d 706,

711; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 911.) Denial of leave to amend the

FOAC was not an abuse of discretion under these circumstances.

D. Section 1983

       Plaintiffs admit their complaint is subject to general demurrer for failure to state a

claim and to special demurrer because it is uncertain and ambiguous. Nevertheless, they

argue that, based on reasonable inferences that can be made from the allegations of the

FOAC, they have valid claims that can be fixed if they are permitted one more chance to

amend. (Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713,

716.) We disagree.

       The parties agree defendants were acting under color of law. The issue is whether

defendants’ conduct deprived plaintiffs of their rights, privileges, or immunities under the

Constitution or federal law: “Section 1983 allows individuals to sue state actors for

violating their federal constitutional or statutory rights. (Parratt v. Taylor (1981) 451

U.S. 527, 535, 68 L .Ed. 2d 420, 428, 101 S. Ct. 1908, overruled in part on other grounds

                                             12
in Daniels v. Williams (1986) 474 U.S. 327, 330-331, 88 L.Ed.2d 662, 668, 106 S.Ct.

662.) Section 1983 ‘“is not itself a source of substantive rights,” but merely provides “a

method for vindicating federal rights elsewhere conferred.”’ (Graham v. Connor (1989)

490 U.S. 386, 393-394, 104 L.Ed.2d 443, 453-454, 109 S.Ct. 1865.)” (O’Dea v. Bunnell

(2007) 151 Cal.App.4th 214, 219.)

       A complaint that offers “labels and conclusions” or “‘a formulaic recitation of the

elements of a cause of action will not do.’” (Ashcroft v. Iqbal, supra, 556 U.S. at p. 678,

129 S.Ct. 1937, 173 L.Ed.2d 868, citing Bell Atlantic Corp. v. Twombly (2007) 550 U.S.

544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929.) “Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” (Ashcroft, at p. 678,

quoting Bell, at p. 557.) “The court need not, however, accept as true allegations that

contradict matters properly subject to judicial notice or by exhibit. [Citations.] Nor is the

court required to accept as true allegations that are merely conclusory, unwarranted

deductions of fact, or unreasonable inferences.” (Sprewell v. Golden State Warriors (9th

Cir. 2001) 266 F.3d 979, 988.)

       To give factual support to their section 1983 claims, plaintiffs allege that Upland

and Fontana police officers detained and interrogated Barbee for hours, during which

time they also conducted a warrantless search of plaintiffs’ residence while subjecting

Lindsey to excessive force. Based on those facts, plaintiffs assert they can state a cause

of action for violations of the Fourth and Fifth Amendments. Plaintiffs argue that the

EPO issued by the superior court did not justify detention and the warrantless search

                                             13
because the police conduct did not serve an interest “beyond the normal need for law

enforcement.” (Henderson v. City of Simi Valley (9th Cir. 2002) 305 F.3d 1052, 1057.)

       As further alleged in the FOAC, the reason the police entered plaintiffs’ residence

was to enforce the EPO and to search for weapons. The EPO was issued under the

Domestic Violence Prevention Act, Family Code section 6200 et seq., and to protect

Barbee from danger. Family Code section 6250 provides: “A judicial officer may issue

an ex parte emergency protective order where a law enforcement officer asserts

reasonable grounds to believe any of the following: [¶] (a) That a person is in immediate

and present danger of domestic violence, based on the person’s allegation of a recent

incident of abuse or threat of abuse by the person against whom the order is sought. [¶] .

. . [¶] (d) That an elder or dependent adult is in immediate and present danger of abuse as

defined in Section 15610.07 of the Welfare and Institutions Code, based on an allegation

of a recent incident of abuse or threat of abuse by the person against whom the order is

sought. . . .”

       Plaintiffs alleged that the police believed that Lindsey may have been involved in

a plot to kill Barbee and that Lindsey possessed a firearm. Based on the threat to Barbee,

Fontana Police Officer Janusz followed the statutory procedures requiring a law

enforcement officer specifically to request an EPO from the superior court, reduce it to

writing, and sign it. (Fam. Code, §§ 6250.3 and 6270.) A person subject to an EPO shall

not possess a firearm. (Fam. Code, § 6389.)

       Family Code section 6272 further provides: “(a) A law enforcement officer shall

                                            14
use every reasonable means to enforce an emergency protective order. [¶] (b) A law

enforcement officer who acts in good faith to enforce an emergency protective order is

not civilly or criminally liable.” After the EPO was issued, the Fontana and Upland

police undertook to enforce it. The Upland police did not even participate in obtaining

the EPO; they were only involved in enforcement.

       Although plaintiffs allege Officer Janusz falsified the grounds for requesting the

EPO, they do not allege that Janusz or the other defendants were acting in bad faith

because they knew Lindsey was not actually trying to kill Barbee. Plaintiffs ignore the

statutory immunity afforded for the good-faith enforcement of an EPO. Even if

defendants were ultimately wrong about the threat posed to Barbee, the allegations of the

complaint do not support a reasonable inference that defendants knew she was not in

danger but, nevertheless, conducted a massive, expensive, and pointless police action

against plaintiffs. Under these circumstances, the detention and the warrantless entry do

not give rise to constitutional violations and section 1983 liability.

       As another basis for section 1983 liability, Lindsey contends he was subjected to

excessive force based on the conduct of a dozen or so armed officers who taunted him,

broke into his home, handcuffed him, and shoved him around. (Tennessee v. Garner

(1985) 471 U.S. 1, 8; Cameron v. Craig (9th. Cir. 2013) 713 F.3d 1012.) Barbee argues

that the Fontana police conduct was “calculated to intimidate and unnerve her,”

supporting her claim for excessive force.

       Craig explains that the reasonableness of a particular search or seizure must be

                                              15
assessed based on the objective facts and circumstances that confronted the officers or

officers. The courts typically consider three factors: (1) the severity of the crime at

issue; (2) whether the suspect poses an immediate threat to the safety of the officers or

others; and (3) whether the suspect is actively resisting arrest or attempting to evade

arrest by flight. (Cameron v. Craig, supra, 713 F.3d at p. 1021, citing Graham v.

Connor, supra, 490 U.S. at p. 396.)

       In Cameron, numerous armed sheriff’s deputies participated in arresting the ex-

girlfriend of another deputy. Her purported offense was using his credit card to buy

furniture for herself and their two children after they broke up. The Ninth Circuit

recognized that her “‘suspected crimes were relatively minor and non-violent;’” there

was no reason to suspect her or her roommates posed a threat to officer safety; and she

was not resisting arrest. (Cameron v. Craig, supra, 713 F.3d at pp. 1021-1022.)

Nevertheless, Cameron’s ex-boyfriend led six to 10 deputies into her home with guns

drawn early in the morning. “Those deputies pointed weapons at Cameron, grabbed

Cameron by the arms and shoulders, pushed her in the back down a hallway, and then

tightly handcuffed her. On this view of the facts, a reasonable jury could find that the

deputies used excessive force.” (Id. at p. 1022.)

       The facts and circumstances here differ significantly from Cameron. The EPO

was issued based on “immediate and present danger.” The suspected crime—solicitation

of murder—was extremely serious. Lindsey was also suspected of possessing a gun,

posing an immediate safety threat. Lindsey was uncooperative and refused entry to the

                                             16
officers without a warrant. Barbee, of course, was held by the Fontana police for her own

protection and there are no allegations of physical force used against her. This is not a

case in which there is a jury question about “whether the force applied by the officers was

objectively reasonable under the totality of the circumstances.” (Santos v. Gates (9th Cir.

2002) 287 F.3d 846, 855.) Plaintiffs’ federal claim of excessive force is not supported

under these factual circumstances.5

E. Monell Claim

       Plaintiffs also admit the FOAC fails to allege that Fontana or Upland “‘had a

deliberate policy, custom, or practice’” that resulted in the constitutional violations. (AE

ex rel. Hernandez v. County of Tulare (9th Cir. 2012) 666 F.3d 631, 636, citing Whitaker

v. Garcetti (9th Cir. 2007) 486 F.3d 572, 581.) The Monell pleading requirements

announced in Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1216 are: “First, to be entitled

to the presumption of truth, allegations in a complaint or counterclaim may not simply

recite the elements of a cause of action, but must contain sufficient allegations of

underlying facts to give fair notice and to enable the opposing party to defend itself

effectively. Second, the factual allegations that are taken as true must plausibly suggest

an entitlement to relief, such that it is not unfair to require the opposing party to be

subjected to the expense of discovery and continued litigation.”

       5 For the same reasons that the section 1983 claims fail, we conclude plaintiffs
cannot state a new state law cause of action for constitutional violations under Civil Code
section 52.1.



                                              17
       Plaintiffs argue that, although their “complaint does not directly indentify express

written policies of either city or police department, such policies, customs or practices

can be inferred from the facts.” We doubt it. Plaintiffs seem to argue, based on this

single incident, that they can allege defendants have a custom, policy, or practice of not

training their police officers adequately. Plaintiffs, however, have not—and apparently

cannot—allege facts showing a longstanding, widespread practice or custom. The

Supreme Court has cautioned that municipal liability “for a deprivation of rights is at its

most tenuous where a claim turns on failure to train.” (Connick v. Thompson (2011) ___

U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417, citing Oklahoma City v. Tuttle (1985)

471 U.S. 808, 822-823, 105 S.Ct. 2427, 85 L.Ed.2d 791; Marsh v. County of San Diego

(9th Cir. 2012) 680 F.3d 1148, 1159; Villegas v. Gilroy Garlic Festival Ass’n (9th Cir.

2008) 541 F.3d 950, 955.) The facts here offer no support, express or implied, for a

Monell claim.

F. State Tort Claims

       Plaintiffs also seek to restore state tort claims which were eliminated when the

court sustained defendants’ demurrers to the TAC without leave to amend those causes of

action. These claims were likely time-barred because they were not filed until May 2012,

when the time to file expired in August 2011. (Gov. Code, § 945.6, subd. (a)(1).)

       But, even if the state tort claims were timely, we reject plaintiffs’ argument that

the city defendants may still be vicariously liable for the police defendants’ use of

excessive force. (Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 264; Mary M. v. City of

                                             18
Los Angeles (1991) 54 Cal.3d 202, 215; Gov. Code, § 820.4.) As we have discussed

above, the factual circumstances as alleged do not establish excessive force. The police

defendants were also immune from liability under Government Code section 821.6 for

conduct related to the enforcement of the EPO, even if they acted maliciously or without

probable cause. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-

1210.) Because the police defendants are immune, the city defendants are also immune

from liability for the state tort claims. (Gov. Code, § 815.2, subd. (b).)

                                             IV

                                      DISPOSITION

       Plaintiffs cannot assert any viable claim against defendants. The trial court did not

abuse its discretion in sustaining the demurrer to the fourth amended complaint without

leave to amend. We affirm the judgment.

       Defendants are the prevailing parties and are entitled to recover their costs on

appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 CODRINGTON
                                                                                           J.
We concur:


McKINSTER
                Acting P. J.


KING
                           J.



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