Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEWART LUCAS MURREY, Case No. 26-cv-02327-BAS-VET 12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO 14 COUNTY OF SAN DIEGO et al., PROCEED IN FORMA 15 Defendants. PAUPERIS (ECF No. 2); AND 16 (2) DISMISSING PLAINTIFF’S FIRST AMENDED COMPLAINT 17 (ECF No. 20) 18 19 For the reasons below, the Court GRANTS Plaintiff’s Motion for Leave to Proceed 20 in Forma Pauperis. (ECF No. 2.) However, the Court DISMISSES Plaintiff’s First 21 Amended Complaint (“FAC”). (ECF No. 20.) 22 I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 23 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 24 required fees or security to commence a legal action may petition the court to proceed 25 without making such payment. The determination of indigency falls within the district 26 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 27 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 28 discretion in determining whether the affiant has satisfied the statute’s requirement of 1 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 2 need not be completely destitute to proceed in forma pauperis (“IFP”). Adkins v. E.I. 3 DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 4 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot 5 because of his poverty pay or give security for costs . . . and still be able to provide himself 6 and dependents with the necessities of life.” Id. at 339. At the same time, however, “the 7 same even-handed care must be employed to assure that federal funds are not squandered 8 to underwrite, at public expense . . . the remonstrances of a suitor who is financially able, 9 in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 10 850 (D.R.I. 1984). Finally, the facts as to the affiant’s poverty must be stated “with some 11 particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 12 (9th Cir. 1981). 13 Here, the Court concludes that Plaintiff has provided sufficient information to show 14 Plaintiff is unable to pay the fees or post securities required to maintain this action. Plaintiff 15 currently works as an independent contractor and receives $2,000.00 in compensation 16 monthly. (See ECF No. 2.) Plaintiff’s total monthly expenses amount to $2,520.00— 17 exceeding his household’s monthly income by $520.00. (Id.) Additionally, Plaintiff only 18 has $94.12 in his bank account. (Id.) 19 The Court therefore GRANTS Plaintiff’s motion for leave to proceed in forma 20 pauperis. (ECF No. 2.) 21 II. SCREENING 22 A. Legal Standard 23 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 24 any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a 25 mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous, 26 malicious, fails to state a claim upon which relief may be granted, or . . . seeks monetary 27 relief against a defendant who is immune from such relief[.]” Lopez v. Smith, 203 F.3d 28 1122, 1126–27 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915(e)(2) mandates that the court 1 reviewing a complaint filed pursuant to the IFP provisions of § 1915 make and rule on its 2 own motion to dismiss before directing that the complaint be served by the U.S. Marshal 3 pursuant to Federal Rule of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127 (“[S]ection 4 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 5 complaint that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 6 (9th Cir. 1998) (noting that “the language of § 1915(e)(2)(B)(ii) parallels the language of 7 Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain 8 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 9 face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 10 550 U.S. 544, 570 (2007)). 11 B. Background 12 In the First Amended Complaint (“FAC”), Plaintiff brings claims against County of 13 San Diego, City of San Marcos, and their employees, including: a deputy named Isaac 14 Padilla (“Deputy Padilla”), Psychiatric Emergency Response Team (“PERT”) clinician and 15 licensed marriage and family therapist named Warren Basile (“Therapist Basile”), a deputy 16 named Hannah Rost (“Deputy Rost”), and Doe Officers 4–10. (See generally FAC, ECF 17 No. 20.) 18 As best as the Court can ascertain from the FAC, this is a family dispute between 19 Plaintiff Stewart Lucas Murrey and his sister Melissa Mazzola (“Mazzola”) involving the 20 Murrey Family Trust (“the Trust”). (FAC ¶¶ 1, 3, 13.) Their 76-year-old mother, Karen 21 Murrey, who formed the Trust with her now-deceased husband (also Plaintiff’s father), is 22 still alive but cognitively impaired with Alzheimer’s. Plaintiff and his sister were, at the 23 time of the events at issue, co-successor Trustees of the Trust and co-holders of a power of 24 attorney for their mother, and equal beneficiaries of the Trust, though Plaintiff alleges that 25 instruments executed in October and December 2025 stripped him of those fiduciary roles 26 and of his beneficial interest. (FAC ¶¶ 13, 33.) 27 Plaintiff’s father died on September 27, 2025. Three days later, Plaintiff called the 28 San Diego County Sheriff’s Department (“SDSO”) for protection against what he describes 1 as the Mazzola parties’ assaults and a “pretextual ‘water leak’ scheme designed to break 2 into his private room and access Trust documents.” (FAC ¶¶ 17, 20.) Plaintiff alleges the 3 officers refused to recognize his legal authority, credited Mazzola’s narrative, and used 4 coercive pressure to accomplish an illegal eviction, although they conceded on scene that 5 they could not forcibly remove him from the property. (Id. ¶ 22.) He claims Therapist 6 Basile labeled him “dangerous” and in a “mental health crisis” without clinical assessment, 7 told his mother she “needed to get protection” from him, recommended a restraining order, 8 and advised recording all conversations. (Id. ¶ 10.) Plaintiff also claims Therapist Basile 9 testified against Plaintiff at the April 17, 2026 trial on the elder-abuse restraining order 10 petition filed by Mazzola in his mother’s name. (Id. ¶ 37.) Specifically, Plaintiff claims 11 Therapist Basile testified that the conflict over Plaintiff’s mother concerned “the money 12 that is tearing this family apart regarding some documents,” and further alleges that 13 Therapist Basile failed “to report or assess the suspected undue influence unfolding in his 14 presence.” (Id. ¶¶ 37, 64.) Plaintiff alleges he was forced to leave the Trust-owned 15 property, even though he was a lawful resident. (FAC ¶ 25.) 16 After the alleged eviction, Plaintiff called the SDSO to file an elder-abuse report 17 against the Mazzola parties. He alleges Deputy Padilla refused to accept the report and 18 hung up. (FAC ¶¶ 28–29.) Plaintiff alleges this refusal was repeated across later 19 attempts and became a standing directive conveyed to him by SDSO dispatch. SDSO 20 also refused his request for a welfare check on his mother. (Id.) 21 The FAC asserts nine causes of action as follows: 22 1. Count 1: 42 U.S.C. § 1983, Fourth Amendment Unlawful Seizure of Person 23 and Property (Against Deputy Padilla, Deputy Rost, Therapist Basile, and Doe 24 Officers 4–10); 25 2. Count 2: 42 U.S.C. § 1983, Fourteenth Amendment Procedural Due 26 Process—Wrongful Eviction (Against Deputy Padilla, Deputy Rost, 27 Therapist Basile, and Doe Officers 4–10); 28 1 3. Count 3: 42 U.S.C. § 1983, Fourteenth Amendment Interference with Familial 2 Association (Against Deputy Padilla, Deputy Rost, Therapist Basile, and Doe 3 Officers 4–10); 4 4. Count 4: 42 U.S.C. § 1983, First Amendment Retaliation (Against Deputy 5 Padilla, Deputy Rost, and Therapist Basile); 6 5. Count 5: Municipal Liability, Monell v. Dep’t of Soc. Servs., 436 U.S. 658 7 (1978) (“Monell liability”) (Against the County of San Diego); 8 6. Count 6: Monell Liability (Against the City of San Marcos); 9 7. Count 7: Breach of Mandatory Duty, Government Code § 815.6 and Welfare 10 and Institutions Code §§ 15630, 15640, and 15763 (Against the County of San 11 Diego, the City of San Marcos, Deputy Padilla, and Therapist Basile); 12 8. Count 8: California Civil Code § 52.1, Bane Act (Against all Defendants); and 13 9. Count 9: Professional Negligence/Malpractice (Against Therapist Basile). 14 (FAC ¶¶ 40–70.) Plaintiff also alleges compliance with the Government Claims Act, 15 pleading that he timely presented claims to the County and the City and that both rejected 16 them before this action was commenced. (Id. ¶ 5.) 17 C. Analysis 18 1. Count 1: 42 U.S.C. § 1983, Fourth Amendment Unlawful Seizure 19 of Person and Property (Against Defendants Deputy Padilla, Deputy 20 Rost, Therapist Basile, and Doe Officers 4–10) 21 A “seizure” of a person occurs under the Fourth Amendment when the officer, “by 22 means of physical force or show of authority has in some way restrained the liberty of a 23 citizen.” United States v. Orman, 486 F.3d 1170, 1175 (9th Cir. 2007). The Supreme 24 Court has noted that a seizure takes place when a person voluntarily surrenders after 25 learning of a warrant or threat of arrest. Albright v. Oliver, 510 U.S. 266, 271 (1994) 26 (“[S]urrender to the State’s show of authority constituted a seizure for purposes of the 27 Fourth Amendment.”). Under the Fourth Amendment, an individual’s “seizure” occurs 28 1 only when physical force or show of authority results in restrained freedom of movement. 2 See United States v. Smith, 633 F.3d 889 (9th Cir. 2011). 3 A “seizure” of property occurs when “there is some meaningful interference with an 4 individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 5 109, 113 (1984). In addition, “at the very core” of the Fourth Amendment “stands the right 6 of a man to retreat into his own home.” Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992) 7 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)); see also Oliver v. United 8 States, 466 U.S. 170, 178–79 (1984); Wyman v. James, 400 U.S. 309, 316 (1971); Payton 9 v. New York, 445 U.S. 573, 601 (1980). 10 An unlawful eviction by government officials can plausibly be a “seizure” of 11 property protected by the Fourth Amendment. See Soldal, 506 U.S. at 72 (applying the 12 Fourth Amendment to an allegedly unlawful eviction of motor home where offending 13 officers physically seized the home); Herrera v. City of Palmdale, No. 14 CV169453MWFFFMX, 2020 WL 6064015, at *7 (C.D. Cal. July 6, 2020) (eviction from 15 a motel not owned by Plaintiff is still a “seizure” subject to Fourth Amendment analysis). 16 Although an eviction can be a seizure, it is not at all clear from the FAC that Plaintiff 17 was in fact evicted. Plaintiff alleges that the officers acknowledged at the scene that they 18 could not forcibly remove Plaintiff. (FAC ¶ 22.) Although the presence of uniformed 19 officers may be a “show of authority,” Plaintiff has failed to allege that any Defendant 20 threatened to arrest or detain him if he refused to leave. Although Plaintiff alleges he was 21 “forced to leave” the property, the FAC does not allege that any Defendant compelled his 22 departure by force, threat, or legal process; it alleges instead that Plaintiff left after the 23 responding deputies and his mother told him to go, and after Therapist Basile made 24 recommendations to his mother that Plaintiff found offensive. (Id. ¶¶ 21–25.) Finally, 25 although Plaintiff alleges Deputy Rost was among the deputies dispatched to the scene, he 26 does not allege any conduct by her that caused him to leave the property. (Id. ¶¶ 8, 11, 21– 27 25.) 28 1 Regarding Plaintiff’s claims for seizure of property, Plaintiff fails to allege he has a 2 “possessory interest” in the property left behind. Jacobsen, 466 U.S. at 113. Plaintiff 3 alleges his parents Gordon and Karen Murrey—who created the Trust—had invited him to 4 stay at the Trust-owned home and even provided him house keys, mailbox key, safe 5 combinations, and a private room with a secure entry code. (FAC ¶¶ 13–14, 44.) However, 6 being given permission to stay as a guest in a unit does not grant Plaintiff a possessory 7 interest in the property. Unlike a tenant, for example, Plaintiff did not sign a rental 8 agreement. See, e.g., Porto v. City of Newport Beach, No. SACV 11-00180-DOC MLG, 9 2011 WL 2470128, at *11 (C.D. Cal. May 20, 2011), report and recommendation adopted, 10 No. SACV 11-00180-DOC, 2011 WL 2462555 (C.D. Cal. June 21, 2011), aff’d, 509 F. 11 App’x 665 (9th Cir. 2013) (reasoning “Plaintiff had no possessory interest in the unit he 12 occupied at 710 Orchid Avenue because he was not a tenant” and subsequently finding 13 Plaintiff’s Fourth Amendment seizure of property claim fails); cf. Forte v. Hyatt 14 Summerfield Suites, Pleasanton, No. C 11-2568 CW, 2012 WL 6599724, at *4 (N.D. Cal. 15 Dec. 18, 2012) (“[A] hotel does not grant all of its guests a possessory interest in their 16 rooms merely by granting such an interest to certain, individual tenants.”). 17 Even regarding property in which Plaintiff does allege a protected interest (i.e., his 18 “personal property”), Plaintiff alleges he was permitted to return to the Trust-owned home 19 to retrieve it. (FAC ¶¶ 26, 32.) And although Plaintiff alleges he lost his “fiduciary 20 positions” and “$2,000,000 inheritance” as a result of Defendants’ conduct, the FAC 21 alleges that those losses were effected by instruments executed by private parties and by a 22 restraining order issued by the state court—not by any seizure of property by Defendants. 23 (Id. ¶¶ 33, 39, 42.) 24 As such, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Fourth 25 Amendment seizure of person and property claim in its entirety against Defendants Deputy 26 Padilla, Deputy Rost, Therapist Basile, and Doe Officers 4–10 (Count 1). 27 28 1 2. Count 2: 42 U.S.C. § 1983, Fourteenth Amendment Procedural 2 Due Process—Wrongful Eviction (Against Defendants Deputy Padilla, 3 Deputy Rost, Therapist Basile, and Doe Officers 4–10) 4 Plaintiff claims Defendants Deputy Padilla, Deputy Rost, Therapist Basile, and Doe 5 Officers 4–10 wrongfully evicted him from the Trust-owned home in violation of 6 Plaintiff’s procedural due process rights under the Fourteenth Amendment. (FAC ¶¶ 43– 7 46.) 8 The Due Process Clause of the Fourteenth Amendment guarantees that “[n]o State 9 shall . . . deprive any person of life, liberty, or property, without due process of law[.]” 10 U.S. Const. amend. XIV. Procedural due process claims are examined under a two-part 11 analysis. First, the court must determine whether the interest at stake is a protected liberty 12 or property right under the Fourteenth Amendment. Only after identifying such a right 13 does the Court consider whether the deprivation of that interest contravened notions of due 14 process. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989). “Property 15 interests are not created by the Constitution[.]” Cleveland Bd. of Educ. v. Loudermill, 470 16 U.S. 532, 538 (1985). Instead, “they are created and their dimensions are defined by 17 existing rules or understandings that stem from an independent source such as state law[.]” 18 Id. (internal quotation marks, ellipsis, and citation omitted). 19 Here, Plaintiff has failed to adequately allege a protected property interest in the 20 Trust-owned home under the Fourteenth Amendment because Plaintiff has not alleged that 21 the Trust-owned home was assigned to him “for [his] exclusive occupancy . . . with the 22 capacity and right to exclude others from entering.” Shapiro v. Willowbrook Home LLC, 23 No. SACV 13-1478-JAK JEM, 2014 WL 3706703, at *6 (C.D. Cal. June 23, 2014), report 24 and recommendation adopted, No. SACV 13-1478-JAK JEM, 2014 WL 3716214 (C.D. 25 Cal. July 23, 2014) (finding plaintiff failed to allege a procedural due process violation for 26 wrongful eviction where the complaint did not allege a conventional landlord and tenant 27 relationship); see also Martinez v. Sonoma-Cutrer Vineyards, 577 F. Supp. 454, 28 [PINCITE] (N.D. Cal. 1983) (“[P]laintiffs are unable to establish the existence of a 1 protected property interest” in the case of premises “remaining under the supervision and 2 control of the [alleged sublessor]”). As discussed supra § II.C.1, residing in the Trust- 3 owned home with his parents’ (the Trust’s settlors’) permission and being given keys does 4 not mean Plaintiff was assigned “exclusive occupancy” or had “the capacity and right to 5 exclude others from entering.” Shapiro, 2014 WL 3706703, at *6. Also, for the same 6 reasons discussed supra § II.C.1, Plaintiff does not allege any Defendant deprived Plaintiff 7 of any other purported property interests. Nor does the FAC allege that any Defendant 8 compelled Plaintiff’s departure by force, threat, or legal process. 9 Thus, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Fourteenth 10 Amendment Procedural Due Process claim for wrongful eviction against Defendants 11 Deputy Padilla, Deputy Rost, Therapist Basile, and Doe Officers 4–10 (Count 2). 12 3. Count 3: 42 U.S.C. § 1983, Fourteenth Amendment Interference 13 with Familial Association (Against Defendants Deputy Padilla, Deputy 14 Rost, Therapist Basile, and Doe Officers 4–10) 15 Children have a constitutionally protected interest in associating with their parents, 16 free from official deprivation. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 17 1075 (9th Cir. 2013) (“Parents and children may assert Fourteenth Amendment substantive 18 due process claims if they are deprived of their liberty interest in the companionship and 19 society of their child or parent through official conduct.”). This right to familial association 20 also applies to the relationship between adult children and their parents. See Chaudhry v. 21 City of Los Angeles, 751 F.3d 1096, 1106 (9th Cir. 2014). For liability to attach in a due 22 process claim based on familial association, the official conduct depriving a plaintiff of 23 this right must “shock the conscience,” with a purpose to harm “unrelated to legitimate law 24 enforcement objectives.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). 25 Here, Plaintiff alleges he was verbally coerced by Defendants Deputy Padilla and 26 Doe Officers 4–10 to leave the premises of the Trust-owned home and his mother Karen 27 Murrey. (FAC ¶¶ 47–49.) According to Plaintiff, a uniformed deputy and Therapist Basile 28 raised the option of a Temporary Restraining Order (“TRO”) to Plaintiff’s mother and the 1 Mazzolas to evict Plaintiff from the Trust-owned home and to separate Plaintiff from his 2 mother—despite his mother’s protests otherwise. (Id. ¶¶ 9, 10, 23, 34.) 3 The facts of this case do not rise to the level of conduct that “shocks the conscience.” 4 Even though Defendants may have suggested a TRO to the Mazzolas, Plaintiff fails to 5 allege that Defendants did so with a purpose to harm “unrelated to legitimate law 6 enforcement objectives,” particularly where those Defendants could have believed 7 Plaintiff’s mother was in immediate danger. Porter, 546 F.3d at 1137; see also Caldwell 8 v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991) (a state agency may remove children from 9 their parents’ custody in an emergency situation if the children are subject to immediate or 10 apparent danger or harm). 11 Additionally, Plaintiff apparently left the premises of the Trust-owned home and his 12 mother voluntarily—even after Defendants verbally represented that they could not force 13 him off the premises. (See, e.g., FAC ¶¶ 22, 25.) Moreover, the TRO to restrain Plaintiff 14 from seeing his mother was eventually filed by private actors (the Mazzolas) and issued by 15 the state court. (Id. ¶ 33.) Put differently, Plaintiff fails to allege any state action taken by 16 Defendants in this case that directly resulted in the separation between Plaintiff and his 17 mother. Cf. Lamkin v. Hutchinson, No. 2:23-CV-00273-BLW, 2024 WL 5200845, at *7 18 (D. Idaho Dec. 23, 2024) (citing NCAA v. Tarkanian, 488 U.S. 179, 191 (1988)) (“Section 19 1983 does not provide a remedy for actions by private actors.”). 20 For the reasons above, the Court DISMISSES WITHOUT PREJUDICE 21 Plaintiff’s Fourteenth Amendment Interference with Familial Association claim against 22 Deputy Padilla, Deputy Rost, Therapist Basile, and Doe Officers 4–10 (Count 3). 23 4. Count 4: 42 U.S.C. § 1983, First Amendment Retaliation (Against 24 Defendants Deputy Padilla, Deputy Rost, and Therapist Basile) 25 Plaintiff claims he was exercising his First Amendment rights when calling 911, 26 asserting his “legal authority” (presumably as a co-Trustee), and attempting to file an elder- 27 abuse report. (FAC ¶¶ 50–52, 67.) Then, “[i]n direct retaliation the officers labeled 28 plaintiff ‘dangerous’, advised the Mazzola parties to seek a TRO against the very person 1 who had called for help, instructed them to call 911 if plaintiff returned to his own home 2 and deputy Padilla refused to accept plaintiff’s elder abuse report and hung up on him.” 3 (Id. ¶ 51.) 4 However, Plaintiff does not have a constitutionally protected right “to have police 5 investigate his report in a particular way.” Whiting v. Walmart Inc., No. 6 EDCV222121JWHJEM, 2023 WL 2870840, at *3 (C.D. Cal. Mar. 8, 2023) (collecting 7 cases), report and recommendation adopted, No. EDCV222121JWHJEM, 2023 WL 8 2868837 (C.D. Cal. Apr. 10, 2023). Thus, Plaintiff’s attempts to file an elder-abuse report 9 are not constitutionally protected by the First Amendment; and Defendants’ actions 10 allegedly in response to Plaintiff’s requests (i.e., refusal to enter the report or entering a 11 “standing directive”) do not constitute retaliation. 12 Moreover, even if Plaintiff’s 911 calls and assertion of “legal authority” could be 13 protected by the First Amendment, Plaintiff fails to allege that any Defendant engaged in 14 any constitutionally prohibited action in response to Plaintiff’s 911 calls or assertion that 15 he has legal authority as a co-successor Trustee. See, e.g., Penrod v. City of Murrieta, No. 16 CV1702116MWFSPX, 2018 WL 6112631, at *5 (C.D. Cal. Feb. 26, 2018) (quoting 17 O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)) (A First Amendment retaliation claim 18 requires the following elements: “(1) [plaintiff] was engaged in a constitutionally protected 19 activity, (2) the defendant’s actions would chill a person of ordinary firmness from 20 continuing to engage in the protected activity[,] and (3) the protected activity was a 21 substantial or motivating factor in the defendant’s conduct.”) (emphasis added). 22 For the reasons above, the Court DISMISSES WITHOUT PREJUDICE 23 Plaintiff’s First Amendment retaliation claim against Defendants Deputy Padilla, Deputy 24 Rost, and Therapist Basile (Count 4). 25 5. Counts 5 and 6: Monell Liability (Against the County of San Diego 26 and City of San Marcos) 27 Plaintiff claims the County of San Diego is liable under Monell for failure to train 28 and a de facto custom of pre-aligning with one party in family disputes, and on a theory of 1 ratification by the Sheriff as final policymaker (FAC ¶¶ 7, 54–57), and that the City of San 2 Marcos is liable because it contracts with SDSO as its de facto police department and 3 owns/maintains the San Marcos Sheriff’s Station (id. ¶¶ 8, 60). 4 Monell liability requires an underlying constitutional violation. Dixon v. Wallowa 5 Cnty., 336 F.3d 1013, 1021 (9th Cir. 2003); see also Murray v. City of Carlsbad, No. 08- 6 2121, 2010 WL 2839477, at *8 (S.D. Cal. July 19, 2010). Because Plaintiff fails to 7 sufficiently allege any constitutional violations, Plaintiff has also not sufficiently alleged 8 Monell liability against Defendants County of San Diego and City of San Marcos. 9 For the reasons above, the Court DISMISSES WITHOUT PREJUDICE 10 Plaintiff’s Monell liability claim against Defendants County of San Diego and City of San 11 Marcos (Counts 5 and 6). 12 6. Count 7: Breach of Mandatory Duty, Government Code § 815.6 13 and Welfare and Institutions Code §§ 15630, 15640, and 15763 (Against 14 the County of San Diego, the City of San Marcos, Deputy Padilla, and 15 Therapist Basile) 16 Plaintiff claims Defendants County of San Diego, City of San Marcos, Deputy 17 Padilla, and Therapist Basile violated California Government Code § 815.6 and California 18 Welfare and Institutions Code §§ 15630, 15640, and 15763 by: (1) Deputy Padilla’s refusal 19 to accept Plaintiff’s elder-abuse report; (2) responding deputies’ refusal to conduct a 20 welfare check on his mother; (3) Therapist Basile’s failure to report or assess the suspected 21 undue influence unfolding in his presence, despite testifying that he understood the conflict 22 to concern “the money that is tearing this family apart regarding some documents”; and (4) 23 the County’s Adult Protective Services program’s non-response to Plaintiff’s reports. 24 (FAC ¶¶ 30, 37, 63–65.) 25 i. California Welfare and Institutions Code §§ 15630, 15640, 26 and 15763 27 “[A] private party can sue for violation of a statute only where the statute in question 28 allows it.” Mayron v. Google LLC, 54 Cal. App. 5th 566, 571 (2020) (citing Lu v. Hawaiian 1 Gardens Casino, Inc., 50 Cal. 4th 592, 596 (2010)). “If the Legislature intended a private 2 right of action, that usually ends the inquiry. If the Legislature intended there be no private 3 right of action, that usually ends the inquiry. If we determine the Legislature expressed no 4 intent [as to a private right of action] either way, directly or impliedly, there is no private 5 right of action.” Vasquez v. Solo 1 Kustoms, Inc., 27 Cal. App. 5th 84, 91 (2018), as 6 modified (Sept. 11, 2018) (quoting Animal Legal Def. Fund v. Mendes, 160 Cal. App. 4th 7 136, 142 (2008)). 8 Sections 15630, 15640, and 15763 of the California Welfare and Institutions Code 9 do not expressly provide a private right of action. Indeed, Section 15630.1(g)(1) of the 10 California Welfare and Institutions Code even explicitly states: “No action shall be brought 11 under this section [Section 15630] by any person other than the Attorney General, district 12 attorney, or county counsel.” Neither Section 15640 nor Section 15763 of the California 13 Welfare and Institutions Code has text indicating an intent either way. 14 Since Sections 15630, 15640, and 15763 of the California Welfare and Institutions 15 Code do not expressly provide a private right of action, the Court dismisses Plaintiff’s 16 claims under those provisions against Defendants County of San Diego, City of San 17 Marcos, Deputy Padilla, and Therapist Basile. 18 ii. California Government Code § 815.6 19 To determine if liability for a mandatory duty may be imposed upon a public entity 20 under Section 815.6 of the California Government Code: (1) an enactment must impose a 21 mandatory duty; (2) the enactment must intend to protect against the kind of risk of injury 22 suffered by the plaintiff; and (3) breach of the mandatory duty must be a proximate cause 23 of the injury suffered. See Cal. Gov’t Code § 815.6; Dep’t of Corps. v. Super. Ct., 153 Cal. 24 App. 4th 916, 922 (2007). 25 First, California Government Code § 815.6 applies to public entities, not individuals. 26 See Cal. Gov’t Code § 815.6. Thus, Plaintiff cannot state a claim under Section 815.6 of 27 the California Government Code against Defendants Deputy Padilla and Therapist Basile. 28 1 Second, Plaintiff cannot state claims under California Government Code § 815.6 2 against Defendants County of San Diego and the City of San Marcos for Defendant Deputy 3 Padilla’s “refus[al] to accept plaintiff’s elder abuse report” and Therapist Basile’s “fail[ure] 4 to report or assess the suspected undue influence” the Mazzolas purportedly exerted over 5 Plaintiff’s mother. 6 Even if there could be a private right of action under Sections 15630, 15640, and 7 15763 of the California Welfare and Institutions Code—which would permit Plaintiff to 8 bring a claim against public entities for Defendants Deputy Padilla and Therapist Basile’s 9 actions—those Sections do not impose a “mandatory duty” for mandated reporters to 10 accept Plaintiff’s elder-abuse report or to report elder abuse merely because a private 11 citizen suspects it. 12 Sections 15630 and 15640 of the California Welfare and Institutions Code impose a 13 duty to make reports, not to receive them; and only upon mandated reporters’ own 14 knowledge, not upon a private citizen’s. See, e.g., Cal. Welf. & Inst. Code § 15630(b) (“A 15 mandated reporter who, in their professional capacity, or within the scope of their 16 employment, has observed or has knowledge of an incident that reasonably appears to be 17 physical abuse . . . shall report the known, suspected, or alleged instance of abuse by 18 telephone or through a confidential internet reporting tool, as authorized by Section 15658, 19 immediately or as soon as practicably possible.”); Cal. Welf. & Inst. Code § 15640(b) (“If 20 [a] . . . local law enforcement agency . . . receiving a report of known or suspected elder or 21 dependent adult abuse determines, pursuant to its investigation . . . [the] local law 22 enforcement agency . . . shall immediately, or as soon as practically possible, report this 23 information to the appropriate licensing agency.”)). Additionally, Section 15763(c) of the 24 California Welfare and Institutions Code explicitly states: “A county shall not be required 25 to report or respond to a report . . . that involves danger to an elder.” 26 Thus, the Court also dismisses Plaintiff’s claim against Defendants County of San 27 Diego, City of San Marcos, Deputy Padilla, and Therapist Basile under Section 815.6 of 28 the California Government Code. 1 * * * 2 Since the Welfare and Institutions Code sections underlying Plaintiff’s claim provide 3 no private right of action, and California Government Code § 815.6 neither reaches the 4 individual Defendants nor imposes a mandatory duty those sections do not themselves 5 create, the Court DISMISSES WITH PREJUDICE Plaintiff’s claim under California 6 Government Code § 815.6 and California Welfare and Institutions Code §§ 15630, 15640, 7 and 15763 against Defendants County of San Diego, City of San Marcos, Deputy Padilla, 8 and Therapist Basile (Count 7). 9 7. Count 8: California Civil Code § 52.1, Bane Act (Against all 10 Defendants) 11 The Tom Bane Civil Rights Act (“Bane Act”), Cal. Civ. Code § 52.1, imposes 12 liability on a person who “interferes by threat, intimidation, or coercion, or attempts to 13 interfere by threat, intimidation, or coercion, with the exercise” of an individual’s state or 14 federal right. Cal. Civ. Code § 52.1(b). A Bane Act claim requires the following: (1) the 15 defendant intentionally interfered or attempted to interfere with a state or federal 16 constitutional or legal right, and (2) the interference or attempted interference was by 17 threats, intimidation, or coercion. Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 18 (2015) (citing Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998)). To prevail on a Bane 19 Act claim, a plaintiff must establish the defendant had a “specific intent” to violate his 20 rights. Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). 21 Since Plaintiff has failed to allege that any Defendant has interfered or attempted to 22 interfere with Plaintiff’s “state or federal constitutional or legal right,” supra §§ II.C.1–6, 23 8, Plaintiff also fails to state a Bane Act claim. See Allen, 234 Cal. App. 4th at 67. 24 Thus, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Bane Act claim 25 against all Defendants (Count 8). 26 8. Count 9: Professional Negligence/Malpractice (Against Therapist 27 Basile) 28 1 “A key element of any action for professional malpractice is the establishment of a 2 duty by the professional to the claimant. Absent duty there can be no breach and no 3 negligence.” Goldberg v. Frye, 217 Cal. App. 3d 1258, 1267 (1990). 4 Whether a defendant owes a duty of care is a question of law that is determined on 5 a case-by-case basis. Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 6 588 (1989); Mintz v. Blue Cross of Cal., 172 Cal. App. 4th 1594, 1610 (2009). A 7 physician’s duty of care to a patient does not arise until a physician-patient relationship is 8 established. Burgess v. Super. Ct., 2 Cal. 4th 1064, 1075 (1992). “ ‘[T]he relationship 9 gives rise to the duty of care.’ ” Burgess, 2 Cal. 4th at 1075 (internal citations omitted). 10 Absent this special relationship, a physician is under no duty to take affirmative action to 11 assist or protect another, “ ‘no matter how great the danger in which the other is placed, or 12 how easily he could be rescued.’ ” Armato v. Baden, 71 Cal. App. 4th 885, 895 (1999); 13 see also Agnew v. Parks, 172 Cal. App. 2d 756, 764 (1959). 14 Importantly, “[l]iability for malpractice arises where there is a relationship of 15 physician-patient between the plaintiff and the defendant doctor; the relationship gives rise 16 to the duty of care.” Burgess, 2 Cal. 4th at 1075 (quoting 6 Witkin, Summary of Cal. Law 17 (9th ed. 1988) Torts, § 776, p. 116) (emphasis added). Here, though Plaintiff alleges that 18 Defendant Therapist Basile had determined Plaintiff is dangerous to Plaintiff’s mother and 19 had failed to properly assess Plaintiff’s mother’s cognitive impairment (FAC ¶¶ 69–70), 20 Plaintiff does not allege that Defendant Therapist Basile ever entered into a professional 21 relationship with Plaintiff. That conclusion is reinforced by Plaintiff’s own allegation that 22 Therapist Basile testified under oath at the April 17, 2026 elder-abuse restraining order 23 trial recounted no clinical assessment of anyone. (Id. ¶¶ 3, 37.) 24 Thus, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s professional 25 negligence/malpractice claim against Defendant Therapist Basile (Count 9). 26 D. Conclusion 27 For the reasons above, the Court DISMISSES WITHOUT PREJUDICE 28 Plaintiff’s claims under Counts 1 (Fourth Amendment Unlawful Seizure of Person and 1 Property), 2 (Fourteenth Amendment Procedural Due Process—Wrongful Eviction), 3 2 (Fourteenth Amendment Interference with Familial Association), 4 (First Amendment 3 Retaliation), 5 (Monell Liability against Defendant County of San Diego), 6 (Monell 4 Liability against Defendant City of San Marcos), 8 (Bane Act), and 9 (Professional 5 Negligence/Malpractice). The Court DISMISSES WITH PREJUDICE Plaintiff’s claim 6 under Count 7 (Breach of Mandatory Duty). 7 III. CONCLUSION 8 For the reasons above, the Court GRANTS Plaintiff’s Motion for Leave to Proceed 9 in Forma Pauperis. (ECF No. 2.) However, the Court DISMISSES Plaintiff’s FAC in its 10 entirety. (ECF No. 20.) 11 The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s causes of action 12 listed below: 13 1. Count 1: 42 U.S.C. § 1983, Fourth Amendment Unlawful Seizure of Person 14 and Property (Against Deputy Padilla, Deputy Rost, Therapist Basile, and Doe 15 Officers 4–10); 16 2. Count 2: 42 U.S.C. § 1983, Fourteenth Amendment Procedural Due 17 Process—Wrongful Eviction (Against Deputy Padilla, Deputy Rost, 18 Therapist Basile, and Doe Officers 4–10); 19 3. Count 3: 42 U.S.C. § 1983, Fourteenth Amendment Interference with Familial 20 Association (Against Deputy Padilla, Deputy Rost, Therapist Basile, and Doe 21 Officers 4–10); 22 4. Count 4: 42 U.S.C. § 1983, First Amendment Retaliation (Against Deputy 23 Padilla, Deputy Rost, and Therapist Basile); 24 5. Count 5: Municipal Liability, Monell v. Dep’t of Soc. Servs., 436 U.S. 658 25 (1978) (“Monell liability”) (Against the County of San Diego); 26 6. Count 6: Monell Liability (Against the City of San Marcos); 27 7. Count 8: California Civil Code § 52.1, Bane Act (Against all Defendants); and 28 8. Count 9: Professional Negligence/Malpractice (Against Therapist Basile). 1 However, the Court DISMISSES WITH PREJUDICE Plaintiff's cause of action 2 ||under Count 7, Breach of Mandatory Duty, Government Code § 815.6 and Welfare and 3 || Institutions Code §§ 15630, 15640, and 15763 (against Defendants County of San Diego, 4 ||the City of San Marcos, Deputy Padilla, and Therapist Basile). 5 If Plaintiff wishes to file a Second Amended Complaint correcting deficiencies in 6 || the claims dismissed without prejudice, Plaintiff must do so by September 4, 2026. 7 IT IS SO ORDERED. 8 ~ 9 || DATED: August 24, 2026 (yatta Bahar □□ 10 H n. Cynthia Bashant, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _1Q_