U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15-cv-02394-SBA

Kayleigh Slusher et al v. City of Napa et al

Date Filed: 05/29/2015

Assigned to: Hon. Saundra Brown Armstrong

Date Terminated: 12/07/2016

Referred to: Magistrate Judge Joseph C. Spero

Jury Demand: Both

Magistrate Judge Laurel Beeler (Settlement) Nature of Suit: 440 Civil Rights:

Case in other court: Ninth Circuit Court of Appeals, Other

16-17304

Jurisdiction: Federal Question

Cause: 28:1331 Federal Question: Other Civil Rights

Plaintiff
Kayleigh Slusher Deceased, Through Her Successor In Interest Jason Slusher

represented by Julia Sherwin Haddad & Sherwin LLP 505 17th Street Oakland, CA 94612 (510) 452-5500 Fax: 510-452-5100 Email: michael.julia@haddadsherwin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Haddad Haddad & Sherwin LLP 505 17th Street Oakland, CA 94612 510-452-5500 Fax: 510-452-5510 Email: michael.julia@haddadsherwin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Genevieve K. Guertin Haddad & Sherwin LLP 505 17th Street Oakland, CA 94612 510-452-5500 Fax: 510-452-5510 Email: genevieve.guertin@sbcglobal.net TERMINATED: 12/04/2015

Plaintiff Jason Slusher

Glenn Michael Katon Katon.Law 385 Grand Avenue Suite 200 Oakland, CA 94610 510-463-3350 Fax: 510-463-3349 Email: gkaton@katon.law TERMINATED: 05/09/2016
Maya Rodriguez Sorensen Haddad and Sherwin 505 Seventeenth Street Oakland, Ca 94612 510-452-5500 Email: mayasoerensen@gmail.com ATTORNEY TO BE NOTICED
T. Kennedy Helm , IV 523 41st Street Oakland, CA 94609 415-269-4739 Email: tkhelm@gmail.com TERMINATED: 11/30/2017
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Genevieve K. Guertin (See above for address) TERMINATED: 12/04/2015
Glenn Michael Katon (See above for address) TERMINATED: 05/09/2016
Maya Rodriguez Sorensen

Plaintiff Robin Slusher
Plaintiff Benny Slusher

(See above for address) ATTORNEY TO BE NOTICED
T. Kennedy Helm , IV (See above for address) TERMINATED: 11/30/2017
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Genevieve K. Guertin (See above for address) TERMINATED: 12/04/2015
Glenn Michael Katon (See above for address) TERMINATED: 05/09/2016
Maya Rodriguez Sorensen (See above for address) ATTORNEY TO BE NOTICED
T. Kennedy Helm , IV (See above for address) TERMINATED: 11/30/2017
represented by Julia Sherwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Haddad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
City of Napa a public entity

Genevieve K. Guertin (See above for address) TERMINATED: 12/04/2015
Glenn Michael Katon (See above for address) TERMINATED: 05/09/2016
Maya Rodriguez Sorensen (See above for address) ATTORNEY TO BE NOTICED
T. Kennedy Helm , IV (See above for address) TERMINATED: 11/30/2017
represented by Gregory Mellon Fox Bertrand, Fox, Elliot, Osman & Wenzel The Waterfront Building 2749 Hyde Street San Francisco, CA 94109 (415) 353-0999 Fax: (415) 353-0990 Email: gfox@bfesf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran Bertrand, Fox, Elliot, Osman & Wenzel The Waterfront Building 2749 Hyde Street San Francisco, CA 94109 (415) 353-0999 Fax: (415) 353-0990 Email: jtran@bfesf.com ATTORNEY TO BE NOTICED
Meaghan Ann Snyder Berliner Cohen LLP 10 Almaden Boulevard

Defendant Garrett Wade Napa Police Officer
Defendant Police Officer Deguilio
Defendant Richard Melton Napa Chief of Police TERMINATED: 01/07/2016 Defendant

11th Floor San Jose, CA 95113 United Sta (408) 286-5800 Fax: (408) 998-5388 Email: msnyder@wsgr.com TERMINATED: 10/17/2016
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran (See above for address) ATTORNEY TO BE NOTICED
Meaghan Ann Snyder (See above for address) TERMINATED: 10/17/2016
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran (See above for address) ATTORNEY TO BE NOTICED
Meaghan Ann Snyder (See above for address) TERMINATED: 10/17/2016
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

County of Napa a public entity

represented by Bonnie A. Hamilton Bluestone Zunino & Hamilton, LLP 50 Old Courthouse Square, Suite 401 Santa Rosa, CA 95404 (707) 526-4250 Fax: (707) 526-0347 Email: bonnie@bzhlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory F. Dyer Jones & Dyer A Professional Corporation 1800 J Street Sacramento, CA 95811 (916) 552-5959 Fax: (916) 442-5959 Email: gdyer@jonesdyer.com (Inactive) TERMINATED: 06/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A. Jones Jones & Dyer A Professional Corporation 1800 J Street Sacramento, CA 95811 (916) 552-5959 Fax: (916) 442-5959 Email: mjones@jonesdyer.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen K. Preston Jones & Dyer A Professional Corporation 1800 J Street Sacramento, CA 95811 (916) 552-5959 Fax: (916) 442-5959 Email: kpreston@jonesdyer.com (Inactive) ATTORNEY TO BE NOTICED

Defendant Nancy Lefler Napa County Child Welfare Services Social Worker
Defendant Rocio Diaz-Lara Napa County Child Welfare Services Worker
Defendant Robert Chambers

represented by Bonnie A. Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory F. Dyer (See above for address) TERMINATED: 06/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen K. Preston (See above for address) ATTORNEY TO BE NOTICED
represented by Bonnie A. Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory F. Dyer (See above for address) TERMINATED: 06/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristen K. Preston (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Mellon Fox (See above for address)

Defendant Garrett Smith
Defendant Joshua Smith

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran (See above for address) ATTORNEY TO BE NOTICED
Meaghan Ann Snyder (See above for address) TERMINATED: 10/17/2016
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran (See above for address) ATTORNEY TO BE NOTICED
Meaghan Ann Snyder (See above for address) TERMINATED: 10/17/2016
represented by Gregory Mellon Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanne Tran (See above for address) ATTORNEY TO BE NOTICED
Meaghan Ann Snyder (See above for address) TERMINATED: 10/17/2016

Date Filed 05/29/2015

#

Docket Text

1 COMPLAINT for Damages, Declaratory, and Injunctive Relief and Demand for Jury Trial against All Defendants (Filing fee $ 400.00, receipt number 0971-9557716.). Filed by Robin Slusher,

05/29/2015 05/29/2015 05/29/2015
05/29/2015 05/29/2015 05/29/2015 05/29/2015 05/29/2015

Jason Slusher, Benny Slusher, Kayleigh Slusher. (Guertin, Genevieve) (Filed on 5/29/2015) Modified on 5/29/2015 (gbaS, COURT STAFF). (Entered: 05/29/2015)
2 Civil Cover Sheet by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher . (Guertin, Genevieve) (Filed on 5/29/2015) (Entered: 05/29/2015)
3 Proposed Summons. (Guertin, Genevieve) (Filed on 5/29/2015) (Entered: 05/29/2015)
4 Case assigned to Magistrate Judge Joseph C. Spero.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (bwS, COURT STAFF) (Filed on 5/29/2015) (Entered: 05/29/2015)
5 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher.. (Guertin, Genevieve) (Filed on 5/29/2015) (Entered: 05/29/2015)
6 NOTICE of Appearance by Julia Sherwin (Sherwin, Julia) (Filed on 5/29/2015) (Entered: 05/29/2015)
7 NOTICE of Appearance by Michael J. Haddad (Haddad, Michael) (Filed on 5/29/2015) (Entered: 05/29/2015)
8 NOTICE of Appearance by Thomas Kennedy Helm, IV (Helm, Thomas) (Filed on 5/29/2015) (Entered: 05/29/2015)
9 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 8/21/2015. Case Management Conference set for 8/28/2015 02:00 PM in Courtroom G, 15th Floor, San Francisco. (Attachments: # 1 Standing Order) (gbaS, COURT STAFF) (Filed on 5/29/2015) (Entered: 05/29/2015)

05/29/2015 06/02/2015 06/03/2015
06/03/2015 06/29/2015 06/30/2015 07/01/2015 07/02/2015

10 Summons Issued as to Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, Richard Melton, City of Napa, County of Napa, Garrett Wade. (gbaS, COURT STAFF) (Filed on 5/29/2015) (Entered: 05/29/2015)
11 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klhS, COURT STAFF) (Filed on 6/2/2015) (Entered: 06/02/2015)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Saundra Brown Armstrong for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case.. Signed by Executive Committee on 6/3/15. (as, COURT STAFF) (Filed on 6/3/2015) Modified on 6/3/2015 (as, COURT STAFF). PLEASE DISREGARD THIS ENTRY PLEASE SEE DOCUMENT NUMBER 13. as (Entered: 06/03/2015)
13 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Saundra Brown Armstrong for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case.. Signed by Executive Committee on 6/3/15. (as, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015) (as, COURT STAFF) (Filed on 6/3/2015) (Entered: 06/03/2015)
14 NOTICE of Unavilability of Plaintiffs' Counsel, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Guertin, Genevieve) (Filed on 6/29/2015) Modified on 6/30/2015 (jlmS, COURT STAFF). (Entered: 06/29/2015)
15 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASES: Case Management Statement due by 7/23/2015. Telephonic Case Management Conference set for 7/30/2015 03:00 PM. Signed by Judge Saundra Brown Armstrong on 6/30/2015. (mklS, COURT STAFF) (Filed on 6/30/2015) (Entered: 06/30/2015)
16 AMENDED COMPLAINT with Jury Demand, against Garrett Wade, County of Napa, City of Napa, Richard Melton, Nancy Lefler, Rocio Diaz-Lara, Police Officer Deguilio. Filed by Robin Slusher, Jason Slusher, Benny Slusher, Kayleigh Slusher. (Sherwin, Julia) (Filed on 7/1/2015) Modified on 7/6/2015 (jlmS, COURT STAFF). (Entered: 07/01/2015)
17 AMENDED CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASES: Case Management Statement due by 9/3/2015. Case Management Conference set for 9/10/2015 02:30 PM, via Telephone. Signed by Judge

08/07/2015 08/07/2015 08/18/2015
08/19/2015 08/19/2015 09/04/2015
09/04/2015

Saundra Brown Armstrong on 7/2/2015. (mklS, COURT STAFF) (Filed on 7/2/2015) Modified on 7/6/2015 (jlmS, COURT STAFF). (Entered: 07/02/2015)
18 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options by Plaintiffs (Guertin, Genevieve) (Filed on 8/7/2015) (Entered: 08/07/2015)
19 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) by Plaintiffs (Guertin, Genevieve) (Filed on 8/7/2015) (Entered: 08/07/2015)
20 STIPULATION WITH PROPOSED ORDER SETTING BRIEFING SCHEDULE FOR MOTIONS TO DISMISS, HEARING DATE AND CONTINUING CASE MANAGEMENT CONFERENCE DATE re 17 Case Management Scheduling Order, filed by Police Officer Deguilio, City of Napa, Garrett Wade, Kayleigh Slusher, Jason Slusher, Benny Slusher, Robin Slusher. (Fox, Gregory) (Filed on 8/18/2015) Modified on 8/19/2015 (jlmS, COURT STAFF). (Entered: 08/18/2015)
21 ORDER AS MODIFIED by Judge Saundra Brown Armstrong granting 20 Stipulation Setting Briefing Schedule for Motions to Dismiss and Continuing Case Management Conference Date. (mklS, COURT STAFF) (Filed on 8/19/2015) (Entered: 08/19/2015)
Set/Reset Deadlines Re: 21 Order on Stipulation: Responses due by 10/9/2015. Replies due by 10/23/2015. Motion Hearing set for 12/9/2015 01:30 PM before Hon. Saundra Brown Armstrong. Case Management Statement due by 12/9/2015. Telephonic Case Management Conference reset for 12/16/2015 02:30 PM. (mklS, COURT STAFF) (Filed on 8/19/2015) (Entered: 08/19/2015)
22 MOTION to Dismiss, filed by Police Officer Deguilio, City of Napa, Garrett Wade, Richard Melton. Motion Hearing set for 12/9/2015 01:00 PM before Hon. Saundra Brown Armstrong. Responses due by 10/9/2015. Replies due by 10/23/2015. (Attachments: # 1 Proposed Order)(Fox, Gregory) (Filed on 9/4/2015) Modified on 9/8/2015 (jlmS, COURT STAFF). (Entered: 09/04/2015)
23 MOTION to Dismiss, filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa. Motion Hearing set for 12/9/2015 01:00 PM before Hon. Saundra Brown Armstrong. Responses due by 10/9/2015. Replies due by 10/23/2015. (Attachments:

09/09/2015 09/10/2015 09/11/2015
09/11/2015 09/11/2015 09/14/2015 09/15/2015 09/15/2015 09/15/2015

# 1 Appendix A)(Jones, Mark) (Filed on 9/4/2015) Modified on 9/8/2015 (jlmS, COURT STAFF). (Entered: 09/04/2015)
24 Proposed Order re 23 MOTION to Dismiss by Rocio Diaz-Lara, Nancy Lefler, County of Napa. (Jones, Mark) (Filed on 9/9/2015) (Entered: 09/09/2015)
25 NOTICE of Appearance of Kristen K. Preston as Counsel, filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa (Preston, Kristen) (Filed on 9/10/2015) Modified on 9/11/2015 (jlmS, COURT STAFF). (Entered: 09/10/2015)
26 STIPULATION WITH PROPOSED PROTECTIVE ORDER, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garret Wade. (Sherwin, Julia) (Filed on 9/11/2015) Modified on 9/14/2015 (jlmS, COURT STAFF). (Entered: 09/11/2015)
27 NOTICE of Appearance of Meaghan Ann Snyder as Counsel, filed by Police Officer Deguilio, City of Napa, Garret Wade (Snyder, Meaghan) (Filed on 9/11/2015) Modified on 9/14/2015 (jlmS, COURT STAFF). (Entered: 09/11/2015)
28 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Saundra Brown Armstrong on 9/11/15. (jebS, COURT STAFF) (Filed on 9/11/2015) (Entered: 09/11/2015)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (ahm, COURT STAFF) (Filed on 9/14/2015) (Entered: 09/14/2015)
29 First MOTION for Leave to File Excess Pages (Not to Exceed 20 Pages) filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 9/15/2015) (Entered: 09/15/2015)
30 Declaration of Julia Sherwin in Support of 29 First MOTION for Leave to File Excess Pages (Not to Exceed 20 Pages) filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Related document(s) 29 ) (Sherwin, Julia) (Filed on 9/15/2015) (Entered: 09/15/2015)
31 Proposed Order re 29 First MOTION for Leave to File Excess Pages (Not to Exceed 20 Pages) by Benny Slusher, Jason Slusher,

09/16/2015 09/16/2015 09/16/2015 09/16/2015 10/09/2015 10/09/2015 10/22/2015 10/22/2015 10/22/2015

Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 9/15/2015) (Entered: 09/15/2015)

32 Memorandum in Opposition re 29 Motion for Leave to File Excess Pages, filed by Police Officer Deguilio, Richard Melton, City of Napa, Garrett Wade. (Attachments: # 1 Proposed Order)(Fox, Gregory) (Filed on 9/16/2015) Modified on 9/17/2015 (jlmS, COURT STAFF). (Entered: 09/16/2015)

33 Order, signed 9/16/15, by Chief Magistrate Judge Joseph C. Spero granting 26 Stipulated Protective Order.(klhS, COURT STAFF) (Filed on 9/16/2015) (Entered: 09/16/2015)

NOTICE OF REFERENCE AND ORDER RE DISCOVERY

34

PROCEDURES. Signed by Chief Magistrate Judge Joseph C.

Spero on 9/16/15. (klhS, COURT STAFF) (Filed on 9/16/2015)

(Entered: 09/16/2015)

35 ORDER DENYING ADMINISTRATIVE MOTION TO EXCEED PAGE LIMITS by Hon. Saundra Brown Armstrong re 29 Motion for Leave to File Excess Pages.(jebS, COURT STAFF) (Filed on 9/16/2015) (Entered: 09/16/2015)

36 RESPONSE (re 23 MOTION to Dismiss ,) filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Haddad, Michael) (Filed on 10/9/2015) Modified on 10/9/2015 (jlm, COURT STAFF). (Entered: 10/09/2015)

37 RESPONSE (re 22 MOTION to Dismiss, ) filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Haddad, Michael) (Filed on 10/9/2015) Modified on 10/9/2015 (jlm, COURT STAFF). (Entered: 10/09/2015)

38 ADR Clerk's Notice Setting ADR Phone Conference on Tuesday, November 17, 2015, at 3:00 PM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 10/22/2015) (Entered: 10/22/2015)

39 REPLY (re 23 MOTION to Dismiss ) filed byRocio Diaz-Lara, Nancy Lefler, County of Napa. (Jones, Mark) (Filed on 10/22/2015) (Entered: 10/22/2015)

40 REPLY (re 22 MOTION to Dismiss, ) filed byPolice Officer Deguilio, Richard Melton, City of Napa, Garrett Wade. (Fox, Gregory) (Filed on 10/22/2015) (Entered: 10/22/2015)

11/03/2015 11/24/2015
12/02/2015 12/04/2015 12/07/2015 12/08/2015
12/11/2015
12/11/2015

ADR Remark: The ADR Phone Conference has been rescheduled to 12/1/15 at 2:00 p.m. Dial-in information remains the same. (tjs, COURT STAFF) (Filed on 11/3/2015) (Entered: 11/03/2015)

41 CLERK'S NOTICE Vacating Motion Hearings. 22 & 23 Motions to Dismiss, which have been noticed for Wednesday, 12/09/2015, will be decided on papers submitted without oral argument. Accordingly, the hearings are hereby VACATED. (This is a textonly entry generated by the court. There is no document associated with this entry.) (tmiS, COURT STAFF) (Filed on 11/24/2015) (Entered: 11/24/2015)

ADR Remark: ADR Phone Conference held by Tamara Lange, ADR Program Staff Attorney, on 12/1/15. (af, COURT STAFF) (Filed on 12/2/2015) (Entered: 12/02/2015)

42 NOTICE of Change In Counsel as to T. Kennedy Helm, IV, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Helm, T.) (Filed on 12/4/2015) Modified on 12/7/2015 (jlmS, COURT STAFF). (Entered: 12/04/2015)

43 NOTICE of Unavailability of Plaintiffs' Counsel, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sherwin, Julia) (Filed on 12/7/2015) Modified on 12/8/2015 (jlmS, COURT STAFF). (Entered: 12/07/2015)

44 JOINT CASE MANAGEMENT STATEMENT, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garrett Wade. (Sherwin, Julia) (Filed on 12/8/2015) Modified on 12/9/2015 (jlmS, COURT STAFF). (Entered: 12/08/2015)

ORDER Granting in Part and Denying in

45

Part 22 and 23 Defendants' Motions to Dismiss and Order

Referring Case to Magistrate Judge Donna M. Ryu for Early

Settlement Conference. Signed by Judge Saundra Brown

Armstrong on 12/10/2015. (tmiS, COURT STAFF) (Filed on

12/11/2015) (Entered: 12/11/2015)

46 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Telephonic Case Management Conference, previously set for Wednesday, 12/16/2015, is continued to Thursday, 03/31/2016, at 2:30 PM. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than seven (7) days prior to the Case Management Conference that

12/11/2015 12/21/2015 12/23/2015 01/06/2016
01/06/2016 01/06/2016 01/07/2016

complies with the Standing Order For All Judges Of The Northern District Of California and the Standing Order of this Court. Plaintiffs shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call (510) 879-3550 at the above indicated date and time.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (tmiS, COURT STAFF) (Filed on 12/11/2015) (Entered: 12/11/2015)
CASE REFERRED to Magistrate Judge Donna M. Ryu for Settlement (ahm, COURT STAFF) (Filed on 12/11/2015) (Entered: 12/11/2015)
47 Order Setting Settlement Conference: Settlement Conference set for 3/7/2016 11:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 12/21/16. (ig, COURT STAFF) (Filed on 12/21/2015) (Entered: 12/21/2015)
48 Letter from Gregory M. Fox Re Settlement Conference. (Fox, Gregory) (Filed on 12/23/2015) (Entered: 12/23/2015)
49 STIPULATION WITH PROPOSED ORDER RE MANDATORY SETTLEMENT CONFERENCE re 47 Order Setting Settlement Conference, filed by Police Officer Deguilio, City of Napa, Garrett Wade, Rocio Diaz_lara, Nancy Lefler, County of Napa, Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Fox, Gregory) (Filed on 1/6/2016) Modified on 1/7/2016 (jlmS, COURT STAFF). (Entered: 01/06/2016)
50 Letter re Request to be excused from attendance at Settlement Conference, from Mark A. Jones Attorney for County of Napa, Nancy Lefler and Rocio Diaz-Lara, dated 01/05/16. (Jones, Mark) (Filed on 1/6/2016) Modified on 1/7/2016 (jlmS, COURT STAFF). (Entered: 01/06/2016)
51 MOTION for Leave to File Motion for Clarification of Partial Reconsideration, filed by Police Officer Deguilio, City of Napa, Garrett Wade, Richard Melton. (Attachments: # 1 Proposed Order)(Fox, Gregory) (Filed on 1/6/2016) Modified on 1/7/2016 (jlmS, COURT STAFF). (Entered: 01/06/2016)
52 SECOND AMENDED COMPLAINT with Jury Demand, against Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, Richard Melton, City of Napa, County of Napa, Garrett Wade, Robert Chambers, Garrett Smith, Joshua Smith. Filed by Robin Slusher,

01/07/2016 01/07/2016 01/11/2016 01/12/2016
01/14/2016 01/18/2016
01/18/2016

Jason Slusher, Benny Slusher, Kayleigh Slusher. (Sherwin, Julia) (Filed on 1/7/2016) Modified on 1/8/2016 (jlmS, COURT STAFF). (Entered: 01/07/2016)

53 ORDER by Magistrate Judge Donna M. Ryu granting 49 Stipulation to Reschedule Settlement Conference. (ig, COURT STAFF) (Filed on 1/7/2016) Modified on 1/8/2016 (ig, COURT STAFF). (Entered: 01/08/2016)

Set/Reset Hearing re 53 Order on Stipulation: Settlement Conference rescheduled to 3/1/2016 11:00 AM. (ig, COURT STAFF) (Filed on 1/7/2016) (Entered: 01/08/2016)

54 Order by Hon. Saundra Brown Armstrong denying 51 Defendants' Motion for Leave to File Motion for Clarification or Reconsideration.(tmiS, COURT STAFF) (Filed on 1/11/2016) (Entered: 01/11/2016)

55 Letter to Magistrate Judge Donna M. Ryu re Request to be excused from attendance at Settlement Conference, from Mark A. Jones Attorney for County of Napa, Nancy Lefler and Rocio DiazLara, dated 01/12/16. (Attachments: # 1 Proposed Order to be excused from attendance at settlement conference)(Jones, Mark) (Filed on 1/12/2016) Modified on 1/13/2016 (jlm, COURT STAFF). (Entered: 01/12/2016)

ORDER (AS MODIFIED) Granting Defendants Nancy Lefler

56

and Rocio Diaz-Lara to be excused from attendance at

Settlement Conference re 55 Letter, filed by Nancy Lefler,

County of Napa, Rocio Diaz-Lara. Signed by Magistrate Judge

Donna M. Ryu on 1/14/16. (ig, COURT STAFF) (Filed on

1/14/2016) (Entered: 01/15/2016)

57 MOTION (UNOPPOSED MOTION) to allow telephone appearance by Benny Slusher and for Writ of Habeas Corpus Ad Testificandum for Jason Slusher to attend settlement conference re Set/Reset Hearings, 53 Order on Stipulation filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. Responses due by 2/1/2016. Replies due by 2/8/2016. (Sherwin, Julia) (Filed on 1/18/2016) (Entered: 01/18/2016)

58 Declaration of Julia Sherwin in Support of 57 MOTION (UNOPPOSED MOTION) to allow telephone appearance by Benny Slusher and for Writ of Habeas Corpus Ad Testificandum for Jason Slusher to attend settlement conference re Set/Reset Hearings, 53 Order on Stipulation filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Related

01/18/2016 01/20/2016
01/26/2016 01/27/2016 01/27/2016 02/02/2016 03/01/2016

document(s) 57 ) (Sherwin, Julia) (Filed on 1/18/2016) (Entered: 01/18/2016)

59 Proposed Order re 57 MOTION (UNOPPOSED MOTION) to allow telephone appearance by Benny Slusher and for Writ of Habeas Corpus Ad Testificandum for Jason Slusher to attend settlement conference re Set/Reset Hearings, 53 Order on Stipulation by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 1/18/2016) (Entered: 01/18/2016)

ORDER RE: PLAINTIFFS' MOTION REGARDING

60

APPEARANCES OF BENNY SLUSHER AND JASON

SLUSHER AT SETTLEMENT CONFERENCE (SEE

ORDER FOR ALL PARTICULARS). Motions

terminated: 57 Motion to allow telephone appearance by

Benny Slusher and for Writ of Habeas Corpus Ad

Testificandum for Jason Slusher to attend settlement

conference. Signed by Magistrate Judge Donna M. Ryu on

1/20/16. (ig, COURT STAFF) (Filed on 1/20/2016) (Entered:

01/20/2016)

61 MOTION for Writ of Habeas Corpus ad testificandum with Proposed Order and Writ, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 1/26/2016) Modified on 1/27/2016 (jlmS, COURT STAFF). (Entered: 01/26/2016)

62 CLERK'S NOTICE: Although the Court will issue the proposed writ 61 , which will be filed as a separate docket entry, Plaintiffs' counsel is responsible for making sure that the writ conforms to the requirements of the CDCR. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 1/27/2016) (Entered: 01/27/2016)

63 ORDER by Magistrate Judge Donna M. Ryu granting 61 Motion for Writ of Habeas Corpus ad testificandum as to Jason Slusher. (ig, COURT STAFF) (Filed on 1/27/2016) (Entered: 01/27/2016)

64 CERTIFICATE OF SERVICE to Frank Aguiar, Litigation Coordinator - II at CDCR re 63 Order on Motion for Writ of Habeas Corpus ad testificandum (ig, COURT STAFF) (Filed on 2/2/2016) (Entered: 02/02/2016)

65 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Settlement Conference held on 3/1/2016.

03/09/2016 03/09/2016 03/09/2016 03/10/2016 03/10/2016
03/10/2016

Parties are invited to call Judge Ryu for further assistance. See minute Order for all particulars. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 3/1/2016) (Entered: 03/02/2016)
66 STIPULATION WITH PROPOSED ORDER RE: BRIEFING SCHEDULE FOR DEFENDANTS' MOTIONS TO DISMISS AND CASE MANAGEMENT CONFERENCE, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, City of Napa, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garrett Wade. (Sherwin, Julia) (Filed on 3/9/2016) Modified on 3/10/2016 (jlmS, COURT STAFF). (Entered: 03/09/2016)
67 STIPULATION AND ORDER RE: BRIEFING SCHEDULE FOR DEFENDANTS MOTIONS TO DISMISS AND CASE MANAGEMENT CONFERENCE by Hon. Saundra Brown Armstrong granting 66 Stipulation.(jebS, COURT STAFF) (Filed on 3/9/2016) (Entered: 03/09/2016)
Set Deadlines/Hearings: Motions due by 4/20/2016. Replies due by 6/3/2016. Responses due by 5/20/2016. Joint Case Management Statement due by 5/9/2016. Initial Telephonic Case Management Conference set for 5/16/2016 at 02:30 PM. (jebS, COURT STAFF) (Filed on 3/9/2016) (Entered: 03/09/2016)
68 CLERK'S NOTICE. You are hereby notified that the Initial Telephonic Case Management Conference previously set for 5/16/16 has been continued to 6/16/16 at 2:30 PM. Joint Case Management Statement due by 6/9/2016. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jebS, COURT STAFF) (Filed on 3/10/2016) (Entered: 03/10/2016)
69 Joint MOTION for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, City of Napa, Garrett Wade. Motion Hearing set for 4/29/2016 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 4/15/2016. Replies due by 4/22/2016. (Sherwin, Julia) (Filed on 3/10/2016) Modified on 3/11/2016 (jlmS, COURT STAFF). (Entered: 03/10/2016)
70 Declaration of Julia Sherwin in Support of 69 Joint Motion for Production of Documents Pursuant to Protective Order and for

03/10/2016 03/10/2016 03/11/2016 04/08/2016 04/13/2016

Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Attachments: # 1 Exhibit A, 2/18/14 Napa Superior Court order sealing warrant, # 2 Exhibit B, 3/20/14 Napa Superior Court protective order, # 3 Exhibit C, 11/23/15 Napa Superior Court order for disclosure of records and information, # 4 Exhibit D, 12/7/15 Snyder letter, # 5 Exhibit E, 12/8/15 Sherwin letter, # 6 Exhibit F, Pertinent emails between counsel)(Related document(s) 69 ) (Sherwin, Julia) (Filed on 3/10/2016) Modified on 3/11/2016 (jlmS, COURT STAFF). (Entered: 03/10/2016)
71 Proposed Order re 69 Joint Motion for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides, by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 3/10/2016) Modified on 3/11/2016 (jlmS, COURT STAFF). (Entered: 03/10/2016)
72 CERTIFICATE OF SERVICE re 71 Proposed Order, 70 Declaration in Support, 69 Joint Motion for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sherwin, Julia) (Filed on 3/10/2016) Modified on 3/11/2016 (jlmS, COURT STAFF). (Entered: 03/10/2016)
73 NOTICE of Appearance of Glenn Michael Katon as Counsel, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Katon, Glenn) (Filed on 3/11/2016) Modified on 3/14/2016 (jlmS, COURT STAFF). (Entered: 03/11/2016)
74 RESPONSE (re 69 Joint MOTION for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides), filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa. (Attachments: # 1 Declaration Of Kristen K. Preston In Support of Opposition to Joint Discovery Motion)(Preston, Kristen) (Filed on 4/8/2016) Modified on 4/11/2016 (jlmS, COURT STAFF). (Entered: 04/08/2016)
75 STIPULATION WITH PROPOSED ORDER Re Briefing Schedule for Defendants' Motion For Stay, filed by Rocio DiazLara, Nancy Lefler, County of Napa, Kayleigh Slusher, Jason Slusher, Robin Slusher, Benny Slusher, Police Officer Deguilio,

04/13/2016
04/13/2016
04/13/2016 04/13/2016 04/14/2016 04/14/2016 04/14/2016

City of Napa, Garret Wade. (Jones, Mark) (Filed on 4/13/2016) Modified on 4/14/2016 (jlmS, COURT STAFF). (Entered: 04/13/2016)
76 REPLY to Opposition (re 69 Joint MOTION for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides), filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 4/13/2016) Modified on 4/14/2016 (jlmS, COURT STAFF). (Entered: 04/13/2016)
77 Declaration of Michael M. Baden, M.D. in Support of 69 Joint Motion for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Related document(s) 76 ) (Sherwin, Julia) (Filed on 4/13/2016) Modified on 4/14/2016 (jlmS, COURT STAFF). (Entered: 04/13/2016)
78 CERTIFICATE OF SERVICE by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher re 77 Declaration in Support, 76 Reply to Opposition/Response, (Sherwin, Julia) (Filed on 4/13/2016) (Entered: 04/13/2016)
79 STIPULATION AND ORDER RE: BRIEFING SCHEDULE FOR DEFENDANTS' MOTION FOR STAY by Hon. Saundra Brown Armstrong granting 75 Stipulation. (jebS, COURT STAFF) (Filed on 4/13/2016) (Entered: 04/13/2016)
80 CERTIFICATE OF SERVICE by Rocio Diaz-Lara, Nancy Lefler, County of Napa re 74 Opposition/Response to Motion, and Declaration of Kristen K. Preston in Support of Opposition (741) (Jones, Mark) (Filed on 4/14/2016) (Entered: 04/14/2016)
81 REPLY (re 69 Joint MOTION for Production of Documents Pursuant to Protective Order and for Forensic Examination of Coroner's Pathology Evidence, Tissue Samples, and Slides ) filed byRobert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 4/14/2016) (Entered: 04/14/2016)
82 CERTIFICATE OF SERVICE by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade re 81 Reply to Opposition/Response, (Fox, Gregory) (Filed on 4/14/2016) (Entered: 04/14/2016)

04/18/2016
04/20/2016 04/20/2016 04/20/2016 04/20/2016 04/28/2016 05/02/2016

Order by Chief Magistrate Judge Joseph C. Spero

83

denying 69 Discovery Motion without prejudice. The hearing

set for April 29, 2016 is VACATED. Any renewed motion or

further discovery dispute shall be raised in manner consistent

with the order at docket entry 34 . No further filing may be captioned as "joint" unless all parties to the case join in filing. (jcslc2S, COURT STAFF) (Filed on 4/18/2016) (Entered: 04/18/2016)

84 First MOTION to Stay Action filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa. Responses due by 5/20/2016. Replies due by 6/3/2016. (Attachments: # 1 Declaration of Kristen K.Preston in Support of Motion to Stay Action and Exhibits A to D, # 2 Request for Judicial Notice in Support of Motion to Stay Action, # 3 Proposed Order On Motion to Stay Action)(Preston, Kristen) (Filed on 4/20/2016) (Entered: 04/20/2016)

85 Second MOTION to Dismiss Action filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa. Responses due by 5/20/2016. Replies due by 6/3/2016. (Attachments: # 1 Proposed Order on Motion to Dismiss Plaintiff's Second Amended Complaint)(Preston, Kristen) (Filed on 4/20/2016) (Entered: 04/20/2016)

86 CERTIFICATE OF SERVICE by Rocio Diaz-Lara, Nancy Lefler, County of Napa of Defendant's Motion to Stay (84), Declaration of Kristen K. Preston in Support of Motion to Stay (84-1), Request for Judicial Notice in Support of Motion to Stay (84-2), Proposed Order (84-3) (Preston, Kristen) (Filed on 4/20/2016) (Entered: 04/20/2016)

87 MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. Responses due by 5/20/2016. Replies due by 6/3/2016. (Attachments: # 1 Proposed Order)(Fox, Gregory) (Filed on 4/20/2016) (Entered: 04/20/2016)

88 NOTICE of Appearance of Gregory F. Dyer as Counsel, filed by Rocio Diaz-Lara, Nancy Lefler, County of Napa (Dyer, Gregory) (Filed on 4/28/2016) Modified on 4/29/2016 (jlmS, COURT STAFF). (Entered: 04/28/2016)

89 JOINDER (re 84 First MOTION to Stay Action), filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 5/2/2016)

05/09/2016 05/16/2016 05/18/2016 05/18/2016
05/19/2016 06/03/2016 06/03/2016 06/03/2016

Modified on 5/3/2016 (jlmS, COURT STAFF). (Entered: 05/02/2016)

90 NOTICE of Change In Counsel as to Glenn Katon, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sherwin, Julia) (Filed on 5/9/2016) Modified on 5/10/2016 (jlmS, COURT STAFF). (Entered: 05/09/2016)

ORDER HOLDING MOTIONS TO DISMISS IN

91

ABEYANCE. Signed by Judge Saundra Brown Armstrong on

5/16/16. (jjoS, COURT STAFF) (Filed on 5/16/2016) (Entered:

05/16/2016)

92 RESPONSE (re 84 First MOTION to Stay Action ) filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 5/18/2016) (Entered: 05/18/2016)

93 Declaration of Julia Sherwin in Support of 92 Opposition/Response to Motion filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Attachments: # 1 Exhibit A, January 8, 2016 letter from Sean Robert Kaer, M.D., # 2 Exhibit B, 9/9/15 hearing transcript, # 3 Exhibit C, 11/9/15 preliminary hearing exhibit and witness list, # 4 Exhibit D, 11/10/15 preliminary hearing transcript, # 5 Exhibit E, 10/29/15 hearing transcript, # 6 Exhibit F, 11/23/15 order disclosing documents and information, # 7 Exhibit G, 1/28/16 hearing transcript)(Related document(s) 92 ) (Sherwin, Julia) (Filed on 5/18/2016) (Entered: 05/18/2016)

94 AMENDED RESPONSE (re 84 First MOTION to Stay Action), filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 5/19/2016) Modified on 5/20/2016 (jlmS, COURT STAFF). (Entered: 05/19/2016)

95 REPLY (re 84 First MOTION to Stay Action ) filed byCounty of Napa. (Preston, Kristen) (Filed on 6/3/2016) (Entered: 06/03/2016)

96 REPLY (re 84 First MOTION to Stay Action ) filed byRobert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Attachments: # 1 Declaration of Meaghan A. Snyder)(Snyder, Meaghan) (Filed on 6/3/2016) (Entered: 06/03/2016)

97 REPLY (re 84 First MOTION to Stay Action ) CORRECTION OF DOCKET # 96 and [96-1] filed byRobert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Attachments: # 1 Declaration of Meaghan A.

06/08/2016 06/09/2016 06/16/2016
06/20/2016 06/30/2016 07/01/2016 07/25/2016 07/25/2016

Snyder)(Snyder, Meaghan) (Filed on 6/3/2016) (Entered: 06/03/2016)
98 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garrett Wade. (Sherwin, Julia) (Filed on 6/8/2016) Modified on 6/9/2016 (jlmS, COURT STAFF). (Entered: 06/08/2016)
99 ORDER by Judge Saundra Brown Armstrong denying 84 County Defendants Motion to Stay. (jjoS, COURT STAFF) (Filed on 6/9/2016) (Entered: 06/09/2016)
100 Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Initial Telephonic Case Management Conference held on 6/16/2016. Case Management Statement due by 9/21/2016. Further Telephonic Case Management Conference set for 9/28/2016 02:30 PM. Total Time in Court 9 minutes. Court Reporter Name: Unreported. (jjoS, COURT STAFF) (Date Filed: 6/17/2016) Modified on 6/20/2016 (jlmS, COURT STAFF). (Entered: 06/17/2016)
101 NOTICE of Unavailability of Plaintiffs' Counsel, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sherwin, Julia) (Filed on 6/20/2016) Modified on 6/21/2016 (jlmS, COURT STAFF). (Entered: 06/20/2016)
102 NOTICE OF CHANGE IN EMAIL ADDRESS by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 6/30/2016) Modified on 7/1/2016 (cjlS, COURT STAFF). (Entered: 06/30/2016)
103 NOTICE of Appearance of Maya Melissa Sorensen as Counsel, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sorensen, Maya) (Filed on 7/1/2016) Modified on 7/5/2016 (jlmS, COURT STAFF). (Entered: 07/01/2016)
104 NOTICE to Magistrate Judge Joseph C. Spero re 99 Order on Motion to Stay, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher (Sherwin, Julia) (Filed on 7/25/2016) Modified on 7/26/2016 (jlmS, COURT STAFF). (Entered: 07/25/2016)
105 Proposed Order FOR EXCHANGE OF DOCUMENTS AND INFORMATION PURSUANT TO PROTECTIVE ORDER by

Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Sherwin, Julia) (Filed on 7/25/2016) (Entered: 07/25/2016)

08/01/2016 106

ORDER For Exchange of Documents and Information Pursuant to Protective Order. Signed by Chief Magistrate Judge Joseph C.Spero on 7/29/16. (klhS, COURT STAFF) (Filed on 8/1/2016) (Entered: 08/01/2016)

08/09/2016 107

***ERRONEOUS ENTRY, PLEASE REFER TO DOCUMENT NO. 108 ***

ORDER SETTING BRIEFING SCHEDULE re 87 85 MOTIONS to Dismiss: Plaintiffs response due 9/2/2016; Defendants replies due 8/26/2016. Signed by Judge Saundra B. Armstrong on 8/9/2015. (afmS, COURT STAFF) (Filed on 8/9/2016) Modified on 8/10/2016 (jlmS, COURT STAFF). Modified on 8/10/2016 (jlmS, COURT STAFF). (Entered: 08/09/2016)

08/10/2016 108

ORDER SETTING BRIEFING SCHEDULE re 87 , 85 MOTIONS to Dismiss: Plaintiffs Response due 9/2/2016; Defendants Replies due 8/26/2016. Signed by Judge Saundra B. Armstrong on 8/9/2016. [Correction of 107

Order.] Responses due by 8/26/2016. Replies due by 9/2/2016. (jlmS, COURT STAFF) (Filed on 8/10/2016) (Entered: 08/10/2016)

08/26/2016 109

RESPONSE (re 87 MOTION to Dismiss Plaintiffs' Second Amended Complaint ) Response in Opposition filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Haddad, Michael) (Filed on 8/26/2016) (Entered: 08/26/2016)

08/26/2016

110 RESPONSE (re 85 Second MOTION to Dismiss Action ) Response in Opposition filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Haddad, Michael) (Filed on 8/26/2016) (Entered: 08/26/2016)

08/26/2016

111 Declaration of Michael J. Haddad in Support of 110 Opposition/Response to Motion, 109

Opposition/Response to Motion filed byBenny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. (Attachments: # 1 Exhibit Exhibit A: Lyles v. City of Huntington Park, CV 163223-GW (KSx) (C.D. Cal. July 7, 2016) (Doc. 19))(Related

09/01/2016 09/02/2016 09/21/2016 09/23/2016 10/04/2016
10/13/2016 10/14/2016

document(s) 110 , 109 ) (Haddad, Michael) (Filed on 8/26/2016) (Entered: 08/26/2016)
112 REPLY to Opposition (re 87 MOTION to Dismiss Second Amended Complaint), filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 9/1/2016) Modified on 9/2/2016 (jlm, COURT STAFF). (Entered: 09/01/2016)
113 REPLY (re 87 MOTION to Dismiss Plaintiffs' Second Amended Complaint ) filed byCounty of Napa. (Preston, Kristen) (Filed on 9/2/2016) (Entered: 09/02/2016)
114 UPDATED JOINT CASE MANAGEMENT STATEMENT and Proposed Order, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garrett Wade. (Sherwin, Julia) (Filed on 9/21/2016) Modified on 9/22/2016 (jlmS, COURT STAFF). (Entered: 09/21/2016)
115 CLERK'S NOTICE CONTINUING FURTHER TELEPHONIC CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 10/19/2016 02:45 PM.with Judge Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 9/23/2016) (Entered: 09/23/2016)
116 Suggestion of Death and MOTION to Substitute Party, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. Motion Hearing set for 11/9/2016 01:00 PM in Courtroom 210, 2nd Floor, Bankruptcy Court, Oakland before Hon. Saundra Brown Armstrong. Responses due by 10/18/2016. Replies due by 10/25/2016. (Attachments: # 1 Declaration, # 2 Proposed Order)(Sorensen, Maya) (Filed on 10/4/2016) Modified on 10/5/2016 (jlmS, COURT STAFF). (Entered: 10/04/2016)
117 STATEMENT of Non-Opposition (re 116 Suggestion of Death and MOTION to Substitute Party), filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 10/13/2016) Modified on 10/14/2016 (jlmS, COURT STAFF). (Entered: 10/13/2016)
118 Statement of Non-Opposition re 116 MOTION to Substitute Party filed by County of Napa, Nancy Lefler, Rocio Diaz-Lara. (Related document(s) 116 ) (Preston, Kristen) (Filed on

10/14/2016 10/17/2016 10/17/2016 10/17/2016 10/26/2016
11/18/2016
11/29/2016 12/01/2016

10/14/2016) Modified on 10/17/2016 (kcS, COURT STAFF). (Entered: 10/14/2016)
119 STIPULATION WITH PROPOSED ORDER Continuing Case Management Conference filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 10/14/2016) Modified on 10/17/2016 (kcS, COURT STAFF). (Entered: 10/14/2016)
120 STIPULATION AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE AS MODIFIED by Hon. Saundra Brown Armstrong.(dtmS, COURT STAFF) (Filed on 10/17/2016) (Entered: 10/17/2016)
Set Deadlines/Hearings: Updated Case Management Statement due by 12/1/2016. Telephonic Case Management Conference set for 12/8/2016 02:30 PM. with Judge Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 10/17/2016) (Entered: 10/17/2016)
121 NOTICE of Change In Counsel by Gregory Mellon Fox (Fox, Gregory) (Filed on 10/17/2016) (Entered: 10/17/2016)
122 CLERK'S NOTICE. You are notified that the hearing set for 11/9/16 re 116 Motion to Substitute Party is vacated. The motion will be decided on the pleadings. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 10/26/2016) (Entered: 10/26/2016)
123 STIPULATION WITH PROPOSED ORDER Regarding Resolution of Discovery Dispute Regarding County Defendants' Rule 45 Subpoenas, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, County of Napa, Nancy Lefler. (Helm, Thomas) (Filed on 11/18/2016) Modified on 11/21/2016 (jlmS, COURT STAFF). (Entered: 11/18/2016)
124 Order, signed 11/29/16, by Chief Magistrate Judge Joseph C. Spero granting 123 Stipulation. re: Napa County Dfts' FRCP 45 Subpoenas(klhS, COURT STAFF) (Filed on 11/29/2016) (Entered: 11/29/2016)
125 UPDATED JOINT CASE MANAGEMENT STATEMENT, filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, Police Officer Deguilio, Rocio Diaz-Lara, Nancy Lefler, City of Napa, County of Napa, Garret Wade. (Sherwin, Julia)

(Filed on 12/1/2016) Modified on 12/2/2016 (jlmS, COURT STAFF). (Entered: 12/01/2016)

12/07/2016 126

ORDER GRANTING IN PART AND DENYING IN PART AS MOOT DEFENDANTS MOTIONS TO DISMISS by Judge Saundra B Armstrong. (dtmS, COURT STAFF) (Filed on 12/7/2016) (Entered: 12/07/2016)

12/14/2016

127 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher. Appeal of Order on Motion to Dismiss,, Order on Motion to

Substitute Party 126 (Appeal fee of $505 receipt number 0971-11007303 paid.) (Sherwin, Julia) (Filed on 12/14/2016) (Entered: 12/14/2016)

12/21/2016 05/09/2017 05/11/2017

128 USCA Case Number 16-17304 Ninth Circuit Court of Appeals for 127 Notice of Appeal, filed by Kayleigh Slusher, Robin Slusher, Benny Slusher, Jason Slusher. (cjlS, COURT STAFF) (Filed on 12/21/2016) (Entered: 12/21/2016)
129 STIPULATION WITH PROPOSED ORDER Modifying re 33 Protective Order filed by Benny Slusher, Jason Slusher, Kayleigh Slusher, Robin Slusher, City of Napa, et al. (Sherwin, Julia) (Filed on 5/9/2017) Modified on 5/10/2017 (cpS, COURT STAFF). (Entered: 05/09/2017)
130 Order, signed 5/10/17, by Chief Magistrate Judge Joseph C. Spero granting 129 Stipulation Modifying Protective Order.(klhS, COURT STAFF) (Filed on 5/11/2017) (Entered: 05/11/2017)

10/25/2017

131 Order Referring Magistrate Judge Laurel Beeler for a settlement conference from United States Court of Appeals. (ahm, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/25/2017

132 ***DISREGARD. DUPLICATE OF DOCKET #131*** ORDER of USCA. (jmlS, COURT STAFF) (Filed on 10/25/2017) Modified on 10/26/2017 (jmlS, COURT STAFF). (Entered: 10/25/2017)

11/06/2017

133 Order Setting Settlement Conference before Magistrate Judge Settlement Conference set for 2/27/2018 10:00 AM in Courtroom C, 15th Floor, San Francisco.

The attached order sets the settlement conference and has the court's procedures. The parties are free to lodge any

02/07/2018
03/26/2018 04/12/2018 04/13/2018 04/15/2018
04/16/2018 04/16/2018

documents that they would like the court to read. Also, if it is more convenient, they may email their statements (but not any voluminous attachments) to lbpo@cand.uscourts.gov.
(Beeler, Laurel) (Filed on 11/6/2017) (Entered: 11/06/2017)
134 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: At the parties' request, the court continues the settlement conference to 4/16/2018 at 10:00 a.m. in San Francisco, Courtroom C, 15th Floor. The settlement statements are due seven days in advance. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 2/7/2018) (Entered: 02/07/2018)
135 CLERK'S NOTICE: For reasons having to do with the court's schedule, the court directs that the parties' settlement statements (and any accompanying documents) be lodged no later than 4/3/2018 at noon. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/26/2018) (Entered: 03/26/2018)
136 Letter from Joanne Tran re Request for Waiver of Appearance. (Tran, Joanne) (Filed on 4/12/2018) (Entered: 04/12/2018)
137 Letter from Gregory F. Dyer requesting telephonic appearance for Nancy Lefler-Panela. (Dyer, Gregory) (Filed on 4/13/2018) (Entered: 04/13/2018)
138 ORDER.
The court apologizes for the late notice and excuses the appearances reflected in ECF Nos. 136 and 137 (which are uncontested).
(This is a text-only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 4/15/2018) (Entered: 04/15/2018)
139 ORDER re 137 Request for Waiver of Appearance. Signed by Judge Laurel Beeler on 04/16/2018. (ejkS, COURT STAFF) (Filed on 4/16/2018) (Entered: 04/16/2018)
140 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/16/2018. The court held a settlement conference. Settlement negotiations are ongoing. The defendants will update the court in

05/12/2018 05/21/2018
06/07/2018 06/07/2018

approximately three weeks. The court thereafter will work with the parties to set up a further settlement conference.
Total Time in Court: 9 hours, 30 minutes. Not Reported. Plaintiffs' Attorneys: Julia Sherwin, Maya Sorensen and Michael Haddad. Also appearing: Robin Slusher and Jason Slusher. Defendants' Attorneys: Gregory Fox, David Jones, Joanne Tran and Gregory Dyer. Also appearing: Steve Potter, Patrick Manzer, Douglas Taylor, Kerry Whitney, Robert Chambers, Garrett Wade and Garrett Smith. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 4/16/2018) (Entered: 04/17/2018)
141 ORDER.
The parties provided a short update to the court on 5/7/2018 and will provide a further update shortly after 5/21/2018.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 5/12/2018) (Entered: 05/12/2018)
142 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference call held on 5/21/2018. The court had further settlement communications with the parties on May 17, 18, and 21. Given the meeting on June 11, the court asks for an update by noon on Thursday, June 15.
Total Time in Court: 30 minutes. Not Reported. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 5/21/2018) (Entered: 05/21/2018)
143 Proposed Order Granting Substitution of Attorney by Rocio DiazLara, Nancy Lefler, County of Napa. (Hamilton, Bonnie) (Filed on 6/7/2018) (Entered: 06/07/2018)
144 CONSENT ORDER GRANTING SUBSTITUTION OF ATTORNEY. Signed by Judge Saundra Brown Armstrong on 6/7/18. (dtmS, COURT STAFF) (Filed on 6/7/2018) (Entered: 06/07/2018)

07/16/2018 10/17/2018
11/02/2018

145 Order Setting Settlement Conference before Magistrate Judge Settlement Conference set for 10/17/2018 10:00 AM in San Francisco, Courtroom C, 15th Floor.
At the parties' request, the court sets a further in-person settlement conference for Wednesday 10/17/2018 at 10:00 a.m. A short update with any revisions to demands or responses must be submitted by 10/10/2018 and must be emailed to lbpo@cand.uscourts.gov. The court is amenable to calls before 10/17/2018 if that would be helpful to the parties.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 7/16/2018) (Entered: 07/16/2018)
146 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 10/17/2018. Case settled subject to ordinary contingency of approval. Material terms are placed on the record. Court retains jurisdiction to enforce the terms of settlement.
Status Conference set for 12/6/2018 at 01:00 PM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler.
*SEALED* FTR Time: 1:50-2:00. Total Time: 4 Hours.
Plaintiffs' Attorneys: Michael Haddad, Maya Sorensen and Julia Sherwin. Plaintiffs Robin Slusher and Jason Slusher appearing. Defendants' Attorneys: Gregory Fox (City of Napa) and Bonnie Hamilton (County of Napa). Defendant Nancy Lefler-Panela appearing. Appearing for County of Napa: Doug Taylor, Kerry John Whitney, Rocio Diaz-Lara. Appearing for City of Napa: Joanne Tran, Lindsey Fagliano, Patrick Manzer, David Jones and Steve Potter. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/17/2018) Matter is transcribed by Joan Columbini. Modified on 11/29/2018 (notewarelS, COURT STAFF). (Entered: 10/17/2018)
147 CLERK'S NOTICE: Settlement Conference set for 12/6/2018 at 1:00 PM in San Francisco, Courtroom B, 15th Floor. (This is a

11/06/2018
11/28/2018 11/28/2018 11/28/2018 11/29/2018 11/29/2018

text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/2/2018) (Entered: 11/02/2018)
148 CLERK'S NOTICE: In the event that the parties do not address the non-monetary issues on their own before the next in-person settlement conference, the court orders the attendance of client representatives who have the authority to approve and implement any non-monetary components. Often that can be agency supervisors with high-level authority (even if governing authorities ultimately must approve any relief). (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/6/2018) (Entered: 11/06/2018)
149 Ex Parte Application re 146 Settlement Conference,,,,, Set Deadlines/Hearings,,,, FOR ORDER ALLOWING TRANSCRIPT filed by Robert Chambers, Police Officer Deguilio, City of Napa, Garrett Smith, Joshua Smith, Garrett Wade. (Fox, Gregory) (Filed on 11/28/2018) (Entered: 11/28/2018)
150 Order by Magistrate Judge Laurel Beeler granting 149 Ex Parte Application for Order Allowing Transcript of Confidential Settlement Agreement. (ejkS, COURT STAFF) (Filed on 11/28/2018) (Entered: 11/28/2018)
151 CLERK'S NOTICE ADVANCING SETTLEMENT CONFERENCE TIME: The court moves up the start time of the settlement conference on Thursday 12/6/2018 from 1:00 p.m. to 11:00 a.m. The court reminds the parties about its requirements for attendance (set forth at ECF No. 148). The court allots two hours to the conference. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/28/2018) (Entered: 11/28/2018)
152 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE TIME: Based on a scheduling conflict for a party, the court resets the settlement conference to 2:00 PM. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/29/2018) (Entered: 11/29/2018)
Set/Reset Hearing re 152 Clerk's Notice. Settlement Conference set for 12/6/2018 at 1:00 PM in San Francisco, Courtroom B, 15th Floor. (ejkS, COURT STAFF) (Filed on 11/29/2018) (Entered: 11/29/2018)

11/30/2018 12/03/2018 12/05/2018 12/06/2018
12/20/2018

153 Sealed Transcript of Proceedings held on October 17, 2018, before Judge Laurel Beeler. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 12/18/2018. Redacted Transcript Deadline set for 12/28/2018. (Columbini, Joan) (Filed on 11/30/2018) (Entered: 11/30/2018)
154 TRANSCRIPT ORDER for SEALED proceedings held on 10/17/2018 before Magistrate Judge Laurel Beeler by City of Napa, for Court Reporter FTR - San Francisco. (rjdS, COURT STAFF) (Filed on 12/3/2018) Modified on 12/3/2018 (rjdS, COURT STAFF). (Entered: 12/03/2018)
155 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE TIME: Based on the court's separate email to counsel, the court resets the start time of the settlement conference to 11:00 AM. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)
156 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 12/6/2018. The court held an in-person settlement and finalized the nonmonetary part of the settlement. (Not Reported).
Plaintiffs' Attorneys: Maya Sorensen, Michael Haddad, Julia Sherwin and Teresa Allen. Defendants' Attorneys: Gregory Fox and Bonnie Hamilton. Also appearing: Kerry Whitney and Captain Pat Manzer. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 12/6/2018) (Entered: 12/07/2018)
157 ORDER/MANDATE of USCA appeal is voluntarily dismissed as to 127 Notice of Appeal, filed by Kayleigh Slusher, Robin Slusher, Benny Slusher, Jason Slusher, 128 USCA Case Number, 132 USCA Order (jmlS, COURT STAFF) (Filed on 12/20/2018) (Entered: 12/20/2018)

PACER Service Center Transaction Receipt

09/13/2020 08:43:31

PACER Login:

CRClearinghouse:2563377:0

Client Code:

Description: Docket Report

Search Criteria:

Billable Pages:

22

Cost:

Kreager
4:15-cv02394-SBA
2.20

 
 Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 1 of 28

1 MICHAEL J. HADDAD (State Bar No. 189114)

JULIA SHERWIN (State Bar No. 189268) 2 GENEVIEVE K. GUERTIN (State Bar No. 262479)

3

T. KENNEDY HELM (State Bar No. 282319) HADDAD & SHERWIN LLP

4 505 Seventeenth Street Oakland, California 94612

5 Telephone: (510) 452-5500

Facsimile: (510) 452-5510 6

7

Attorneys for Plaintiffs KAYLEIGH SLUSHER, Dec., JASON SLUSHER,

8 ROBIN SLUSHER and BENNY SLUSHER

9 UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA 11

12 KAYLEIGH SLUSHER, Deceased, THROUGH HER )

13

SUCCESSOR IN INTEREST JASON SLUSHER; JASON SLUSHER, Individually; ROBIN SLUSHER,

14 Individually; and BENNY SLUSHER, Individually,

) No: ) ) Hon. )

)

15

Plaintiffs,

) COMPLAINT FOR

vs. 16

17

CITY OF NAPA, a public entity; NAPA POLICE OFFICER GARRETT WADE, Individually; NAPA

18 POLICE OFFICER DEGUILIO, Individually; NAPA CHIEF OF POLICE RICHARD MELTON,

) DAMAGES, DECLARATORY,

) ) )

AND INJUNCTIVE RELIEF, AND DEMAND FOR JURY

) TRIAL

)

)

19 Individually and in his Official Capacity; COUNTY OF )

NAPA, a public entity; NAPA COUNTY CHILD

)

20 WELFARE SERVICES SOCIAL WORKER NANCY )

21

LEFLER, Individually; NAPA COUNTY CHILD WELFARE SERVICES WORKER ROCIO DIAZ-

22 LARA, Individually; and DOES 1–50, Jointly and

) ) ) )

Severally

)

23

)

Defendants.

)

24

)

)

25

)

26

27

28

COMPLAINT AND JURY DEMAND

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 2 of 28

1

2

Plaintiffs, by and through their attorneys, HADDAD & SHERWIN LLP, for their Complaint

3 against Defendants, state as follows:
4 JURISDICTION AND INTRADISTRICT ASSIGNMENT TO SAN JOSE
5 1. This is a civil rights action arising from Defendants’ violation of mandatory duties to
6
7 investigate and/or report child abuse and/or neglect, and to refrain from creating danger and

8 increasing Plaintiffs’ risk of harm, which resulted in the death of Plaintiff KAYLEIGH SLUSHER,

9 Deceased, on or about January 30, 2014, in the City of Napa, Napa County, California. This action

10 is brought pursuant to 42 U.S.C. §§ 1983 and 1988; and the First and Fourteenth Amendments to
11 the United States Constitution, as well as the laws and Constitution of the State of California.
12 Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4), and the aforementioned
13 statutory and constitutional provisions. Plaintiffs further invoke the supplemental jurisdiction of
14
15 this Court pursuant to 28 U.S.C. §1367 to hear and decide claims arising under state law.

16

INTRADISTRICT ASSIGNMENT

17

2. A substantial part of the events and/or omissions complained of herein occurred in

18 the City of Napa, Napa County, California, and this action is properly assigned to the San Francisco

19 or Oakland Divisions of the United States District Court for the Northern District of California,
20 pursuant to Civil Local Rule 3-2(e).
21

22

PARTIES AND PROCEDURE

23

3. Plaintiff JASON SLUSHER is the father of decedent, KAYLEIGH SLUSHER.

24 Plaintiff JASON SLUSHER brings these claims individually and as a Successor in Interest for his

25 daughter and only child, Kayleigh Slusher, Deceased, pursuant to California Code of Civil
26 Procedure sections 377.20 et seq. and 377.60 et seq. which provide for survival and wrongful death 27
actions. These claims are also brought individually and on behalf of Kayleigh Slusher, Deceased, 28

COMPLAINT AND JURY DEMAND

1

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 3 of 28

1 on the basis of the 42 USC §§ 1983 and 1988, the United States Constitution, and federal and state

2 civil rights law. JASON SLUSHER is a resident of the State of California. At all times, Plaintiff

3 JASON SLUSHER adored his daughter KAYLEIGH and had a close and loving relationship with

4 her.
5 4.
6

Plaintiff ROBIN SLUSHER is the grandmother of Decedent KAYLEIGH

7 SLUSHER and a resident of the State of California. Plaintiff ROBIN SLUSHER brings these

8 claims individually. Plaintiff ROBIN SLUSHER had the closest possible healthy relationship with

9 her granddaughter, KAYLEIGH SLUSHER, that a grandmother could have. For substantial periods

10 of KAYLEIGH SLUSHER’S life, ROBIN and BENNY SLUSHER provided for KAYLEIGH’S
11 financial, emotional, and physical support, including while KAYLEIGH lived in ROBIN and
12 BENNY SLUSHER’S home, and afterward. ROBIN and BENNY SLUSHER had a long-standing
13 custodial relationship with KAYLEIGH SLUSHER such that they constituted a family unit.
14
15 Besides Plaintiffs JASON SLUSHER, ROBIN SLUSHER, and BENNY SLUSHER, no other

16 person had a closer, more intimate, healthy, familial relationship with KAYLEIGH SLUSHER.

17

5. Plaintiff BENNY SLUSHER is the grandfather of Decedent KAYLEIGH SLUSHER

18 and a resident of the State of California. Plaintiff BENNY SLUSHER brings these claims
19 individually. Plaintiff BENNY SLUSHER had the closest possible healthy relationship with his
20 granddaughter, KAYLEIGH SLUSHER, that a grandfather could have. For substantial periods of
21
22 KAYLEIGH SLUSHER’S life, ROBIN and BENNY SLUSHER provided for KAYLEIGH’S

23 financial, emotional, and physical support, including while KAYLEIGH lived in ROBIN and

24 BENNY SLUSHER’S home, and afterward. ROBIN and BENNY SLUSHER had a long-standing

25 custodial relationship with KAYLEIGH SLUSHER such that they constituted a family unit. Besides
26 Plaintiffs JASON SLUSHER, ROBIN SLUSHER, and BENNY SLUSHER, no other person had a 27
closer, more intimate, healthy, familial relationship with KAYLEIGH SLUSHER. 28

COMPLAINT AND JURY DEMAND

2

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 4 of 28

1

6. Defendant CITY OF NAPA is a public entity established by the laws and

2 Constitution of the State of California, and owns, operates, manages, directs, and controls the Napa

3 Police Department (“NPD”) which employs other defendants in this action.
4 7. Defendant NAPA POLICE OFFICER GARRETT WADE (“WADE”) at all material
5 times was employed as a law enforcement officer by NPD, and was acting within the course and
6
7 scope of that employment. Defendant WADE is being sued in his individual capacity.

8

8. Defendant NAPA POLICE OFFICER DEGUILIO (“DEGUILIO”) at all material

9 times was employed as a law enforcement officer by NPD, and was acting within the course and

10 scope of that employment. Defendant DEGUILIO is being sued in his individual capacity
11 9. Defendant DOE Police Officers ("Doe Police Officers") at all material times were
12 employed as a law enforcement officers by Defendant City of Napa, and were acting within the
13 course and scope of that employment. Defendant Doe Police Officers are being sued in their
14
15 individual capacities.

16

10. Defendant Chief of Police RICHARD MELTON (“Melton”) at all material times

17 was employed as Chief of Police by Defendant City of Napa, and was acting within the course and

18 scope of that employment. As Chief of Police, Defendant Melton was a policy-making official for

19 the City of Napa with the power to make official and final policy for the Napa Police Department.
20 Defendant Melton is being sued in his individual and official capacities.
21

22

11. Defendant COUNTY OF NAPA is a public entity established by the laws and

23 Constitution of the State of California, and owns, operates, manages, directs, and controls Napa

24 County Child Welfare Services (“CWS”) which employs other defendants in this action.

25

12. Defendant CWS worker NANCY LEFLER-PANELA at all material times was

26 employed as a child welfare services social worker by CWS and was acting within the course and
27 scope of that employment. Defendant LEFNER is being sued in her individual capacity.
28

COMPLAINT AND JURY DEMAND

3

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 5 of 28

1

13. Defendant CWS worker ROCIO DIAZ-LARA at all material times was employed

2 as a child welfare services social worker by CWS and was acting within the course and scope of
3 that employment. Defendant DIAZ-LARA is being sued in her individual capacity. 4
14. Defendant DOE CWS Workers ("Doe CWS Workers") at all material times were 5
employed as Child Welfare Services workers by Defendant County of Napa, and were acting within 6 7 the course and scope of that employment. Doe Defendant CWS Workers are being sued in their
8 individual capacities.

9

15. The true names and capacities of other Defendants sued as DOES 1–50 (“DOE

10 DEFENDANTS”), including Doe Police Officers and Doe CWS Workers, are unknown to
11 Plaintiffs, who therefore sue these Defendants by such fictitious names, and Plaintiffs will seek
12 leave to amend this complaint to show their true names and capacities when the same are
13 ascertained. Each DOE DEFENDANT was an employee/agent of either the CITY OF NAPA or the
14
15 COUNTY OF NAPA, and at all material times acted within the course and scope of that

16 relationship. Plaintiffs are informed and believe and thereon allege that each of the Defendants

17 sued herein was negligently, wrongfully, and otherwise responsible in some manner for the events

18 and happenings as hereinafter described, and proximately caused injuries and damages to Plaintiffs.

19 Further, one or more DOE DEFENDANTS was at all material times responsible for the hiring,
20 training, supervision, and discipline of other defendants, including DOE DEFENDANTS.
21

22

16. Plaintiffs are informed and believe, and thereon allege, that each of the Defendants

23 was at all material times an agent, servant, employee, partner, joint venturer, co-conspirator, and/or

24 alter ego of the remaining Defendants, and in doing the things herein alleged, was acting within the

25 course and scope of that relationship. Plaintiffs are further informed and believe, and thereon 26 allege, that each of the Defendants herein gave consent, aid, and assistance to each of the remaining 27

28

COMPLAINT AND JURY DEMAND

4

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 6 of 28

1 Defendants, and ratified and/or authorized the acts or omissions of each Defendant as alleged

2 herein, except as may be hereinafter otherwise specifically alleged.

3

17. At all material times, each Defendant was jointly engaged in tortious activity, and an

4 integral participant in the conduct described herein, including the violation of mandatory duties to
5 investigate and/or report child abuse and/or neglect, and the increase of Plaintiffs’ risk, resulting in
6

7 the deprivation of Plaintiffs’ constitutional rights and other harm.

8

18. At all material times, each Defendant acted under color of the laws, statutes,

9 ordinances, and regulations of the State of California and also of the CITY OF NAPA, and/or

10 COUNTY OF NAPA.

11 19. The acts and omissions of all Defendants as set forth herein were at all material times
12 pursuant to the actual customs, policies, practices and procedures of the Defendants CITY OF
13
NAPA and/or COUNTY OF NAPA. 14

15

20. Plaintiffs bring these claims as Private Attorneys General, to vindicate not only their

16 own rights but others’ civil rights of great importance.

17

21. This complaint may be pled in the alternative pursuant to Federal Rule of Civil

18 Procedure 8(d).

19
20 22.
21 here.
22

GENERAL ALLEGATIONS Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

23

23. On or about January 30, 2014, KAYLEIGH SLUSHER was murdered in her home,

24 on information and belief, by her mother's boyfriend Ryan Scott Warner and/or her mother, Sara

25 Krueger, at 2060 Wilkins Avenue, Apt. 7, in the City of Napa, County of Napa, California.

26 KAYLEIGH was three years old. At this time, Plaintiffs are unaware of details concerning the
27 exact circumstances and manner of Kayleigh Slusher's homicide, because the Napa Police
28

COMPLAINT AND JURY DEMAND

5

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 7 of 28

1 Department has not provided such information in response to Plaintiffs' lawful requests for such

2 information.

3

24. At all relevant times herein, Decedent KAYLEIGH SLUSHER was a minor and was

4 a resident of the County of Napa and the City of Napa. On information and belief, KAYLEIGH
5 SLUSHER had been a client of County of Napa CWS from approximately October 2010 until
6

7 approximately April 2012.

8

25. Prior to Kayleigh's death, PLAINTIFF ROBIN SLUSHER and others informed

9 Defendant WADE and/or DOE NPD Officers on multiple occasions that Kayleigh was suffering

10 abuse, neglect and was in immediate physical danger in her home due to the conduct, crimes, and
11 activities of Mr. Warner and Ms. Kreuger, including but not limited to abuse of unlawful controlled
12 substances.
13 26. KAYLEIGH SLUSHER was born on May 3, 2010, Plaintiff ROBIN SLUSHER’S
14
15 birthday.

16

27. KAYLEIGH SLUSHER and her mother Sara Krueger, lived with KAYLEIGH’S

17 grandparents, Plaintiffs ROBIN and BENNY SLUSHER, for over a year. In addition, when

18 KAYLEIGH moved from ROBIN and BENNY SLUSHER’S home into an apartment with her
19 mother, Sara Krueger, Plaintiffs ROBIN and BENNY SLUSHER paid for Ms. Krueger’s rent and
20 telephone expenses for several months so that KAYLEIGH could have a safe place to live and
21
22 contact with her family.

23

28. In addition, throughout KAYLEIGH’S life, Plaintiffs ROBIN and BENNY

24 SLUSHER, in addition to JASON SLUSHER, paid for Kayleigh’s clothing, toys, material needs,

25 medicine, and bought food for the household in which KAYLEIGH lived, including when 26 KAYLEIGH and Ms. Krueger lived separately from ROBIN and BENNY SLUSHER. 27

28

COMPLAINT AND JURY DEMAND

6

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 8 of 28

1

29. In addition, ROBIN and BENNY SLUSHER frequently had custody of KAYLEIGH

2 for overnight and weekend visits, and frequently had her with them during the day, even when
3 KAYLEIGH did not live full-time in the SLUSHERS’ house. The parties lived near each other, in 4
the City of Napa, and ROBIN and BENNY SLUSHER saw KAYLEIGH regularly. 5
30. In or around October 2013, Ms. Krueger began denying ROBIN and BENNY 6 7 SLUSHER their usual access to, and contacts with, their granddaughter KAYLEIGH. During this
8 time, Plaintiff JASON SLUSHER was in prison for a crime unrelated to his relationship with

9 KAYLEIGH SLUSHER, and he was not able to protect his daughter.

10

31. During this time, Plaintiffs are informed and believe and thereon allege that Ms.

11 Krueger was using illegal drugs and had moved Ryan Warner, who was also using illegal drugs and
12 had a criminal history and a warrant for his arrest, into her home, thereby endangering the life and
13
safety of KAYLEIGH SLUSHER. Despite repeated attempts by Plaintiff ROBIN SLUSHER to see 14

15 her granddaughter, Ms. Krueger repeatedly refused ROBIN access to KAYLEIGH for a matter of

16 months.

17

32. On or about January 23, 2014, Plaintiff ROBIN SLUSHER contacted NPD to

18 request a welfare check on KAYLEIGH. ROBIN SLUSHER called Defendant NPD to inform the
19 police that KAYLEIGH may be suffering severe abuse, neglect, was in immediate physical danger,
20 and to request police intervention to save KAYLEIGH. MS. SLUSHER called anonymously
21
22 because she did not want Ms. Krueger to learn she had called the police and preclude her from

23 seeing KAYLEIGH.

24

33. MS. SLUSHER informed Defendant NPD that KAYLEIGH was living in a

25 dangerous household with “Ryan,” whose last name she did not know, but who had a warrant for 26 his arrest. MS. SLUSHER informed Defendant NPD that Mr. Warner and Ms. Krueger were using 27

28

COMPLAINT AND JURY DEMAND

7

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 9 of 28

1 illegal drugs such as “crank” (methamphetamine) in KAYLEIGH’S home, and she was worried

2 about whether or not KAYLEIGH was being given enough food and for KAYLEIGH’S safety.

3

34. On or about January 23, 2015, around 6:10 p.m., Defendant WADE was dispatched

4 to go to 2060 Wilkins Avenue, Apt. 7, for a warrant arrest. On information and belief, Defendant
5 WADE was advised that a man who lived there (Mr. Warner), had an outstanding warrant for his
6

7 arrest. On information and belief, Defendant WADE was also advised that a small child of three or

8 four years old, Kayleigh, was in immediate physical danger due to Mr. Warner's and Ms. Kreuger's

9 illicit drug use in the home at 2060 Wilkins Avenue, Apt. 7, due to Mr. Warner's and Ms. Kreuger's

10 failure to provide food to Kayleigh, due to drug users coming in and out of the home at all hours,

11 and due to possible physical violence against Kayleigh. On information and belief, Defendant
12 WADE was also advised that Mr. Warner stays inside the home with Kayleigh all the time, smokes
13
all the time, uses “Crank,” and he might be armed. 14

15

35. Rather than perform a welfare check or any investigation into Kayleigh's safety and

16 wellbeing, Plaintiffs are informed and believe and thereon allege that Defendant WADE decided

17 not to go to the house where Kayleigh lived, not to investigate further, not to report suspected child
18 abuse or neglect, not to seek further advice, assistance, or backup, not to serve any warrant there,
19 and not to arrest any fugitive who may be living with Kayleigh and using drugs around her, and
20 instead Defendant WADE cleared the call. On information and belief, Defendant WADE chose not
21 22 to investigate the report of child abuse and/or neglect in Kayleigh’s home, because he determined
23 that the environment in which Kayleigh lived was not safe for him or his partner to go there.

24

36. At all relevant times, Defendant WADE was a Mandated Reporter under the

25 California Child Abuse and Neglect Reporting Act ("CANRA"), including California Penal Code
26 §11165.7. Despite the fact that Defendant WADE knew, had reason to know and/or reasonably 27
suspected that Kayleigh was suffering child abuse and/or neglect, Defendant WADE failed to 28

COMPLAINT AND JURY DEMAND

8

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 10 of 28

1 investigate and/or report the abuse and neglect as required by California Penal Code §§ 11164 et

2 seq, 11165.9, and 11166. Defendant WADE never made any report of child abuse and/or neglect in
3 relation to Kayleigh to Napa County CWS or any other authority. 4
37. On or about January 27, 2014, Plaintiff ROBIN SLUSHER contacted Napa County 5
CWS by phone on more than one occasion and reported to Defendant CWS Workers DIAZ-LARA 6 7 and LEFLER-PANELA that there had been a CWS case open for KAYLEIGH at some previous
8 time, and that Ms. Krueger and her boyfriend were using drugs, which Ms. Slusher believed to be

9 crank or crack, in the home. ROBIN SLUSHER further informed Defendants DIAZ-LARA and

10 LEFLER-PANELA that the drugs were accessible to KAYLEIGH, that Ms. Krueger and her

11 boyfriend were intentionally depriving KAYLEIGH of food, that KAYLEIGH had lost weight,
12 there was a lot of traffic in and out of the home, and there was a warrant for the arrest of Ms.
13
Krueger’s boyfriend. 14

15

38. Shortly thereafter, Defendant LEFLER-PANELA called ROBIN SLUSHER back

16 and said there was nothing CWS could do, and told Ms. Slusher she could call the police instead.

17

39. At all relevant times Defendants LEFLER-PANELA and DIAZ-LARA were

18 mandated reporters, including under California Penal Code § 11165.7.
19 40. Defendants LEFLER-PANELA and DIAZ-LARA had the mandatory duties to
20 respond, investigate and/or report the abuse and/or severe neglect under California law, including
21
22 California Penal Code §§ 11165.9 and 11166, California Welfare and Institutions Code §§ 328,

23 10553, 10554, 16501, 16504, and California Department of Social Services Child Welfare Services

24 Regulations §§ 31-100, 31-101, 31-105, 31-110, 31-115, 31-120, 31-125, 31-130, and 31-501.

25 These mandatory duties include, but are not limited to:

26

a) The duty to report suspected child abuse or neglect to the police or sheriff's

27

department (P.C. §§ 11165.9 and 11166(j); DSS Regulations Ch. 31-501);

28

COMPLAINT AND JURY DEMAND

9

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 11 of 28

1

b) The duty to immediately refer the case by telephone, fax, or electronic

transmission to an agency with proper jurisdiction, if the agency that takes a

2

report lacks jurisdiction (P.C. §11165.9);

3

c) The duty to make "an initial report by telephone to the police or sheriff's

4

department as soon as is practicably possible," and to "prepare and send, fax, or

electronically transmit a written follow-up report within 36 hours of receiving

5

the information" concerning the abuse and/or neglect (P.C. §11166(a));

6

d) The duty to "immediately make any investigation he or she deems necessary to

7

determine whether child welfare services should be offered to the family and whether proceedings in the juvenile court should be commenced" (W&I §328);

8

e) The duty to "respond to any report of imminent danger to a child immediately"

9

(W&I §16501(f));

10

f) The duty to make "an immediate in-person response" in “emergency situations"

11

(W&I §16504(a));

12

g) The duty to "respond to all referrals for service which allege that a child is

endangered by abuse, neglect, or exploitation" (DSS Regulations Ch. 31-101.1);

13

h) The duty to "immediately initiate and complete the Emergency Response

14

Protocol process" and to "record all available and appropriate information on

15

the Emergency Response Protocol Form" (DSS Regulations Ch. 31-105);

16

i) The duty to conduct an in-person immediate investigation when the "emergency

response protocol indicates the existence of a situation in which imminent

17

danger to a child, such as physical pain, injury, disability, severe emotional

harm or death, is likely" (DSS Regulations Ch. 31-115); 18

19

j) The duty to request law enforcement assistance where "the physical safety of

family members. . .is endangered" (DSS Regulations Ch. 31-130).

20
41. Despite the fact that Defendants LEFLER-PANELA and/or DIAZ-LARA knew, had 21

22 reason to know and/or reasonably suspected that Kayleigh was suffering child abuse and/or severe

23 neglect, and an emergency situation, with deliberate indifference to the rights and safety of

24 KAYLEIGH SLUSHER, they violated their mandatory duties to respond, investigate and/or report

25 the abuse and/or neglect as required by law, including California Penal Code §§ 11165.9 and 11166, 26 by California Welfare and Institutions Code §§ 328, 10553, 10554, 16501, 16504 and by California 27

28

COMPLAINT AND JURY DEMAND

10

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 12 of 28

1 Department of Social Services Child Welfare Services Regulations §§ 31-100, 31-101, 31-105, 31-

2 110, 31-115, 31-120, 31-125, 31-130, and 31-501.

3

42. Further, Defendants LEFLER-PANELA and/or DIAZ-LARA, with deliberate

4 indifference to the rights and safety of KAYLEIGH SLUSHER, failed to accept reports of
5 suspected child abuse and/or severe neglect without legal justification and did not properly maintain
6

7 a record of all reports received as mandated by Penal Code § 11165.9.

8

43. Defendants LEFLER-PANELA and/or DIAZ-LARA, with deliberate indifference to

9 the rights and safety of KAYLEIGH SLUSHER, wrongfully delivered child protective services by

10 failing to conduct an assessment and develop a case plan as mandated by DSS Regulations §§ 31-
11 201, 31-205, 31-206 and/or Welfare and Institutions Code §16501.1.
12 44. Even though Defendants LEFLER-PANELA, DIAZ-LARA and/or DOE CWS
13 Workers received various reports of abuse and/or severe neglect, with deliberate indifference to the
14
15 rights and safety of KAYLEIGH SLUSHER, they violated their mandatory duties by choosing not

16 conduct a basic evaluation of risks to determine whether an emergency situation existed as

17 mandated by Welfare and Institutions Code § § 16504 and/or DSS Regulations § § 31-101, 31-105,
18 31-110, 31-115, 31-120 and/or 31-128.
19 45. Even though Defendants LEFLER-PANELA, DIAZ-LARA and/or DOE CWS
20 Workers received various reports of abuse and/or severe neglect, with deliberate indifference to the
21 22 rights and safety of KAYLEIGH SLUSHER, they violated their mandatory duties by choosing not
23 to control the conduct of Ryan Warner and/or Sara Kreuger, and/or otherwise protect Kayleigh as

24 mandated by Welfare and Institutions Code § § 16501 and 16504.

25

46. With deliberate indifference to the rights and safety of KAYLEIGH SLUSHER,

26 Defendants LEFLER-PANELA and/or DIAZ-LARA violated their duties as mandated reporters to
27 report suspected child abuse and/or severe neglect to appropriate authorities and to make initial
28

COMPLAINT AND JURY DEMAND

11

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 13 of 28

1 reports or follow up reports within 36 hours of receiving said reports of abuse and/or severe neglect

2 as mandated by Penal Code § § 11165.9 and 11166(a). Rather, Defendants told Plaintiff ROBIN
3 SLUSHER she could call the police instead. 4
47. On or around January 29, 2014, Plaintiff ROBIN SLUSHER again contacted NPD to 5
inform them that her granddaughter was in grave danger, and requesting assistance. The NPD again 6 7 dispatched Defendant WADE, this time to do a welfare check for Kayleigh’s benefit at 2060
8 Wilkins Avenue, Apt. 7. Defendant WADE spoke with Plaintiff ROBIN SLUSHER on the

9 telephone, who told Defendant WADE that Kayleigh was in immediate physical danger due to Mr.

10 Warner's and Ms. Kreuger's illegal drug use in the home, their failure to provide food and care to
11 Kayleigh, and possible physical violence against Kayleigh. Plaintiff ROBIN SLUSHER told
12 Defendant WADE that she had not been allowed to talk with her granddaughter, Kayleigh since
13 approximately Thanksgiving; that she believed Kayleigh’s mother, Ms. Krueger, was using drugs
14
15 and allowing others to use drugs in Kayleigh’s home, possibly crack cocaine; that Kayleigh was not

16 being fed; and that when she has attempted to check on or see her granddaughter, Ms. Krueger has

17 refused and told her that Kayleigh has been sick since Thanksgiving.

18

48. On information and belief, Defendants WADE and NPD Officer DEGUILIO visited

19 Kayleigh's residence later on January 29, 2014. On information and belief, the following facts in
20 this paragraph occurred at that time. Ms. Krueger refused Defendants permission to enter the home
21

22 to perform a welfare check on Kayleigh, and Defendants were aware that Ms. Krueger actively tried

23 to conceal the inside of her home from the officers by closing the front door against her body and

24 peeking her head out to talk to them. During that visit, Ms. Krueger brought Kayleigh to the front

25 door and Defendants WADE and DEGUILIO observed bruises on Kayleigh's face. Defendants
26 could not see the rest of Kayleigh’s body, including her arms and legs, which were covered by her 27
clothes. Defendants were able to observe a man walk out of a back bedroom and look very 28

COMPLAINT AND JURY DEMAND

12

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 14 of 28

1 surprised to see the officers there. Defendants saw that that man appeared to be very malnourished,
2 with sunken cheekbones, and appeared to be a drug user. That man told Defendants his name was
3 Ryan Howard, and that he did not have, and he could not find, any identification. Defendants ran a 4
records check on “Ryan Howard,” and dispatch was unable to locate any match. That man who 5
claimed to be “Ryan Howard” was actually “Ryan Warner.” When Defendants first encountered 6 7 Ryan Howard (Warner) at Kayleigh’s home, Defendants determined that he was under the influence
8 of a controlled substance, based on their training and experience due to his appearance and obvious
9 symptoms of drug intoxication. Ryan Howard (Warner) admitted to Defendants that he had used
10 marijuana and Ms. Krueger’s prescription pain medication that day, without a prescription for it. 11
Defendants entered the residence. Defendants did not search the residence, nor did Defendants 12
observe every room, or whether or not there were weapons or illegal drugs, or whether there was 13
sufficient food for Kayleigh. While Defendants were there, another man walked out of a back 14 15 bedroom, whom officers recognized from past contacts as someone currently on probation. That
16 second man attempted to quickly leave the residence, and Defendants detained him for a probation
17 search. While Kayleigh was sitting on Ms. Krueger’s lap on a couch, Defendants saw Kayleigh
18 vomit. Ms. Krueger stated that Kayleigh had the flu, and immediately took Kayleigh into the 19
bathroom, away from the officers. Defendants WADE and DEGUILIO also observed that Kayleigh 20
appeared gaunt, sick, malnourished, and distressed. Defendants did not attempt to speak with 21 22 Kayleigh. Ms. Krueger asked Defendants to leave, and Defendants left. Defendant WADE later 23 determined that the man claiming to be “Ryan Howard” had lied to them about his identity, and that
24 he was actually Ryan Warner. On information and belief, Defendants WADE and DEGUILIO also
25 confirmed that there was an active arrest warrant for Ryan Warner and/or legal cause for his
26 immediate arrest. Defendants made no effort to obtain a warrant to re-enter Kayleigh’s home, 27
search Kayleigh’s home, or arrest anyone in Kayleigh’s home. Defendant WADE then called 28

COMPLAINT AND JURY DEMAND

13

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 15 of 28

1 Plaintiff ROBIN SLUSHER, and told her that everything appeared normal at Kayleigh’s home, and

2 that Kayleigh had food. Defendant WADE also promised and reassured Plaintiff ROBIN
3 SLUSHER that he would "keep an eye on the apartment." 4
49. Plaintiffs are informed and believe and thereon allege that Defendant WADE 5
violated his promise and never went back to the apartment before Kayleigh was murdered. On 6 7 information and belief, Defendant WADE also did not ask any other member of the NPD to monitor
8 the apartment.

9

50. At all relevant times, Defendants WADE and DEGUILIO were Mandated Reporters

10 under the California Child Abuse and Neglect Reporting Act ("CANRA"). On information and
11 belief, Defendants WADE and DEGUILIO violated their mandatory duties to investigate and/or
12 report the abuse and neglect as required by California Penal Code § § 11164 et seq, 11165.9, and
13 11166, despite knowing, having reason to know and/or reasonably suspecting that Kayleigh was
14
15 suffering child abuse/neglect. Neither Defendants WADE nor DEGUILIO ever made any report of

16 suspected child abuse and/or neglect in relation to Kayleigh to Napa County CWS or any other

17 agency or authority.

18

51. Plaintiffs relied on the representations of Defendants WADE and DEGUILIO that

19 everything appeared normal with Kayleigh and at Kayleigh’s home, that there was food for
20 Kayleigh in the home, and that they would “keep an eye on the apartment.” Those representations
21

22 were false. Had Plaintiffs known the truth about what transpired during Defendants’ welfare check

23 on Kayleigh, Plaintiffs would have taken immediate action to protect Kayleigh, including making

24 further efforts to seek protection for Kayleigh from the NPD and the Napa County CWS, contacting

25 other authorities or child advocates for assistance, personally going to Kayleigh’s home, or 26 engaging in other self-help to try to protect Kayleigh. Instead, Plaintiffs relied to their (and 27

28

COMPLAINT AND JURY DEMAND

14

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 16 of 28

1 Kayleigh’s) detriment on Defendants’ false representations that everything appeared normal at

2 Kayleigh’s home, and that the NPD would monitor the apartment to protect Kayleigh.

3

52. Through their volitional, intentional, and deliberately indifferent acts, omissions, and

4 misrepresentations, Defendants WADE and DEGUILIO affirmatively placed Kayleigh Slusher in
5 danger, exposing her to a danger which she would not have otherwise faced, and leaving her in a
6

7 situation that was more dangerous than the one in which they found her.

8

53. On or about February 1, 2014, NPD Officers responded to a call to do another

9 welfare check at Kayleigh's home. When NPD Officers arrived there, they discovered Kayleigh

10 Slusher in her bed, deceased, with evidence of having suffered severe physical abuse.
11 54. Defendants' failure to investigate and/or report the abuse and/or neglect was without
12 legal justification, caused great pain and suffering to Plaintiffs, and caused Kayleigh Slusher’s
13 death. These injuries, including but not limited to physical abuse, neglect and death, were of the
14
15 type the California Legislature intended to prevent in enacting the Child Abuse and Neglect

16 Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553, 10554,

17 and 10651. Additionally, Defendants' affirmative acts and omissions, including failure to
18 investigate, report, intervene and/or protect Kayleigh Slusher from known and foreseeable harms,
19 including physical and sexual abuse and death, created danger and increased the risk of harm to
20 Kayleigh. Defendants further created danger and increased the risk of harm to Kayleigh, through
21 22 their affirmative acts and omissions, by creating a false sense of security and safety as to Plaintiffs
23 and others who wished to protect Kayleigh from harm, and by encouraging and/or preventing

24 Plaintiffs and others from seeking other assistance and from protecting Kayleigh themselves.

25

55. Under the Fourteenth Amendment, Plaintiff KAYLEIGH SLUSHER had a due

26 process right to life and a liberty interest in bodily integrity and security, including a protected
27 liberty interest to the non-discretionary investigation, reporting, and protection mandated for her
28

COMPLAINT AND JURY DEMAND

15

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 17 of 28

1 benefit by California law. Plaintiffs JASON SLUSHER, ROBIN SLUSHER and BENNY

2 SLUSHER had the right to familial relationships with Kayleigh. Among other sources, these rights
3 under the First and Fourteenth Amendments derive from statutory mandates as created by California 4
law. Investigation and/or reporting of child abuse and/or neglect is mandatory under the California 5
Child Abuse and Neglect Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code 6 7 §§ 10550, 10553, 10554, and 10651, and is intended by law for the benefit and protection of
8 children such as Kayleigh Slusher. Such investigation and/or reporting is mandatory, ministerial,

9 and is not discretionary under the CANRA. Defendants unreasonably and unjustifiably violated

10 their mandatory duties to investigate and/or report the abuse and/or neglect suffered by Kayleigh
11 Slusher, despite Plaintiffs' statutory and constitutional entitlement to investigation and/or reporting
12 under California law. Defendants violated Plaintiffs' rights under the First and Fourteenth
13 Amendments by failing to respond to, investigate and/or report child abuse and neglect as mandated
14
15 by the CANRA. As a direct result of Defendants' conduct, including conduct that increased the risk

16 of harm to Kayleigh Slusher, and Defendants’ failure to investigate and/or report child abuse and/or

17 neglect as required by the United States Constitution and California law, Plaintiff Kayleigh Slusher

18 suffered loss of life and liberty, and Plaintiffs JASON SLUSHER, ROBIN SLUSHER and BENNY

19 SLUSHER suffered loss of their familial relationships with their daughter/granddaughter, including
20 loss of love, companionship, comfort, affection, society, services, solace, and moral support.
21

22

56. At all material times, and alternatively, the actions and omissions of each Defendant

23 were intentional, wanton and/or willful, conscience shocking, reckless, malicious, deliberately

24 indifferent to Plaintiffs’ rights, done with actual malice, grossly negligent, negligent, and

25 objectively unreasonable.

26

57. As a direct and proximate result of each Defendant’s acts and/or omissions as set

27 forth above, Plaintiffs sustained the following injuries and damages, past and future, among others:
28

COMPLAINT AND JURY DEMAND

16

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 18 of 28

1

a. Wrongful death of Kayleigh Slusher (by JASON SLUSHER, pursuant to

CCP 377.60 and federal civil rights law); 2

3

b. Hospital and medical expenses (by JASON SLUSHER, pursuant to CCP 377.20 and federal civil rights law);

4 c. Coroner's fees, funeral and burial expenses (by JASON SLUSHER, pursuant

5

to CCP 377.20 and federal civil rights law);

6

d. Loss of familial relationships, including loss of love, companionship,

7

comfort, affection, society, services, solace, and moral support (by all Plaintiffs, pursuant to CCP 377.60 and/or federal civil rights law);

8

e. Pain and suffering and emotional distress (by all Plaintiffs, pursuant to

9

federal civil rights law);

10

f. Violation of constitutional rights (by all Plaintiffs, pursuant to federal civil

11

rights law);

12

g. Kayleigh Slusher's loss of life (by JASON SLUSHER pursuant to federal

civil rights law);

13

h. Kayleigh Slusher's conscious pain and suffering (by JASON SLUSHER

14

pursuant to federal civil rights law);

15 i. All damages and penalties recoverable under 42 U.S.C. §§ 1983, 1988,

16

California Civil Code §§ 52 and 52.1, California Code of Civil Procedure

§1021.5, and as otherwise allowed under California and United States

17

statutes, codes, and common law.

18

19

58. Plaintiff JASON SLUSHER, and the Estate of Kayleigh Slusher, Deceased, who

20 bring state law claims herein, timely and properly filed tort claims pursuant to Cal. Gov. Code § 910

21 et seq., and for all Plaintiffs this action is timely filed within all applicable statutes of limitation. 22

23

COUNT ONE

24

-- 42 U.S.C. §1983 --

ALL PLAINTIFFS AGAINST DEFENDANTS WADE, DEGUILIO, LEFLER-PANELA,

25

DIAZ-LARA and DOES 1-50

26

59.

27 here. 28

Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

COMPLAINT AND JURY DEMAND

17

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 19 of 28

1

60. By the actions and omissions described above, Defendants violated 42 U.S.C. §1983,

2 depriving Plaintiffs of the following clearly established and well-settled constitutional rights

3 protected by the United States Constitution:

4 a. The right to be free from deprivation of life and liberty, and interference with

5

bodily integrity and security, as protected by the Due Process Clause of the

Fourteenth Amendment; 6

7

b. The right to bodily integrity and security with the liberty interests created for Plaintiffs’ benefit and protection by state law, including mandatory duties to

8

report, investigate, and protect children from child abuse and/or neglect, to which

entitlement was created statutorily by the Child Abuse and Neglect Reporting

9

Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553,

10554, and 10651, and other mandatory authority cited herein, as protected by

10

the Due Process Clause of the Fourteenth Amendment;

11 c. The right to be free from wrongful governmental interference with familial

12

relationships as secured by the First and Fourteenth Amendments and California

Code of Civil Procedure § § 377.20 et seq. and 377.60 et seq.

13

14

61. Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs of

15 rights described herein, knowingly, maliciously, and with conscious and reckless disregard for
16 whether the rights and safety of Plaintiffs would be violated by their acts and/or omissions.
17 62. As a direct and proximate result of Defendants’ acts and/or omissions as set forth
18
19 above, Plaintiffs sustained injuries and damages as set forth at ¶ 57, above.

20

63. The conduct of Defendants entitles Plaintiffs to punitive damages and penalties

21 allowable under 42 U.S.C. §1983 and California law. Plaintiffs do not seek punitive damages

22 against Defendant public entities.
23 64. Plaintiffs are also entitled to reasonable costs and attorneys’ fees under 42 U.S.C.
24 §1988 and applicable California codes and laws.
25

26

27

28

COMPLAINT AND JURY DEMAND

18

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 20 of 28

1

COUNT TWO

- 42 U.S.C. §1983 (Monell)–

2

ALL PLAINTIFFS AGAINST DEFENDANTS CITY OF NAPA, CHIEF OF POLICE

3

RICHARD MELTON and COUNTY OF NAPA

4

65. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

5 here.

6

66. On information and belief, the unconstitutional actions and/or omissions of

7 Defendants, were pursuant to the following customs, policies, practices, and/or procedures of the
8 CITY OF NAPA and the COUNTY OF NAPA, which were directed, encouraged, allowed, and/or
9 ratified by policy making officers for the CITY OF NAPA, the NAPA POLICE DEPARTMENT,
10
11 the COUNTY OF NAPA, and/or NAPA CHILD WELFARE SERVICES:

12

a. To tolerate and permit the violation of mandatory duties to report and/or

investigate and/or take other mandatory action in response to reports of child

13

abuse and/or neglect;

14

b. To fail to use and require appropriate and generally accepted law

15

enforcement and/or child welfare services policies, procedures, and training in handling child abuse and/or neglect reports and investigations;

16 c. To cover-up violations of constitutional rights by any or all of the following:

17

i. by failing to properly investigate and/or evaluate complaints or incidents

18

of failure to report and/or investigate reports of child abuse and/or

neglect; 19

20

ii. by ignoring and/or failing to properly and adequately investigate and

discipline unconstitutional or unlawful police and/or child welfare

21

services activity; and

22

iii. by allowing, tolerating, and/or encouraging police officers and CWS

23

workers to: fail to file complete and accurate police and/or CWS reports; file false reports; make false statements; intimidate, bias and/or “coach”

24

witnesses to give false information and/or to attempt to bolster officers’

and/or CWS employees' stories; and/or obstruct or interfere with

25

investigations of unconstitutional or unlawful conduct, by withholding

and/or concealing material information; 26

27

d. To allow, tolerate, and/or encourage a “code of silence” among law enforcement officers and police department personnel, whereby an officer or

28

COMPLAINT AND JURY DEMAND

19

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 21 of 28

1

member of the department does not provide adverse information against a

fellow officer or member of the department; and, 2

3

e. To fail to institute, require, and enforce necessary, appropriate and lawful policies, procedures, and training programs to prevent or correct the

4

unconstitutional conduct, customs, and practices and procedures described in

this Complaint and in paragraphs (a) through (e), with deliberate indifference

5

to the rights and safety of Plaintiffs and the public, and in the face of an

obvious need for such policies, procedures, and training programs; and 6

f. To use or tolerate inadequate, deficient, and improper procedures for

7

handling, investigating, and reviewing complaints of officer and/or employee

8

misconduct made under California Government Code § 910 et seq.

9

67. Defendants CITY OF NAPA, CHIEF OF POLICE RICHARD MELTON, COUNTY

10 OF NAPA, and DOES 1–50 failed to properly hire, train, instruct, monitor, supervise, evaluate,

11 investigate, and discipline Defendants, with deliberate indifference to Plaintiffs’ constitutional
12 rights, which were thereby violated as described above.
13 68. The unconstitutional actions and/or omissions of Defendants, as described above,
14 were approved, tolerated and/or ratified by policy-making officers for the NAPA POLICE
15
16 DEPARTMENT and COUNTY OF NAPA CHILD WELFARE SERVICES. Plaintiffs are

17 informed and believe, and thereupon allege, that the details of this incident have been revealed to

18 the authorized policy makers within the CITY OF NAPA and the COUNTY OF NAPA, including
19 CHIEF OF POLICE RICHARD MELTON and DOES 1–50, and Plaintiffs are further informed and
20 believe, and thereupon allege, that such policy makers have direct knowledge of the facts of this
21 incident. Notwithstanding this knowledge, the authorized policy makers within the CITY OF
22 23 NAPA and the COUNTY OF NAPA have approved of the conduct of Defendants, and have made a
24 deliberate choice to endorse the decisions of those defendant officers and the basis for those

25 decisions. By doing so, the authorized policy makers of the CITY OF NAPA and the COUNTY OF

26 NAPA have shown affirmative agreement with each individual Defendant officer’s actions, and 27 have ratified the unconstitutional acts of the individual Defendants. 28

COMPLAINT AND JURY DEMAND

20

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 22 of 28

1

69. The aforementioned customs, policies, practices, and procedures, the failures to

2 properly and adequately hire, train, instruct, monitor, supervise, evaluate, investigate, and
3 discipline, as well as the unconstitutional orders, approvals, ratification and toleration of wrongful 4
conduct of Defendants CITY OF NAPA, CHIEF OF POLICE RICHARD MELTON, COUNTY OF 5
NAPA, and DOES 1–50 were a moving force and/or a proximate cause of the deprivations of 6 7 Plaintiffs’ clearly established and well-settled constitutional rights in violation of 42 U.S.C. §1983,
8 as more fully set forth in ¶ 60, above.

9

70. Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs of

10 rights described herein, knowingly, maliciously, and with conscious and reckless disregard for
11 whether the rights and safety of Plaintiffs and others would be violated by their acts and/or
12 omissions.
13 71. As a direct and proximate result of the unconstitutional actions, omissions, customs,
14
15 policies, practices and procedures of Defendants as described above, Plaintiffs sustained serious

16 injuries and are entitled to damages, penalties, costs and attorney fees as set forth in ¶¶ 61-64,

17 above, including punitive damages against DEFENDANTS CHIEF OF POLICE RICHARD

18 MELTON and DOES 1–50, in their individual capacities.

19 COUNT THREE

20

-- VIOLATION OF CIVIL CODE §52.1 --

PLAINTIFF JASON SLUSHER AGAINST DEFENDANTS WADE, DEGUILIO, LEFLER-

21

PANELA, DIAZ-LARA, DOES 1-50, CITY OF NAPA AND COUNTY OF NAPA

22

72. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

23 here.
24 73. By their acts, omissions, customs, and policies, each Defendant, acting in
25
concert/conspiracy, as described above, violated KAYLEIGH SLUSHER’S rights under California 26

27 Civil Code §52.1, and the following clearly-established rights under the United States Constitution

28 and the California Constitution:

COMPLAINT AND JURY DEMAND

21

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 23 of 28

1

a. The right to be free from deprivation of life and liberty, and interference with

2

bodily integrity and security, as protected by the Due Process Clauses of the

3

Fourteenth Amendment of the United States Constitution and Art. 1, Sec. 7 of the California Constitution;

4 b. The right to bodily integrity and security with the liberty interest created for

5

Plaintiffs’ benefit and protection by state law, including mandatory duties to

report, investigate, and protect children from child abuse and/or neglect, to

6

which entitlement was created statutorily by the Child Abuse and Neglect

7

Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553, 10554, and 10651, and other mandatory authority cited herein,

8

as protected by the Due Process Clauses of the Fourteenth Amendment of

the United States Constitution and Art. 1, Sec. 7 of the California

9

Constitution;

10

c. The right to be free from wrongful governmental interference with familial

11

relationships as secured by the First and Fourteenth Amendments of the

United States Constitution, Art. 1, Secs. 1 and 7 of the California

12

Constitution, and California Code of Civil Procedure § § 377.20 et seq. and

377.60 et seq.;

13

d. The right to enjoy and defend life and liberty, acquire, possess and protect

14

property, and pursue and obtain safety, happiness and privacy, as secured by

15

the California Constitution, Article 1, Section 1;

16

e. The right to protection from bodily restraint, harm, or personal insult, as

secured by Cal. Civil Code § 43.

17

18

74. Separate from, and above and beyond, Defendants’ attempted interference,

19 interference with, and violation of Plaintiffs’ rights, Defendants violated Plaintiffs’ rights by the

20 following conduct constituting threat, intimidation, or coercion:

21

a. Intentionally, or with deliberate indifference, and without legal justification,

22

violating mandatory duties to investigate and/or report child abuse and/or

23

neglect as required by California Child Abuse and Neglect Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553,

24

10554, and 10651.

25

b. Intentionally, or with deliberate indifference, and without legal justification,

depriving Kayleigh Slusher of necessary, life-saving measures mandated by

26

law for her protection;

27

c. Intentionally, or with deliberate indifference, and without legal justification,

28

affirmatively placing Kayleigh Slusher at danger, exposing her to a danger

COMPLAINT AND JURY DEMAND

22

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 24 of 28

1

which she would not have otherwise faced, and leaving her in a situation that

was more dangerous than the one in which they found her; 2

3

d. By going to Kayleigh Slusher’s home, then violating their mandatory duties described herein, affirmatively increasing her risk of harm, through their

4

conduct and misrepresentations preventing others from coming to her aid and

rescue;

5

e. Intentionally, or with deliberate indifference, and without legal justification,

6

causing Kayleigh Slusher to remain in an abusive and deadly household,

7

including known drug abuse, criminal activity, physical abuse and injury, starvation, and cruelty, while foreclosing other, more caring, sources of hope

8

and rescue.

9 75. As a direct and proximate result of Defendants’ violation of California Civil Code
10 11 §52.1 and of Plaintiffs’ rights under the United States and California Constitutions, Plaintiffs
12 sustained injuries and damages, and against each and every Defendant are entitled to relief as set

13 forth above at ¶¶ 61-64, including all damages allowed by California Civil Code §§ 52, 52.1, and

14 California law, not limited to three times actual damages, costs, attorneys’ fees, and civil penalties.
15 For this claim, the Defendants City of Napa and County of Napa are vicariously liable for the
16 conduct of their employees and agents pursuant to Cal. Gov. Code § 815.2.
17

18

19

COUNT FOUR

-- NEGLIGENCE AND NEGLIGENCE PER SE; PERSONAL INJURIES --

20

PLAINTIFF JASON SLUSHER AGAINST ALL DEFENDANTS

21

76. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

22 here.

23 77. At all times, each Defendant owed Plaintiffs KAYLEIGH SLUSHER, Deceased, and
24 JASON SLUSHER the duty to act with due care in the execution and enforcement of any right, law,
25
or legal obligation. 26

27

78. At all times, each Defendant owed Plaintiffs the duty to act with reasonable care.

28 Furthermore, Defendants owed the mandatory duties to respond, investigate and/or report child

COMPLAINT AND JURY DEMAND

23

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 25 of 28

1 abuse and/or neglect as required by law, including the California Child Abuse and Neglect

2 Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553, 10554,

3 and 10651 California Penal Code §§ 11165.9 and 11166, and by California Department of Social

4 Services Child Welfare Services Regulations §§ 31-100, 31-105, 31-110, 31-115, 31-120, 31-125,
5 31-130, and 31-501.
6

7

79. The injuries suffered by Plaintiffs, including but not limited to physical abuse,

8 neglect, death, loss of familial relationships and emotional distress were of the type the California

9 Legislature intended to prevent in enacting the Child Abuse and Neglect Reporting Act, Penal Code

10 § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553, 10554, and 10651, and were of the
11 type the California Department of Social Services Child Welfare Services intended to prevent in
12 enacting Regulations §§ 31-100, 31-105, 31-110, 31-115, 31-120, 31-125, 31-130, and 31-501.
13 80. Additionally, the general duties of reasonable care and due care owed to Plaintiffs by
14
15 Defendants CITY OF NAPA, CHIEF OF POLICE RICHARD MELTON and COUNTY OF

16 NAPA, through their employees and agents, include but are not limited to the following specific

17 obligations:

18

a.

19

20

to properly and adequately hire, investigate, train, supervise, monitor, evaluate, and discipline their employees, agents, and/or law enforcement officers to ensure that those employees/agents/officers act at all times in the public interest and in conformance with law;

21

b. to make, enforce, and at all times act in conformance with policies and

22

customs that are lawful and protective of individual rights, including Plaintiffs’;

23 c. to refrain from making, enforcing, and/or tolerating the wrongful policies and

24

customs set forth at ¶ 66, above.

25

81. All Defendants, through their acts and omissions, breached each and every one of the

26 aforementioned duties owed to Plaintiffs. 27

28

COMPLAINT AND JURY DEMAND

24

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 26 of 28

1

82. Defendants’ breaches of law, standards, and mandatory duties set forth herein also

2 constitute negligence per se.

3

83. Defendants CITY OF NAPA and COUNTY OF NAPA are vicariously liable for the

4 conduct of their employees and agents pursuant to Cal. Gov. Code § 815.2, and for their employees’
5 breach of mandatory duties under Cal. Gov. Code § 815.6.
6

7

84. As a direct and proximate result of Defendants’ negligence, Plaintiffs sustained

8 injuries and damages, and against each and every Defendant are entitled to relief as set forth above

9 at ¶¶ 61-64, including punitive damages against all Defendant law enforcement officers and

10 Defendant CWS workers under California law. 11

12 WHEREFORE, Plaintiffs respectfully request the following relief against each and every
13
Defendant herein, jointly and severally: 14

15

a. compensatory and exemplary damages in an amount according to proof and

which is fair, just and reasonable;

16

b. punitive damages under 42 U.S.C. §1983 and California law in an amount

17

according to proof and which is fair, just, and reasonable (punitive damages

are not sought against the City of Napa or the County of Napa); 18

19

c. all other damages, penalties, costs, interest, and attorneys’ fees as allowed by

42 U.S.C. §§ 1983, 1988; Cal. Code Civ. Proc. § 1021.5, Cal. Civil Code §§

20

52 et seq., 52.1, and as otherwise may be allowed by California and/or federal

law; 21

22

d. Injunctive relief, including but not limited to the following:

23

i. an order requiring Defendants to institute and enforce

appropriate and lawful policies and procedures for

24

complying with mandatory duties for handling reports and

investigations of child abuse and/or neglect; 25

26

ii. an order prohibiting Defendants and their law enforcement officers from engaging in the “code of

27

silence” as may be supported by the evidence in this case;

28

COMPLAINT AND JURY DEMAND

25

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 27 of 28

1

iii. an order requiring Defendants to train their law

enforcement officers concerning generally accepted and

2

proper tactics and procedures for handling reports and

3

investigations of child abuse and/or neglect and this Court’s orders concerning the issues raised in injunctive

4

relief requests i-ii, above;

5

e. such other and further relief as this Court may deem appropriate.

6

7 DATED: May 29, 2015 8 9 10

HADDAD & SHERWIN LLP
/s/_Michael J. Haddad___________ MICHAEL J. HADDAD Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT AND JURY DEMAND

26

Case 4:15-cv-02394-SBA Document 1 Filed 05/29/15 Page 28 of 28

1

JURY DEMAND

2

Plaintiffs hereby request a trial by jury.

3

4 DATED: May 29, 2015
5

HADDAD & SHERWIN LLP

6

/s/_Michael J. Haddad___________

7

MICHAEL J. HADDAD Attorneys for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT AND JURY DEMAND

27

 
 Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 1 of 22

1

2

3

4

UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

OAKLAND DIVISION

7
KAYLEIGH SLUSHER, Deceased, 8 THROUGH HER SUCCESSOR IN
INTEREST JASON SLUSHER; JASON 9 SLUSHER, Individually; ROBIN SLUSHER,
Individually; and BENNY SLUSHER, 10 Individually,

11

Plaintiffs,

Case No: C 15-2394 SBA
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS AND ORDER OF REFERENCE FOR EARLY SETTLEMENT CONFERENCE

12

vs.

Dkt. 22, 23

13 CITY OF NAPA, a public entity; NAPA POLICE OFFICER GARRETT WADE,
14 Individually; NAPA POLICE OFFICER DEGUILIO, Individually; NAPA CHIEF OF
15 POLICE RICHARD MELTON, Individually and in his Official Capacity; COUNTY OF
16 NAPA, a public entity; NAPA COUNTY CHILD WELFARE SERVICES SOCIAL
17 WORKER NANCY LEFLER, Individually; NAPA COUNTY CHILD WELFARE
18 SERVICES WORKER ROCIO DIAZ-LARA, Individually; and DOES 1-50, Jointly and
19 Severally,

20

Defendants.

21

22

On January 30, 2014, three year-old Kayleigh Slusher (“Kayleigh”) was viciously

23 murdered by her mother, Sara Krueger (“Sara”) and her mother’s boyfriend, Ryan Warner

24 (“Ryan”).1 Kayleigh’s biological father, Jason Slusher (“Jason”), individually and on

25 behalf of Kaleigh, and Kayleigh’s paternal grandparents, Robin Slusher (“Robin”) and

26 Benny Slusher (“Benny”), in their individual capacities, bring the instant action against:

27

28

1 For clarity, Plaintiffs and related individuals will be referred to by their first names.

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 2 of 22

1 the City of Napa (“City”); the County of Napa (“County”); the Napa Police Department

2 (“NPD”) Chief Richard Melton; NPD officer Garrett Wade; NPD officer Dominic Deguilo;

3 Child Welfare Services (“CWS”) worker Rocio Diaz-Lara; and CWS worker Nancy Lefler-

4 Panela. The operative pleading is the First Amended Complaint (“FAC”), which alleges

5 federal claims pursuant to 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Serv. of N.Y., 436

6 U.S. 658 (1978), along with state law causes of action for violation of California’s Bane

7 Act and negligence/negligence per se.

8

The parties are presently before the Court on the City Defendants and the County

9 Defendants’ respective motions to dismiss, pursuant to Federal Rule of Civil Procedure

10 12(b)(6).2 Having read and considered the papers filed in connection with these matters

11 and being fully informed, the Court hereby GRANTS IN PART and DENIES IN PART

12 both motions, with leave to amend. The Court, in its discretion, finds this matter suitable

13 for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

14 I. BACKGROUND

15

A. FACTUAL SUMMARY

16

On May 3, 2010, Kaleigh was born to Sara and Jason. FAC ¶ 26. For over a year,

17 Kaleigh and her mother lived with Jason’s parents, Robin and Benny. Id. ¶ 27.3 Sara

18 eventually moved to her own apartment with Kayleigh. Id. Though no longer living with

19 her grandparents, Kayleigh saw them regularly and often had weekend sleepovers at their

20 home. Id. ¶ 29.

21

Around October 2013, Sara’s boyfriend, Ryan, a “crank” (methamphetamine) addict

22 with an outstanding arrest warrant, moved into Sara’s apartment and began preventing the

23 grandparents from seeing Kaleigh. Id. ¶¶ 30-31. The grandparents suspected that Sara and

24 Ryan were engaging in illegal drug activity and placing Kayleigh at serious risk of harm.

25
2 The City, Chief Melton and Officers Wade and Deguilo are referred to collectively 26 as the “City Defendants,” while the County and CWS workers Diaz-Lara and Lefler-Panela
are collectively referred to as the “County Defendants.”
27
3 During this time, Jason was in prison for a crime unrelated to his relationship with 28 Kaleigh. Id.

- 2 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 3 of 22

1 Id. NPD police officers were summoned to Sara’s apartment in October 2013 and January

2 2014 regarding disturbances there, but took no action. Id. ¶ 32.

3

By January 2014, the grandparents had become increasingly concerned about

4 Kayleigh, whom they had not seen or had contact with since Thanksgiving. Id. ¶¶ 33, 50.

5 On January 23, 2014, Robin called the NPD to request a welfare check on Kayleigh. Id.

6 ¶ 33. She expressed concern that Kayleigh was under the care of drug addicts, that Ryan

7 had an outstanding warrant and was armed, and that Kayleigh was being mistreated and

8 abused. Id. Officer Wade responded to the call, but concluded that the situation was

9 unsafe for him and his partner. Id. He did not to call for back up or investigate the report

10 of suspected child abuse and neglect, and simply cleared the call. Id.4

11

Also on January 23, 2014, Robin made numerous attempts to contact CWS social

12 workers Diaz-Lara and Lefler-Panela to report her concerns regarding Kayleigh’s safety

13 and well-being. Id. ¶ 40. Lefler-Panela later returned Robin’s call, informing her that there

14 was nothing CWS could do and to call the police instead. Id. ¶ 41.

15

On January 29, 2014, at around 5:58 p.m., Robin, fearing that Kayleigh was in grave

16 danger, again contacted NPD for assistance. Id. ¶ 50. At around 8:47 p.m., Officers Wade

17 and Deguilio went to Sara’s residence. Id. ¶ 51. Sara “actively tried to conceal the inside

18 of her home from [them] by closing the front door against her body and peeking her head

19 out to talk to them.” Id. Sara brought Kayleigh to the front door. Id. The officers

20 observed that Kayleigh had bruises on her face, appeared gaunt, sick, malnourished and

21 distressed. Id. The officers also encountered Sara’s boyfriend, Ryan, who falsely

22 identified himself as “Ryan Howard.” Id. Ryan appeared malnourished, with sunken

23 cheekbones, and to be under the influence of narcotics. Id. After the officers entered the

24 apartment, Kayleigh vomited in front of them, and was quickly taken to the bathroom by

25 Sara. Id. They also saw a male whom they knew was on probation attempt to depart from

26
4 A few days later on the morning of January 27, 2014, unspecified NPD officers
27 were again dispatched to Kaleigh’s home due to a neighbor’s report of a domestic
disturbance. Id. ¶ 38. The officers never made any report of child abuse and/or neglect to
28 CWS or any other authority. Id. ¶ 38.

- 3 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 4 of 22

1 the premises. Id. Sara asked the officers to leave. Id. The officers complied, without

2 making any effort to speak with Kayleigh or physically examine her. Id.

3

After the visit, Officers Wade and Deguillo determined that the person who

4 identified himself in the apartment as “Ryan Howard” had lied about his identity and, in

5 fact, was Ryan Warner. Id. ¶ 51. They also confirmed that Ryan had an active, outstanding

6 arrest warrant. Id. Despite this realization and their observations at the apartment, the

7 officers made no effort to obtain a warrant to re-enter the apartment or arrest him. Instead,

8 Officer Wade called Robin and told her that Kayleigh had food and that everything

9 appeared normal at the home. Id. Defendant Wade also reassured Robin that he would

10 “keep an eye on the apartment.” Id. ¶ 55. Had Defendants investigated further, they would

11 have discovered that Ryan had an extensive criminal history, which included, without

12 limitation, assault and possession of drugs. Id. ¶ 52. Ryan also had a restraining order

13 entered against him for threatening to kill his pregnant ex-girlfriend, among making other

14 extremely sadistic and violent threats. Id. ¶ 56.

15

On or about February 1, 2014, NPD police officers responded to a call to perform

16 another welfare check on Kayleigh. Id. ¶ 57. When the officers arrived at Sara’s

17 apartment, they discovered Kaleigh lying deceased in her bed, with evidence of having

18 suffered severe physical abuse. Id. The Napa County District Attorney later reported that

19 Kaleigh died from multiple blunt force trauma with impact injuries to her head, torso and

20 extremities. Id. ¶ 57. Sara and Ryan have been charged with Kaleigh’s murder. Id.

21

B. PROCEDURAL HISTORY

22

On May 29, 2015, Plaintiffs filed the instant action in this Court and subsequently

23 filed a FAC on July 1, 2015. The FAC alleges the following claims: (1) violation of due

24 process, mandatory reporting requirements, and interference with familial relations,

25 pursuant to 42 U.S.C. § 1983; (2) Monell liability; (3) violation of the Bane Act, Cal. Civ.

26 Code § 52.1; and (4) negligence/negligence per se. The County Defendants and City

27 Defendants have separately filed motions to dismiss all claims alleged in the FAC. The

28 motions are fully briefed and ripe for adjudication.

- 4 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 5 of 22

1 II. LEGAL STANDARD

2

Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.”

3 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal under Rule 12(b)(6) is

4 proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege

5 sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953,

6 959 (9th Cir. 2013). “Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires

7 not only ‘fair notice of the nature of the claim, but also grounds on which the claim rests.’”

8 Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013) (quoting in part Bell Atl. Corp.

9 v. Twombly, 550 U.S. 544, 556 n.3 (2007)). “To survive a motion to dismiss, a complaint

10 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

11 plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

12 U.S. at 570 (2007)).

13

In assessing the sufficiency of the pleadings, “courts must consider the complaint in

14 its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)

15 motions to dismiss, in particular, documents incorporated into the complaint by reference,

16 and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

17 Rights, Ltd., 551 U.S. 308, 322 (2007). The court is to “accept all factual allegations in the

18 complaint as true and construe the pleadings in the light most favorable to the nonmoving

19 party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir.

20 2007). Where a complaint or claim is dismissed, leave to amend generally is granted,

21 unless further amendment would be futile. Cervantes v. Countrywide Home Loans, Inc.,

22 656 F.3d 1034, 1041 (9th Cir. 2011).

23 III. DISCUSSION

24

A. 42 U.S.C. § 1983

25

Plaintiffs’ first claim for relief under § 1983 for denial of due process and

26 interference with familial relations is directed against Officers Wade and Deguilo and CWS

27 workers Diaz-Lara and Lefler Panela. Section 1983 provides that individuals may sue

28 government officials who violate their civil rights while acting “under color of any statute,

- 5 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 6 of 22

1 ordinance, regulation, custom, or usage, of any State.” 42 U.S.C. § 1983. To maintain a

2 claim pursuant to § 1983, a plaintiff must establish: (1) the deprivation of any rights,

3 privileges or immunities secured by the Constitution or federal law, (2) by a person acting

4 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Nurre v.

5 Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). In addition, defendant’s actions must

6 both actually and proximately cause the deprivation of a federally protected right. Lemire

7 v. Caifornia Dep’t of Corrections & Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013).

8 Section 1983 is not itself a source of substantive rights, but a jurisdictional vehicle for

9 vindicating federal rights elsewhere conferred. See Thornton v. City of St. Helens, 425

10 F.3d 1158, 1164 (9th Cir. 2008) (citations omitted).

11

1. Due Process

12

“The Fourteenth Amendment prohibits states from ‘depriv[ing] any person of life,

13 liberty, or property, without due process of law.’” Newman v. Sathyavaglswaran, 287 F.3d

14 786, 789 (9th Cir. 2002) (quoting U.S. Const. amend. XIV, § 1). The Due Process Clause

15 encompasses two types of protections: procedural fairness (procedural due process) and

16 substantive rights (substantive due process). Zinermon v. Burch, 494 U.S. 113, 125-28

17 (1990). A procedural due process claim challenges the procedures used in effecting a

18 deprivation, whereas a substantive due process claim challenges the governmental action

19 itself. See Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006).

20

Here, the gist of Plaintiffs’ due process claim is that Defendants violated their

21 mandatory duties to investigate and report child abuse, which, in turn, led to Kayleigh’s

22 murder. FAC ¶¶ 64-66. Although the pleadings do not specify whether the due process

23 claim is based on substantive or procedural due process, Plaintiffs state in their opposition

24 that they are proceeding on both legal theories.

25

a) Substantive Due Process

26

Generally, “a State’s failure to protect an individual against private violence simply

27 does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.

28 Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (holding that a social services agency and

- 6 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 7 of 22

1 social workers did not violate a child victim’s substantive due process rights by failing to

2 protect him from his abusive father, notwithstanding significant evidence establishing that

3 the child was subjected to beatings). “There are two exceptions to this rule: (1) when a

4 ‘special relationship’ exists between the plaintiff and the state (the special-relationship

5 exception) . . . ; and (2) when the state affirmatively places the plaintiff in danger by acting

6 with ‘deliberate indifference’ to a ‘known or obvious danger’ (the state-created danger

7 exception) . . . .” Patel v. Kent School Dist., 648 F.3d 965, 971-72 (9th Cir. 2011)

8 (citations omitted). Plaintiffs rely on the state-created danger exception, sometimes simply

9 referred to as the “danger creation” exception. Kennedy v. City of Ridgefield, 439 F.3d

10 1055, 1062 (9th Cir. 2006) (citing DeShaney, 489 U.S. at 197).

11

“[A] police officer’s conduct that affirmatively places a plaintiff in a position of

12 danger deprives him or her of a substantive due process right.” Johnson v. City of Seattle,

13 474 F.3d 634, 639 (9th Cir. 2007) (citing Wood v. Ostrander, 879 F.2d 583, 589-90 (9th

14 Cir. 1989)). “To determine whether an official affirmatively placed an individual in

15 danger, we ask: (1) whether any affirmative actions of the official placed the individual in

16 danger he otherwise would not have faced; (2) whether the danger was known or obvious;

17 and (3) whether the officer acted with deliberate indifference to that danger.” Henry A. v.

18 Willden, 678 F.3d 991, 1002 (9th Cir. 2012).

19

For example, in Wood, a trooper stopped a car in which the plaintiff was a

20 passenger, arrested the driver for drunk driving, and left the plaintiff in a high crime area at

21 2:30 a.m. The plaintiff later accepted a ride from a stranger and was raped. The Ninth

22 Circuit reversed a summary judgment ruling in favor of the trooper, finding that there was

23 “a factual dispute regarding whether [the trooper] deprived her of a liberty interest

24 protected by the Constitution by affirmatively placing her in danger and then abandoning

25 her.” Id. at 596. Similarly, in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir.

26 2013), the court found that the police officers affirmatively increased the danger to an

27 individual who had been shot and later died by preventing her ambulance from leaving the

28 scene. Id. at 1082. The court explained that the delay left the victim “worse off than if the

- 7 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 8 of 22

1 ambulance had been allowed to bring her to an air ambulance that had advanced medical

2 capabilities and was ready to fly her to a trauma center.” Id.

3

Plaintiffs argue that the Ninth Circuit’s decision in Kennedy, in particular, supports

4 the application of the danger creation exception. In Kennedy, the plaintiff, the mother of a

5 nine year-old girl, reported to the police that a thirteen year-old neighbor had molested her

6 daughter. In response to the mother’s concern regarding the neighbor’s history of violence,

7 the officer told her that she would be given notice prior to any police contact with the

8 neighbor’s family regarding her allegations. Kennedy, 439 F.2d at 1058. Despite those

9 assurances, the police officer, without first notifying the mother, informed the neighbor and

10 his mother of the plaintiff’s claim of molestation. When the plaintiff learned of this, she

11 asked the officer why he had contacted the neighbor without first notifying her, and

12 expressed serious concerns for her safety. In response, the officer “assured [the plaintiff]

13 that the police would patrol the area around both her house and the [neighbor’s] house that

14 night to keep an eye on [him].” Id. Due to the late hour and the officer’s promise to patrol

15 the neighborhood, the plaintiff and her husband decided to stay at their house. Id. The

16 following morning, the neighbor broke into the plaintiff’s home and shot her and her

17 husband, killing him, as they slept. Id. In upholding the denial of qualified immunity for

18 the officer, the Ninth Circuit held that the officer “affirmatively created a danger to [the

19 plaintiff] she otherwise would not have faced, i.e., that [the neighbor] would be notified of

20 the allegations before the [parents] had the opportunity to protect themselves from his

21 violent response to the news.” Id.

22

Plaintiffs contend that Defendants’ failure to investigate and report on the suspected

23 abuse of Kayleigh, in tandem with Officer Wade’s “false” assurance that “everything

24 appeared normal” at Kayleigh’s home and that he would “keep an eye on the apartment,

25 affirmatively increased the risk of harm to Kayleigh. Pls.’ Opp’n at City Defs.’ Mot. to

26 Dismiss at 9-10. The Court disagrees. In Kennedy, the affirmative danger created by the

27 officer was his informing the neighbor of the plaintiff’s accusations before she and her

28 husband could protect themselves against the neighbor’s violent response—coupled with

- 8 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 9 of 22

1 his assurance to monitor the defendant. 439 F.3d at 1058. Here, the risk to Kayleigh was

2 the fact that she lived with adults who were abusive. While Defendants were allegedly

3 derelict in their failure to extricate Kayleigh from that situation, no facts are alleged that

4 suggest that they placed her in danger or affirmatively increased the risk of harm to her

5 through their inaction. Despite Plaintiffs’ intimations to the contrary, Kennedy does not

6 support the proposition that false assurances by a law enforcement officer, standing alone,

7 can affirmatively create a danger. 439 F.3d at 1063. To the contrary, the court simply

8 explained that such misrepresentations can constitute “an additional and aggravating factor,

9 making [the plaintiff] more vulnerable to the danger he had already created.” Id.

10

Construing the facts in a light most favorable to Plaintiffs, the pleadings, at most,

11 demonstrate that Defendants knew or had reason to know that Kayleigh was at serious risk

12 of harm. Absent from the pleadings are any facts demonstrating that Defendants

13 affirmatively placed Kayleigh in a position that increased such risk. See DeShaney, 489

14 U.S. at 201 (“While the State may have been aware of the dangers that Joshua faced in the

15 free world, it played no part in their creation, nor did it do anything to render him any more

16 vulnerable to them.”). As such, the Court finds that Plaintiff has failed to state a claim

17 based on the denial of the right to substantive due process. The foregoing notwithstanding,

18 it is possible that Plaintiffs will be able to rectify these deficiencies through the presentation

19 of additional facts. Accordingly, Plaintiffs are granted leave to amend their substantive due

20 process claim.

21

b) Procedural Due Process

22

The procedural due process component of the Fourteenth Amendment protects

23 individuals against the deprivation of liberty or property by the government without due

24 process. Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “State law

25 can create a right that the Due Process Clause will protect only if the state law contains

26 ‘(1) substantive predicates governing official decisionmaking, and (2) explicitly mandatory

27 language specifying the outcome that must be reached if the substantive predicates have

28

- 9 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 10 of 22

1 been met.’” James v. Rowlands, 606 F.3d 646, 656 (9th Cir. 2010) (quoting Bonin v.

2 Calderon, 59 F.3d 815, 842 (9th Cir. 1995)).

3

According to the FAC, Plaintiffs’ protected property interest arises principally from

4 the mandatory child abuse reporting requirements set forth in the California Child Abuse

5 and Neglect Reporting Act (“CANRA”), Cal. Pen. Code §§ 11164-11174.4. FAC ¶ 64.

6 Among other things, CANRA provides that specified “mandated reporters,” which include

7 social workers and police officers, “shall make a report to an agency specified in Section

8 11165.9 whenever the mandated reporter, in his or her professional capacity or within the

9 scope of his or her employment, has knowledge of or observes a child whom the mandated

10 reporter knows or reasonably suspects has been the victim of child abuse or neglect.” Cal.

11 Pen. Code § 11166(a) (emphasis added); see also id. § 11165.7(a) (list of “mandated

12 reporters”). California courts have construed this provision as imposing “two mandatory

13 duties” on a mandated reporter who receives an account of child abuse: (1) the duty to

14 investigate; and (2) the duty to file a report of child abuse when an objectively reasonable

15 person in the same situation would suspect abuse. Alejo v. City of Alhambra, 75

16 Cal.App.4th 1180, 1186 (1999).5 A violation of section 11166’s duties constitutes a

17 misdemeanor offense. Cal. Pen. Code § 11166(c).

18

The County Defendants contend that CANRA only creates a discretionary as

19 opposed to a mandatory duty and therefore fails to provide any “substantive predicates to

20 decision-making.” County Defs.’ Mot. to Dismiss at 6. They posit that since the reporting

21 obligation is triggered only upon a “reasonable suspicion” of child abuse, a mandated

22 reporter inherently must use discretion in determining whether to make a report of

23 suspected child abuse in the first instance. Id. These contentions are uncompelling. The

24 plain language of the statute clearly states that a “mandated reporter shall make a report” to

25 CPS, police, or other law enforcement agency upon a reasonable suspicion of child abuse or

26

27

5 The Alejo court noted that while the duty to investigate is not express, it is clearly

envisioned by the statute so the officer can determine whether there is a reasonable

28 suspicion of child abuse. 75 Cal.App.4th at 1186.

- 10 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 11 of 22

1 neglect. Cal. Pen. Code § 11166(a) (emphasis added). As noted, California courts have

2 construed this obligation as a “mandatory” one. Alejo, 75 Cal.App.4th at 1185-86; see also

3 Tarrant Bell Property, LLC v. Superior Court, 51 Cal.4th 538, 542 (2011) (noting that the

4 Legislature’s use of the word “shall” denotes a mandatory act). Defendants’ assertion that

5 no mandatory duty is imposed under CANRA also is undermined by the fact that the statute

6 explicitly requires that a mandated reporter apply an objective standard in determining

7 whether there is reasonable suspicion a child has been abused or neglected. Cal. Pen. Code

8 § 11166(a)(1); see Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (“If the decisionmaker is

9 not ‘required to base its decisions on objective and defined criteria,’ but instead ‘can deny

10 the requested relief for any constitutionally permissible reason or for no reason at all,’ the

11 State has not created a constitutionally protected liberty interest.”) (citations omitted).

12

Having concluded above that CANRA provides “substantive predicates” to guide the

13 decisionmaker, the question becomes whether it also contains “‘explicitly mandatory

14 language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive

15 predicates are present, a particular outcome must follow . . . .” Kentucky Dept. of

16 Corrections v. Thompson, 490 U.S. 454, 463 (1989). In Thompson, the Supreme Court

17 considered whether prison regulations governing visitation could give rise to a protected

18 liberty interest. The Court found that while the regulations “do provide certain ‘substantive

19 predicates’ to guide the decisionmaker,” they “lack the requisite relevant mandatory

20 language” because “[t]hey stop short of requiring that a particular result is to be reached

21 upon a finding that the substantive predicates are met.” Id. at 463-64. In particular, the

22 procedures at issue granted administrative staff discretion whether to allow or disallow

23 visits, such that the “overall effect of the regulations is not such that an inmate can

24 reasonably form an objective expectation that a visit would necessarily be allowed absent

25 the occurrence of one of the listed conditions.” Id.

26

The County Defendants assert that CANRA and the other statutes and regulations

27 cited by Plaintiffs contain no mandatory language specifying the particular outcome that

28 must be reached if the substantive predicates have been met. More specifically, they assert

- 11 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 12 of 22

1 that “the statutes [cited by Plaintiffs] articulate the procedure for evaluation, reporting and

2 investigation; [however,] the substantive outcome as the report of Robin Slusher or other

3 report is left open to the discretionary decisions of CWS personnel.” County Defs.’ Mot. to

4 Dismiss at 6-7. For their part, Plaintiffs do not respond to Defendants’ argument or

5 otherwise address that contention. As for the pleadings, they do not allege that any of the

6 cited authority mandates a particular outcome—or what that outcome would be. See FAC

7 ¶ 64. In the absence of such allegations, coupled with Plaintiffs failure to address this issue

8 in their opposition, the Court cannot conclude at this juncture that Plaintiffs have alleged a

9 plausible claim for procedural due process. Since Plaintiffs may be able to rectify this

10 deficiency, the Court dismisses this claim with leave to amend.

11

2. Familial Association

12

The Fourteenth Amendment protects the liberty interest in familial companionship

13 and association against unwarranted governmental interference. See Wilkinson v.

14 Torres, 610 F.3d 546, 554 (9th Cir. 2010); Crowe v. Cnty. of San Diego, 608 F.3d 406, 441

15 & n. 23 (9th Cir. 2010). The liberty interest in familial companionship encompasses the

16 familial relationship between parents and children. Curnow By and Through Curnow v.

17 Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). “Moreover, the First Amendment

18 protects those relationships, including family relationships, that presuppose deep

19 attachments and commitments to the necessarily few other individuals with whom one

20 shares not only a special community of thoughts, experiences, and beliefs but also

21 distinctively personal aspects of one’s life.” Lee v. City of Los Angeles, 250 F.3d 668, 685

22 (9th Cir. 2001).

23

Defendants contend that Plaintiffs’ familial association claim must be dismissed

24 because the pleadings fail to demonstrate an underlying constitutional violation. Though it

25 has not addressed this issue directly, the Ninth Circuit has intimated that an underlying due

26 process violation is a prerequisite to a claim for denial of familial association claim based

27 on the Fourteenth Amendment. See, e.g., Lee, 250 F.3d at 685 (“[T]he state’s interference

28 with [the right of familial association] without due process of law is remediable under 42

- 12 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 13 of 22

1 U.S.C. § 1983.”) (internal quotations omitted, emphasis added); accord McClurg v.

2 Maricopa Cnty., No. CIV-09-1684-PHX-MHB, 2012 WL 3655318, at *9 (D. Ariz. Aug.

3 27, 2012) (“[T]he right to familial association can only be violated if there is an underlying

4 due process violation.”).

5

Plaintiffs fail to respond directly to Defendants’ argument, and instead points out

6 that in Lee the Ninth Circuit recognized that a familial association claim may also be

7 predicated on the First Amendment. Neither of the moving or reply memoranda filed by

8 either set of Defendants addresses Plaintiffs’ familial association claim in that context. The

9 Court notes that there appears to be no controlling case law regarding the legal standard for

10 stating a familial association claim under the First Amendment. See Schwartz v. Lassen

11 Cnty., No. 2:10-CV-03048-MCE), 2013 WL 5375588, at *10 (E.D. Cal., Sept. 24, 2013)

12 (“[T]he contours of a First Amendment familial association claim are unclear, and indeed

13 the Court is aware of no Ninth Circuit case setting out specifically the conduct or elements

14 that constitute violation of familial association under the First Amendment.”). Given the

15 paucity of authority, along with Defendants’ failure to meaningfully address this issue, the

16 Court declines to dismiss Plaintiff’s familial association claim insofar as it is predicated on

17 the First Amendment. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.

18 2003) (“It is [the movant’s] burden . . . to present the court with legal arguments to support

19 its claims.”).6

20

3. Monell Liability

21

Plaintiffs’ second claim for municipal and supervisorial liability is alleged against

22 the County, the City and Chief Melton. “In order to establish liability for governmental

23 entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed a

24 constitutional right of which [s]he was deprived; (2) that the municipality had a policy;

25 (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right;

26
6 In view of the Court’s ruling on Plaintiffs’ due process claims, Plaintiffs ability to
27 proceed on a familial association claim based on the Fourteenth Amendment is dependent
upon their ability to rectify the deficiencies discussed above in connection with those
28 claims.

- 13 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 14 of 22

1 and, (4) that the policy is the moving force behind the constitutional violation.’” Dougherty

2 v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (alterations in original).

3

A Monell claim may take one of three forms: (1) “when implementation of its

4 official policies or established customs inflicts the constitutional injury”; (2) when

5 omissions or failures to act amount to a local government policy of “deliberate

6 indifference” to constitutional rights7; or (3) when a local government official with final

7 policy-making authority ratifies a subordinate’s unconstitutional conduct. Clouthier v.

8 Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). To state a claim, the

9 pleadings need only “contain sufficient allegations of underlying facts to give fair notice

10 and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v.

11 Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (addressing the pleading requirements

12 applicable to a Monell claim). In addition, the facts alleged must “plausibly suggest an

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

14 to the expense of discovery and continued litigation.” Id. Here, Plaintiffs seek to state a

15 claim under each of three aforementioned theories of liability; to wit, the existence of a

16 policy or custom, ratification and failure to train.

17

a) Policy or Custom

18

Defendants first contend that Plaintiffs’ allegations regarding the existence of a

19 policy or custom are too vague and non-specific to state a claim. The Court partially agrees

20 with Defendants’ assertion. Although the pleadings specifically identify the various

21 policies or customs allegedly implicated in the constitutional injury alleged suffered by

22 Plaintiffs, see FAC ¶ 70(a)-(f), they fail to distinguish between the acts or omissions of the

23 County, City and Chief Melton. Instead, Plaintiffs inappropriately allege a variety of

24 policies which they attribute generally to these Defendants. See Connick v. Thompson, –

25 U.S. –, –, 131 S.Ct. 1350, 1359 (2011) (“[U]nder § 1983, local governments are responsible

26
7 An actionable policy can “be one of action or inaction.” Waggy v. Spokane
27 County Wash., 594 F.3d 707, 713 (9th Cir. 2010) (citing City of Canton v. Harris, 489 U.S.
378, 388 (1989) (internal quotations omitted). “[A] municipality’s failure to train its
28 employees is one such claim of omission or inaction by the municipality.” Id.

- 14 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 15 of 22

1 only for ‘their own illegal acts.”). Because the pleadings fail to give each of the Defendants

2 particular fair notice of the particular policies attributed to them, Plaintiffs’ policy and

3 custom claim is dismissed with leave to amend.8

4

b) Ratification

5

“A municipality . . . can be liable for an isolated constitutional violation if the final

6 policymaker ‘ratified’ a subordinate’s actions.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th

7 Cir. 1999); see also Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (noting

8 than an “official with final policy-making authority” may be liable for ratifying a

9 subordinate’s unconstitutional conduct). “To show ratification, a plaintiff must show that

10 the ‘authorized policymakers approve a subordinate’s decision and the basis for it.’” Lytle

11 v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (citation omitted). The plaintiff must establish

12 that the ratification was a “conscious, affirmative choice.” Clouthier, 591 F.3d at 1250. A

13 mere failure to overrule a subordinate’s actions, without more, is insufficient to support a

14 § 1983 claim. Lytle, 382 F.3d at 987.

15

The FAC alleges that the County, City and Chief Melton “approved, tolerated and/or

16 ratified” the acts and omissions of officers with the NPD and CWS, notwithstanding their

17 “direct knowledge of the facts of this incident.” FAC ¶ 72. However, no facts are alleged

18 to support this conclusory assertion. There are no allegations specifying the particular

19 actions at issue or how and by whom they were ratified. Since it is possible that these

20 deficiencies can be cured with additional factual allegations, the Court dismisses the claim

21 with leave to amend.

22

c) Failure to Train

23

“[T]he inadequacy of police training may serve as the basis for § 1983 liability only

24 where the failure to train amounts to deliberate indifference to the rights of persons with

25
8 The City Defendants contend Plaintiffs’ Monell claim must be dismissed based on 26 their failure to allege an underlying constitutional violation. It is true that there can be no
Monell liability without an underlying constitutional violation. Scott v. Henrich, 39 F.3d 27 912, 916 (9th Cir. 1994). Accordingly, Plaintiffs’ ability to proceed on a Monell claim
based on an underlying due process violation is contingent on whether they are able to state 28 a plausible due process violation.

- 15 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 16 of 22

1 whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

2 To state a claim for insufficient training, plaintiff must allege facts sufficient to show that

3 the County, City and Chief Melton “disregarded the known or obvious consequence that a

4 particular omission in their training program would cause [the individual defendants] to

5 violate citizens’ constitutional rights.” Flores v. Cnty. of Los Angeles, 758 F.3d 1154,

6 1159 (9th Cir. 2014).

7

With respect to the failure to train, the pleadings allege that the City, County and

8 Chief Melton “failed to properly hire, train, instruct, monitor, supervise, evaluate,

9 investigate, and discipline Defendants, with deliberate indifference to Plaintiffs’

10 constitutional rights, which were thereby violated as described above.” FAC ¶ 71. This

11 conclusory allegation, without more, is insufficient to state a claim for failure to train. See

12 Flores, 758 F.3d at 1159. Plaintiffs’ failure to train claim is dismissed with leave to amend.

13

d) Chief Melton

14

Chief Melton is named as a party-defendant in both his official and individual

15 capacities. Official capacity claims against an individual are the functional equivalent of a

16 suit against the entity of which he is an agent. Kentucky v. Graham, 473 U.S. 159 (1985).

17 Since Chief Melton is alleged to be an agent of the City, the official capacity claims alleged

18 against him are dismissed as duplicative. See Center for Bio-Ethical Reform, Inc. v. Los

19 Angeles Cnty Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008) (holding that a county

20 sheriff sued in “official capacity” is a redundant defendant and should be dismissed when

21 the county is also named).

22

To state an individual capacity claim against Chief Melton, Plaintiffs must allege

23 facts showing that he “was personally involved in the constitutional deprivation or a

24 sufficient causal connection exists between the supervisor’s unlawful conduct and the

25 constitutional violation.” Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946, 961

26 (9th Cir. 2010); e.g., Hydrick v. Hunter, 669 F.3d 937, 941-42 (9th Cir. 2012) (noting that

27 to state an individual capacity claim, the complaint must identify the specific conduct that

28 forms the basis of the claim against the individual defendant). Because such facts are not

- 16 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 17 of 22

1 pled, the individual capacity claims against Chief Melton are dismissed with leave to

2 amend.

3

4. Qualified Immunity

4

Defendants contend, in the alternative, that they are entitled to qualified immunity

5 with respect to Plaintiffs’ federal claims. “The doctrine of qualified immunity protects

6 government officials ‘from liability for civil damages insofar as their conduct does not

7 violate clearly established statutory or constitutional rights of which a reasonable person

8 would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

9 Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a qualified immunity defense,

10 the court considers: (1) whether the facts alleged, taken in the light most favorable to the

11 plaintiff, demonstrate that the defendant’s conduct violated a statutory or constitutional

12 right; and (2) whether the right at issue was “clearly established.” Saucier v. Katz, 533

13 U.S. 194, 201 (2001).

14

In view of the dismissal of Plaintiffs’ due process claims with leave to amend, it is

15 unnecessary at this juncture to determine whether those claims are precluded by the

16 doctrine of qualified immunity. As for Plaintiffs’ remaining First Amendment-based

17 familial association claim, Defendants fail to discuss that claim specifically. Accordingly,

18 the Defendants’ motion to dismiss based on qualified immunity is denied at this time.

19

B. STATE LAW CLAMS

20

1. Bane Act

21

Jason, as Kayleigh’s successor-in-interest, asserts a survival claim under California’s

22 Bane Act, which provides that a person “whose exercise or enjoyment” of constitutional

23 rights has been interfered with “by threats, intimidation, or coercion” may bring a civil

24 action for damages and injunctive relief. Cal. Civ. Code § 52.1. “The essence of a Bane

25 Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation

26 or coercion’), tried to or did prevent the plaintiff from doing something he or she had the

27 right to do under the law or to force the plaintiff to do something that he or she was not

28

- 17 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 18 of 22

1 required to do under the law.” Austin B. v. Escondido Union Sch. Dist., 149 Cal.App. 4th

2 860, 883 (2007) (citing Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998)).

3

Defendants argue that Plaintiff’s Bane Act claim should be dismissed because such a

4 claim is personal to the victim and does not survive her death.9 As support, Defendants cite

5 Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal.App.4th 141 (1995), which held

6 that the parents of a child victim could not bring a wrongful death claim under the Bane Act

7 because the statute only provides for “a personal cause of action for the victim[.]” Id. at

8 144. Notably, the court did not address or preclude a survival claim. Here, Jason does not

9 allege a Bane Act claim for injuries he sustained. Rather, Jason seeks to vindicate rights

10 personal to Kayleigh in the form of a survival claim under California Code of Civil

11 Procedure § 377.20. Courts within this District have concluded that such a claim is

12 permissible. See M.H. v. Cnty. of Alameda, 62 F.Supp.3d 1049, 1096 (N.D. Cal. 2014)

13 (“A survival Bane Act claim, unlike a wrongful death Bane Act claim, is permissible.”);

14 accord Medrano v. Kern Cnty. Sheriff’s Officer, 921 F.Supp.2d 1009, 1016 (E.D. Cal.

15 2013); Dela Torre v. City of Salinas, No. 09-cv-00626-RMW, 2010 WL 3743762, at *7

16 (N.D. Cal. Sept. 17, 2010).10 The Court therefore rejects Defendants’ contention that Jason

17 lacks standing to bring a Bane Act claim.

18

The above notwithstanding, the FAC fails to allege a plausible survival claim under

19 the Bane Act. To prevail on a Bane Act claim, a plaintiff must demonstrate, inter alia,

20 “intimidation, threats or coercion.” Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998). The

21
9 A survival action is a personal injury action that survives to permit a decedent’s 22 estate to recover damages that would have been personally awarded to the decedent had he
survived. Cal. Civ. Pro.Code §§ 377.20, 377.30. In contrast, a wrongful death action is an 23 independent claim for damages personally suffered by a decedent’s heirs as a result of the
decedent’s death. Id. § 377.60; see Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 24 426, 429 (9th Cir. 1994).

25

10 Defendants cite Tolosko-Parker v. County of Sonoma, No. C 06-06841 CRB,

2009 WL 498099, at *5 (N.D. Cal., Feb. 26, 2009) which concluded that the parents of the

26 decedent could not bring a survival claim under the Bane Act. The court’s opinion offers

no reasoning or analysis to support that conclusion, and merely cites Bay Area Rapid

27 Transit District, which, as discussed, does not stand for that proposition a survival claim

cannot be brought under the Bane Act. The Court therefore finds Tolosko-Parker to be

28 unpersuasive and declines to follow it.

- 18 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 19 of 22

1 FAC fails to allege such facts. Accordingly, Plaintiffs’ third claim for relief is dismissed

2 with leave to amend.

3

2. Negligence/Negligence Per Se

4

Plaintiffs’ fourth and final claim for relief for negligence/negligence per se is

5 brought against all Defendants. “To state a cause of action under the negligence per se

6 doctrine, the plaintiff must plead four elements: (1) the defendant violated a statute or

7 regulation, (2) the violation caused the plaintiff’s injury, (3) the injury resulted from the

8 kind of occurrence the statute or regulation was designed to prevent, and (4) the plaintiff

9 was a member of the class of persons the statute or regulation was intended to protect.”

10 Alejo, 75 Cal.App.4th at 1184-85 (citing Cal. Evid. Code § 669); see Transamerica Title

11 Ins. Co. v. Green, 11 Cal.App.3d 693, 702 (1970) (“The breach of statutory duty is

12 negligence per se”). At issue here are the duty and causation elements.

13

Defendants contend that CANRA and the other statutes and regulations alleged in

14 the FAC impose no mandatory duties on them, and by extension, cannot form the basis for

15 a negligence per se claim. Defendants further argue that, pursuant to California

16 Government Code §§ 815.2 and 820.2, they are entitled to statutory immunity for

17 discretionary acts.11 The California Court of Appeal in Alejo rejected virtually identical

18 arguments. In that case, the father of three year-old Alec Alejo (“Alec”) had received

19 reports from the mother’s friend and neighbor that the mother’s boyfriend was using drugs

20 and physically abusing Alec. Alejo, 75 Cal.App.4th at 1183. The father reported the abuse

21 to the local police department, which failed to conduct any investigation into Alec’s well-

22 being. Id. Six weeks later, the mother’s boyfriend savagely beat Alec, causing him to

23 suffer total and permanent disability. Id. The father, on behalf of Alec, filed suit against

24

25

26

11 Government Code § 820.2 provides that “a public employee is not liable for an

injury resulting from his act or omission where the act or omission was the result of the

27 exercise of the discretion vested in him, whether or not such discretion be abused.” Section

815.2 provides generally that a public entity is not liable for an injury resulting from an act

28 or omission of its employee if the employee himself is immune from liability.

- 19 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 20 of 22

1 the city and two police officers alleging that they were negligent in failing to investigate or

2 report a reasonable suspicion of child abuse as mandated by CANRA. Id. at 1183-84.

3

The trial court sustained the city’s demurrer on the grounds that its police

4 department and officers had no special duty to protect a child from abuse, were immune

5 from liability for discretionary conduct, and, in any event, their failure to act was not the

6 cause of Alec’s injuries. Id. at 1184. The California Court of Appeal reversed, holding

7 “the duty to investigate and report child abuse is mandatory under [CANRA].” Id. at 1186.

8 In addition, the court found that “[the officers’] failure to investigate was clearly a breach

9 of [that] duty,” and therefore, the plaintiff could state a cause of action for negligence per se

10 against the police officers. Id. at 1189. The court likewise rejected the city’s claim of

11 statutory immunity, concluding the immunity statutes do not bar liability for breach of a

12 mandatory law enforcement duty. Id. at 1194. With regard to the issue of causation, the

13 court concluded that the question of whether the defendants’ alleged violation of their

14 mandatory duty to investigate and report child abuse resulted in harm could not be decided

15 at the pleading stage. Id. at 1190-91.

16

Despite the fact Alejo is directly on point and discussed extensively in Plaintiffs’

17 opposition briefs, Defendants offer no argument in rebuttal. Instead, they contend that this

18 case is controlled by Jacqueline T. v. Alameda County Child Protective Services, 155

19 Cal.App.4th 456 (2007), where the court rejected negligence and negligence per se claims

20 brought against a county and two of its social workers who allegedly failed to adequately

21 investigate reports of sexual abuse against several minors. In that case, the plaintiff alleged

22 that the defendants “breached this mandatory duty [i.e., CANRA], not by failing to

23 investigate the alleged abuse, but rather by failing to ‘reasonably and diligently’ investigate

24 it.” Id. at 470. In the instant case, however, Plaintiffs allege that the individual Defendants

25 “failed to investigate and/or report the abuse and neglect” as required by California law.

26 FAC ¶ 37, 45, 54. Thus, this case is more analogous to Alejo, which involved a complete

27 abdication of their mandatory duty to investigate, as opposed to Jaqueline T., where the

28 social workers conducted an investigation that was alleged to be inadequate. See Ortega v.

- 20 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 21 of 22

1 Sacramento Cnty. Dept. of Health & Human Servs, 161 Cal.App.4th 713, 732 (2008)

2 (distinguishing between a “failure to investigate,” which is “clearly a breach” of the

3 mandatory duty owed under Penal Code § 11166, and “a claim of inadequate

4 investigation.”) (emphasis added).

5

The City Defendants separately argue that, like Jacqueline T., this is “not a situation

6 where officers performed no investigation.” City Defs.’ Mot. to Dismiss at 14. They point

7 out that in response to the reports of suspected child abuse, Officers Wade and Deguilo

8 went to Kayleigh’s home, but observed nothing that would have caused them to know or

9 suspect that she was being abused. Id. This argument strains credulity. Consistent with

10 the information reported to them, the officers personally observed that Kayleigh had bruises

11 on her face, “appeared gaunt, sick, malnourished, and distressed with dark circles under her

12 eyes that her neighbors had recently noticed,” and had vomited in front of them. FAC ¶ 51.

13 The officers also observed a malnourished man with sunken cheek bones and obviously

14 under the influence of drugs along with another suspicious individual known to be on

15 probation attempting to flee the premises. Id. Despite these obvious signs of potential

16 child abuse and neglect, the officers allegedly conducted no investigation. Id. Construing

17 the facts alleged in a light most favorable to Plaintiffs, the Court finds that “a reasonable

18 person in [the officers’] position would have suspected [child] abuse.” Alejo, 75

19 Cal.App.4th at 1186.

20

Finally, Defendants contend that Plaintiffs cannot show causation; to wit, that their

21 failure to comply with their mandatory reporting and investigation duties resulted in harm.

22 In rejecting this argument, the court in Alejo explained that causation is a question for the

23 finder of fact that cannot be resolved at the pleading stage. 75 Cal.App.4th at 1189 (“The

24 complaint in the case before us alleges that despite Hector’s account of Alec’s abuse,

25 Officer Doe performed no investigation and made no report and, as a result, Alec suffered

26 further abuse. Therefore, the necessary linkage between the mandatory duty and the injury

27 is established for pleading purposes.”). Defendants’ reliance on Jacqueline T. is misplaced,

28

- 21 -

Case 4:15-cv-02394-SBA Document 45 Filed 12/11/15 Page 22 of 22

1 as the issue of causation was decided on summary judgment, not at the pleading stage. The

2 Court finds that Plaintiffs have stated a plausible claim for negligence/negligence per se.

3 IV. CONCLUSION

4

For the reasons stated above,

5

IT IS HEREBY ORDERED THAT:

6

1. Defendants’ respective motions to dismiss are GRANTED IN PART and

7 DENIED IN PART. The motions are GRANTED as to Plaintiffs’ first claim under 42

8 U.S.C. § 1983 for violation of due process, second claim under Monell and third claim for

9 violation of the Bane Act, which are dismissed with leave to amend. The motions to

10 dismiss are DENIED in all other respects.

11

2. Plaintiffs shall file their Second Amended Complaint no later twenty-eight

12 (28) days from the date this Order is entered into the docket. Plaintiffs are hereby notified

13 that any pleading filed in this Court is subject to Federal Rule of Civil Procedure 11, and as

14 such, they may amend only to the extent that they have a good faith basis for doing so.

15

3. This matter is REFERRED to Magistrate Judge Donna Ryu for a mandatory

16 settlement conference to take place within ninety (90) days of the date this Order is filed.

17 The deadline for Defendants to file their response to the Second Amended Complaint shall

18 be held in abeyance pending the settlement conference. In the event the parties are unable

19 to reach a settlement, Defendants shall file their responsive pleading or Rule 12(b) motion

20 within fourteen (14) days of the conclusion of the settlement conference.

21

IT IS SO ORDERED.

22 Dated: 12/10/15
23 24

______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge

25 26

27

28

- 22 -

 
 Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 1 of 37

1 MICHAEL J. HADDAD (State Bar No. 189114)

JULIA SHERWIN (State Bar No. 189268) 2 T. KENNEDY HELM (State Bar No. 282319)

3

HADDAD & SHERWIN LLP 505 Seventeenth Street

4 Oakland, California 94612 Telephone: (510) 452-5500

5 Facsimile: (510) 452-5510

6 Attorneys for Plaintiffs

7

KAYLEIGH SLUSHER, Dec., JASON SLUSHER, ROBIN SLUSHER and BENNY SLUSHER

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

KAYLEIGH SLUSHER, Deceased, THROUGH HER 12 SUCCESSOR IN INTEREST JASON SLUSHER;

13

JASON SLUSHER, Individually; ROBIN SLUSHER, Individually; and BENNY SLUSHER, Individually,

14 15 vs.

Plaintiffs,

16 CITY OF NAPA, a public entity; NAPA POLICE

17

OFFICER GARRETT WADE, Individually; NAPA POLICE OFFICER DEGUILIO, Individually; NAPA

18 POLICE OFFICER ROBERT CHAMBERS, Individually; NAPA POLICE OFFICER GARRETT

19 SMITH, Individually; NAPA POLICE OFFICER

JOSHUA SMITH, Individually; COUNTY OF NAPA, 20 a public entity; NAPA COUNTY CHILD WELFARE

21

SERVICES SOCIAL WORKER NANCY LEFLER, Individually; NAPA COUNTY CHILD WELFARE

22 SERVICES WORKER ROCIO DIAZ-LARA, Individually; and DOES 1–50, Jointly and Severally

23

Defendants. 24

25

)

) No: 15-cv-02394-SBA

)

) Hon. Saundra B. Armstrong

)

)

) SECOND AMENDED

) COMPLAINT FOR

) ) )

DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF,

) AND DEMAND FOR JURY

) TRIAL

)

)

)

)

)

)

)

)

)

)

)

)

)

)

26

27

28
15-cv-02394-SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 2 of 37

1

2

Plaintiffs, by and through their attorneys, HADDAD & SHERWIN LLP, for their Second

3 Amended Complaint against Defendants, state as follows:
4 JURISDICTION AND INTRADISTRICT ASSIGNMENT
5 1. This is a civil rights action arising from Defendants’ violation of mandatory duties to
6
7 investigate and/or report child abuse and/or neglect, to take 3-year-old KAYLEIGH SLUSHER into

8 protective custody and obtain emergency medical treatment for her, and to refrain from creating

9 danger and increasing Plaintiffs’ risk of harm, which resulted in the death of Plaintiff KAYLEIGH

10 SLUSHER, Deceased, on or about January 30, 2014, in the City of Napa, Napa County, California.
11 This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988; and the First and Fourteenth
12 Amendments to the United States Constitution, as well as the laws and Constitution of the State of
13 California. Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4), and the
14
15 aforementioned statutory and constitutional provisions. Plaintiffs further invoke the supplemental

16 jurisdiction of this Court pursuant to 28 U.S.C. §1367 to hear and decide claims arising under state

17 law.

18

2. A substantial part of the events and/or omissions complained of herein occurred in

19 the City of Napa, Napa County, California, and this action is properly assigned to the San Francisco
20 or Oakland Divisions of the United States District Court for the Northern District of California,
21

22 pursuant to Civil Local Rule 3-2(e).

23

PARTIES AND PROCEDURE

24

3. Plaintiff JASON SLUSHER is the father of decedent, KAYLEIGH SLUSHER.

25 Plaintiff JASON SLUSHER brings these claims individually and as a Successor in Interest for his
26 daughter and only child, Kayleigh Slusher, Deceased, pursuant to California Code of Civil 27
Procedure sections 377.20 et seq. and 377.60 et seq. which provide for survival and wrongful death 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

1

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 3 of 37

1 actions. These claims are also brought individually and on behalf of Kayleigh Slusher, Deceased,

2 on the basis of 42 USC §§ 1983 and 1988, the United States Constitution, and federal and state civil

3 rights law. JASON SLUSHER is a resident of the State of California. At all times, Plaintiff

4 JASON SLUSHER adored his daughter KAYLEIGH and had a close and loving relationship with
5 her.
6

7

4. Plaintiff ROBIN SLUSHER is the grandmother of Decedent KAYLEIGH

8 SLUSHER and a resident of the State of California. Plaintiff ROBIN SLUSHER brings these

9 claims individually. Plaintiff ROBIN SLUSHER had the closest possible healthy relationship with

10 her granddaughter, KAYLEIGH SLUSHER, that a grandmother could have. For substantial periods
11 of KAYLEIGH SLUSHER’S life, ROBIN and BENNY SLUSHER provided for KAYLEIGH’S
12 financial, emotional, and physical support, including while KAYLEIGH lived in ROBIN and
13 BENNY SLUSHER’S home, and afterward. ROBIN and BENNY SLUSHER had a long-standing
14
15 custodial relationship with KAYLEIGH SLUSHER such that they constituted a family unit.

16 Besides Plaintiffs JASON SLUSHER, ROBIN SLUSHER, and BENNY SLUSHER, no other

17 person had a closer, more intimate, healthy, familial relationship with KAYLEIGH SLUSHER.

18

5. Plaintiff BENNY SLUSHER is the grandfather of Decedent KAYLEIGH SLUSHER

19 and a resident of the State of California. Plaintiff BENNY SLUSHER brings these claims
20 individually. Plaintiff BENNY SLUSHER had the closest possible healthy relationship with his
21

22 granddaughter, KAYLEIGH SLUSHER, that a grandfather could have. For substantial periods of

23 KAYLEIGH SLUSHER’S life, ROBIN and BENNY SLUSHER provided for KAYLEIGH’S

24 financial, emotional, and physical support, including while KAYLEIGH lived in ROBIN and

25 BENNY SLUSHER’S home, and afterward. ROBIN and BENNY SLUSHER had a long-standing 26 custodial relationship with KAYLEIGH SLUSHER such that they constituted a family unit. Besides 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

2

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 4 of 37

1 Plaintiffs JASON SLUSHER, ROBIN SLUSHER, and BENNY SLUSHER, no other person had a

2 closer, more intimate, healthy, familial relationship with KAYLEIGH SLUSHER.

3

6. Defendant CITY OF NAPA is a public entity established by the laws and

4 Constitution of the State of California, and owns, operates, manages, directs, and controls the Napa
5 Police Department (“NPD”) which employs other defendants in this action.
6

7

7. Defendant NAPA POLICE OFFICER GARRETT WADE (“WADE”) at all material

8 times was employed as a law enforcement officer by NPD, and was acting within the course and

9 scope of that employment. Defendant WADE is being sued in his individual capacity.

10

8. Defendant NAPA POLICE OFFICER DEGUILIO (“DEGUILIO”) at all material

11 times was employed as a law enforcement officer by NPD, and was acting within the course and
12 scope of that employment. Defendant DEGUILIO is being sued in his individual capacity.
13
9. Defendant NAPA POLICE OFFICER ROBERT CHAMBERS (“CHAMBERS”) at 14

15 all material times was employed as a law enforcement officer by NPD, and was acting within the

16 course and scope of that employment. Defendant CHAMBERS is being sued in his individual

17 capacity.

18

10. Defendant NAPA POLICE OFFICER “GARRETT SMITH” at all material times

19 was employed as a law enforcement officer by NPD, and was acting within the course and scope of
20 that employment. Defendant GARRETT SMITH is being sued in his individual capacity.
21

22

11. Defendant NAPA POLICE OFFICER “JOSHUA SMITH” at all material times was

23 employed as a law enforcement officer by NPD, and was acting within the course and scope of that

24 employment. Defendant JOSHUA SMITH is being sued in his individual capacity.

25

12. Plaintiffs note that the identities and involvement of Defendants GARRETT and

26 JOSHUA SMITH in this matter were revealed by Defendant CHAMBERS during testimony in the
27 preliminary hearing in the murder cases against Sara Krueger on November 11, 2015, and it is
28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

3

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 5 of 37

1 possible that Defendant CHAMBERS misspoke and that only one “Officer Smith” was involved.

2 Plaintiffs allege that GARRETT SMITH and JOSHUA SMITH may be the same person. Because

3 the City of Napa Defendants, to date, have not provided PLAINTIFFS with the police reports in this
4 matter, Plaintiffs are unable to determine at this time whether Officers Garrett and Joshua Smith are
5 the same person. Plaintiffs reserve the right to move to amend this complaint after receiving the
6
7 Napa Police Report concerning this incident.

8

13. Defendant DOE Police Officers ("Doe Police Officers") at all material times were

9 employed as law enforcement officers by Defendant City of Napa, and were acting within the

10 course and scope of that employment. Defendant Doe Police Officers are being sued in their
11 individual capacities.
12 14. Defendant COUNTY OF NAPA is a public entity established by the laws and
13 Constitution of the State of California, and owns, operates, manages, directs, and controls Napa
14
15 County Child Welfare Services (“CWS”) which employs other defendants in this action.

16

15. Defendant CWS worker NANCY LEFLER-PANELA at all material times was

17 employed as a child welfare services social worker by CWS and was acting within the course and

18 scope of that employment. Defendant LEFNER is being sued in her individual capacity.
19 16. Defendant CWS worker ROCIO DIAZ-LARA at all material times was employed
20 as a child welfare services social worker by CWS and was acting within the course and scope of
21
22 that employment. Defendant DIAZ-LARA is being sued in her individual capacity.

23

17. Defendant DOE CWS Workers ("Doe CWS Workers") at all material times were

24 employed as Child Welfare Services workers by Defendant County of Napa, and were acting within

25 the course and scope of that employment. Doe Defendant CWS Workers are being sued in their 26 individual capacities. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

4

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 6 of 37

1

18. The true names and capacities of other Defendants sued as DOES 1–50 (“DOE

2 DEFENDANTS”), including Doe Police Officers and Doe CWS Workers, are unknown to
3 Plaintiffs, who therefore sue these Defendants by such fictitious names, and Plaintiffs will seek 4
leave to amend this complaint to show their true names and capacities when the same are 5
ascertained. Each DOE DEFENDANT was an employee/agent of either the CITY OF NAPA or the 6 7 COUNTY OF NAPA, and at all material times acted within the course and scope of that
8 relationship. Plaintiffs are informed and believe and thereon allege that each of the Defendants

9 sued herein was negligently, wrongfully, and otherwise responsible in some manner for the events

10 and happenings as hereinafter described, and proximately caused injuries and damages to Plaintiffs.
11 Further, one or more DOE DEFENDANTS was at all material times responsible for the hiring,
12 training, supervision, and discipline of other defendants, including DOE DEFENDANTS.
13 19. Plaintiffs are informed and believe, and thereon allege, that each of the Defendants
14
15 was at all material times an agent, servant, employee, partner, joint venturer, co-conspirator, and/or

16 alter ego of the remaining Defendants, and in doing the things herein alleged, was acting within the

17 course and scope of that relationship. Plaintiffs are further informed and believe, and thereon

18 allege, that each of the Defendants herein gave consent, aid, and assistance to each of the remaining

19 Defendants, and ratified and/or authorized the acts or omissions of each Defendant as alleged
20 herein, except as may be hereinafter otherwise specifically alleged.
21

22

20. At all material times, each Defendant was jointly engaged in tortious activity, and an

23 integral participant in the conduct described herein, including the violation of mandatory duties to

24 investigate and/or report child abuse and/or neglect and to take KAYLEIGH SLUSHER into

25 protective custody and obtain emergency medical treatment for her, and the increase of Plaintiffs’ 26 risk, resulting in the deprivation of Plaintiffs’ constitutional rights and other harm. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

5

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 7 of 37

1

21. At all material times, each Defendant acted under color of the laws, statutes,

2 ordinances, and regulations of the State of California and also of the CITY OF NAPA, and/or

3 COUNTY OF NAPA.
4 22. The acts and omissions of all Defendants as set forth herein were at all material times
5 pursuant to the actual customs, policies, practices and procedures of the Defendants CITY OF
6
7 NAPA and/or COUNTY OF NAPA.

8

23. Plaintiffs bring these claims as Private Attorneys General, to vindicate not only their

9 own rights but others’ civil rights of great importance.

10

24. This complaint may be pled in the alternative pursuant to Federal Rule of Civil

11 Procedure 8(d).
12 GENERAL ALLEGATIONS
13 25. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth
14
15 here.

16

26. On or about January 30, 2014, KAYLEIGH SLUSHER died in her home due to

17 prolonged and severe child abuse and neglect committed by her mother's boyfriend Ryan Scott

18 Warner and/or her mother, Sara Krueger, at 2060 Wilkins Avenue, Apt. 7, in the City of Napa,

19 County of Napa, California. KAYLEIGH was three years old. At this time, Plaintiffs are unaware
20 of all details concerning the exact circumstances and manner of Kayleigh Slusher's homicide,
21 because the Napa Police Department has not provided such information in response to Plaintiffs'
22
23 lawful requests for such information.

24

27. However, the preliminary hearing in the murder cases against Mr. Warner and Ms.

25 Krueger occurred on November 9 and 10, 2015. Plaintiffs supplement the facts here with sworn

26 testimony from the preliminary hearing. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

6

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 8 of 37

1

28. At all relevant times herein, Decedent KAYLEIGH SLUSHER was a minor and was

2 a resident of the County of Napa and the City of Napa. On information and belief, KAYLEIGH
3 SLUSHER had been a Dependency client of County of Napa CWS from approximately October 4
2010 until approximately April 2012. 5
29. Prior to Kayleigh's death, PLAINTIFF ROBIN SLUSHER and others informed 6 7 Defendants WADE and/or DOE NPD Officers on multiple occasions that Kayleigh was suffering
8 abuse, neglect and was in immediate physical danger in her home due to the conduct, crimes, and

9 activities of Mr. Warner and Ms. Krueger, including but not limited to abuse of unlawful controlled

10 substances.

11 30.
12 birthday.
13
31. 14

KAYLEIGH SLUSHER was born on May 3, 2010, Plaintiff ROBIN SLUSHER’S KAYLEIGH SLUSHER and her mother Sara Krueger, lived with KAYLEIGH’S

15 grandparents, Plaintiffs ROBIN and BENNY SLUSHER, for over a year. In addition, when

16 KAYLEIGH moved from ROBIN and BENNY SLUSHER’S home into an apartment with her

17 mother, Sara Krueger, Plaintiffs ROBIN and BENNY SLUSHER paid for Ms. Krueger’s rent and
18 telephone expenses for several months so that KAYLEIGH could have a safe place to live and
19 contact with her family.
20 32. In addition, throughout KAYLEIGH’S life, Plaintiffs ROBIN and BENNY
21 22 SLUSHER, in addition to JASON SLUSHER, paid for Kayleigh’s clothing, toys, material needs,
23 medicine, and bought food for the household in which KAYLEIGH lived, including when

24 KAYLEIGH and Ms. Krueger lived separately from ROBIN and BENNY SLUSHER.

25

33. In addition, ROBIN and BENNY SLUSHER frequently had custody of KAYLEIGH

26 for overnight and weekend visits, and frequently had her with them during the day, even when 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

7

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 9 of 37

1 KAYLEIGH did not live full-time in the SLUSHERS’ house. The parties lived near each other, in

2 the City of Napa, and ROBIN and BENNY SLUSHER saw KAYLEIGH regularly.

3

34. In or around October 2013, Ms. Krueger began denying ROBIN and BENNY

4 SLUSHER their usual access to, and contacts with, their granddaughter KAYLEIGH. During this
5 time, Plaintiff JASON SLUSHER was in prison for a crime unrelated to his relationship with
6

7 KAYLEIGH SLUSHER, and he was not able to protect his daughter.

8

35. During this time, Plaintiffs are informed and believe and thereon allege that Ms.

9 Krueger was using illegal drugs and had moved Ryan Warner, who was also using illegal drugs and

10 had a criminal history and a warrant for his arrest, into her home, thereby endangering the life and

11 safety of KAYLEIGH SLUSHER. Despite repeated attempts by Plaintiff ROBIN SLUSHER to see
12 her granddaughter, Ms. Krueger repeatedly refused ROBIN access to KAYLEIGH for a matter of
13
months. 14

15

36. On or about October 6, 2013, unknown DOE officers and/or a Sergeant of the Napa

16 Police Department went to KAYLEIGH SLUSHER’S home for a disturbing the peace call. No

17 officer did anything to maintain KAYLEIGH’S safety or report suspected child endangerment,

18 abuse or neglect to any authority. Plaintiffs do not yet have the facts concerning this law

19 enforcement visit to KAYLEIGH’S home, because the City of Napa Defendants have not yet
20 produced the police reports in this matter.
21

22

37. On or about January 8, 2014, unknown DOE officers of the Napa Police Department

23 went to KAYLEIGH SLUSHER’S home on patrol. No officer did anything to maintain

24 KAYLEIGH’S safety or report suspected child endangerment, abuse or neglect to any authority.

25 Plaintiffs do not yet have the facts concerning this law enforcement visit to KAYLEIGH’S home, 26 because the City of Napa Defendants have not yet produced the police reports in this matter. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

8

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 10 of 37

1

38. On or about January 23, 2014, Plaintiff ROBIN SLUSHER contacted NPD to

2 request a welfare check on KAYLEIGH. ROBIN SLUSHER called Defendant NPD to inform the

3 police that KAYLEIGH may be suffering severe abuse, neglect, was in immediate physical danger,
4 and to request police intervention to save KAYLEIGH. MS. SLUSHER called anonymously
5 because she did not want Ms. Krueger to learn she had called the police and preclude her from
6
7 seeing KAYLEIGH.

8

39. During the January 23, 2014, call, MS. SLUSHER informed Defendant NPD that

9 KAYLEIGH was living in a dangerous household with “Ryan,” whose last name she did not know,

10 but who had a warrant for his arrest. MS. SLUSHER informed Defendant NPD that Mr. Warner

11 and Ms. Krueger were using illegal drugs such as “crank” (methamphetamine) in KAYLEIGH’S
12 home, and she was worried about whether or not KAYLEIGH was being given enough food and for
13
KAYLEIGH’S safety. 14

15

40. On or about January 23, 2014, around 6:10 p.m., Defendant WADE was dispatched

16 to go to KAYLEIGH SLUSHER’S home at 2060 Wilkins Avenue, Apt. 7, for a warrant arrest. On

17 information and belief, Defendant WADE was advised that a man who lived there (Mr. Warner),
18 had an outstanding warrant for his arrest. On information and belief, Defendant WADE was also
19 advised that a small child of three or four years old, Kayleigh, was in immediate physical danger
20 due to Mr. Warner's and Ms. Krueger's illicit drug use in the home at 2060 Wilkins Avenue, Apt. 7,
21 22 due to Mr. Warner's and Ms. Krueger's failure to provide food to Kayleigh, due to drug users
23 coming in and out of the home at all hours, and due to possible physical violence against Kayleigh.

24 On information and belief, Defendant WADE was also advised that Mr. Warner stays inside the

25 home with Kayleigh all the time, smokes all the time, uses “Crank,” and he might be armed.

26

41. Rather than perform a welfare check or any investigation into Kayleigh's safety and

27 wellbeing, Plaintiffs are informed and believe and thereon allege that Defendant WADE decided
28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

9

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 11 of 37

1 not to go to the apartment where Kayleigh lived, not to investigate further, not to report suspected

2 child abuse or neglect even to Child Welfare Services (CWS) as he was mandated to do, not to seek
3 further advice, assistance, or backup, not to serve any warrant there, and not to arrest any fugitive 4
who may be living with Kayleigh and using drugs around her, and instead Defendant WADE 5
cleared the call. On information and belief, Defendant WADE chose not to investigate the report of 6 7 child abuse and/or neglect in Kayleigh’s home, because he determined that the environment in
8 which Kayleigh lived was not safe for him or his partner to go there.

9

42. At all relevant times, Defendant WADE was a Mandated Reporter under the

10 California Child Abuse and Neglect Reporting Act ("CANRA"), including California Penal Code
11 §11165.7. Despite the fact that Defendant WADE knew, had reason to know and/or reasonably
12 suspected that Kayleigh was suffering child abuse and/or neglect, Defendant WADE failed to
13 investigate and/or report the abuse and neglect as required by California Penal Code §§ 11164 et
14
15 seq, 11165.9, and 11166. Defendant WADE never made any report of child abuse and/or neglect in

16 relation to Kayleigh to Napa County CWS or any other authority.

17

43. If Defendant WADE had gone to Kayleigh’s home on January 23, 2014, as he was

18 dispatched to do, he would have seen that Kayleigh was gaunt, malnourished, had sunken eyes that
19 her neighbors had seen, and had multiple bruises and blunt force injuries about her body, including
20 her face, head, neck, arms, legs, front torso, back torso, and buttocks. In addition, by January 23,
21 22 2014, Kayleigh had suffered a broken left posterior 10th rib, which would have been excruciatingly
23 painful, causing extreme pain every time she took a breath or moved her torso. On autopsy, that rib

24 fracture was noted to be in a healing stage such that the fracture was at least two weeks old at the

25 time of Kayleigh’s death on January 30, 2014. If Defendant WADE had gone to Kayleigh’s home
26 on January 23, 2014, as required, he would have seen the extreme child abuse to which she was 27
subjected, and been required, based on generally accepted law enforcement standards and training, 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

10

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 12 of 37

1 to take her into protective custody, obtain medical treatment for her, and immediately report the

2 suspected child abuse to Child Welfare Services, among other things.

3

44. On or about the morning of January 27, 2014, according to Defendant ROBERT

4 CHAMBERS, Defendant officers ROBERT CHAMBERS and GARRETT SMITH of the Napa
5 Police Department were dispatched to KAYLEIGH’S home due to a neighbor’s report of a
6

7 domestic disturbance that was becoming physical, with subjects inside KAYLEIGH’S apartment

8 yelling and a loud commotion. At all relevant times, these Defendants were Mandated Reporters

9 under the California Child Abuse and Neglect Reporting Act ("CANRA"), including California

10 Penal Code §11165.7. These Defendants knew, had reason to know and/or reasonably suspected
11 that Kayleigh was suffering child abuse and/or neglect, and failed to investigate and/or report the
12 abuse and neglect as required by California Penal Code §§ 11164 et seq, 11165.9, and 11166.
13 Based on their mandatory duties under CANRA, and generally accepted law enforcement standards
14
15 and training, and based on facts and information they knew and/or must have known as described in

16 succeeding paragraphs, Defendant officers CHAMBERS and SMITH were required to take

17 Kayleigh into protective custody, obtain medical treatment for her, and immediately report the

18 suspected child abuse to Child Protective Services, among other things. These Defendants never

19 made any report of child abuse and/or neglect in relation to Kayleigh to Napa County CWS or any
20 other authority, never made any mandated investigation, never took her into protective custody, and
21
22 never obtained medical care for her.

23

45. By the time of Defendants CHAMBERS’ and GARRETT SMITH’s investigation at

24 KAYLEIGH’S home on the morning of January 27, 2014, Kayleigh was obviously suffering from

25 severe child abuse and neglect. She was “emaciated” according to the autopsy report and had a
26 paucity of fatty tissue due to malnutrition. She was also dehydrated. While Kayleigh’s height of 27
41” long was in the 90th percentile for her age, her weight, 34 pounds, was in the 20th percentile. 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

11

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 13 of 37

1 Kayleigh had dark bruising around her eyes, and her eyes and cheeks were sunken in. She had a

2 huge, 4” bruise on the front of her forehead, and another large bruise on her left temple. She had

3 multiple bruises from blunt force trauma to her head, neck, arms, legs, back, torso and buttocks.

4 She had 8 to 15 individual bruises and abrasions to her abdomen. All of this information was
5 readily apparent and/or available to Defendant officers CHAMBERS and SMITH.
6

7

46. Many of the bruises were in the healing phases, and up to a week or two old.

8

47. Also by the time of Defendants CHAMBERS’ and SMITH’s investigation on

9 January 27, 2014, KAYLEIGH had suffered the blunt force trauma blow to her abdomen that would

10 lead to her death. Although she had multiple blunt force injuries to her abdomen, one was with so

11 much force it caused hemorrhage to the front of her lumbar spine and another was so forceful that it
12 tore a hole in her small intestine, causing stool to leak into the sterile area of her abdomen, the
13
peritoneum, and become infected. 14

15

48. Immediately upon suffering the abdominal trauma, Kayleigh would have been

16 “clearly and demonstrably ill” according to child abuse pediatrician James Crawford-Jakubiak,

17 M.D., who is the director of the child abuse pediatrics center at Oakland Children’s Hospital and

18 testified in the preliminary hearing.
19 49. Both Joseph I. Cohen, M.D. -- the pathologist who performed the autopsy on
20 KAYLEIGH -- and Dr. Crawford-Jakubiak confirmed that the small intestine injury to KAYLEIGH
21
22 would have been immediately extremely painful.

23

50. Then when the infectious peritonitis developed, KAYLEIGH would have been in

24 even more, “agonizing” and “excruciating” pain.

25

51. As the infection wore on, it caused extremely painful necrosis – death – of twelve

26 inches of KAYLEIGH’S small intestine, and KAYLEIGH would have been “in agony.” 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

12

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 14 of 37

1

52. Both physicians confirmed that the small intestine injury and infection were

2 survivable, if KAYLEIGH had received medical attention.

3

53. The fatal abdominal injury was present for four or more days before KAYLEIGH

4 died, and she would have survived if she had received medical attention.
5 54. Defendant Officers CHAMBERS and GARRETT SMITH saw KAYLEIGH in this
6

7 grave and life-threatening medical condition with obvious signs of abuse and did not question her,

8 examine her, conduct any child abuse investigation, report the suspected abuse to anyone, take

9 KAYLEIGH into protective custody, or obtain necessary medical care for her, despite their

10 mandatory duties under law and applicable standards to do all of those. No reasonable officer

11 would have failed to examine and question KAYLEIGH, conduct a thorough child abuse
12 investigation, immediately report the suspected abuse to CWS and other officials, take KAYLEIGH
13
into protective custody, or obtain emergency medical care for her. 14

15

55. During this time, even neighbors had noticed KAYLEIGH, who was normally a

16 happy and playful child who often played outside, had now become withdrawn, sullen, and had

17 developed dark circles under her eyes, and was rarely allowed outside.

18

56. Also on or about January 27, 2014, Plaintiff ROBIN SLUSHER contacted Napa

19 County CWS by phone and reported to Defendant CWS Workers DIAZ-LARA and LEFLER-
20 PANELA that there had been a CWS dependency case open for KAYLEIGH in the past, and that
21

22 Ms. Krueger and her boyfriend were using drugs, which Ms. Slusher believed to be crank or crack,

23 in the home. ROBIN SLUSHER further informed Defendants DIAZ-LARA and LEFLER-

24 PANELA that the drugs were accessible to KAYLEIGH, that Ms. Krueger and her boyfriend were

25 intentionally depriving KAYLEIGH of food, that KAYLEIGH had lost weight, there was a lot of 26 traffic in and out of the home, and there was a warrant for the arrest of Ms. Krueger’s boyfriend. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

13

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 15 of 37

1

57. Shortly thereafter, Defendant LEFLER-PANELA called ROBIN SLUSHER back

2 and said there was nothing CWS could do, and told Ms. Slusher she could call the police instead.

3

58. At all relevant times, Defendants LEFLER-PANELA and DIAZ-LARA were

4 mandated reporters, including under California Penal Code § 11165.7.
5 59. Defendants LEFLER-PANELA and DIAZ-LARA had the mandatory duties to
6

7 respond, investigate and/or report the abuse and/or severe neglect under California law, including

8 California Penal Code §§ 11165.9 and 11166, California Welfare and Institutions Code §§ 328,

9 10553, 10554, 16501, 16504, and California Department of Social Services Child Welfare Services

10 Regulations §§ 31-100, 31-101, 31-105, 31-110, 31-115, 31-120, 31-125, 31-130, and 31-501.

11 These mandatory duties include, but are not limited to:

12

a) The duty to report suspected child abuse or neglect to the police or sheriff's

13

department (P.C. §§ 11165.9 and 11166(j); DSS Regulations Ch. 31-501);

14

b) The duty to immediately refer the case by telephone, fax, or electronic

15

transmission to an agency with proper jurisdiction, if the agency that takes a

report lacks jurisdiction (P.C. §11165.9);

16

c) The duty to make "an initial report by telephone to the police or sheriff's

17

department as soon as is practicably possible," and to "prepare and send, fax, or

electronically transmit a written follow-up report within 36 hours of receiving

18

the information" concerning the abuse and/or neglect (P.C. §11166(a));

19 d) The duty to "immediately make any investigation he or she deems necessary to

20

determine whether child welfare services should be offered to the family and

whether proceedings in the juvenile court should be commenced" (W&I §328); 21

22

e) The duty to "respond to any report of imminent danger to a child immediately" (W&I §16501(f));

23 f) The duty to make "an immediate in-person response" in “emergency situations"

24

(W&I §16504(a));

25

g) The duty to "respond to all referrals for service which allege that a child is

26

endangered by abuse, neglect, or exploitation" (DSS Regulations Ch. 31-101.1);

27

h) The duty to "immediately initiate and complete the Emergency Response

Protocol process" and to "record all available and appropriate information on

28

the Emergency Response Protocol Form" (DSS Regulations Ch. 31-105);

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

14

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 16 of 37

1

i) The duty to conduct an in-person immediate investigation when the "emergency

2

response protocol indicates the existence of a situation in which imminent

3

danger to a child, such as physical pain, injury, disability, severe emotional harm or death, is likely" (DSS Regulations Ch. 31-115);

4 j) The duty to request law enforcement assistance where "the physical safety of

5

family members. . .is endangered" (DSS Regulations Ch. 31-130);

6

k) Other duties as provided by law and regulations.

7

60. Despite the fact that Defendants LEFLER-PANELA and/or DIAZ-LARA knew, had

8 reason to know and/or reasonably suspected that Kayleigh was suffering child abuse, severe neglect,
9
and an emergency situation, with deliberate indifference to the rights and safety of KAYLEIGH 10

11 SLUSHER, they violated their mandatory duties to respond, investigate and/or report the abuse

12 and/or neglect as required by law, including but not limited to California Penal Code §§ 11165.9

13 and 11166, California Welfare and Institutions Code §§ 328, 10553, 10554, 16501, 16504, and

14 California Department of Social Services Child Welfare Services Regulations §§ 31-100, 31-101,
15 31-105, 31-110, 31-115, 31-120, 31-125, 31-130, and 31-501.
16 61. Further, Defendants LEFLER-PANELA and/or DIAZ-LARA, with deliberate
17 indifference to the rights and safety of KAYLEIGH SLUSHER, failed to accept reports of
18
19 suspected child abuse and/or severe neglect without legal justification and did not properly maintain

20 a record of all reports received as mandated by Penal Code § 11165.9.

21

62. Defendants LEFLER-PANELA and/or DIAZ-LARA, with deliberate indifference to

22 the rights and safety of KAYLEIGH SLUSHER, wrongfully delivered child protective services by

23 failing to conduct an assessment and develop a case plan as mandated by DSS Regulations §§ 31-
24 201, 31-205, 31-206 and/or Welfare and Institutions Code §16501.1.
25

26

63. Even though Defendants LEFLER-PANELA, DIAZ-LARA and/or DOE CWS

27 Workers received reports of abuse and/or severe neglect, with deliberate indifference to the rights

28 and safety of KAYLEIGH SLUSHER, they violated their mandatory duties by choosing not

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

15

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 17 of 37

1 conduct a basic evaluation of risks to determine whether an emergency situation existed as

2 mandated by Welfare and Institutions Code § § 16504 and/or DSS Regulations § § 31-101, 31-105,
3 31-110, 31-115, 31-120 and/or 31-128. 4
64. Even though Defendants LEFLER-PANELA, DIAZ-LARA and/or DOE CWS 5
Workers received reports of abuse and/or severe neglect, with deliberate indifference to the rights 6 7 and safety of KAYLEIGH SLUSHER, they violated their mandatory duties by choosing not to
8 control the conduct of Ryan Warner and/or Sara Krueger, and/or otherwise protect Kayleigh as

9 mandated by Welfare and Institutions Code § § 16501 and 16504.

10

65. With deliberate indifference to the rights and safety of KAYLEIGH SLUSHER,

11 Defendants LEFLER-PANELA and/or DIAZ-LARA violated their duties as mandated reporters to
12 report suspected child abuse and/or severe neglect to appropriate authorities and to make initial
13
reports or follow up reports within 36 hours of receiving said reports of abuse and/or severe neglect 14

15 as mandated by Penal Code § § 11165.9 and 11166(a). Rather, Defendants told Plaintiff ROBIN

16 SLUSHER she could call the police instead.

17

66. On or about January 29, 2014, around 5:58 p.m., Plaintiff ROBIN SLUSHER again

18 contacted the Napa Police Department to inform them that her granddaughter was in grave danger,
19 and to request police assistance. The NPD again dispatched Defendant WADE, this time to do a
20 welfare check, for Kayleigh’s benefit, at Kayleigh’s home, located at 2060 Wilkins Avenue, Apt. 7.
21
22 Defendant WADE spoke with Plaintiff ROBIN SLUSHER on the telephone, who told Defendant

23 WADE that Kayleigh was in immediate physical danger due to Mr. Warner's and Ms. Krueger's

24 illegal drug use in the home, their failure to provide food and care to Kayleigh, and possible

25 physical violence against Kayleigh. Plaintiff ROBIN SLUSHER told Defendant WADE that she
26 had not been allowed to talk with her granddaughter, Kayleigh, since approximately Thanksgiving; 27
that she believed Kayleigh’s mother, Ms. Krueger, was using drugs and allowing others to use drugs 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

16

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 18 of 37

1 in Kayleigh’s home, possibly crack cocaine or “crank” (methamphetamine); that Kayleigh was not
2 being fed; and that when she has attempted to check on or see her granddaughter, Ms. Krueger has
3 refused and told her that Kayleigh has been sick since Thanksgiving. 4
67. On information and belief, Defendant WADE requested Defendant NPD Officer 5
DEGUILIO to act as his cover officer, and the two Defendant officers visited Kayleigh's residence 6 7 on or about January 29, 2014, around 8:47 p.m. On information and belief, the following facts in
8 this paragraph occurred at that time. Ms. Krueger refused Defendants permission to enter the home
9 to perform a welfare check on Kayleigh, and Defendants were aware that Ms. Krueger actively tried
10 to conceal the inside of her home from the officers by closing the front door against her body and 11
peeking her head out to talk to them. During that visit, Ms. Krueger brought Kayleigh to the front 12
door and Defendants WADE and DEGUILIO observed the large and multiple bruises on Kayleigh's 13
face described above. Defendants could not see the rest of Kayleigh’s body, including her arms and 14 15 legs, which were covered by her clothes. Defendants did nothing to investigate whether Kayleigh
16 had injuries that were covered by her clothes. Defendants were able to observe a man walk out of a
17 back bedroom and look very surprised to see the officers there. Defendants saw that that man
18 appeared to be very malnourished, with sunken cheekbones, and appeared to be a drug user. That 19
man told Defendants his name was “Ryan Howard,” and that he did not have, and he could not find, 20
any identification. Defendants ran a records check on “Ryan Howard,” and dispatch was unable to 21 22 locate any match. Defendants later learned that the man who claimed to be “Ryan Howard” was 23 actually “Ryan Warner.” When Defendants first encountered Ryan “Howard” (Warner) at
24 Kayleigh’s home, Defendants determined that he was under the influence of a controlled substance,
25 based on their training and experience due to his appearance and obvious symptoms of drug
26 intoxication. Ryan Warner admitted to Defendants that he had used marijuana and Ms. Krueger’s 27
prescription pain medication that day, without a prescription for it. Defendants entered the 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

17

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 19 of 37

1 residence. Defendants did not search the residence, nor did Defendants observe every room, or

2 whether or not there were weapons or illegal drugs, or whether there was sufficient food for
3 Kayleigh. While Defendants were there, another man walked out of a back bedroom, whom 4
Defendants recognized from past contacts as Allen Epperson, a well-known methamphetamine 5
addict who was currently on probation. Mr. Epperson attempted to quickly leave the residence, and 6 7 Defendants detained him for a probation search. While Kayleigh was sitting on Ms. Krueger’s lap
8 on a couch, Defendants saw Kayleigh vomit, which was caused by the infectious peritonitis and

9 necrotic small intestine that was killing her. Ms. Krueger stated that Kayleigh had the flu, and

10 immediately took Kayleigh into the bathroom, away from the officers. Defendants WADE and
11 DEGUILIO also observed that Kayleigh appeared gaunt, sick, malnourished, and distressed, with
12 the dark circles under her eyes that her neighbors had recently noticed. Defendants did not attempt
13 to speak with Kayleigh. Ms. Krueger asked Defendants to leave, and Defendants left. Defendant
14
15 WADE later determined that the man claiming to be “Ryan Howard” had lied to them about his

16 identity, and that he was actually Ryan Warner. On information and belief, Defendants WADE and

17 DEGUILIO also confirmed that there was an active arrest warrant for Ryan Warner and/or legal
18 cause for his immediate arrest. Defendants made no effort to obtain a warrant to re-enter
19 Kayleigh’s home, search Kayleigh’s home, or arrest anyone in Kayleigh’s home. One of the
20 Defendants briefly escorted Ryan Warner away from the apartment, but he was allowed to return
21 22 after Defendants left. Defendant WADE then called Plaintiff ROBIN SLUSHER, and told her that
23 everything appeared normal at Kayleigh’s home, and that Kayleigh had food. Defendant WADE

24 also promised and reassured Plaintiff ROBIN SLUSHER that he would "keep an eye on the

25 apartment."

26

68. At the time of their investigation on January 29, 2014, Defendants WADE and

27 DEGUILIO saw that KAYLEIGH had the above-described severe and multiple bruises, including a
28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

18

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 20 of 37

1 4” bruise on her forehead and another bruise on her left temple. She would have appeared to them

2 as an “extremely sick” child, “in agony” from the infectious peritonitis and necrotic bowel.

3

69. Even Allen Epperson, the known methamphetamine addict who was at

4 KAYLEIGH’S home at the same time as Defendant Officers WADE and DEGUILIO on January
5 29, 2014, noted and later informed police that KAYLEIGH was sallow, hollow and sick looking
6

7 with bruises on her face at that time.

8

70. According to generally accepted police practices and training, police officers are

9 trained they must interview and examine a child who is a possible abuse victim outside the presence

10 of her caregivers because children are often afraid to speak of abuse in the presence of their
11 caregivers, and officers must inspect the child’s body for evidence of abuse. If Defendants had
12 followed generally accepted police practices and training, they would have interviewed and
13 examined KAYLEIGH outside the presence of her mother and Ryan Warner, and would have been
14
15 required immediately to take her into protective custody and obtain immediate medical treatment

16 for her, which would have saved her life.

17

71. Defendant Officers WADE and DEGUILIO saw KAYLEIGH in this grave and life-

18 threatening medical condition with obvious signs of abuse and did not question her, examine her,
19 conduct any child abuse investigation, report the suspected abuse to anyone, take KAYLEIGH into
20 protective custody, or obtain necessary medical care for her, despite their mandatory duties under
21
22 law and applicable standards to do all of those things. No reasonable officer would have failed to

23 examine and question KAYLEIGH, conduct a thorough child abuse investigation, immediately

24 report the suspected abuse to CWS and other officials, take KAYLEIGH into protective custody, or

25 obtain emergency medical care for her.

26

72. If Defendants had followed generally accepted police practices and training,

27 Defendants would have discovered Ryan Warner had an extensive criminal history including but
28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

19

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 21 of 37

1 not limited to, upon information and belief, assault and possession of drugs, and he had a restraining

2 order entered against him for threatening to kill his pregnant ex-girlfriend, including telling her for

3 example, “I hope the kid dies or is born retarded,” “snitches get dealt with,” “You’ll get what’s
4 coming to you,” “I hope you and it die in the process,” “I’ve been on the run many times,” “I will
5 scalp you,” “I’ll bust your teeth out with a pipe like mine were,” and the woman was “not worthy of
6
7 having” his child.

8

73. Plaintiffs are informed and believe and thereon allege that Defendant WADE

9 violated his promise to ROBIN SLUSHER, and never went back to the apartment before Kayleigh

10 died. On information and belief, Defendant WADE also did not ask any other member of the NPD
11 to monitor the apartment or report the incident to any other officer, CWS or any other party.
12 74. At all relevant times, Defendants WADE, DEGUILIO, CHAMBERS and SMITH
13 were Mandated Reporters under the California Child Abuse and Neglect Reporting Act
14
15 ("CANRA"). On information and belief, Defendants WADE, DEGUILIO, CHAMBERS and

16 SMITH violated their mandatory duties to investigate and/or report the abuse and neglect as

17 required by California Penal Code § § 11164 et seq, 11165.9, and 11166, despite knowing, having

18 reason to know and/or reasonably suspecting that Kayleigh was suffering severe and sustained child
19 abuse and neglect. Neither Defendants WADE, DEGUILIO, CHAMBERS nor or SMITH ever
20 made any report of suspected child abuse and/or neglect in relation to Kayleigh to Napa County
21
22 CWS or any other agency or authority.

23

75. No Defendant officer ever conducted the child abuse investigation required of them

24 by generally accepted police training, practices, and procedures, including interviewing and

25 examining KAYLEIGH outside the presence of her mother. No Defendant officer ever took
26 KAYLEIGH into protective custody or procured emergency medical treatment for her, as required 27
by generally accepted police training, practices, and procedures and their mandatory duties. No 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

20

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 22 of 37

1 Defendant officer made an immediate report of suspected child abuse to CWS as required by their

2 mandatory duties.

3

76. Plaintiffs relied on the representations of Defendants WADE and DEGUILIO that

4 everything appeared normal with Kayleigh and at Kayleigh’s home, that there was food for
5 Kayleigh in the home, and that they would “keep an eye on the apartment.” Those representations
6

7 were false. Had Plaintiffs known the truth about what transpired during Defendants’ welfare check

8 on Kayleigh, Plaintiffs would have taken immediate action to protect Kayleigh, including making

9 further efforts to seek protection for Kayleigh from the NPD and the Napa County CWS, contacting

10 other authorities or child advocates for assistance, personally going to Kayleigh’s home, or

11 engaging in other self-help to try to protect Kayleigh. Instead, Plaintiffs relied to their (and
12 Kayleigh’s) detriment on Defendants’ false representations that everything appeared normal at
13
Kayleigh’s home, and that the NPD would monitor the apartment to protect Kayleigh. 14

15

77. The Defendant Officers’ failure to take KAYLEIGH into protective custody and take

16 her to a hospital caused KAYLEIGH to die of the untreated abdominal trauma, infectious peritonitis

17 and small intestine necrosis.

18

78. The California Legislature has determined that the purpose of the child protection

19 law “is to provide maximum safety and protection for children who are currently being physically,
20 sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety,
21

22 protection, and physical and emotional well-being of children who are at risk of that harm.” Cal.

23 Welf. & Inst. Code § 300.2.

24

79. In addition, the California Legislature has determined that “The provision of a home

25 environment free from the negative effects of substance abuse is a necessary condition for the 26 safety, protection and physical and emotional well-being of the child.” Id. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

21

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 23 of 37

1

80. All Defendants were trained that people who are using methamphetamine or other

2 controlled substances can be violent, volatile, and are unsafe for children to be around. All
3 Defendants were trained that caregivers who are using methamphetamine or other controlled 4
substances may fail to give their children necessary food, liquids, and basic necessities. 5
81. Through their volitional, intentional, and deliberately indifferent acts, omissions, and 6 7 misrepresentations, Defendants WADE, DEGUILIO, CHAMBERS AND SMITH affirmatively
8 placed Kayleigh Slusher in danger, exposing her to a danger which she would not have otherwise

9 faced, and leaving her in a situation that was more dangerous than the one in which they found her.

10 These Defendants did so by going to KAYLEIGH’s home, thereby tipping off Ryan Warner and
11 Sara Krueger that police were monitoring them and interested in them, while at the same time
12 violating their mandatory duties as described above, and causing Ryan Warner and Sara Krueger to
13 conceal KAYLEIGH within their apartment and to not seek medical care for KAYLEIGH –
14
15 including taking KAYLEIGH to a hospital – for fear that police would arrest them, or would

16 remove KAYLEIGH from them, if they (Ryan and Sara) did anything so conspicuous.

17

82. Leaving KAYLEIGH in a highly abusive home, and denying her the necessary life-

18 saving medical care and protective custody she needed, was extremely coercive.
19 83. If Defendants had complied with their mandatory duties, the mandatory outcomes
20 included immediately and thoroughly conducting an emergency investigation of child abuse,
21
22 immediately reporting the abuse to CWS, the police, sheriff and other law enforcement, examining

23 and questioning KAYLEIGH outside the presence of her caregivers, immediately taking

24 KAYLEIGH into protective custody, and immediately taking KAYLEIGH to the emergency room

25 for the life-saving emergency medical treatment KAYLEIGH needed. 26

27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

22

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 24 of 37

1

84. Both Doctors Cohen and Crawford-Jakubiak confirmed that KAYLEIGH was likely

2 to survive the abdominal injuries, infection, and necrotic bowel if she had received medical
3 attention, including surgical repair of the small intestine and antibiotic treatment for the infection. 4
85. On or about February 1, 2014, NPD Officers responded to a call to do another 5
welfare check at Kayleigh's home. When NPD Officers arrived there, they discovered Kayleigh 6 7 Slusher in her bed, deceased, with the extensive evidence of ongoing and severe child abuse
8 described above. Although KAYLEIGH’S body was covered up to her neck with blankets,

9 KAYLEIGH had “obvious facial injuries,” and “obvious facial trauma consisting of large

10 contusions on her fore head, face, and neck” that were in “various stages of healing.” Her eyes
11 were sunken in, “with dark bruising around her eyes.” Defendants CHAMBERS, SMITH, WADE,
12 and DEGUILIO would have observed these severe injuries on KAYLEIGH when they saw her
13 shortly before her death, and were required to conduct a child abuse investigation and take her into
14
15 protective custody and obtain life-saving medical care for her.

16

86. On February 1, 2014, KAYLEIGH’s home was in a shambles, with dirty dishes piled

17 in the sick and a mess all over the floors. The refrigerator was empty except for condiments and a
18 bottle of Pedialyte.
19 87. The Napa County District Attorney reported that KAYLEIGH died due to multiple
20 blunt force trauma with impact injuries to her head, torso and extremities, child abuse and neglect,
21 22 and on or about April 8, 2015, added torture to the criminal allegations against Mr. Warner and Ms.
23 Krueger. The Napa County Coroner’s pathologist, Dr. Cohen, determined KAYLEIGH’S cause of

24 death to be complications of mesenteric contusions and small intestine hematoma, due to multiple

25 blunt impact injuries to head, torso, and extremities, due to fatal child abuse and neglect. He
26 determined that KAYLEIGH suffered from “fatal child abuse and neglect over time leading to 27
death.” (Emphasis added). 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

23

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 25 of 37

1

88. On exterior examination (just looking at the skin), much of KAYLEIGH’s abdomen

2 was green from the infection. When Dr. Cohen cut into KAYLEIGH’S abdomen, 450 milliliters –
3 about two cups – of free-flowing, bloody and infectious fluid drained out of her abdomen. It took 4
several days for this bloody fluid to build up. 5
89. Defendants' failure to investigate and/or report the abuse and/or neglect and failure to 6 7 take KAYLEIGH into protective custody and obtain emergency medical treatment for her was
8 without legal justification, caused great pain and suffering to Plaintiffs, and caused Kayleigh

9 Slusher’s death. These injuries, including but not limited to physical abuse, torture, neglect and

10 death, were of the type the California Legislature intended to prevent in enacting the Child Abuse
11 and Neglect Reporting Act, Penal Code § 11164 et seq., and Welfare and Institutions Code §§ 300,
12 305 et seq., 10550, 10553, 10554, and 10651. Additionally, Defendants' affirmative acts and
13 omissions, including failure to investigate, report, intervene and/or protect Kayleigh Slusher from
14
15 known and foreseeable harms, including physical and sexual abuse, torture and death, created

16 danger and increased the risk of harm to Kayleigh. Defendants further created danger and increased

17 the risk of harm to Kayleigh, through their affirmative acts and omissions, by going to Kayleigh’s
18 home without taking any action, and by lying to Robin Slusher about Kayleigh’s condition and
19 creating a false sense of security and safety as to Plaintiffs and others who wished to protect
20 Kayleigh from harm. In addition, Defendants increased the risk of harm to KAYLEIGH by going
21 22 to her apartment and doing nothing, which informed Ms. Krueger and Mr. Warner that the police
23 were informed of Kayleigh’s condition and caused their further avoidance of necessary medical care

24 for KAYLEIGH.

25

90. Under the Fourteenth Amendment, Plaintiff KAYLEIGH SLUSHER had a due

26 process right to life and a liberty interest in bodily integrity and security, including a protected
27 liberty interest and right to the non-discretionary investigation, reporting, and protection mandated
28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

24

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 26 of 37

1 for her benefit by California law. Plaintiffs JASON SLUSHER, ROBIN SLUSHER and BENNY

2 SLUSHER had the right to familial relationships with Kayleigh. Among other sources, these rights
3 under the First and Fourteenth Amendments derive from statutory mandates as created by California 4
law. Investigation and/or reporting of child abuse and/or neglect is mandatory under the California 5
Child Abuse and Neglect Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code 6 7 §§ 10550, 10553, 10554, and 10651, and is intended by law for the benefit and protection of
8 children such as Kayleigh Slusher. Such investigation and/or reporting is mandatory, ministerial,

9 and is not discretionary under the CANRA. Defendants unreasonably and unjustifiably violated

10 their mandatory duties to investigate and/or report the abuse and/or neglect suffered by Kayleigh
11 Slusher, despite Plaintiffs' statutory and constitutional entitlement to investigation and/or reporting
12 under California law. Defendants violated Plaintiffs' rights under the First and Fourteenth
13 Amendments by failing to respond to, investigate and/or report child abuse and neglect as mandated
14
15 by the CANRA, and to remove KAYLEIGH from her obviously abusive and dangerous home and

16 seek emergency medical care for her, as required by generally accepted law enforcement standards

17 and training. As a direct result of Defendants' conduct, including conduct that increased the risk of
18 harm to Kayleigh Slusher, and Defendants’ failure to investigate and/or report child abuse and/or
19 neglect as required by the United States Constitution and California law, Plaintiff Kayleigh Slusher
20 suffered loss of life and liberty, and Plaintiffs JASON SLUSHER, ROBIN SLUSHER and BENNY
21 22 SLUSHER suffered loss of their familial relationships with their daughter/granddaughter, including
23 loss of love, companionship, comfort, affection, society, services, solace, and moral support.

24

91. At all material times, and alternatively, the actions and omissions of each Defendant

25 were intentional, wanton and/or willful, conscience shocking, reckless, malicious, deliberately
26 indifferent to Plaintiffs’ rights, done with actual malice, grossly negligent, negligent, and 27
objectively unreasonable. 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

25

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 27 of 37

1

92. As a direct and proximate result of each Defendant’s acts and/or omissions as set

2 forth above, Plaintiffs sustained the following injuries and damages, past and future, among others:

3

a. Wrongful death of Kayleigh Slusher (by JASON SLUSHER, pursuant to

4

CCP 377.60 and federal civil rights law);

5

b. Hospital and medical expenses (by JASON SLUSHER, pursuant to CCP

377.20 and federal civil rights law); 6

7

c. Coroner's fees, funeral and burial expenses (by JASON SLUSHER, pursuant to CCP 377.20 and federal civil rights law);

8 d. Loss of familial relationships, including loss of love, companionship,

9

comfort, affection, society, services, solace, and moral support (by all

Plaintiffs, pursuant to CCP 377.60 and/or federal civil rights law); 10

11

e. Pain and suffering and emotional distress (by all Plaintiffs, pursuant to

federal civil rights law);

12

f. Violation of constitutional rights (by all Plaintiffs, pursuant to federal civil

13

rights law);

14

g. Kayleigh Slusher's loss of life (by JASON SLUSHER pursuant to federal

15

civil rights law);

16

h. Kayleigh Slusher's conscious pain and suffering (by JASON SLUSHER

pursuant to federal civil rights law);

17

i. All damages and penalties recoverable under 42 U.S.C. §§ 1983, 1988,

18

California Civil Code §§ 52 and 52.1, California Code of Civil Procedure

19

§1021.5, and as otherwise allowed under California and United States

statutes, codes, and common law.

20

21

93. Plaintiff JASON SLUSHER, and the Estate of Kayleigh Slusher, Deceased, who

22 bring state law claims herein, timely and properly filed tort claims pursuant to Cal. Gov. Code § 910
23 et seq., and for all Plaintiffs this action is timely filed within all applicable statutes of limitation.
24

25

26

27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

26

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 28 of 37

1

COUNT ONE

-- 42 U.S.C. §1983 -2 ALL PLAINTIFFS AGAINST DEFENDANTS WADE, DEGUILIO, CHAMBERS, SMITH,

3

LEFLER-PANELA, DIAZ-LARA and DOES 1-50

4

94. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

5 here.

6

95. By the actions and omissions described above, Defendants violated 42 U.S.C. §1983,

7 depriving Plaintiffs of the following clearly established and well-settled constitutional rights

8 protected by the United States Constitution:
9

a. The right to be free from deprivation of life and liberty, and interference with

10

bodily integrity and security, as protected by the substantive and procedural

11

provisions of the Due Process Clause of the Fourteenth Amendment;

12

b. The right to bodily integrity and security with the liberty interests created for

Plaintiffs’ benefit and protection by state law, including mandatory duties to

13

report, investigate, and protect children from child abuse and/or neglect, to which

entitlement was created statutorily by the Child Abuse and Neglect Reporting

14

Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553,

15

10554, and 10651, generally accepted law enforcement standards, and other

mandatory authority cited herein, as protected by the Due Process Clause of the

16

Fourteenth Amendment;

17

c. The right to be free from wrongful governmental interference with familial

relationships as secured by the First and Fourteenth Amendments and California

18

Code of Civil Procedure § § 377.20 et seq. and 377.60 et seq.

19

20

96. Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs of

21 rights described herein, knowingly, maliciously, and with conscious and reckless disregard for

22 whether the rights and safety of Plaintiffs would be violated by their acts and/or omissions.
23 97. As a direct and proximate result of Defendants’ acts and/or omissions as set forth
24 above, Plaintiffs sustained injuries and damages as set forth at ¶ 92, above.
25 98. The conduct of Defendants entitles Plaintiffs to punitive damages and penalties
26
27 allowable under 42 U.S.C. §1983 and California law. Plaintiffs do not seek punitive damages

28 against Defendant public entities.

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

27

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 29 of 37

1

99. Plaintiffs are also entitled to reasonable costs and attorneys’ fees under 42 U.S.C.

2 §1988 and applicable California codes and laws.

3

COUNT TWO

4

- 42 U.S.C. §1983 (Monell)–

ALL PLAINTIFFS AGAINST DEFENDANTS CITY OF NAPA, and COUNTY OF NAPA

5

100. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

6

here. 7

8

101. On information and belief, the unconstitutional actions and/or omissions of

9 DEFENDANTS WADE, DEGUILIO, CHAMBERS, SMITH and DOES 1-25 were pursuant to the

10 following customs, policies, practices, and/or procedures of the CITY OF NAPA, which were

11 directed, encouraged, allowed, and/or ratified by policy making officers for the CITY OF NAPA,

12 the NAPA POLICE DEPARTMENT:

13

a. To tolerate and permit the violation of mandatory duties to report and/or

14

investigate and/or take other mandatory action in response to reports of child

15

abuse and/or neglect (including those specific mandatory duties and outcomes described herein);

16 b. To fail to use and require appropriate and generally accepted law

17

enforcement procedures and training in handling child abuse and/or neglect

reports and investigations; 18

19

c. To cover-up violations of constitutional rights by any or all of the following:

20

i. by failing to properly investigate and/or evaluate complaints or incidents

of failure to report and/or investigate reports of child abuse and/or

21

neglect;

22

ii. by ignoring and/or failing to properly and adequately investigate and

23

discipline unconstitutional or unlawful police activity; and

24

iii. by allowing, tolerating, and/or encouraging police officers to: fail to file

complete and accurate police reports; file false reports; make false

25

statements; intimidate, bias and/or “coach” witnesses to give false

information and/or to attempt to bolster officers’ stories; and/or obstruct

26

or interfere with investigations of unconstitutional or unlawful conduct,

27

by withholding and/or concealing material information;

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

28

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 30 of 37

1

d. To allow, tolerate, and/or encourage a “code of silence” among law

enforcement officers and police department personnel, whereby an officer or

2

member of the department does not provide adverse information against a

3

fellow officer or member of the department; and,

4

e. To fail to institute, require, and enforce necessary, appropriate and lawful

policies, procedures, and training programs to prevent or correct the

5

unconstitutional conduct, customs, and practices and procedures described in

this Complaint and in paragraphs (a) through (d), with deliberate indifference

6

to the rights and safety of Plaintiffs and the public, and in the face of an

7

obvious need for such policies, procedures, and training programs; and

8

f. To use or tolerate inadequate, deficient, and improper procedures for

handling, investigating, and reviewing complaints of officer and/or employee

9

misconduct made under California Government Code § 910 et seq.

10

102. On information and belief, the unconstitutional actions and/or omissions of

11 DEFENDANTS LEFLER-PANELA, DIAZ-LARA and DOES 26-50 were pursuant to the

12 following customs, policies, practices, and/or procedures of the COUNTY OF NAPA, which were
13 directed, encouraged, allowed, and/or ratified by policy making officers for the COUNTY OF
14
NAPA, and/or NAPA CHILD WELFARE SERVICES: 15

16

a. To tolerate and permit the violation of mandatory duties to report and/or

investigate and/or take other mandatory action in response to reports of child

17

abuse and/or neglect (including those specific mandatory duties and

outcomes described herein);

18

b. To fail to use and require appropriate and generally accepted child welfare

19

services policies, procedures, and training in handling child abuse and/or

20

neglect reports and investigations, including where removal of an abused

and/or neglected child and the provision of necessary, life-saving medical

21

care for the child, is required by generally accepted standards;

22

c. To fail to institute, require, and enforce necessary, appropriate and lawful

23

policies, procedures, and training programs to prevent or correct the unconstitutional conduct, customs, and practices and procedures described in

24

this Complaint and in paragraphs (a) through (b), with deliberate indifference

to the rights and safety of Plaintiffs and the public, and in the face of an

25

obvious need for such policies, procedures, and training programs; and

26

d. To use or tolerate inadequate, deficient, and improper procedures for

handling, investigating, and reviewing complaints of officer and/or employee

27

misconduct made under California Government Code § 910 et seq.

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

29

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 31 of 37

1

103. Defendants CITY OF NAPA, COUNTY OF NAPA, and DOES 1–50 failed to

2 properly hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline Defendants,
3 due to their programmatic failures in the face of the obvious need for constitutional hiring, training, 4
instruction, monitoring, supervision, evaluation, investigation, and discipline of their employees and 5
agents, including Defendants, with deliberate indifference to Plaintiffs’ constitutional rights, which 6 7 were thereby violated as described above. Further, Defendants’ violation of mandatory duties,
8 standards, and of Plaintiffs’ rights, were so obvious and shocking, and the facts of this case have

9 received such widespread media and public attention, that supervisors and policy-makers for the

10 CITY and COUNTY, respectively, must have known of these egregious violations of law,
11 standards, and training, and on information and belief have decided to ratify and endorse the
12 conduct of the Defendants in this matter who are under their supervision and control. On
13 information and belief, discovery will reveal that the CITY’s and COUNTY’s constitutionally
14
15 deficient programs for hiring, training, instruction, monitoring, supervision, evaluation,

16 investigation, and discipline of their employees and agents, including Defendants, directly led to the

17 egregious violations of mandatory duties, standards, and Plaintiffs’ rights described herein.

18

104. The unconstitutional actions and/or omissions of Defendants, as described above,

19 were approved, tolerated and/or ratified by policy-making officers for the NAPA POLICE
20 DEPARTMENT and COUNTY OF NAPA CHILD WELFARE SERVICES. Plaintiffs are
21

22 informed and believe, and thereupon allege, that the details of this incident have been revealed to

23 the authorized policy makers within the CITY OF NAPA and the COUNTY OF NAPA, including

24 DOES 1–50, and Plaintiffs are further informed and believe, and thereupon allege, that such policy

25 makers have direct knowledge of the facts alleged in this complaint. Notwithstanding this
26 knowledge, the authorized policy makers within the CITY OF NAPA and the COUNTY OF NAPA 27
have approved of the conduct of Defendants, and have made a deliberate choice to endorse the 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

30

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 32 of 37

1 decisions of those defendant officers and employees and the basis for those decisions. By doing so,

2 the authorized policy makers of the CITY OF NAPA and the COUNTY OF NAPA have shown
3 affirmative agreement with each individual Defendant officer’s and employee’s actions, and have 4
ratified the unconstitutional acts of the individual Defendants. 5
105. The aforementioned customs, policies, practices, and procedures, the failures to 6 7 properly and adequately hire, train, instruct, monitor, supervise, evaluate, investigate, and
8 discipline, as well as the unconstitutional orders, approvals, ratification and toleration of wrongful

9 conduct of Defendants CITY OF NAPA, COUNTY OF NAPA, and DOES 1–50 were a moving

10 force and/or a proximate cause of the deprivations of Plaintiffs’ clearly established and well-settled
11 constitutional rights in violation of 42 U.S.C. §1983, as more fully set forth in ¶ 95, above.
12 106. Defendants subjected Plaintiffs to their wrongful conduct, depriving Plaintiffs of
13 rights described herein, knowingly, maliciously, and with conscious and reckless disregard for
14
15 whether the rights and safety of Plaintiffs and others would be violated by their acts and/or

16 omissions.

17

107. As a direct and proximate result of the unconstitutional actions, omissions, customs,

18 policies, practices and procedures of Defendants as described above, Plaintiffs sustained serious

19 injuries and are entitled to damages, penalties, costs and attorney fees as set forth in ¶¶ 92 and 97-
20 99, above, including punitive damages against DOES 1–50, in their individual capacities.
21

22

COUNT THREE -- VIOLATION OF CIVIL CODE §52.1 --

23 PLAINTIFFS KAYLEIGH SLUSHER, DECEASED, AND JASON SLUSHER AGAINST DEFENDANTS WADE, DEGUILIO, CHAMBERS, SMITH, LEFLER-PANELA, DIAZ-

24

LARA, DOES 1-50, CITY OF NAPA AND COUNTY OF NAPA

25

108. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

26 here. 27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

31

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 33 of 37

1

109. By their acts, omissions, customs, and policies, each Defendant, acting in

2 concert/conspiracy, as described above, violated KAYLEIGH SLUSHER’S rights under California
3 Civil Code §52.1, and the following clearly-established rights under the United States Constitution 4
and the California Constitution: 5

6

a. The right to be free from deprivation of life and liberty, and interference with

7

bodily integrity and security, as protected by the substantive and procedural provisions of the Due Process Clauses of the Fourteenth Amendment of the

8

United States Constitution and Art. 1, Sec. 7 of the California Constitution;

9

b. The right to bodily integrity and security with the liberty interest created for

Plaintiffs’ benefit and protection by state law, including mandatory duties to

10

report, investigate, and protect children from child abuse and/or neglect, to

11

which entitlement was created statutorily by the Child Abuse and Neglect

Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§

12

10550, 10553, 10554, and 10651, and other mandatory authority cited herein,

as protected by the Due Process Clauses of the Fourteenth Amendment of

13

the United States Constitution and Art. 1, Sec. 7 of the California

Constitution; 14

15

c. The right to be free from wrongful governmental interference with familial

relationships as secured by the First and Fourteenth Amendments of the

16

United States Constitution, Art. 1, Secs. 1 and 7 of the California

Constitution, and California Code of Civil Procedure § § 377.20 et seq. and

17

377.60 et seq.;

18

d. The right to enjoy and defend life and liberty, acquire, possess and protect

19

property, and pursue and obtain safety, happiness and privacy, as secured by

the California Constitution, Article 1, Section 1;

20

e. The right to protection from bodily restraint, harm, or personal insult, as

21

secured by Cal. Civil Code § 43.

22

23

110. Defendants’ violation of Plaintiffs’ due process rights through their own intentional

24 and volitional conduct, and with deliberate indifference to the rights and safety of Plaintiffs and

25 KAYLEIGH SLUSHER, in and of itself constitutes threat, intimidation, or coercion under the Bane

26 Act as interpreted by courts within the Ninth Circuit Court of Appeals. Separate from, and above 27 and beyond, Defendants’ attempted interference, interference with, and violation of Plaintiffs’ 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

32

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 34 of 37

1 rights, Defendants violated Plaintiffs’ rights by the following conduct constituting threat,

2 intimidation, or coercion:

3

a. Intentionally, or with deliberate indifference, and without legal justification,

4

violating mandatory duties to investigate and/or report child abuse and/or

neglect as required by California Child Abuse and Neglect Reporting Act,

5

Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553,

10554, and 10651. 6

7

b. Intentionally, or with deliberate indifference, and without legal justification, depriving Kayleigh Slusher of necessary, protective custody and life-saving

8

measures mandated by law for her protection;

9

c. Intentionally, or with deliberate indifference, and without legal justification,

affirmatively placing Kayleigh Slusher in danger, exposing her to a danger

10

which she would not have otherwise faced, and leaving her in a situation that

11

was more dangerous than the one in which they found her;

12

d. By going to Kayleigh Slusher’s home, then violating their mandatory duties

described herein, affirmatively increasing her risk of harm, through their

13

conduct and misrepresentations preventing others from coming to her aid and

rescue, and through their conduct causing Ryan Warner and Sarah Krueger to

14

further conceal KAYLEIGH, and KAYLEIGH’s life-threatening injuries,

15

within their apartment, and because of apparent police monitoring, to not take

KAYLEIGH outside for necessary medical treatment;

16

e. Intentionally, or with deliberate indifference, and without legal justification,

17

causing Kayleigh Slusher to remain in an abusive and deadly household,

including known drug abuse, criminal activity, physical abuse and injury,

18

starvation, torture and cruelty, while foreclosing other, more caring, sources

19

of hope and rescue.

20 111. As a direct and proximate result of Defendants’ violation of California Civil Code
21
22 §52.1 and of Plaintiffs’ rights under the United States and California Constitutions, Plaintiffs
23 sustained injuries and damages, and against each and every Defendant are entitled to relief as set

24 forth above at ¶¶ 92 and 97-99, including all damages allowed by California Civil Code §§ 52, 52.1,

25 and California law, not limited to three times actual damages, costs, attorneys’ fees, and civil
26 penalties. For this claim, the Defendants City of Napa and County of Napa are vicariously liable for 27
the conduct of their employees and agents pursuant to Cal. Gov. Code § 815.2. 28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

33

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 35 of 37

1

2

COUNT FOUR

3

-- NEGLIGENCE AND NEGLIGENCE PER SE; PERSONAL INJURIES -PLAINTIFFS KAYLEIGH SLUSHER, DECEASED, AND JASON SLUSHER AGAINST

4

ALL DEFENDANTS

5

112. Plaintiffs reallege each and every paragraph in this complaint as if fully set forth

6 here.

7

113. At all times, each Defendant owed Plaintiffs KAYLEIGH SLUSHER, Deceased, and

8 JASON SLUSHER the duty to act with due care in the execution and enforcement of any right, law,
9 or legal obligation.
10

11

114. At all times, each Defendant owed Plaintiffs the duty to act with reasonable care.

12 Furthermore, Defendants owed the mandatory duties to respond, investigate and/or report child

13 abuse and/or neglect as required by law, including the California Child Abuse and Neglect

14 Reporting Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 10550, 10553, 10554,

15 and 10651 California Penal Code §§ 11165.9 and 11166, and by California Department of Social
16 Services Child Welfare Services Regulations §§ 31-100, 31-105, 31-110, 31-115, 31-120, 31-125,
17 31-130, and 31-501. Defendants further owed Plaintiffs the duty to take Kayleigh into immediate
18
19 protective custody and obtain emergency medical treatment for her.

20

115. The injuries suffered by Plaintiffs, including but not limited to sustained and severe

21 physical abuse, neglect, death, loss of familial relationships and emotional distress were of the type

22 the California Legislature intended to prevent in enacting the Child Abuse and Neglect Reporting
23 Act, Penal Code § 11164 et seq., Welfare and Institutions Code §§ 300 et seq., 305, 10550, 10553,
24 10554, and 10651, and were of the type the California Department of Social Services Child Welfare
25 Services intended to prevent in enacting Regulations §§ 31-100, 31-105, 31-110, 31-115, 31-120,
26
27 31-125, 31-130, and 31-501.

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

34

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 36 of 37

1

116. Additionally, the general duties of reasonable care and due care owed to Plaintiffs by

2 Defendants CITY OF NAPA and COUNTY OF NAPA, through their employees and agents,

3 include but are not limited to the following specific obligations:

4 a. to properly and adequately hire, investigate, train, supervise, monitor,

5

evaluate, and discipline their employees, agents, and/or law enforcement

officers to ensure that those employees/agents/officers act at all times in the

6

public interest and in conformance with law;

7

b. to make, enforce, and at all times act in conformance with policies and

8

customs that are lawful and protective of individual rights, including

Plaintiffs’;

9

c. to refrain from making, enforcing, and/or tolerating the wrongful policies and

10

customs set forth at ¶¶ 101-102, above.

11 117. All Defendants, through their acts and omissions, breached each and every one of the
12 aforementioned duties owed to Plaintiffs.
13
118. Defendants’ breaches of law, standards, and mandatory duties set forth herein also 14

15 constitute negligence per se.

16

119. Defendants CITY OF NAPA and COUNTY OF NAPA are vicariously liable for the

17 conduct of their employees and agents pursuant to Cal. Gov. Code § 815.2, and for their employees’
18 breach of mandatory duties under Cal. Gov. Code § 815.6.
19 120. As a direct and proximate result of Defendants’ negligence, Plaintiffs sustained
20 injuries and damages, and against each and every Defendant are entitled to relief as set forth above
21 22 at ¶¶ 92 and 97-99, including punitive damages against all Defendant law enforcement officers and
23 Defendant CWS workers under California law.

24

25

WHEREFORE, Plaintiffs respectfully request the following relief against each and every

26 Defendant herein, jointly and severally:

27 a. compensatory and exemplary damages in an amount according to proof and

28

which is fair, just and reasonable;

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

35

Case 4:15-cv-02394-SBA Document 52 Filed 01/07/16 Page 37 of 37

1

b. punitive damages under 42 U.S.C. §1983 and California law in an amount

2

according to proof and which is fair, just, and reasonable (punitive damages

3

are not sought against the City of Napa or the County of Napa);

4

c. all other damages, penalties, costs, interest, and attorneys’ fees as allowed by

42 U.S.C. §§ 1983, 1988; Cal. Code Civ. Proc. § 1021.5, Cal. Civil Code §§

5

52 et seq., 52.1, and as otherwise may be allowed by California and/or federal

law; 6

7

d. Injunctive relief, including but not limited to the following:

8

i. an order requiring Defendants to institute and enforce

appropriate and lawful policies and procedures for

9

complying with mandatory duties for handling reports and

investigations of child abuse and/or neglect; 10

11

ii. an order prohibiting Defendants and their law

enforcement officers from engaging in the “code of

12

silence” as may be supported by the evidence in this case;

13

iii. an order requiring Defendants to train their law

enforcement officers concerning generally accepted and

14

proper tactics and procedures for handling reports and

15

investigations of child abuse and/or neglect and this

Court’s orders concerning the issues raised in injunctive

16

relief requests i-ii, above;

17

e. such other and further relief as this Court may deem appropriate.

18

19 JURY DEMAND
20 Plaintiffs hereby request a trial by jury.
21

22 23 DATED: January 7, 2015

HADDAD & SHERWIN LLP

24

/s/_Julia Sherwin___________

25

JULIA SHERWIN

26

Attorneys for Plaintiffs

27

28

15-cv-02394 SBA: SECOND AMENDED COMPLAINT AND JURY DEMAND

36

 
 Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 1 of 16

1

2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION

5
KAYLEIGH SLUSHER, Deceased, 6 THROUGH HER SUCCESSOR IN
INTEREST JASON SLUSHER; JASON 7 SLUSHER, Individually; ROBIN SLUSHER,
Individually; and BENNY SLUSHER, 8 Individually,

Case No: C 15-2394 SBA
ORDER GRANTING IN PART AND DENYING IN PART AS MOOT DEFENDANTS’ MOTIONS TO DISMISS

9

Plaintiffs,

Dkt. 85, 87

10

vs.

11 CITY OF NAPA, a public entity; NAPA POLICE OFFICER GARRETT WADE,
12 Individually; NAPA POLICE OFFICER DEGUILIO, Individually; NAPA POLICE
13 OFFICER ROBERT CHAMBERS, Individually; NAPA POLICE OFFICER
14 GARRETT SMITH, Individually; NAPA POLICE OFFICER JOSHUA SMITH,
15 Individually; COUNTY OF NAPA, a public entity; NAPA COUNTY CHILD
16 WELFARE SERVICES SOCIAL WORKER NANCY LEFLER, Individually; NAPA
17 COUNTY CHILD WELFARE SERVICES WORKER ROCIO DIAZ-LARA,
18 Individually; and DOES 1–50, Jointly and Severally,
19
Defendants.
20

21
The father and grandparents of a three year-old child beaten to death by her mother
22
and her mother’s boyfriend bring the instant civil rights action under 42 U.S.C. § 1983
23
against police officers and social workers who failed to remove the child from her mother’s
24
custody. The Second Amended Complaint alleges federal claims for denial of substantive
25
and procedural due process, municipal liability and interference with familial association
26
and supplemental state law claims for violation of the Bane Act and negligence/negligence
27
per se.
28

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 2 of 16

1

The parties are presently before the Court on the County Defendants and City

2 Defendants’ respective motions to dismiss the Second Amended Complaint, pursuant to

3 Federal Rule of Civil Procedure 12(b)(6).1 The Court, having read and considered the

4 papers filed in connection with these matters and being fully informed, hereby GRANTS

5 IN PART and DENIES IN PART the motions to dismiss. The federal claims are dismissed

6 without further leave to amend. The Court declines to assert supplemental jurisdiction over

7 Plaintiffs’ remaining state law claims, which are dismissed without prejudice to refiling in

8 state court.2

9 I. BACKGROUND

10

A. FACTUAL SUMMARY

11

The parties are familiar with the facts of this case, which are summarized herein to

12 the extent they are pertinent to the instant motions. The decedent child, Kayleigh Slusher

13 (“Kayleigh”), is the biological daughter of Jason Slusher (“Jason”) and Sara Krueger

14 (“Krueger”). During the relevant time period, Jason was incarcerated on a matter unrelated

15 to this action. As a result, Kayleigh and her mother initially lived with Kayleigh’s paternal

16 grandparents, Robin Slusher (“Robin”) and Benny Slusher (“Benny”). Krueger eventually

17 moved to an apartment and took Kayleigh with her. After Kayleigh moved out, Robin and

18 Benny became increasingly concerned for her welfare. Their fears were heightened by the

19 fact that Krueger and her boyfriend, Ryan Warner (“Warner”), were using illegal drugs. In

20 addition, Warner was a methamphetamine addict with an outstanding arrest warrant and

21 extensive criminal history and who associated with similarly unsavory individuals.

22

Robin and Benny repeatedly called the Napa Police Department (“NPD”) and Napa

23 County Child Welfare Services (“CWS”) to check on Kayleigh’s welfare. CWS social

24

25

1 The County Defendants consist of the County of Napa and two county social

workers. The City Defendants consist of the City of Napa and four of its police officers.

26 The identity of the individual defendants is discussed in the Factual Summary section of

this Order.

27

2 The Court, in its discretion, finds this matter suitable for resolution without oral

28 argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

- 2 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 3 of 16

1 workers Nancy Lefler-Panela (“Lefler-Panela”) and Rocio Diaz-Lara (“Diaz-Lara”) told

2 Robin there was nothing CWS could do and directed her to contact the police. Robin made

3 a number of detailed reports to the NPD that Kayleigh was living in an unsafe household

4 and asked that officers investigate the situation. NPD did not inform CWS of those reports

5 and did little to investigate Robin’s complaints. Finally, on January 29, 2014, NPD

6 Officers Garrett Wade and Deguilio visited the Krueger household to conduct a welfare

7 check on Kayleigh. The officers observed that Kayleigh had bruises on her face, and

8 appeared gaunt, sick, malnourished and distressed. The officers also observed Warner, who

9 looked sickly and appeared to be under the influence of drugs. Once inside the apartment,

10 Kayleigh vomited in front of them, and was quickly taken to the bathroom by Krueger.

11 They also saw a male whom they knew was on probation attempt to depart from the

12 premises. Krueger asked the officers to leave. The officers complied, but inexplicably

13 without making any effort to speak with Kayleigh or physically examine her.

14

On or about February 1, 2014, unspecified NPD police officers returned to the

15 Krueger residence for another welfare check. The officers discovered Kayleigh in her bed,

16 deceased. Her body had obvious facial injuries and trauma consisting of large contusions

17 on her forehead, face and neck that were in various stages of healing. Her eyes

18 were sunken in with dark bruising around her eyes. The Napa County District Attorney

19 later reported that Kayleigh died due to multiple blunt force trauma with impact injuries to

20 her head, torso and extremities, child abuse and neglect. Krueger and Warner were charged

21 in the Napa County Superior Court with torture and murder. See People v. Sara Krueger,

22 CR169462; People v. Ryan Warner, CR 169461. Trial is anticipated to commence in

23 February 2017.3

24

25

26

27

3 The County Defendants previously moved to stay the instant action pending the

conclusion of the state criminal proceedings. The Court denied that motion on June 9,

28 2016. Dkt. 99.

- 3 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 4 of 16

1

B. PROCEDURAL HISTORY

2

On May 29, 2015, Jason, individually and as the successor in interest to Kayleigh,

3 and grandparents Robin and Benny, in their individual capacities, filed the instant action

4 against: the City of Napa; County of Napa; the NPD; NPD Chief Richard Melton; NPD

5 Officer Wade; NPD Officer Deguilo; CWS worker Diaz-Lara; and CWS worker Lefler-

6 Panela.

7

On July 1, 2015, Plaintiffs filed a First Amended Complaint (“FAC”) which asserted

8 the following claims: (1) violation of due process and interference with familial relations,

9 pursuant to 42 U.S.C. § 1983; (2) municipal liability pursuant to Monell v. Dep’t of Soc.

10 Serv. of N.Y., 436 U.S. 658 (1978); (3) violation of the Bane Act; and

11 (4) negligence/negligence per se.

12

The County Defendants and City Defendants separately filed motions to dismiss all

13 claims alleged in the FAC, which the Court granted in part and denied in part. Dkt. 45.

14 The Court dismissed Plaintiffs’ first claim under 42 U.S.C. § 1983 for violation of due

15 process and interference with familial association; second claim under Monell; and third

16 claim for violation of the Bane Act.4 The Court denied the motion as to Plaintiffs’ claim

17 for negligence/negligence per se. Dkt. 45. Plaintiffs were granted leave to amend their

18 dismissed claims.

19

Plaintiffs timely filed their Second Amended Complaint (“SAC”). Dkt. 52. The

20 SAC re-alleges the four claims from the FAC, as amended to address the deficiencies

21 identified by the Court in its earlier order. In terms of party-defendants, the SAC omits

22 Chief Melton, and adds NPD Officers Robert Chambers, Garrett Smith and Joshua Smith.

23 Pursuant to Rule 12(b)(6), Defendants now move to dismiss all claims alleged therein. The

24 motions are fully briefed and are ripe for adjudication.

25

26

27

4 Plaintiffs’ familial association claim was premised on both the Fourteenth and First

Amendment. Because the parties did not adequately address the merits of the First

28 Amendment claim, the Court declined to dismiss said claim.

- 4 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 5 of 16

1 II. LEGAL STANDARD

2

Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.”

3 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal under Rule 12(b)(6) is

4 proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege

5 sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953,

6 959 (9th Cir. 2013). “Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires

7 not only ‘fair notice of the nature of the claim, but also grounds on which the claim rests.’”

8 Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013) (quoting in part Bell Atl. Corp.

9 v. Twombly, 550 U.S. 544, 556 n.3 (2007)). “To survive a motion to dismiss, a complaint

10 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

11 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

12 U.S. at 570 (2007)).

13

In assessing the sufficiency of the pleadings, “courts must consider the complaint in

14 its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)

15 motions to dismiss, in particular, documents incorporated into the complaint by reference,

16 and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

17 Rights, Ltd., 551 U.S. 308, 322 (2007). The court is to “accept all factual allegations in the

18 complaint as true and construe the pleadings in the light most favorable to the nonmoving

19 party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir.

20 2007). Where a complaint or claim is dismissed, leave to amend generally is granted,

21 unless further amendment would be futile. Cervantes v. Countrywide Home Loans, Inc.,

22 656 F.3d 1034, 1041 (9th Cir. 2011).

23 III. DISCUSSION

24

A. CLAIMS UNDER 42 U.S.C. § 1983

25

Count One of the SAC, which is predicated on 42 U.S.C. § 1983, alleges claims for

26 violation of substantive and procedural due process and interference with familial relations.

27 This set of claims is directed against the individual defendants: Officers Wade, Deguilo,

28

- 5 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 6 of 16

1 Chambers and Smith; and CWS workers Diaz-Lara and Lefler-Panela. SAC ¶¶ 94-99. The

2 Court analyzes Defendants’ arguments for dismissing these claims below.

3

1. Substantive Due Process

4

Generally, “a State’s failure to protect an individual against private violence simply

5 does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cty.

6 Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). The Ninth Circuit recognizes two

7 exceptions to this general rule: (1) the “special relationship” exception; and (2) the “danger

8 creation” exception. L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). Plaintiffs rely on

9 the latter, which applies “when the state affirmatively places the plaintiff in danger by

10 acting with ‘deliberate indifference’ to a ‘known or obvious danger’ (the state-created

11 danger exception) . . . .” Patel v. Kent School Dist., 648 F.3d 965, 971-72 (9th Cir. 2011)

12 (citations omitted). In assessing the applicability of this exception, courts look to:

13 “(1) whether any affirmative actions of the official placed the individual in danger he

14 otherwise would not have faced; (2) whether the danger was known or obvious; and

15 (3) whether the officer acted with deliberate indifference to that danger.” Henry A. v.

16 Willden, 678 F.3d 991, 1002 (9th Cir. 2012); see also Pauluk v. Savage, 836 F.3d 1117,

17 1124-25 (9th Cir. 2016).

18

The Court previously found that Plaintiffs had failed to allege sufficient facts to

19 demonstrate that Defendants affirmatively placed Kayleigh in a position that increased the

20 risk of harm to her. Dkt. 45 at 9. The SAC does not cure that deficiency. As before,

21 Plaintiffs continue to allege that Kayleigh’s death was caused by Defendants’ “failure to

22 investigate and/or report child abuse and/or neglect . . . , remove KAYLEIGH from her

23 obviously abusive and dangerous home and seek emergency medical care for her, as

24 required by generally accepted law enforcement standards and training.” SAC ¶ 90. They

25 add that Defendants’ failure to investigate and report the abuse “increased the risk of harm

26 to Kayleigh.” Id. Although there is no dispute as to the second and third elements of the

27 state-created danger exception (i.e., known or obvious danger and deliberate indifference),

28 the Court finds that Plaintiffs have not pled facts showing that the Defendants engaged in

- 6 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 7 of 16

1 affirmative action that increased the risk of harm to Kayleigh. See DeShaney, 489 U.S. at

2 201 (“While the State may have been aware of the dangers that Joshua faced in the free

3 world, it played no part in their creation, nor did it do anything to render him any more

4 vulnerable to them.”); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006)

5 (noting that a failure to protect claim is actionable only where the official “affirmatively

6 created an actual, particularized danger [the victim] would not otherwise have faced . . . .”).

7 Defendants’ inaction, without more, does not give rise to a claim for a violation of

8 substantive due process. Because further amendment to this claim appears futile, this claim

9 is dismissed without further leave to amend.5

10

2. Procedural Due Process

11

The procedural due process component of the Fourteenth Amendment protects

12 individuals against the deprivation of liberty or property by the government without due

13 process. Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Protected

14 liberty interests may arise either from the Due Process Clause itself or from statutory or

15 regulatory provisions. Hewitt. v. Helms, 459 U.S. 460, 466 (1983), overruled on other

16 grounds by Sandin v. Conner, 515 U.S. 472 (1995). “State law can create a right that the

17 Due Process Clause will protect only if the state law contains ‘(1) substantive predicates

18 governing official decisionmaking, and (2) explicitly mandatory language specifying the

19 outcome that must be reached if the substantive predicates have been met.’” James v.

20 Rowlands, 606 F.3d 646, 656 (9th Cir. 2010) (quoting Bonin v. Calderon, 59 F.3d 815, 842

21 (9th Cir. 1995)).

22

a) Substantive Predicates to Decisionmaking

23

Plaintiffs allege that their protected property interest arises principally from the

24 mandatory child abuse reporting requirements set forth in the California Child Abuse and

25 Neglect Reporting Act (“CANRA”), Cal. Pen. Code §§ 11164-11174.4. SAC ¶¶ 89, 90,

26

27

5 Certainly, should Plaintiffs uncover new facts to support this claim during the

course of discovery, this Order does not foreclose them from pursuing such a claim in the

28 event they refile this action in state court.

- 7 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 8 of 16

1 95.6 Under CANRA, a mandated reporter7 who, in the scope of his or her employment or

2 professional capacity, knows about or observes a child that he or she reasonably suspects is

3 a victim of child abuse or neglect, must report the abuse to the county welfare department

4 or any police or sheriff’s department or other statutorily designated agency. Cal. Pen. Code

5 §§ 11166(a), 11165.9. Section 11166(a) requires an initial report by telephone and the

6 submission of a written, follow-up report. Id. § 11166(a). Separate from the duties

7 imposed on a mandatory reporter, subsection (k) requires that a law enforcement agency in

8 receipt of a report of suspected child abuse or neglect to make a cross-report to the county

9 welfare or probation department as soon as possible. Id. § 11166(k). The duty imposed by

10 § 11166(k) is independent of the reporting duties under § 11166(a). B.H. v. Cty. of San

11 Bernardino, 62 Cal.4th 168, 185 (2015).

12

In their prior motion to dismiss, Defendants argued that CANRA only creates

13 discretionary—as opposed to mandatory—duties, and therefore, fails to provide any

14 “substantive predicates to decision-making.” Dkt. 23 at 13. The Court disagreed, finding

15 that the plain language of the statute made it clear that such duties were mandatory. In the

16 course of its analysis, the Court cited Alejo v. City of Alhambra, 75 Cal.App.4th 1180,

17 1186-88 (1999), which held that, pursuant to § 11166(a), law enforcement officers who

18 receive a report of child abuse have: (1) an implied duty to investigate and (2) an express

19 duty to take further action when an objectively reasonable person in the same situation

20 would suspect child abuse. Dkt. 45 at 10. The Court nonetheless dismissed Plaintiffs’

21 procedural due process claim on the ground that the pleadings failed to demonstrate the

22 second requirement; to wit, that CANRA and the other cited statutes and regulations

23

24

6 The SAC alleges: “Among other sources, these rights under the First and

Fourteenth Amendments derive from statutory mandates as created by California law.

25 Investigation and/or reporting of child abuse and/or neglect is mandatory under the

California Child Abuse and Neglect Reporting Act, Penal Code § 11164 et seq., Welfare

26 and Institutions Code §§ 10550, 10553, 10554, and 10651, and is intended by law for the

benefit and protection of children such as Kayleigh Slusher.” SAC ¶ 90.

27

7 A “mandated reporter” is defined to include a police officer, see Cal. Pen. Code

28 § 11165.7(16), and a social worker, see id. § 11165.7(15).

- 8 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 9 of 16

1 contain mandatory language specifying the particular outcome that must be reached if the

2 substantive predicates have been met. Id. at 9-13.

3

In the instant motions, Defendants contend that the Court’s analysis of CANRA is

4 no longer valid in light of the California Supreme Court subsequent ruling in B.H. In that

5 case, a private citizen called a 911 operator to report an incident of suspected child abuse

6 during the child’s visit with his father. The dispatcher relayed the report to the county

7 Sheriff’s Department, which, in turn, dispatched a deputy to the child’s home to investigate

8 the matter. Three days later, the deputy prepared a report in which she noted there was an

9 ongoing custody dispute between the child’s parents and that such information should be

10 noted for the file. Weeks later, the child suffered serious, traumatic head injuries inflicted

11 by his father. The child’s mother, as his guardian ad litem, sued the county and the deputy

12 for failing to comply with their duties under § 11166(a) and (k). The trial court and court

13 of appeal ruled that the deputy and the Sheriff’s Department had no duty to cross-report the

14 information from the 911 call or report the results of the deputy’s investigation.

15

The California Supreme Court considered two issues on review: “(1) whether

16 CANRA imposed a mandatory duty on the Sheriff’s Department to cross-report the child

17 abuse allegations to the relevant child welfare agency when it received the 911 report and

18 (2) whether CANRA imposed a mandatory duty on the investigating deputy sheriff to

19 report the child abuse allegations and her investigative findings to the relevant child welfare

20 agency despite her conclusion of no child abuse.” B.H., 62 Cal.4th at 174. As to the first

21 issue, the court held that, upon receiving the 911 report, the Sheriff’s Department had a

22 mandatory and ministerial duty under § 11166(k) to cross-report the child abuse allegations

23 to the county child welfare agency, and that the failure to cross-report could support a

24 finding of breach of a mandatory duty. Id. at 183-86. The court explained that, in enacting

25 CANRA, “the Legislature intended that the various law enforcement and child welfare

26 agencies immediately communicate to each other information received on alleged child

27 abuse or neglect so that they may in turn coordinate their investigative procedures.” Id. at

28 185.

- 9 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 10 of 16

1

With regard to the second issue, the court concluded that the deputy had no duty

2 under § 11166(a) to report the results of her investigation because she was merely

3 investigating a report of child abuse, and was not acting as a mandatory reporter who had

4 become aware of the abuse in the first instance. The court noted that under its plain terms,

5 § 11166(a) “only requires mandated reporters to make reports if the reporter, in his or her

6 professional capacity or within the scope of his or her employment, knows or reasonably

7 suspects child abuse or neglect.” Id. at 188 (emphasis added).

8

In circumscribing the obligations imposed under § 11166(a), the supreme court

9 disagreed with the Alejo court’s determination that § 11166(a) imposes mandatory duties

10 on law enforcement officers who have received a report of child abuse.8 The court

11 explained that Alejo “conflates an officer’s mandatory reporting duties with those of an

12 officer investigating a reported instance of alleged child abuse or neglect. It failed to

13 recognize that there is ‘a dichotomy between reporter and reportee, i.e., . . . those who make

14 the initial report and the officials who come later’ in performing their investigatory or

15 prosecutorial functions.” Id. In the court’s view, § 11166(a) is aimed specifically at

16 defined mandatory reporters, who are obligated to report suspected child abuse when a

17 reasonable person would suspect abuse. Id. at 193. That reporting obligation, however,

18 does not extend to a reportee—i.e., a person, such as the deputy, who merely received a

19 third party report of abuse and was conducting an investigation based on information

20 reported to her. The court did note, however, that a reportee would, in some circumstances,

21 have a reporting obligation if he or she observed abuse that was not contained in the

22 original report. For instance, the deputy “would have been required to report were she

23 dispatched to investigate a report of a suspected incident of child abuse and observed

24 evidence that would sustain an objective suspicion that a different, previously unreported

25 incident or instance of child abuse had occurred.” Id. at 197.

26

27

8 The court did not, as City Defendants suggest, completely overrule Alejo. See

B.H., 62 Cal.4th at 188 n.6. Rather, B.H. only rejects the Alejo court’s interpretation of the

28 duties imposed upon a law enforcement official who is investigating a report of child abuse.

- 10 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 11 of 16

1

According to City Defendants, B.H. vitiates any claim by Plaintiffs that they had a

2 mandatory duty to do anything in response to Robin’s reports of suspected abuse. Dkt. 87

3 at 14. This contention lacks merit. The SAC alleges that on January 23, 2014, it was

4 reported to the NPD and Officer Wade that Kayleigh was in immediate physical danger due

5 to Krueger and Warner’s failure to provide her with food, drug users coming in and out of

6 the house at all hours, and the possibility of her being subjected to physical violence. SAC

7 ¶¶ 38-40. Despite this information, Officer Wade, as a mandatory reporter, did not cross-

8 report this information to CWS or otherwise undertake any other action. Id. ¶¶ 41-42. In

9 failing to do so, the facts alleged are sufficient to demonstrate that Officer Wade violated

10 his mandatory and ministerial duty under § 11166(k) to cross-report to the county child

11 welfare agency. B.H., 62 Cal.4th at 1181 (“Section 11166, subdivision (k) imposes an

12 obligatory duty, and not merely a discretionary or permissive authorization, upon law

13 enforcement agencies to cross-report the child abuse or neglect reports that it receives.”).

14

Similarly, on January 29, 2014, Robin again contacted the NPD and Officer Wade to

15 report that Kayleigh was in imminent physical danger due to illegal drug use in her home,

16 lack of food and care, and potential physical violence. SAC ¶ 66. Neither cross-reported

17 this information, as required by CANRA. Id. ¶ 74. Upon visiting the apartment where

18 Kayleigh resided, Officers Wade and Deguilio observed indicia of long-term physical

19 abuse. Kayleigh appeared gaunt, sick, had multiple and severe contusions (including a 4-

20 inch bruise on her forehead and another bruise on her temple). They also saw her vomit as

21 a result of infectious peritonitis and necrotic small intestine. Id. ¶ 67. Construing the facts

22 in a light most favorable to Plaintiffs, a trier-of-fact could reasonably conclude that the

23 officers had observed that a “different, previously unreported incident or instance of child

24 abuse had occurred,” thereby triggering their mandatory reporting obligation under

25

26

27

28

- 11 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 12 of 16

1 CANRA. See B.H., 62 Cal.4th at 197.9 The Court therefore finds that Plaintiffs have

2 sufficiently alleged the existence of substantive predicates governing official

3 decisionmaking.

4

b) Mandatory Language Specifying the Outcome

5

The second aspect of a procedural due process claim requires Plaintiffs to

6 demonstrate the existence of “explicitly mandatory language specifying the outcome that

7 must be reached if the substantive predicates have been met.” James, 606 F.3d at 656.

8 Here, Plaintiffs contend that if Defendants had complied with their mandatory duties to

9 report and investigate Robin’s reports of child abuse, Kayleigh would have been taken into

10 protective custody and received emergency medical treatment. Dkt. 110 at 16; see SAC

11 ¶ 83. In particular, they point to language in CANRA stating that “all persons”

12 investigating child abuse “shall consider the needs of the child victim and shall do whatever

13 is necessary to prevent psychological harm to the child victim.” Cal. Pen. Code § 11164(b)

14 (emphasis added). They also cite Welfare and Institutions Code §§ 16501(f) and 16504(a),

15 which require that county welfare agencies “respond to any report of imminent danger to a

16 child immediately” and to conduct an “immediate in-person response . . . in emergency

17 situations,” respectively.

18

While the aforementioned provisions clearly impose specific duties on law

19 enforcement officials and county welfare workers, they do not contain any “explicitly

20 mandatory language” requiring the immediate removal of a child—or any other particular

21 action—in every case where child abuse is suspected. Rather, the statutes merely articulate

22 the procedure for evaluating, reporting and investigating claims of abuse; they do not

23

24

9 City Defendants argue the officers’ failure to cross-report Robin’s complaints

would have made no difference in terms of protecting Kayleigh from her mother and

25 boyfriend, since CWS already knew about those complaints and decided to take no action.

The flaw in that argument is that it overlooks Plaintiffs’ allegations regarding Officers

26 Wade and Deguilo’s visit to Kayleigh’s home on January 29, 2014. At that time, the

officers observed clear signs that Kayleigh had been beaten and was malnourished and

27 seriously ill. The officers did not report this new, previously unknown information to

CWS. Thus, irrespective of Robin’s prior reports, the officers’ observations triggered their

28 duty to cross-report their findings.

- 12 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 13 of 16

1 contain any “explicitly mandatory language specifying the outcome that must be reached”

2 upon the discharge of those procedural duties. See James, 606 F.3d at 656. Rather,

3 California law provides that the ultimate decision as to what course of action to undertake

4 following a report and investigation of suspected child abuse is highly discretionary and is

5 not governed by objective and defined criteria. See Jacqueline T. v. Alameda Cty. Child

6 Protective Servs., 155 Cal.App.4th 456, 468 (2007); Cal. Wel. & Inst. § 306. For those

7 reasons, the Court finds that Plaintiffs have failed to establish a right created under state

8 law that is subject to protection under the Due Process Clause. Kentucky Dep’t of Corr. v.

9 Thompson, 490 U.S. 454, 464 (1989) (no viable due process claim established where the

10 “regulations at issue . . . stop short of requiring that a particular result is to be reached upon

11 a finding that the substantive predicates are met.”).10 Because further amendment to this

12 claim appears futile, Plaintiffs’ procedural due process claim is dismissed without further

13 leave to amend.

14

3. Interference with Familial Relations

15

A claim for interference with familial relations may be grounded on the First or the

16 Fourteenth Amendment. See Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.

17 2001). Plaintiffs state that “[they] do not contest that the applicable liability standard for a

18 familial association claim under either the First or Fourteenth Amendment is the same as

19 for the underlying claim.” Dkt. 109 at 20.11 In view of the Court’s determination that

20

21

22

10 Plaintiffs’ reliance on Lyles v. City of Huntington Park, No. CV 16-3223-GW

(KSx) (C.D. Cal. Jul. 7, 2016) is misplaced. See Haddad Decl. Ex. A, Dkt. 111. In Lyles,

23 the district court found, as the Court does here, that the California Penal Code imposes the

sufficient mandatory requirements for purposes of establishing a procedural due process

24 claim. The decision, however, does not reach the dispositive issue in this case, which is

whether those statutes recite an explicit, mandatory outcome upon discharge of those

25 duties.

26

11 Plaintiffs erroneously contend that the applicable standard is “failure to take

objectively reasonable measures in response to a serious risk of harm.” Id. (citing Castro v.

27 Cty. of L.A., 833 F.3d 1060, 1072, (9th Cir. 2016) (en banc)). Castro involved the legal

standard applicable to claims by pretrial detainees for failure to protect from assault while

28 in custody, and is inapposite to this case.

- 13 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 14 of 16

1 Plaintiffs have failed to state any cognizable underlying due process claims, their claim for

2 interference with familial association is dismissed without further leave to amend.

3

B. MONELL LIABILITY

4

In the absence of an underlying constitutional violation, Count Two of the SAC for

5 Monell liability similarly fails. See Simmons v. Navajo Cty., 609 F.3d 1011, 1021 (9th Cir.

6 2010) (“[W]e hold that where there was no underlying constitutional violation, the

7 [plaintiffs] cannot maintain a claim for municipal liability.”). The Court therefore

8 dismisses said claim without further leave to amend.

9

C. SUPPLEMENTAL JURISDICTION

10

Plaintiffs’ remaining claims for violation of the Bane Act and for

11 negligence/negligence per se are based upon California state law. A district court may

12 decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has

13 original jurisdiction. 28 U.S.C. § 1367(c)(3); Sanford v. MemberWorks, Inc., 625 F.3d

14 550, 561 (9th Cir. 2010). “‘[I]n the usual case in which all federal-law claims are

15 eliminated before trial, the balance of factors to be considered under the pendent

16 jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point

17 toward declining to exercise jurisdiction over the remaining state-law claims.’” Sanford,

18 625 F.3d at 561 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988),

19 superseded on other grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235

20 F.3d 553, 557 (10th Cir. 2000)). Having now dismissed all federal claims alleged against

21 Defendants, the Court declines to assert supplemental jurisdiction over Plaintiffs’

22 remaining claims. See City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998,

23 1008 (9th Cir. 2010) (holding that district court acted within its discretion in declining to

24 exercise supplemental jurisdiction after granting summary judgment on all federal claims);

25 see also Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (“it is generally

26 preferable for a district court to remand remaining pendant claims to state court . . . .”).

27

Plaintiffs request that the Court exercise supplemental jurisdiction over their state

28 law claims so that they may appeal the dismissal of the federal claims. Dkt. 109 at 22.

- 14 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 15 of 16

1 Under Rule 54(b), Plaintiffs cannot separately appeal the dismissal of their federal claims

2 unless the Court permits the entry of judgment on less than all of the claims. Fed. R. Civ.

3 P. 54(b). However, this case is not suited for certification under Rule 54(b), as the state law

4 claims are based on the same set of facts underlying the federal claims. See Wood v. GCC

5 Bend, LLC, 422 F.3d 873, 882 (9th Cir. 2005) (reversing Rule 54(b) certification where the

6 dismissed claims were largely based on the same set of facts as the remaining claims);

7 Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981) (“A similarity of legal

8 or factual issues will weigh heavily against entry of judgment under [Rule 54(b)]”).

9 Declining to assert supplemental jurisdiction over the state law claims will, however,

10 facilitate Plaintiffs’ ability to refile them in state court while simultaneously allowing them

11 to pursue an appeal before the Ninth Circuit.

12 IV. CONCLUSION

13

The horrific murder of Kayleigh likely could have been prevented had the police

14 officers and social workers involved in this case performed their jobs with any semblance

15 of competence. Robin’s numerous reports were all but ignored, with tragic consequences.

16 Nonetheless, binding case law requires this Court to dismiss the federal claims alleged in

17 this action. Accordingly,

18

IT IS HEREBY ORDERED THAT:

19

1. Defendants’ motions to dismiss are GRANTED with respect to Plaintiffs’

20 federal claims, as set forth above, which are dismissed without further leave to amend.

21

2. The Court declines to assert supplemental jurisdiction over the remaining

22 state law claims for violation of the Bane Act and negligence/negligence per se. Plaintiffs

23 may re-file these claims in state court. Pursuant to 28 U.S.C. § 1367(d), the statute of

24 limitations with respect to these claims shall be tolled during the time period that this suit

25 has been pending and for thirty (30) days following entry of this Order, unless California

26 law provides for a longer tolling period. Defendants’ motions to dismiss Plaintiff’s state

27 law claims therefore are DENIED as moot.

28

- 15 -

Case 4:15-cv-02394-SBA Document 126 Filed 12/07/16 Page 16 of 16

1

3. The Clerk shall close the file and terminate any pending matters.

2

IT IS SO ORDERED.

3 Dated: 12/07/16
4 5

______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge

6

7

8

9

10

11

12

13

14

15 16

17

18

19

20

21

22

23

24

25 26

27

28

- 16 -

 
 JOINT STATEMENT OF THE CITY OF NAPA, ROBIN SLUSHER, AND JASON SLUSHER
The following joint public statement is being issued by Robin and Jason Slusher and the City of Napa, announcing the settlement of a lawsuit following the death of Kayleigh Slusher.
Kayleigh Slusher was three years old when she died on January 30, 2014. The murder of a child by her caretakers is unfathomable, and an unspeakable tragedy for her family and loved ones. Kayleigh’s death shocked and saddened the entire Napa Community.
Napa police officers saw Kayleigh in her home on two separate occasions the week she died. Kayleigh’s mother and then-boyfriend were convicted of her murder and are serving life sentences in prison.
Kayleigh’s father, Jason Slusher, and grandparents, Benny and Robin Slusher, filed civil suit against the City of Napa and police officers Garrett Wade, Dominic Deguilio, Robert Chambers, and Garrett Smith, and the County of Napa, its CWS Supervisor Ken Adams, and CWS social workers Rocio Diaz-Lara and Nancy Lefler-Panela. The parties to the civil suit have agreed to settle the case for $5 million, split equally between the County of Napa and City of Napa, as well as non-monetary relief changes in policies and training. The settlement agreement between Plaintiffs and the City is attached as Exhibit A.
Kayleigh Slusher’s death was a terrible tragedy. The City of Napa has committed to doing everything in its power to prevent and protect other children from suffering child abuse and neglect, including with the added policies and training set forth in Exhibit A.
The Napa Police Department and Napa County Child Welfare Services accept and encourage members of the public to report any suspicion of child abuse and neglect. Such reports can be made anonymously by calling 911 or contacting the Napa County Child Welfare Services hotline at (707) 253-4261 or (800) 464-4216.

SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement”) is entered between and among Defendants City of Napa (“City”), on its own behalf and on behalf of its employees, Garrett Wade, Dominic Deguilio, Robert Chambers, Joshua Smith and Garrett Smith, hereinafter collectively “Named City Defendants”, and Plaintiffs Jason Slusher, individually and as the representative of the Estate of Kayleigh Slusher, and Robin and Benny Slusher and the estate of Benny Slusher, hereinafter collectively “Named Plaintiffs.” It is made with reference to and in consideration of the circumstances reflected in the following recitals.
RECITALS
A. WHEREAS, on or about February 1, 2014, Kayleigh Slusher was discovered murdered. Her mother, Sara Krueger, and her mother’s boyfriend, Ryan Warner, were convicted of first degree murder of Kayleigh and are currently serving life sentences for the murder of Kayleigh Slusher. On or about June 17, 2014, the Named Plaintiffs filed a claim with the City of Napa, which was rejected (the “City Claims”).
B. On or about May 29, 2015, Plaintiffs filed a Complaint in the United States District Court, Northern District, against the Named City Defendants entitled Slusher v. County of Napa et al., Case Number 4:15-cv-02394 SBA, (the “Federal Lawsuit”). That complaint was dismissed by the Hon. Sandra B. Armstrong, and appealed by the plaintiffs (United States Court of Appeals for the Ninth Circuit, Case No. 16-17304) (the “Federal Appeal.”)
C. On or about December 20, 2016, Jason Slusher, individually and as successor in interest to Kayleigh Slusher, filed a complaint in Napa County Superior Court against the Named City Defendants, excluding Joshua Smith, entitled Slusher v. City of Napa et al., Case No. 16CV001186 (the “State Lawsuit”).
D. The State Lawsuit also purported to be brought by plaintiff as a private attorney general under the Private Attorney General Act (PAGA).
E, The Federal Lawsuit, the Federal Appeal, and the State Lawsuit are collectively referred to herein as “the Lawsuits.”
F. In the Lawsuits, the Named Plaintiffs alleged, inter alia, that City Defendants, through the Police Department and its employees, were negligent and/or violated the constitutional familial rights of the Named Plaintiffs through their actions, or inactions all as more fully set forth in the Lawsuits. Named City Defendants denied each of these claims. By the Lawsuits, named Plaintiffs, individually and in their representative capacities, sought recovery of damages against the City Defendants that they believed available to them under Federal and California law.
G. Named City Defendants have denied the allegations of the Named Plaintiffs in their individual and representative capacities in the Lawsuits and in any Claims. The combined allegations in the Lawsuits and in the Claims are herein referenced as the “Dispute.”
1

H. It is the desire of the parties to this Agreement to affect a full and complete compromise, settlement and resolution of the Dispute between and among the Named Plaintiffs and City, on behalf of all Named City Defendants. The parties acknowledge that all claims (whether past, present or future) of the Named Plaintiffs as individuals and as representative plaintiffs under PAGA or any other representative capacity are disputed, including existing facts, and this settlement is not intended to be and shall not be treated as an admission of fact, liability or responsibility in any manner whatsoever. The statements here set forth are intended as efforts to compromise pursuant to Section 1152 of the California Evidence Code.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, the parties agree as follows:
1. Named Plaintiffs shall dismiss, Garrett Wade, Robert Chambers, Dominic Deguilio, Joshua Smith and Garrett Smith from the Lawsuits, with prejudice, each side to bear their own fees and costs. Upon the City’s receipt of this fully executed Settlement Agreement by Plaintiffs’, and signed as approved to form by Plaintiffs’ counsel, the City shall pay the sum total amount, inclusive of fees and costs, of $2,500,000.00 (Two Million Five Hundred Thousand Dollars and no cents) in the form of one check made payable to Haddad & Sherwin LLP Client Trust Account. Said check shall be sent by wire transfer or Federal Express using Haddad & Sherwin LLP’s Fed-Ex account number for that shipment only [2303-4048-0] to Haddad & Sherwin LLP no later than December 16, 2018. The check shall not be negotiated until a dismissal of the Lawsuits is filed as described in Paragraph 4, below.
2. Named Plaintiffs forego, waive, release and relinquish any and all claims or rights to pursue a claim against Named City Defendants before any City, County, State, Federal or other governmental agency or court concerning the matters described in Recitals A through H, and any and all claims raised or which could have been raised in connection with the Claims and the Lawsuits, under Federal or State law, including constitutional, tort, contract or statutory claims.
(a) This Settlement Agreement, waiver and release shall redound to and is for the benefit of Named City Defendants, including the City of Napa’s City Council, boards, departments, officers, employees (past and present), police officers (past and present), agents, servants, officials, owners, successors and assigns, attorneys, insurers and all other persons affiliated with the City, including but not limited to CSAC EIA, and any other person or legal entity charged with responsibility, whether directly, indirectly or vicariously, for the facts and circumstances mentioned in the above-mentioned Recitals, Paragraphs A-H, inclusive, and any fact or circumstance raised by, arising from or referenced in the Lawsuits, the Claims, and the Dispute.
(b) Named Plaintiffs acknowledge the provisions of section 1542 of the Civil Code of the State of California, and hereby knowingly waive the benefit of such provisions on their behalf, in both their individual and representative capacities, and understand that said section provides as follows:
2

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
3. Named Plaintiffs will indemnify, defend and hold harmless the Named City Defendants, including the City of Napa’s City Council and its respective boards, departments, officers, employees (past and present), police officers (past and present), agents, servants, officials, owners, successors and assigns, attorneys, insurers and all other persons affiliated with the City, including but not limited to CSAC EIA, and each of them, from any loss, claims, expenses, liens, demands or causes of action of any kind or character through the assertion by any third party, any church, or any other person(s) whose claim arises from said person(s) providing Named Plaintiffs and their attorneys any services and/or monies in connection with the subject matter in the Lawsuits, the Claims, the Dispute, this Settlement Agreement or who otherwise claims to have an interest in the settlement proceeds because said person(s) claims a right to the proceeds by some alleged legal, contractual, promise, financial, personal and/or business relationship with the Named Plaintiffs and/or their attorneys. Named Plaintiffs have represented that there are no liens or monetary set asides required by any health care provider, insurance company, MediCare or MediCal for treatment and future treatment of Named Plaintiffs and Named Plaintiffs will defend, indemnify and hold harmless the Named City Defendants (and all persons identified above as included within the term Named City Defendants) in the event any entity including but not limited to MediCare or MediCal, require reimbursement, set asides or liens for past, present and future treatment of Named Plaintiffs.
4. Each party to this Settlement Agreement, and each party on whose behalf it is entered, shall bear the responsibility for and pay its own attorneys’ fees, expert or consultants’ fees, and costs incurred, or that have arisen from the Dispute, other than as included in Paragraph 1 and 2, above.
5. Each Named Plaintiff hereby warrants that he or she has not assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Each Named Plaintiff hereby represents that he or she has absolutely no knowledge that any other person has assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Should any party be in breach of the warranty provisions of this paragraph 7, the party in breach shall indemnify and hold the others free and harmless from any damages, losses or expenses resulting from such breach.
6. Each Named Plaintiff hereby warrants that, except for the Lawsuits and Claims, it has not and does not intend to file or commence any other type of legal or administrative proceeding with any person, legal entity, City, County, State or Federal governmental or administrative agency or court concerning the facts and circumstances relating to the Dispute.
7. The parties have met and conferred and successfully resolved the non-monetary relief issues raised by the Lawsuits. . Appendix A documents the changes in policy and training that have occurred since February 2016 and are continuing. The City will provide a letter summarizing the status of the non-monetary relief to the Settlement Judge and Named Plaintiffs’
3

counsel by March 1, 2019, and every six months thereafter until all elements of the non-monetary relief set forth in Appendix A have been instituted. All work Plaintiffs’ counsel performs in reviewing matters related to the non-monetary relief shall be pro bono.
8. This Settlement and Release Agreement is binding upon and shall redound to the benefit of Named City Defendants the Named Plaintiffs, their present and former agents, servants, employees, officers, owners, representatives, successors-in-interest, and assignees.
9. The Named Plaintiffs understand, acknowledge and agree to the special conditions as follows:
(a) Liability for all claims is disputed, and this final compromise and settlement agreement shall never be construed as an admission of liability or responsibility by the Named City Defendants and any and all of the above named City related persons or entities at any time for any purpose.
(b) The Named Plaintiffs agree to dismiss with prejudice, each side to bear their own fees and costs, the Lawsuits against the Named City Defendants upon their receipt, acting by and through their legal counsel, of the settlement funds identified in paragraph 1 of this Agreement.
(c) Named Plaintiffs understand, acknowledge and agree that it is possible that other injuries, property damages or claims arising from the Lawsuits, Claims and Dispute not known now will develop or be discovered, or consequences or results of known injuries and all other special and general damages or property damages or any other claims may develop, worsen or be discovered, and this final compromise and release is expressly intended to cover and include, and does cover and include, any past, present and future injuries, aggravation of existing injuries and all other special and general injuries and damages or any and all other past, present, and future claims, future consequences or results of known or unknown injuries, property damages or claims, including all rights, claims or causes of action based thereon that discuss, refer or relate to the Lawsuits, Claims and Dispute now known or unknown to the Named Plaintiffs.
10. This Settlement Agreement and Release, and any rights or obligations pursuant to it, are not assignable by any party without the written consent of the other parties.
11. The parties acknowledge that they each have been represented by counsel:
(a) Plaintiffs Robin Slusher, Benny Slusher (deceased), Jason Slusher individually and as the successor in interest of Kayleigh Slusher, have been represented by the law office of Haddad & Sherwin LLP;
(b) Defendants City of Napa, Garrett Wade, Dominic Deguilio, Robert Chambers, Joshua Smith and Garrett Smith have been represented by Bertrand, Fox, Elliot, Osman & Wenzel, Gregory M. Fox and Joanne Tran.
4

Each party acknowledges that they have discussed this Agreement with their counsel, been advised of and understand its meaning, and have been advised of an understand its legal consequences. Each party freely and voluntarily enters into this Agreement and assumes the responsibility of its legal consequences.
12. This Settlement Agreement and Release may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Settlement Agreement and Release.
13. City will report the full amount of the payment called for under this Agreement ($2,500,000.00) on IRS Form 1099 as payment to Haddad & Sherwin LLP Client Trust Account. In order to facilitate this payment, Haddad & Sherwin LLP will agree to provide, simultaneously with this executed Agreement, completed IRS Forms W-9. Named Plaintiffs and plaintiffs’ counsel agree that all tax obligations, if any, which may arise from the payment set forth above shall be the sole obligations of each Named Plaintiff, and they each indemnify Named City Defendants against any and all costs, penalties, taxes or other payments made or required as a result of the allocation of those payments, if any, or the reporting of those payments.
14. This Agreement was entered into following negotiations between the attorneys for the Named Plaintiffs, Named City Defendants and Magistrate Judge Laurel Beeler and the Settlement Agreement and Release shall be construed and interpreted in accordance with the laws of the State of California.
15. Magistrate Judge Laurel Beeler of the United States District Court for the Northern District of California has jurisdiction to enforce the terms of this settlement.
16. A faxed, copied, and/or other electronic representation/impression of the Named Plaintiffs and their attorneys’ original signatures on this original document or on a faxed, copied, and/or other electronic representation/impression of it shall have the same legal force and effect as any of the original signatures and the original document. Defendants City of Napa will need the original version of this Release with original signatures by the Named Plaintiffs and their attorneys. The original should also be scanned and emailed to Gregory M. Fox.
IN WITNESS WHEREOF, the parties hereto enter into this Settlement Agreement and Release. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the person or entity on whose behalf the person is signing.

DATED:_____________________

Named Plaintiffs:
__________________________________ Robin Slusher
5

APPENDIX A
(1) The department on February 10, 2016 formally reminded in writing all officers that any report of child abuse and neglect including domestic violence must be immediately cross reported to Child Welfare Services and the District Attorney verbally and in writing as mandated by law and NPD policies. This information set forth in existing policy will be included in the revised policy discussed in Section (6) below, and all cross reports mus be sent both by telephone, and by faxing or emailing the Suspected Child Abuse and Neglect form to Child Welfare Services and the District Attorney as required by existing policy and law.
(2) The department on May 31, 2016, formally notified in writing all sworn and unsworn officers and employees that in response to the California Supreme Court decision clarifying mandatory reporting duties of mandated reporters that the following procedures must occur: investigation of all reports of child abuse and neglect to occur as soon as practical, immediate cross reporting by officers to Child Welfare and the District Attorney of reports of child abuse and neglect even if the investigation determined the report was unfounded or unsupported, the cross reporting to be both verbal and in writing as required by law, the cross reporting is mandatory in all cases and not discretionary. This information as set forth in existing policy will be included in the revised policy discussed in Section (6) below, and all cross reports must be sent both by telephone, and by faxing or emailing the Suspected Child Abuse and Neglect form to Child Welfare Services and the District Attorney as required by existing policy and law.
(3) The department in May and June 2016 trained officers in investigating and reporting on Drug Endangered Children. The department has been and continues to investigate reports and incidents of drug endangered children with quarterly meetings to discuss cases, trends and prosecution of offenders.
(4) The department since 2013 has continuously participated in the Napa Children Exposed Domestic Violence Program designed to identify children exposed to domestic violence, provide help and reduce the systemic trauma experienced by children. The department has partnered with Dr. Kristi Brandt to train officers on the impacts of abuse on the development of children. All reports and incidents of domestic violence involving children are investigated..
(5) The department policy requiring all police reports investigating child abuse and neglect be completed by end of shift unless a supervisor authorized a different completion time will be included in the revised policy discussed in Section (6) below.
(6) The department is revising its written Child Abuse Policy to reflect and incorporate best practices and the revised policy is scheduled for final approval on or before January 2019. The department will provide a copy of the revised policy to plaintiffs’ counsel.
(7) The department will train all dispatchers on handling child abuse or neglect calls and risk factors for child abuse.
7

(8) All department officers will sign a mandatory written statement acknowledging that he or she understands and will comply with the Child Abuse And Neglect Reporting law (CANRA). (9) The department will provide training to its officers on the National Strategy to Eliminate Child Abuse and Neglect Fatalities and the Department of Social Services manual Child Abuse and Neglect Reporting Law. (10) The department has initiated contact with law enforcement expert Dan Scott for the purpose of consulting with him on investigating and reporting reports of child abuse and neglect and providing additional training for the officers. (11) The department encourages and accepts reports of not only child abuse, but also neglect, including reports from Napa County Child Welfare Services workers, other mandated reporters, and members of the public as required by existing policy and law.
8