Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 1 of 14

1
2
3
4
5
6
7
8

SHARON L. ANDERSON (SBN 94814)

County Counsel
PATRICK L. HURLEY (SBN 174438)
Deputy County Counsel
COUNTY OF CONTRA COSTA
651 Pine Street, Ninth Floor
Martinez, California 94553
Telephone: (925) 335-1800
Facsimile: (925) 335-1866
Electronic Mail: patrick.hurley@cc.cccounty.us
Attorneys for Defendants
CONTRA COSTA COUNTY
and MIGUEL AGUILERA

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11
12

JON ALMGREN, et al.,

13
14

Plaintiffs,
v.

15
16
17
18
19
20

WILLIAM SHULTZ, et al.,

Defendants.

No. C16-02611 CW
COUNTY DEFENDANTS REPLY TO
OPPOSITION TO MOTION TO DISMISS
COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES

Date:
Time:
Crtm:
Judge:

August 2, 2016
2:30 p.m.
2, 4th Floor
Hon. Claudia Wilken, Presiding

Date Action Filed: May 13, 2016

Trial Date: None Assigned

21
22
23
24
25
26
27
28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 2 of 14

TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

LEGAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.

5
6

Deputy Aguileras Alleged Inaction Cannot Support a Section

1983 Claim Against the County Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.

No County Defendant Created the Danger William Posed to

Jordon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.

William had a Legal Right to Possess the Hunting Knife and the
County Defendants Did Not Have the Authority to Confiscate it. . . . . . . 5

3.

There is No Evidence that Any County Employee Pushed William

Over the Edge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4.

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

7
8
9
10
11
12

B.

Aguilera is Entitled to Qualified Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

13

C.

The Monell Claim Fails as a Matter of Law in the Absence of a

Constitutional Violation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D.

Plaintiffs Cannot State a Valid State Law Negligence Claim. . . . . . . . . . . . . . . . 9

14
15

III.

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

16
17
18
19
20
21
22
23
24
25
26
27
28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 3 of 14

TABLE OF AUTHORITIES

1
2

Cases

Adams v. City of Fremont, 68 Cal. App. 4th 243 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Campbell v. State Dept of Soc. & Health Servs., 671 F.3d 837 (9th Cir. 2011).. . . . . . . . . . . . 3

City of Los Angeles v. Heller, 475 U.S. 796 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Davidson v. City of Westminster, 32 Cal. 3d 197 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hanna v. County of Fresno, 2014 U.S. Dist. LEXIS 92707 (E.D. Cal. July 8, 2014).. . . . . . . . 8

Mullenix v. Luna, 136 S. Ct. 305 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Munger v. City of Glasgow Police Dept, 227 F.3d 1082 (9th Cir. 2000).. . . . . . . . . . . . . . . . . 4

10

Pearson v. Callahan, 555 U.S. 223 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

People v. Mowatt, 56 Cal. App. 4th 713 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12

Thompson v. County of Alameda, 27 Cal. 3d 741 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

13

United States v. Jacobsen, 466 U.S. 109 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14

Williams v. State of California, 34 Cal.3d 18 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

15

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

16
17

Statutes and Rules

18

42 United States Code Section 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 5, 8, 9

19

California Welfare & Institutions Code Section 5150.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

20

Federal Rules of Civil Procedure, Rule 12(g)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

21
22
23
24
25
26
27
28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

ii

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 4 of 14

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

Defendants Contra Costa County and Miguel Aguilera (County Defendants) submit

2
3

the following reply to the opposition of plaintiffs Jon Almgren and Melissa Almgren to the

County Defendants motion to dismiss the complaint.

MEMORANDUM OF POINTS AND AUTHORITIES

5
6
7

I.

INTRODUCTION
Plaintiffs opposition to the motion to dismiss was helpful in narrowing the legal claims

at issue. Plaintiffs confirmed that the complaint does not seek to assert any claims against the

County Defendants relating to the decision not to detain William Shultz pursuant to California

10

Welfare & Institutions Code section 5150, the decision not to arrest him for any alleged crime

11

he may have committed, the decision not to involuntarily hold him at the Contra Costa

12

Regional Medical Center (CCRMC), and the decision to release him from the hospital.

13

(Opposition to Motion to Dismiss [ECF Doc. No. 15] (Opp.) at 19-20.) Instead, the claims

14

against the County Defendants are limited to (a) the decision by Deputy Aguilera not to

15

confiscate Williams knife, (b) the failure by Aguilera and other unidentified County

16

employees to follow up on Williams whereabouts after he was released from CCRMC, (c)

17

and the failure to warn the Almgrens about the danger posed by William. Even these pared-

18

down claims fail as a matter of law.

19

First, the County Defendants did not create the danger William posed to Jordon.

20

According to the complaint, before the County Defendants had any contact with William, he

21

was in possession of a hunting knife, was violent, mentally unstable and dangerous, and was

22

a frequent visitor to the Almgren residence. (Opp. at 8:7.) After the County Defendants had

23

contact with William, the same circumstances existed. The County Defendants did nothing to

24

create a danger to Jordon and their alleged failure to act to eliminate the danger posed by

25

William cannot support a claim under 42 U.S.C. section 1983 as a matter of law.

26

Second, plaintiffs identified no legal authority to suggest that the County Defendants

27

had a legal duty to follow up with William after he was released from the hospital. There is

28

no such authority because a government actor who has no duty to protect members of the

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 5 of 14

public from the criminal acts of third parties also has no legal duty to monitor the whereabouts

or activities of members of the public.

Third, there are no allegations in the complaint to suggest that the County Defendants

3
4

knew that William had threatened Jordon or that William posed a threat specifically to Jordon

or any other member of his family. In fact, other than the 20/20 vision of hindsight, there are

no allegations in the complaint to suggest that the County Defendants knew or should have

known that William posed a risk of injury or death to a member of the general public.

The motion to dismiss the claims against the County Defendants should be granted. In

addition, plaintiffs have not identified any additional facts that could be alleged to remedy the

10

defects in the complaint identified by the motion. Thus, the motion should be granted without

11

leave to amend.

12

II.

A.

13
14
15
16
17
18
19
20
21
22
23

LEGAL ARGUMENT
Deputy Aguileras Alleged Inaction Cannot Support a Section 1983 Claim
Against the County Defendants

Plaintiffs opposition to the motion to dismiss the section 1983 claims against the
County Defendants attempts to change the facts alleged in the complaint through hyperbole.
For instance, the complaint alleges that Deputy Aguilera allowed William to retain a hunting
knife that William possessed before Aguilera had contact with him. (Complaint [ECF Doc.
No. 1] at 26.) The opposition claims that the County Defendants hand[ed] an instrument of
death and destruction to a crazy person and took affirmative actions to push William over
the edge towards violence. (Opp. at 14:14; 12:14-15.) The Court should not allow such a
distortion of the facts alleged in the complaint simply to avoid the dismissal of the complaint.
Nothing in the opposition or the complaint changes the fact that the County Defendants did not
create the risk William posed to Jordon in April 2015.

24

1.
25
26
27

No County Defendant Created the Danger William Posed to Jordon

The parties agree that the County Defendants cannot be liable under Section 1983
unless the facts alleged in the complaint establish that the County Defendants created the
///

28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 6 of 14

danger that resulted in the Jordons death. (See Opp. at 7.) Based on the facts alleged in the

complaint, they did not and the motion should be granted.

Before Deputy Aguilera responded to Katherine Shultzs house, the following

circumstances existed according to the allegations in the complaint: William and Katherine

got into an argument and a violent encounter at home, William was suffering from a mental

illness, William was in possession of the hunting knife he used to kill Jordon, and William

often visited the Almgren residence. (Complaint at 26.)

In fact, in the opposition, plaintiffs conceded that before any County employee had any

8
9

interaction with William, he was already violent, mentally unstable, and dangerous. (Opp. at

10

8:6-7.) Also, prior to any involvement by the County Defendants, this violent, mentally

11

unstable and dangerous individual was in possession of a hunting knife. . . . (Opp. at 8:8.)

12

As a matter of law, the County Defendants could not have created a danger that existed before

13

they were even contacted.

After Aguilera responded to the Shultz residence, and after William was evaluated at

14
15

CCRMC and released, the following circumstances existed: William returned home with no

16

change in his mental state, got into another argument and violent encounter with his

17

mother, was in possession of the hunting knife he used to kill Jordon, and often visited the

18

Almgren residence. (Complaint at 29-30.)

In other words, the danger posed by William to Jordon existed before the County

19
20

Defendants had any contact with William. The County Defendants did not create or expose

21

Jordon to a danger that he would not have faced if the County Defendants had simply not

22

responded to Katherines call for assistance. See Campbell v. State Dept of Soc. & Health

23

Servs., 671 F.3d 837, 845 (9th Cir. 2011) (danger creation exception applies only where a

24

state actor creates or exposes an individual to a danger which he or she would not have

25

otherwise faced.). In the absence of factual allegations establishing that the County

26

Defendants created the danger to Jordon, the motion to dismiss should be granted as to the

27

Section 1983 claims, without leave to amend.

28

///

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 7 of 14

Plaintiffs make little attempt to address or distinguish the cases cited by the County

Defendants in the motion. Instead, plaintiffs cite to Munger v. City of Glasgow Police Dept,

227 F.3d 1082, 1087 (9th Cir. 2000). (Opp. at 11.) In Munger, the police officer defendants

encountered a drunk man inside a warm bar with access to his jacket and his truck. The

officers physically escorted the visibly intoxicated man out of the bar wearing only a t-shirt

and jeans, ordered him not to reenter the bar, told him not to drive his truck, and then watched

him walk toward an abandoned railway yard in freezing temperatures. The man later died of

hypothermia. Based on these facts, the Ninth Circuit held that a reasonable jury could find the

officers liable under a danger-creation theory because their actions placed the decedent in a

10

more dangerous position than the one in which they found him. Id. at 1087 (quotation

11

omitted).

12

The opposition attempts to twist the holding in Munger in plaintiffs favor by

13

mischaracterizing the facts of that case. For instance, plaintiffs contend that the Munger court

14

held that the police officers could be found liable for asking Munger to leave the bar. (Opp.

15

at 10:19.) They then claim that the Ninth Circuits ruling was based on minimal interaction

16

by the police officers who claimed they took no physical steps to escort [Munger] out of the

17

bar. (Opp. at 11:20-23.)

18

The Munger case was an appeal from a summary judgment for defendants and, as such,

19

the Court had to view the evidence in the light most favorable to the nonmoving parties - the

20

Mungers. Munger, 227 F.3d at 1087. That included evidence that one of the police officers

21

took Munger physically by the arm and walked him out the front door of the bar. Id. at

22

1084. The Ninth Circuit also found that the officers affirmatively ejected Munger from a bar

23

late at night when the outside temperatures were subfreezing and that Munger was prevented

24

by the officers from driving his truck or reentering Stans Bar. Id. at 1087. The officers did

25

not ask Munger to leave the bar -- they affirmatively and physically ejected him from the bar

26

-- and their interaction with him be cannot be described as minimal.

27

Plaintiffs also rely on Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), but that case

28

supports the motion to dismiss. In Wood, the plaintiff was a passenger in a car driven by an

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 8 of 14

intoxicated man. The defendant was a state trooper who pulled the car over, arrested the

driver for driving under the influence, impounded the car, and stranded Wood alone in a high

crime area in the middle of the night. She was later raped by a man from whom she accepted a

ride. The Ninth Circuit reversed summary judgment in favor of the trooper finding that he

violated Woods rights by affirmatively placing her in danger and then abandoning her. Id.

at 596.

The peace officer in Wood affirmatively changed the plaintiffs position and created the

danger that ultimately resulted in her injury. When the defendant encountered Wood, she was

the passenger in a car being driven by a man she presumably knew. After the encounter with

10

the trooper, she was on foot and alone in a high crime area, and was ultimately raped when she

11

tried to get home. The defendant created the situation that led to her injury by a third person

12

and was deliberately indifferent to the danger posed by the situation he created.

13

Unlike the defendants in Munger and Wood, the County Defendants did not put Jordon

14

in a more dangerous position than the one in which they found them. As discussed above,

15

when Aguilera contacted William, he was suffering from whatever mental illness allegedly

16

caused him to kill Jordon and was in possession of the weapon he used to commit the crime.

17

Aguilera did not create the danger to Jordon posed by William, and was under no legal

18

obligation to minimize that danger by confiscating the hunting knife or giving it to Katherine.

19

Similarly, Aguileras alleged failure to follow up on Williams status after he was released

20

from CCRMC did not create the danger to Jordon posed by William. William, and he alone,

21

created the danger to Jordon. The County Defendants cannot be liable under section 1983 for

22

any alleged failure to minimize the danger William posed to Jordon; they can be liable only if

23

they created that danger. Because they did not, the motion should be granted.

24
25
26
27

2.

William had a Legal Right to Possess the Hunting Knife and the
County Defendants Did Not Have the Authority to Confiscate it

Plaintiffs argue at various places in the opposition that Deputy Aguilera should have
confiscated the hunting knife owned by William and/or given the knife to Katherine because it
should have been readily apparent to Aguilera that the only possible use for the knife was to

28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 9 of 14

stab unsuspecting victims. (See Opp. at 12.) While irrelevant for the purposes of this motion

because William possessed the knife before Aguilera had any contact with him, plaintiffs

argument is not supported by the facts or common sense.

Plaintiffs concede that William was an adult and had a legal right to own and possess

the hunting knife. (Opp. at 9.) They also concede that the knife had legitimate, lawful uses,

including for camping, hunting, [and] fishing. . . . (Opp. at 12:12-13.) At least one

California court agrees: [w]e think it is beyond dispute that a hunting knife . . . is primarily

designed for use as a cutting implement in various recreational activities, not as a stabbing

weapon meant to inflict great bodily injury or death (though it is certainly capable of such use).

10

It is common knowledge that such knives are readily available from sporting goods retailers

11

and are routinely possessed by many law-abiding citizens. People v. Mowatt, 56 Cal. App.

12

4th 713, 720 (1997).

13

More importantly, while the opposition is critical of Aguileras decision not to take

14

Williams personal, private property and give to someone else, it is devoid of any legal

15

authority establishing that Aguilera had the authority to seize Williams property based on the

16

facts known to Aguilera. The Fourth Amendment prohibits unreasonable searches and

17

seizures, including of personal property. Such a seizure occurs when there is some

18

meaningful interference with an individuals possessory interests in that property. United

19

States v. Jacobsen, 466 U.S. 109, 113 (1984). Taking Williams knife and giving it to another

20

person (even his mother) would constitute an interference with Williams possessory interest

21

in that property. Aguilera did not have a warrant or other legal authority to seize the knife. It

22

was not simply fear of liability for conversion that prevented Aguilera from confiscating the

23

knife; it was prohibited by the Constitution.1

24
25
26
27
28

Plaintiffs entire argument ignores the fact that, even if the hunting knife had been confiscated,
William still had access to knives at both his mothers house and at the Almgren residence (and any
sporting goods store). It is also speculation to suggest that giving the knife to Katherine would have
changed anything because plaintiffs allege that Katherine knew about the it. (Complaint at 28.)
According to plaintiffs, Katherine did nothing to deprive William of access to the knife while he was
being evaluated at CCRMC. Thus, it is pure speculation to suggest that giving that one knife to
Katherine would have prevented Jordons death.

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 10 of 14

3.

1
2
3
4
5
6
7
8
9
10
11
12

There is No Evidence that Any County Employee Pushed William

Over the Edge.

The opposition also makes the reckless and unsupported suggestions that the County
Defendants [] took affirmative actions to push William over the edge towards violence and
that Williams mental state was perhaps even worse after the County Defendants got through
with him . . . . (Opp. at 12:14-15, 12:22-23.) Those gratuitous arguments are not supported
by citations to the complaint or by any allegations that would even come close to supporting
them. There is nothing in the complaint to support the accusation that a mental health
professional at CCRMC did something to push William over the edge towards violence.
(Opp. at 12:14-16.) In fact, plaintiffs allege the exact opposite -- that William was released
from CCRMC [w]ith no change in his mental condition . . . . (Opp. at 2:24-25 [citing
Complaint at 29].) Vigorous advocacy is expected, but plaintiffs cannot defeat the motion
by contradicting their own allegations with accusations that have no factual support.

13

4.
14
15
16
17

Conclusion

Putting aside plaintiffs attempt to spin the facts, the allegations in the complaint do not
support a claim based on the danger-creation exception to the general rule that state actors are
not liable for the criminal acts of others and have no duty to protect members of the public
from such criminal acts.

18

B.
19
20
21
22
23
24
25
26
27

Aguilera is Entitled to Qualified Immunity

While the motion to dismiss focused on the lack of a constitutional violation, the
County Defendants also included an argument as to the claims against Deputy Aguilera, as
they were required to do under Federal Rules of Civil Procedure, Rule 12(g)(2).
Deputy Aguilera is entitled to qualified immunity because, as set forth above and in the
motion, his contact with William did not violate plaintiffs constitutional rights. Determining
whether there was a constitutional violation is the first step in the qualified immunity analysis.
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Aguilera is also entitled to qualified immunity because, while the danger-creation
theory was, in a general sense, clearly established, plaintiffs have identified no statute or case

28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 11 of 14

for the proposition that a police officer might violate a plaintiffs constitutional rights by

failing to confiscate a third persons legally-owned private property that is later used to injure

the plaintiff. In April 2015, no reasonable police officer would have believed that it was

unlawful for Aguilera to decide not to confiscate Williams hunting knife during a consensual

encounter with him.

The United States Supreme Court has instructed that, in addressing qualified immunity

claims, federal courts should not define clearly established law at a high level of generality.

The dispositive question is whether the violative nature of particular conduct is clearly

established. This inquiry must be undertaken in light of the specific context of the case, not as

10

a broad general proposition. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation and

11

citations omitted).

12

The opposition is devoid of any legal authority that would have made it clear to Deputy

13

Aguilera that a failure to confiscate Williams knife would result in the violation of the

14

constitutional rights of plaintiffs or anyone else. In fact, if anything, the clearly-established

15

law suggested that confiscating the hunting knife would have been unlawful as a violation of

16

Williams Fourth Amendment rights. Thus, as to the Section 1983 claims against Aguilera, the

17

Court should find that he is entitled to qualified immunity because (a) Aguilera did not violate

18

plaintiffs constitutional rights and (b) no reasonable police officer could have believed that

19

Aguileras actions were unlawful.

20
21
22
23
24
25
26
27

C.

The Monell Claim Fails as a Matter of Law in the Absence of a

Constitutional Violation

Plaintiffs attempt to use the brevity of the analysis of the Monell claim in the motion as
evidence that it was thrown in [to the motion] half-hoping it would stick . . . (Opp. at 15:7.)
The opposite is true. No more was required to address the Monell claim because, in the
absence of a constitutional violation, the Monell claim fails as a matter of law. See Hanna v.
County of Fresno, 2014 U.S. Dist. LEXIS 92707, *15 (E.D. Cal. July 8, 2014) (to state a
Monell claim, Plaintiff must first establish that a municipal employee deprived him of a
constitutional right.) (citing City of Los Angeles v. Heller, 475 U.S. 796 (1986)). While

28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 12 of 14

plaintiffs may have alleged various legal conclusions about the Countys alleged policies and

practices, if those policies or practices did not cause a violation of plaintiffs constitutional

rights, the allegations are irrelevant and insufficient to state a Monell claim against the County

pursuant to Section 1983. If the Court grants the motion to dismiss the first and second claims,

it should grant the motion to dismiss the third claim for the same reasons.

D.

Plaintiffs Cannot State a Valid State Law Negligence Claim

In the opposition as to the state law claim for negligence, plaintiffs confirmed that the

claim is not based on various theories, including the decision not to detain or arrest William

and the decision to release him from CCRMC. Plaintiffs also concede that they cannot allege

10

a claim based on an assumption of a duty to protect the Almgrens from William. Thus, it

11

appears that plaintiffs state law negligence claim is based on (a) the failure of Aguilera to

12

confiscate Williams knife, (b) the failure to warn the Almgrens about the threat posed by

13

William, and (c) failing to follow up regarding Williams status after he was released from

14

CCRMC. The negligence claim fails as a matter of law.

15

First, the law in California on the issue of a legal duty to warn is pellucid. [P]ublic

16

entities and employees have no affirmative duty to warn of the release of an inmate with a

17

violent history who has made nonspecific threats of harm directed at nonspecific victims.

18

Thompson v. County of Alameda, 27 Cal. 3d 741, 754 (1980). In this case, there are no

19

allegations in the complaint to suggest that William made any threats to harm anyone. There

20

are no allegations in the complaint to suggest that William made any threats specifically

21

against Jordon or any member of the Almgren family. And there are no allegations to suggest

22

that Aguilera had any information whatsoever about the Almgrens. In the absence of a

23

specific threat of harm directed at the Almgrens, Aguilera had no legal duty to warn them.

24

The suggestion that Aguilera had a duty to warn all known and identifiable individuals within

25

Williams universe (Opp. at 21:21) is meritless and not supported by any apposite legal

26

authority. See Davidson v. City of Westminster, 32 Cal. 3d 197, 208 (1982) (no duty to warn

27

potential victim of a potential assailant, even where assault against plaintiff was reasonably

28

foreseeable).

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 13 of 14

Plaintiffs assert in the opposition that Aguilera was told by Katherine that William was

known to spend the night at the Almgren residence. (Opp. at 20:17-19.) That assertion is not

supported by a citation to the complaint for the simple reason that the complaint does not

contain any allegations to suggest that Aguilera had any information from any source about the

Almgrens or their connection to William. (See Complaint at 24.) Facts cannot be made up

to support the opposition where no such facts were (or could be) alleged in the complaint.

Even if Aguilera had been told that William sometimes slept at the Almgren residence,

that still would not be sufficient to state a negligence claim. Aguilera was a peace officer, not

a mental health professional. Taking plaintiffs allegations as true, Aguilera knew only that

10

Katherine claimed that William had a mental disorder that was manifesting itself in violent

11

behavior. (Complaint at 26.) Even if he knew that William sometimes spent the night at the

12

Almgren residence, there is no evidence that Aguilera was aware of any threats by William

13

toward the Almgrens. Thus, even if the Almgrens were in Williams universe, there is no

14

legal duty to warn in the absence of evidence that Aguilera knew that William made a threat of

15

violence toward them.

16

Similarly, plaintiffs have identified no legal authority for the proposition that Aguilera

17

had a legal duty, or even the legal authority, to confiscate the hunting knife that was Williams

18

legally-owned private property to prevent William from using the knife to commit a crime. In

19

fact, peace officers in California are not legally responsible to individual citizens to prevent

20

their victimization by crime . . . Adams v. City of Fremont, 68 Cal. App. 4th 243, 275 (1998)

21

(quotation omitted). Moreover, peace officers in California have no duty to take affirmative

22

action to assist or protect a member of the public from a risk of harm that the officer did not

23

create. See Williams v. State of California, 34 Cal. 3d 18, 23 (1983) (finding no duty by peace

24

officer to act to protect a member of the public absent a special relationship). There was no

25

special relationship between the Almgrens and Aguilera or any other County employee. Thus,

26

the County Defendants had no legal duty to act to protect the Almgrens by confiscating

27

Williams hunting knife. For the same reasons, neither Aguilera nor any other County

28

employee, had an affirmative duty to monitor Williams status or location to be able to act to

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

10

Case 4:16-cv-02611-CW Document 16 Filed 06/29/16 Page 14 of 14

protect the Almgrens through warnings or otherwise. In the absence of a legal duty of care,

the negligence claim fails as a matter of law.

III.

CONCLUSION
Based on the foregoing and the motion to dismiss, the Court should grant the motion to

dismiss the complaint. The dismissal should be without leave to amend because plaintiffs

have not identified any additional facts that could be alleged to cure the defects in the

complaint.

8
9

DATE: June 29, 2016

SHARON L. ANDERSON
COUNTY COUNSEL

10
11
12
13

By:

/s/ Patrick L. Hurley

Deputy County Counsel
Attorneys for Defendants
CONTRA COSTA COUNTY and
MIGUEL AGUILERA

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT - Case No. C16-02611 CW

11