Varo v. L. A. Cnty. Dist. Attorney's Office, Case No. CV 18-9025-DMG (KSx)

Citation473 F.Supp.3d 1066
Decision Date14 August 2019
Docket NumberCase No. CV 18-9025-DMG (KSx)
CourtU.S. District Court — Central District of California

Mark Kent Drew, P. Christopher Ardalan, Geoffrey S. Hickey, Jacqueline S. Leibl, Mircea Stefan Tala, Ardalan and Associates PLC, Newbury Park, CA, for Deana Varo, Joshua Perez, Vanessa Perez, Justin Perez, Calvin Perez, Elvis Pena.

Richard D. Hoang, Brian K. Stewart, Collins Collins Muir and Stewart LLP, South Pasadena, CA, for County of Los Angeles, Los Angeles County District Attorneys Office.




This civil action arises out of events that took place during the course of Defendants’ criminal prosecution of Jonathan Quevedo for assaulting Plaintiffs Vanessa Perez and Elvis Pena. [Doc. # 12 ("FAC") at ¶ 3.] Perez and Pena were eating dinner at a restaurant on March 16, 2017, when Quevedo and another woman entered the restaurant. Id. at ¶ 27. Plaintiffs allege that after Perez and Pena made eye contact with Quevedo, he became angry and started screaming at them. Id. at ¶ 28. When Perez and Pena tried to diffuse the situation by leaving the restaurant, Quevedo ripped his shirt off, kicked Perez, punched Pena, and threw an object at Perez, which hit her in the forehead and caused substantial bleeding. Id. at ¶ 30. He also struck both Perez and Pena with a cane. Id. at ¶ 31.

Perez and Pena contacted the police about the incident, who eventually obtained surveillance camera footage from the restaurant, tracked Quevedo down, determined that he was a "documented" member of the Temple Street Gang, and arrested him. Id. at ¶¶ 36-37. After charging Quevedo with three counts of assault with a deadly weapon, and seeking sentence enhancements for his gang membership and previous felony convictions, Defendants subpoenaed Perez and Pena. Id. at ¶ 38. In response, Perez and Pena called Defendant Deputy District Attorney Giovanni Bartoletti, the prosecutor assigned to the case, and told him that they were frightened to participate in Quevedo's prosecution for fear that the Temple Street Gang would retaliate. Id.

Plaintiffs allege that Bartoletti told Pena and Perez that they had to comply with the subpoena or face criminal prosecution themselves. Id. That convinced Pena and Perez to meet Bartoletti and police officers at the Los Angeles County Superior Court in downtown Los Angeles, at which time they reiterated their fear of violent retribution. Id. at ¶ 40. According to Plaintiffs, Bartoletti promised that only their first names would be disclosed in open court or in any documents made available to Quevedo, and that LAPD officers would conduct "increased patrols" of their homes and places of business to keep them safe. Id. at ¶ 42.

After learning that Quevedo had been released from custody on bond, Bartoletti made the decision to seek a criminal protective order ("CPO") meant to prevent Quevedo from approaching Pena, Perez, or the other Plaintiffs. Id. at ¶¶ 48, 52. Bartoletti completed the CPO form, but included Plaintiffs’ names and addresses, and filed it with the Los Angeles County Superior Court. Id. at ¶ 52. Plaintiffs allege that he made no request to redact or withhold Plaintiffs’ information from the CPO. Id. After the judge granted Bartoletti's request and issued the CPO, Bartoletti served the CPO on Quevedo by "handing him a copy" that included Plaintiffs’ unredacted identifying information. Id. Plaintiffs were never notified that Quevedo learned of their names and addresses. Id. at ¶ 53.

On September 19, 2017, Quevedo ambushed Plaintiff Joshua Perez, Vanessa's son, outside his house and began yelling that Joshua "need[ed] to tell [his] mother" that "she better not show up to the fucking line up or [Quevedo was] going to hurt [them]." Id. at ¶ 60. Quevedo showed Joshua that he had a gun and said "I know where you guys work." Id. When Plaintiff Deana Varo and Joshua got into Joshua's car to drive away, Quevedo shot at the car "seven or eight times." Id. One bullet "grazed" Joshua, and three bullets "struck" Varo. Id. Both Joshua and Varo survived. Id.

Fearing for their lives, Plaintiffs then fled from their homes and entered protective custody "so that neither Quevedo, nor any individual associated with his gang, could attempt to exact any additional revenge or retribution." Id. at ¶ 61.

Plaintiffs initiated this action in Los Angeles County Superior Court on September 13, 2018. [Doc. # 1-1.] Defendants removed the case to this Court on October 19, 2018. [Doc. # 1.] Plaintiffs filed the operative First Amended Complaint on November 29, 2018. The 94-page FAC alleges 14 causes of action against Defendants for federal civil rights violations and tortious conduct. The County filed its Motion to Dismiss ("MTD") on December 13, 2018. [Doc. # 16.] The MTD is fully briefed. [Doc. # 18 ("Opp."), 19 ("Reply").]


In support of their MTD, the County seeks judicial notice of Plaintiffs’ Government Claims for Damages to Person or Property ("pre-lawsuit claims"), which Plaintiffs completed and filed as a prerequisite to filing this suit. [Doc. # 17 ("RJN").]

On a motion to dismiss, a court may consider documents attached to the complaint, documents incorporated by reference in a complaint, or documents subject to judicial notice. U.S. v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003). Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts may also take notice of "matters of public record." Reyn's Pasta Bella, LLC v. Visa USA , Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006).

Plaintiffs do not oppose Defendant's RJN. Moreover, Plaintiffs’ pre-lawsuit claims are matters of public record whose accuracy cannot reasonably be questioned. The Court therefore GRANTS the County's RJN.


Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Pursuant to Rule 12(b)(6), a defendant may seek dismissal of a complaint for failure to state a claim upon which relief can be granted. A court may grant such a dismissal only where the plaintiff fails to present a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ).

To survive a Rule 12(b)(6) motion, a complaint must articulate "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Although a pleading need not contain "detailed factual allegations," it must contain "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In evaluating the sufficiency of a complaint, courts must accept all factual allegations as true. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Legal conclusions, in contrast, are not entitled to the assumption of truth. Id.


Defendant seeks to dismiss Plaintiffs’ causes of action for: violation of section 1983 for failure to train and supervise; violation of section 1983 for employing or ratifying an unconstitutional policy, practice, or custom; negligent hiring, training, supervision, oversight, or retention; and breach of contract.

A. Plaintiffs’ Claims Under 42 U.S.C. Section 1983 and Monell

Plaintiffs allege that Defendants Los Angeles District Attorney Jackie Lacey and the County of Los Angeles are liable pursuant to 42 U.S.C. section 1983, Monell v. New York City Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and City of Canton, Ohio v. Harris , 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), under two theories. The first, Plaintiffs’ fourth cause of action, is that these defendants were deliberately indifferent to deficiencies in the training and supervision of deputy district attorneys regarding the protection of confidential witness information. FAC at ¶¶ 112-130. The second, Plaintiffs’ fifth cause of action, is that they employed policies, or ratified practices, that allowed the improper disclosure of confidential witness information to occur. Id. at ¶¶ 131-146.

To state a valid section 1983 claim, Plaintiffs must plausibly allege that a person acting under color of state law deprived them of a federal constitutional or statutory right. City of Chicago v. Int'l Coll. of Surgeons , 522 U.S. 156, 180, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). The County argues that both of Plaintiffssection 1983 theories fail because neither is "based on the deprivation of a federal right" and Plaintiffs’ allegations supporting those theories are "only conclusory." MTD at 3-5.

1. Plaintiffs Have Alleged a Violation of the Constitutional Right to Informational Privacy

Plaintiffs base their section 1983 claims on the theory that Defendants violated their constitutional right to "informational privacy" by unnecessarily disclosing their identities and addresses to Quevedo by serving him with an unredacted CPO that showed him where to find Joshua and Varo. Opp. at 5-9. The County rejects that any such constitutional right...

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    ...interest in preserving her life is one of constitutional dimension.") (quotation omitted). The Varo v. L.A. Cty. Dist. Attorney's Office , 473 F. Supp. 3d 1066 (C.D. Cal. 2019) decision is instructive on this point. In Varo , victims and witnesses to a violent crime, as well as their family......
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    ...omitted). The Varo v. L.A. Cty. Dist. Attorney's Office, 473 F.Supp.3d 1066 (C.D. Cal. 2019) decision is instructive on this point. In Varo, victims and witnesses to a violent crime, well as their family members, claimed the county violated their constitutional right to informational privac......

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