Washington v. Taser International, Inc.
Filing
65
ORDER signed by Judge John A. Mendez on 6/16/11 GRANTING IN PART AND DENYING IN PART 32 Motion to Dismiss. The motion to dismiss Plaintiff's third, fourth, fifth, and sixth causes of action, the Section 1983 Claims, is DENIED. The motion to dismiss Plaintiffs seventh, eighth, ninth, and tenth causes of action, the State Law Claims, is GRANTED, WITH PREJUDICE. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANDREW WASHINGTON, JR., a minor, )
by and through his Guardian Ad
)
Litem, Alejandra Raya,
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Plaintiff,
)
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v.
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TASER INTERNATIONAL, INC., CITY )
OF VALLEJO, JEREMIE PATZER, TOM )
LIDDICOET, DAVID JACKSON, ROBERT )
NICHELINI, et al.,
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Defendants.
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Case No. 2:05-CV-00881-JAM-GGH
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS‟
MOTION TO DISMISS
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This matter comes before the Court on Defendants City of
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Vallejo, Robert Nichelini, Jeremie Patzer, Tom Liddicoet, and David
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Jackson‟s (collectively “Defendants”) Motion to Dismiss (Doc. #34)
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Plaintiff Andrew Washington, Jr.‟s, by and through his Guardian ad
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Litem, Alejandra Raya (“Plaintiff”), First Amended Complaint
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(“FAC”) (Doc. 27) for failure to state a claim upon which relief
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can be granted pursuant to Federal Rule of Civil Procedure
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12(b)(6).
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Plaintiff opposes the motion (Doc. 42).1
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For the
This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled for May 4, 2011.
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reasons set forth below, Defendants‟ motion is GRANTED in part and
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DENIED in part.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
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As alleged in the FAC, on September 15, 2004, Andrew
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Washington (“Mr. Washington”), father of Plaintiff Andrew
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Washington, Jr., a minor, was involved in a traffic accident.
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¶¶ 9, 31.
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Police Officers after he left the scene of the accident, but “fled
FAC
Mr. Washington was located and questioned by Vallejo
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on foot” following said questioning.
Id. at ¶¶ 31, 34.
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Washington appeared to be, and was, in fact, unarmed.
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After being “cornered” by Defendant Officer Patzer just before
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midnight, Mr. Washington attempted to scale a chain link fence and
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Officer Patzer “shot Mr. Washington with a [t]aser weapon,”
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designed, manufactured, and sold by non-moving Defendant Taser
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International, Inc.
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the taser caused Mr. Washington to fall face down into a “storm
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culvert.”
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down in the water, Officer Patzer shot the taser at Mr. Washington
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17 separate times in less than 3 minutes, causing Mr. Washington to
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suffer a cardiac arrest.
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subsequently died at Sutter Solano Hospital at 1:43am on September
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16, 2004, as a result of being tasered.
Id. at ¶¶ 35, 36, 52.
Id. at ¶¶ 37.
Mr.
Id. at ¶ 33.
The electric shock from
While Mr. Washington was still lying face
Id. at ¶¶ 39, 40, 42.
Mr. Washington
Id. at ¶¶ 42-44, 52, 59.
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On February 28, 2005, Plaintiff filed a wrongful death
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products liability action in state court against the non-moving
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Defendant Taser International, Inc., which was subsequently removed
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to this Court by Taser International, Inc.
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2005, Plaintiff and Defendants entered into a tolling agreement,
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Doc. #1.
On March 2,
1
which extended the six month statute of limitations under the
2
California Tort Claims Act.
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subsequently entered into several more tolling agreements,
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ultimately extending the statute of limitations to file a
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government tort claim to December 16, 2006 (“tolling agreement”).
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Id.
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claim with the appropriate public entity pursuant to the California
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Tort Claims Act.
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Doc. #34 at pg. 2-3.
The parties
On December 15, 2006, Plaintiff filed a governmental tort
Id. at 3-4.
On November 19, 2007, Plaintiff filed his Amended Complaint,
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adding the moving Defendants and asserting eight new claims for
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relief under various state law torts and 42 U.S.C. section 1983
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against them.
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dismiss on January 3, 2008, asking this Court to dismiss all of
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Plaintiff‟s claims as untimely.
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this case was stayed, due to the City of Vallejo‟s ongoing
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bankruptcy proceedings, and on March 22, 2011, it was ordered
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reopened.
Doc. #27.
Defendants filed the pending motion to
Docs. #32-34.
Shortly thereafter,
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II.
A.
OPINION
Legal Standard
1.
Motion to Dismiss
A party may move to dismiss an action for failure to state a
23
claim upon which relief can be granted pursuant to Federal Rule of
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Civil Procedure section 12(b)(6).
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dismiss, the court must accept the allegations in the complaint as
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true and draw all reasonable inferences in favor of the plaintiff.
27
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
28
grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405
3
In considering a motion to
1
U.S. 319, 322 (1972).
2
conclusions,” however, are not entitled to the assumption of truth.
3
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)(citing Bell Atl.
4
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
5
to dismiss, a plaintiff needs to plead “enough facts to state a
6
claim to relief that is plausible on its face.”
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at 570.
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state a claim supportable by a cognizable legal theory.
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v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).
10
Assertions that are mere “legal
To survive a motion
Twombly, 550 U.S.
Dismissal is appropriate where the plaintiff fails to
Balistreri
Upon granting a motion to dismiss for failure to state a
11
claim, the court has discretion to allow leave to amend the
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complaint pursuant to Federal Rule of Civil Procedure section
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15(a).
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appropriate unless it is clear . . . that the complaint could not
15
be saved by amendment.”
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316 F.3d 1048, 1052 (9th Cir. 2003).
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“Dismissal with prejudice and without leave to amend is not
Eminence Capital, L.L.C. v. Aspeon, Inc.,
Additionally, the Court may “consider a motion to dismiss
18
accompanied by affidavits as a motion for summary judgment” under
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Rule 12(b)(6), but if it does so, the “parties shall be permitted
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to present all material pertinent to the motion.”
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Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (citing FED. R.
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CIV. P. 12(b)(6), 56).
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2.
Huynh v. Chase
Statute of Limitations
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A complaint may be dismissed under Rule 12(b)(6) if it was
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filed outside of the applicable statute of limitations and “the
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running of the statute is apparent on the face of the complaint.”
27
Huynh, 465 F.3d at 997 (9th Cir. 2006); see also Jablon v. Dean
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Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).
4
To determine
1
whether it is apparent on the face of the complaint that the
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statute of limitations has run, the Court must: “„First, . . .
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decide what choice-of-law rule governs the selection of the statute
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of limitations.
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determine which jurisdiction‟s limitations law applies.
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finally, the Court [must] determine whether [the] plaintiff‟s
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claims fall within the relevant limitations period.‟”
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F.3d at 997 (quoting Cruz v. United States, 387 F.Supp.2d 1057,
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1070 (N.D. Cal. 2005)).
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Second, the Court must apply that rule to
Third, and
Huynh, 465
42 U.S.C. section 1983
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To determine the statute of limitations for claims under 42
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U.S.C. section 1983 (“Section 1983”), a Court “should borrow the
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general or residual [state] statute [of limitations] for personal
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injury actions.”
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Wilson v. Garcia, 471 U.S. 261, 280 (1985).
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statute of limitations for personal injury claims is two (2) years.
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CAL. CIV. PROC. CODE § 335.1 (West 2003); see also Canatella v. Van De
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Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007).
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Owens v. Okure, 488 U.S. 235, 250 (1989); accord
In California, the
California Tort Claims Act
Actions brought against public entities and their officials
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are governed by the California Tort Claims Act (“CTCA”), see CAL.
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GOV‟T CODE § 810, et seq., and “[t]he timeliness of such actions is
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governed by the specific statute of limitations set forth in the
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Government Code, not the statute of limitations applicable to
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private defendants.”
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Cal. Rptr. 3d 445, 448 (Cal.Ct.App. 2005) (citations omitted).
27
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County of Los Angeles v. Superior Court, 26
The CTCA requires an injured party to present his or her claim
to the public entity prior to initiating litigation against it.
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CAL. GOV‟T CODE § 954.4. Under the CTCA, “a claim [against a public
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entity] relating to a cause of action for death or injury to [a]
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person” must be presented to that entity prior to initiating
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litigation and “not later than six months after the accrual of the
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cause of action.”
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CAL. GOV‟T CODE §§ 911.2(a), 945.6.
Once a claim is timely filed, the public entity has forty-five
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(45) days to accept or reject the claim.
Id. at § 912.4.
A party
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then has six months to initiate litigation against the entity
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following written notice of rejection of his or her claim.
Id. at
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§ 945.6(a)(1).
If the entity “fails or refuses to act within [45
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days], the claim shall be deemed to have been rejected . . . ,” on
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the last day the entity was required to act.
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no written notice is given to the party of the entity‟s rejection
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of the claim, the party must file an action with the court “within
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two years from the accrual of the cause of action.”
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945.6(b).
Id. at § 912.4.
If
Id. at
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B.
Claims for Relief
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Both Plaintiff and Defendants included affidavits and exhibits
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with their moving papers, which this Court has considered.
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Court can properly decide the statute of limitations issue at the
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motion to dismiss stage because both parties have had the
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opportunity to present materials pertinent to this Court‟s
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decision, as demonstrated by the moving papers.
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Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (citations
25
omitted).
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two categories, which the Court will address in turn.
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The
See Huynh v. Chase
The claims in Plaintiff‟s operative complaint fall into
1.
Section 1983
Plaintiff asserts four different claims, causes of action
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three, four, five, and six, against various Defendants under
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Section 1983 (“Section 1983 claims”).2
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This case was removed to this Court on the basis of diversity
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under 28 U.S.C. sections 1441, 1446, and 1332, and the actions that
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form the basis for Plaintiff‟s complaint occurred in California.
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Accordingly, California‟s statute of limitations for personal
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injury actions, which is 2 years, governs Plaintiff‟s Section 1983
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claims.
9
Cir. 2007); Huyhn v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th
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See Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th
Cir. 2006).
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Defendants argue that the statute of limitations applicable to
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Plaintiff‟s Section 1983 claims expired on September 16, 2006,
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which was 2 years after the accrual of the cause of action.
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#34 at pg. 4-5.
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is tolled due to Plaintiff‟s minority under California Code of
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Civil Procedure section 352(a), and therefore Plaintiff‟s Section
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1983 claims were timely filed.
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parties agree that their tolling agreement did not affect the
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statute of limitations governing Plaintiff‟s Section 1983 claims.
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Compare Doc. #34 at pg. 7 with Doc. #42 at pg. 5.
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disagreement centers on whether the statute of limitations is
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tolled due to Plaintiff‟s minority.
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Doc.
Plaintiff argues that the statute of limitations
Doc. # 42 at pg. 1, 3-4.
The
Therefore, the
In Section 1983 actions, a court must look to state law to
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determine the statute of limitations, and in doing so, must
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consider the state‟s tolling doctrines.
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Tomanio, 446 U.S. 478, 485 (1980); City of Huntington Park v.
See Board of Regents v.
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2
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Plaintiff‟s first and second causes of action are not at issue,
as they are only asserted against non-moving Defendant Taser
International, Inc.
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Superior Court, 41 Cal. Rptr. 2d 68 (Cal.Ct.App. 1995).
California
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law authorizes tolling of the two year statute of limitations
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applicable to Plaintiff‟s Section 1983 claims due to a plaintiff‟s
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minority.
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personal injury actions during the period of minority); see also
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City of Huntington Park, 41 Cal. Rptr. 2d 68 (Cal.Ct.App. 1995)
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(holding that section 352(a) tolled a minor plaintiff‟s claims
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under 42 U.S.C. § 1983).
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limitations is tolled during the entire period of minority.
See CAL. CIV. PROC. CODE § 352 (providing for tolling in
Under section 352, the statute of
CAL.
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CIV. PROC. CODE § 352(a); accord City of Huntington, 41 Cal. Rptr. 2d
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68.
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Plaintiff‟s complaint states that “[a]t all times relevant,
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Plaintiff [] was a minor and remains a minor at the time of the
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filing of this First Amended Complaint.”
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underlying California statute of limitations and tolling provisions
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to Plaintiff‟s Section 1983 claims, Plaintiff‟s complaint should
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not be dismissed as untimely because his causes of action under
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Section 1983 are tolled due to his minority.
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Huntington Park v. Superior Court, 41 Cal. Rptr. 2d 68 (Cal.Ct.App.
20
1995).
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FAC ¶ 9.
Applying the
See City of
In light of the applicability of the tolling provision, the
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Court does not need to address Defendants‟ argument regarding the
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relation back doctrine, as the doctrine does not affect the
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applicability of section 352(a) in this case.
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Defendants also argue that California‟s tolling provisions
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should not apply because “the tolling agreement put Plaintiff on
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fair notice to take actions to protect his own federal rights . .
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. ,” citing Stanley v. City and County of San Francisco, 48 Cal.
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1
Rptr. 842 (Cal.Ct.App. 1975) for support.
Doc. #45 at pg. 4.
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However, that case can be distinguished in that it addressed the
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relationship between section 352 and the CTCA. Defendants have not
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provided this Court with any authority that extends the Stanley
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Court‟s reasoning to Section 1983 claims.
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Rptr. 842; Doc. #45 at 4.
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clear that claims under the CTCA are not tolled due to a claimant‟s
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minority, and existing case law has found that this provision does
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not prevent tolling of the statute of limitations in actions for
See Stanley, 48 Cal.
More importantly, section 352(b) makes
10
relief under Section 1983.
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Court, 41 Cal. Rptr. 2d 68 (Cal.Ct.App. 1995).
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allowing plaintiffs‟ section 1983 claims to proceed even when those
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same plaintiffs‟ CTCA claims are dismissed by the courts as
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untimely further militate against Defendants‟ proposed extension of
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Stanley.
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(Cal.Ct.App. 1995).
17
See, e.g.,
See City of Huntington Park v. Superior
California cases
City of Huntington Park, 41 Cal. Rptr. 2d 68
Without authority supporting Defendants‟ position, this Court
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declines to extend dicta regarding section 352 and CTCA cases to
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justify the dismissal of Plaintiff‟s Section 1983 claims.
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Accordingly, Defendants‟ motion to dismiss Plaintiff‟s Section 1983
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claims is denied.
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2.
State Law Claims
Plaintiff asserts four (4) causes of action under state law,
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claims seven, eight, nine, and ten, against various Defendants
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(“State Law claims”).
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FAC ¶¶ 71-101.
Defendants move to dismiss Plaintiff‟s State Law claims as
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untimely.
Doc. #34 at pg. 1-3, 7-10.
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State Law claims are barred by California‟s 2-year statute of
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Defendants argue that the
1
limitations, contained in the Code of Civil Procedure, applicable
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to each of the claims.
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parties‟ tolling agreement only affected Plaintiff‟s administrative
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filing with the government under the CTCA and not the initiation of
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this suit.
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15, 2006, was timely under the CTCA, and therefore this suit was
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timely.
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not proper to decide the statute of limitations issue at the motion
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to dismiss stage, or, alternatively, that Defendants are estopped
10
11
Id.
Id.
Defendants further assert that the
Plaintiff argues that his claim, filed on December
Doc. #42 at pg. 8-12.
Plaintiff also argues that it is
from asserting a statute of limitations defense.
As noted above, the CTCA governs all claims against public
12
entities and their officials, and it is the statue of limitations
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within the government code that applies in these actions.
14
GOV‟T CODE § 810, et seq.; County of Los Angeles v. Superior Court,
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26 Cal. Rptr. 3d 445, 448 (Cal.Ct.App. 2005).
16
Plaintiff‟s complaint in this case is therefore governed by Section
17
945.6.
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the CTCA is charged with knowledge of the statute, which includes
19
the applicable statute of limitations.
20
County, 69 Cal. Rptr. 288, 262 Cal. App. 2d 820, 822 (Cal.Ct.App.
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1968)(“[O]nce a claimant has filed a claim [pursuant to the CTCA],
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he demonstrates familiarity with the statutory procedures governing
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his grievance, and can reasonably be charged with knowledge of the
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time limitations that are part of [the CTCA].”).
25
See CAL. GOV‟T CODE § 945.6(a).
See CAL.
The timeliness of
A party filing a claim under
See Hunter v. Los Angeles
Pursuant to the parties‟ tolling agreement, extending the
26
statute of limitations under the CTCA, Plaintiff was required to
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file a claim against the City of Vallejo and its officials no later
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than December 16, 2006.
Doc. #34 at pg. 2-4.
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The parties agree
1
that Plaintiff did, in fact, properly file his claim with the
2
government under the CTCA on December 15, 2006.
3
Doc. #42 at pg. 2.
4
Compare id. with
Pursuant to section 912.4, the government had 45 days to act
5
on Plaintiff‟s claim, meaning it was required to make a decision to
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accept or reject the claim no later than January 29, 2007.
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Plaintiff was then required to file his action in court no later
8
than sixth months after the rejection of his claim by the
9
government, which would have been July 29, 2007.
See CAL. GOV‟T CODE
10
§ 945.6(a)(1). However, if the government did not notify the
11
Plaintiff of its rejection of his claim, the Plaintiff was required
12
to initiate litigation no later than 2 years following the accrual
13
of his claim, which in this case would have been September 16,
14
2006.
15
See CAL. GOV‟T CODE § 945(a)(2).
Plaintiff‟s FAC and opposition indicate that the government
16
did not respond to Plaintiff‟s December 15, 2006, claim.
17
Doc. 42 (“Vallejo rejected [Plaintiff‟s] claim by operation of law
18
on January 29, 2007.”).
19
Court was untimely when it was filed on November 19, 2007.
20
CAL. GOV‟T CODE § 945.6; FAC. As set forth above, even if the
21
government had rejected Plaintiff‟s claim and so notified
22
Plaintiff, his FAC was untimely because Plaintiff would have had to
23
file it no later than July 29, 2007.
24
See FAC;
Thus, under section 945.6, his FAC in this
See
Id.
Plaintiff‟s argument that the statute of limitations does not
25
bar his State Law claims centers on the timeliness of his initial
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claim, filed December 15, 2006, and Plaintiff fails to acknowledge
27
that there is a requirement under California law for Plaintiff to
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timely initiate suit.
See Doc. #42 at pg. 8-12; FAC at ¶¶ 103,
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1
112, 122, 127.
2
entity rejects his claim pursuant to California Government Code
3
section 912.4, the Plaintiff can file a lawsuit anytime thereafter.
4
See id.
5
which the Plaintiff failed to follow.
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More problematic is the fact that several of the cases cited by
7
Plaintiff in his opposition acknowledge the statute of limitations
8
contained within section 945.6, yet Plaintiff failed to comply with
9
these requirements.
10
Following Plaintiff‟s logic, once the government
Instead, there is a limitations period imposed by statute,
See CAL. GOV‟T CODE § 945.6.
See Doc. #42.
Plaintiff‟s failure to timely file an action against the
11
Defendants is not saved by the parties‟ tolling agreement.
12
Plaintiff drafted the agreement, yet did not include any protection
13
for himself regarding the statute of limitations applicable to the
14
filing of his lawsuit.
15
between the parties that [Plaintiff] shall have until [December 16,
16
2006], to file his governmental tort claim against the City of
17
Vallejo, Vallejo Police Department, and any of it‟s [sic] employees
18
arising out of the death of his father.”).
19
extending the statute of limitations set forth in section 945.6,
20
the timeliness of Plaintiff‟s State Law claims were not affected by
21
the tolling agreement.
See Doc. #34 (“It is hereby [agreed]
Without any language
See Docs. #34, 42; CAL. GOV‟T CODE § 945.6.
22
Plaintiff‟s argument that the statute of limitations issue
23
should not be addressed at the motion to dismiss stage fails in
24
light of the fact that both parties have presented evidence to this
25
Court, as set forth above.
26
F.3d 992, 997 (9th Cir. 2006) (citations omitted).
27
28
See Huynh v. Chase Manhattan Bank, 465
Finally, Defendants are not estopped from asserting their
statute of limitations defense in this case.
12
In order to
1
demonstrate estoppel, the Plaintiff must show: (1) Defendants must
2
be apprised of the facts; (2) Defendants must intend their conduct
3
shall be acted upon; (3) Plaintiff must be ignorant of the true
4
state of facts; and (4) Plaintiff must rely on Defendants‟ conduct
5
to his injury.
6
305 (Cal. 1967).
7
facts relating to his estoppel argument.
8
opposition, Plaintiff does not provide any facts relating to the
9
Defendants‟ knowledge or intent which caused Plaintiff harm.
See Driscol v. City of Los Angeles, 67 Cal.2d 297,
First, Plaintiff‟s complaint does not contain any
See FAC.
In his
See
10
Doc. #42 at pg. 9-10.
11
intent: “Plaintiff‟s counsel reasonably understood that the tolling
12
agreement delayed the beginning of the claim presentation process
13
until December 16, 2006 . . . . Plaintiff‟s counsel had no
14
indication that [Defendants] would later assert . . .” a statute of
15
limitations defense.
16
rely on what he believed to be a mutual understanding.”
17
Plaintiff‟s opposition does not set forth facts supporting the
18
essential elements of estoppel, namely what facts Defendants were
19
apprised of, what conduct Defendants intended Plaintiff to act
20
upon, what Plaintiff was ignorant of, and how Plaintiff relied on
21
Defendants‟ conduct.
22
claim fails.
23
Instead, Plaintiff focuses on his own
Id. at 10.
See id.
Plaintiff further asserts he “did
Id.
Therefore, Plaintiff‟s estoppel
Accordingly, Plaintiff‟s State Law claims are dismissed, with
24
prejudice, because it is clear from Plaintiff‟s complaint and the
25
evidence presented by Defendants that they were untimely filed.
26
Allowing Plaintiff leave to amend is inappropriate in this case
27
because he cannot assert any facts which would change the running
28
of the statute of limitations in this case.
13
See Eminence Capital,
1
L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
2
3
4
5
6
7
8
9
10
III. ORDER
For the reasons set forth above, Defendants‟ motion to dismiss
is GRANTED in part and DENIED in part, as follows:
1.
The motion to dismiss Plaintiff‟s third, fourth, fifth,
and sixth causes of action, the Section 1983 Claims, is DENIED.
2.
The motion to dismiss Plaintiff‟s seventh, eighth, ninth,
and tenth causes of action, the State Law Claims, is GRANTED, WITH
PREJUDICE.
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IT IS SO ORDERED.
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Dated: June 16, 2011
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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