Maria Lopez v. Wasco State Prison, et al., No. 1:2008cv00889 - Document 64 (E.D. Cal. 2009)
Court Description: MEMORANDUM OPINION and ORDER Granting 55 58 Motions to Dismiss signed by Chief Judge Anthony W. Ishii on 12/15/2009. Amended Complaint due by 1/19/2010. (Flores, E)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 ) ) ) v. ) ) WASCO STATE PRISON, P. L. ) VAZQUEZ,, and DOES 1 to 100, ) ) Defendant. ) ____________________________________) MARIA LOPEZ, 11 12 13 14 15 1: 08-CV- 889 AWI BAK Plaintiff, MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS (Document #55 & #58) 16 17 This action is brought by Plaintiff Maria Lopez, and it stems from the death of her son, 18 Victor Lopez ( Victor ), while he was an inmate at Wasco State Prison ( Wasco ). This court 19 has jurisdiction over Plaintiff s civil rights cause of action pursuant to 28 U.S.C. § 1331 and 20 supplemental jurisdiction over the state law causes of action pursuant to 28 U.S.C. § 1367. 21 Venue is appropriate pursuant to 28 U.S.C. § 1391 because the events giving rise to this action 22 occurred in the Fresno Division of the Eastern District of California. 23 24 BACKGROUND On April 22, 2008, Plaintiff Maria Lopez filed a complaint in the California Superior 25 Court for the County of Kern. After being served with the complaint, on June 23, 2008, 26 Defendant Vazquez removed this action to this court. On August 27, 2008, Plaintiff filed an 27 amended complaint. On October 8, 2008, Defendant Wasco filed a motion to dismiss the 28 amended complaint. On December 22, 2008, the court granted Defendant Wasco s motion to 1 dismiss and dismissed Defendant Wasco from this action based on Eleventh Amendment 2 Immunity. 3 On June 30, 2009, Plaintiff filed a second amended complaint ( complaint ). Along 4 with Vasquez, the complaint names A. Kopp, M.D.; M. Tews, Ph.D.; R. Joseph, M.D.; BT 5 Early, Ph.D; and Jagdeep Singh Garewal, M.D. as Defendants. The first cause of action is 6 brought under 42 U.S.C. § 1983 and alleges that Defendants were deliberately indifferent to 7 Victor s rights. The second cause of action alleges abuse and neglect of a dependent adult in 8 violation of California Welfare and Institutions Code Section § 15600, et seq. The third cause of 9 action alleges wrongful death in violation of California Civil Procedure Code § 377.60. 10 On July 30, 2009, Defendant Vazquez filed a motion to dismiss. Defendant Vazquez 11 contends that Plaintiff s state law cause of action under the California Welfare and Institutions 12 Code is barred by Plaintiff s failure to present that legal cause of action prior to bringing suit. 13 Defendant Vazquez contends that no Section 1983 cause of action has been alleged as to 14 Defendant Vazquez because Defendant Vazquez is only being named as a supervisor. 15 Defendant Vazquez contends that Plaintiff has failed to show that she has standing to bring a 16 wrongful death claim. 17 Finally, On October 9, 2009, Defendant Kopp and Defendant Tews filed a motion to dismiss 18 alleging the same grounds as Defendant Vazquez on the state law causes of action. Defendant 19 Kopp and Defendant Tews also contend that Plaintiff s Section 1983 cause of action fails to state 20 a claim. 21 22 23 Plaintiff has not filed an opposition to either motion to dismiss. LEGAL STANDARDS Under Federal Rule of Civil Procedure 12(b)(6) a claim may be dismissed because of the 24 plaintiff s failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A 25 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 26 absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside 27 28 2 1 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th 2 Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all of the complaint s material 3 allegations of fact are taken as true, and the facts are construed in the light most favorable to the 4 non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); 5 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general 6 allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and 7 Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required to accept as 8 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 9 inferences. In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. 10 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the 11 framework of a complaint, legal conclusions are not accepted as true and [t]hreadbare recitals of 12 elements of a cause of action, supported by mere conclusory statements, do not suffice. 13 Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family 14 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained: 15 16 17 While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). 18 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint must contain 20 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 21 Iqbal, 129 S.Ct. at 1949. A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court draw the reasonable inference that the defendant is liable for the 23 misconduct alleged. Iqbal, 129 S.Ct. at 1949. 24 25 26 The plausibility standard is not akin to a probability requirement, but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. .... 27 28 3 1 Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief. 2 3 4 Iqbal, 129 S.Ct. at 1949-50. In sum, for a complaint to survive a motion to dismiss, the non- 5 conclusory factual content, and reasonable inferences from that content, must be plausibly 6 suggestive of a claim entitling the plaintiff to relief. Moss v. United States Secret Service, 572 7 F.3d 962, 969 (9th Cir. 2009). 8 ALLEGED FACTS 9 The complaint alleges that on November 20, 2006, Victor was received at Wasco from 10 Ventura County as a parole violator returning to custody. The complaint alleges that Victor was 11 single celled because of his violent past behavior. The complaint alleges that Victor was a 12 participant in the Mental Health Delivery System at the Enhanced Outpatient level of care. 13 The complaint alleges that on November 26, 2006, Defendant Kopp conducted a Medical 14 Evaluation of a New Arrival on Victor. The complaint alleges that Defendant Kopp left blank 15 the sections in the form for Victor s Past Suicide History and whether Victor Denied history 16 of any past suicide attempt . 17 The complaint alleges that in 2002, during an interview by two correctional officers, 18 Victor admitted to hitting himself in the head with rocks at the age of eight or ten. The 19 complaint alleges Victor also told the officers that he put a sheet around a light fixture, acting as 20 though he were attempting to hang himself, because he wanted special attention and not because 21 he wanted to commit suicide. This information was absent from Defendant Kopp s report. 22 The complaint alleges that on January 21, 2007, at about 11:10. a.m., the mental health 23 staff examined Victor because he was displaying bizarre and unhygienic behavior. The amended 24 complaint alleges that Victor was then cleared for placement back into cell 228 on single cell 25 status. 26 The complaint alleges that on January 22, 2007, at about 1:58 p.m., Floor Officer S. 27 28 4 1 Thompson was making an initial security check of her assigned post. The complaint alleges that 2 when Officer Thompson came to cell 228 she saw Victor hanging from the light fixture by his 3 neck with what appeared to be a state issued laundry bag. 4 Officer Thompson activated the building s personal alarm system and verbally notified Control 5 Officer A. LeMay what she had found. The amended complaint alleges that Officers Pierce, 6 Mack, and Lopez responded. The complaint alleges that the officers entered the cell and 7 released the laundry bag and carried Victor out of his cell. The complaint alleges that Officer 8 Pierce gave immediate ventilation and Medical Technical Assistant M. Chavez began chest 9 compressions. The amended complaint alleges that Victor was taken to the Correctional The amended complaint alleges that 10 Treatment Center s Triage and Treatment Area by Officer Lopez, Officer Choate, and Sergeant 11 R. Figuaeroa. The amended complaint alleges that Medical Technical Assistants M. Chavez and 12 Officer Choate did not continue CPR while Victor was being transported on the gurney to the 13 Correctional Treatment Center s Triage and Treatment Area. The complaint also alleges that it 14 took 33 minutes, from 1:58 p.m until 2:31 p.m., for Victor to be placed in an ambulance. 15 16 17 18 19 The complaint alleges that Victor was transported to Delano Regional Medical Center, and at 3:00 p.m., Dr. Marcus Lee pronounced Victor dead. The complaint alleges that Victor suffered from mental disease, which restricted his ability to carry out normal activities and protect his rights. The complaint alleges that Plaintiff is Victor s mother. The complaint alleges Plaintiff is 20 the successor in interest to Victor and succeeds in all causes of action because there is no 21 personal representative of Victor s Estate. 22 The complaint alleges that Plaintiff fully complied with the California Tort Claims Act. 23 24 DISCUSSION A. Section 1983 25 The complaint alleges that Defendants violated both Victor s and Plaintiff s rights. 26 Specifically, the complaint alleges that Defendants were deliberately indifferent to Victor s safety 27 28 5 1 and security by knowingly leaving him unattended and without support while he was depressed 2 and suicidal. The complaint alleges that the Defendants and others acts and omissions were 3 done pursuant to customs and policies that were authorized, condoned, ratified, and carried out 4 by all the Defendants. The complaint alleges that Victor was deprived of his rights under the 5 Fifth and Fourteenth Amendment. 6 1. Constitutional Basis for Plaintiff s Section 1983 Claim 7 Preliminarily, the court notes that the complaint alleges Defendants actions violated 8 Victor s rights under the Fifth Amendment and Fourteenth Amendment. However, the legal 9 basis of Plaintiff Section 1983 cause of action -- Defendants deliberate indifference to Victor s 10 safety and security -- is not protected by either the Fifth Amendment or the Due Process Clause 11 of the Fourteenth Amendment. Thus, the first cause of action brought under Section 1983 fails 12 on its face and must be dismissed outright. 13 2. Eighth Amendment - Deliberate Indifference to Victor s Safety 14 The court does note that the Eighth Amendment protects prisoners from deliberate 15 indifference to their health and safety. The Eighth Amendment protects prisoners against cruel 16 and unusual punishment if prison conditions involve the wanton and unnecessary infliction of 17 pain . . . . Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be 18 restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, 19 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 20 2000). 21 prisoner s serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). To establish a 22 violation of the Eighth Amendment with respect to medical care, a prisoner must satisfy both the 23 objective and subjective components of a two-part test. Farmer v. Brennan, 511 U.S. 825, 834 24 (1994). First, the plaintiff must show a serious medical need by demonstrating that failure to 25 treat a prisoner's condition could result in further significant injury or the unnecessary and 26 wanton infliction of pain. Second, the plaintiff must show the defendant's response to the need The Eighth Amendment is violated if a prison official is deliberately indifferent to a 27 28 6 1 was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate 2 indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 3 Thus, to the extent Plaintiff believes that Defendants were deliberately indifferent to Victor s 4 serious mental health needs, Plaintiff must allege a violation of the Eighth Amendment, not the 5 Fifth Amendment. 6 3. Plaintiff s Standing to Assert Violations of Victor s Constitutional Rights 7 In Section 1983 actions the survivor of an individual killed as a result of a constitutional 8 violation may assert a Section 1983 claim on the decadent s behalf if the relevant state s law 9 authorizes a survival action. 42 U.S.C. § 1988(a); Tatum v. City & County of San Francisco, 10 441 F.3d 1090, 1093 n. 2 (9th Cir. 2006); Smith v. City of Fontana, 818 F.2d 1411, 1416-17 (9th 11 Cir. 1987). The party seeking to bring a survival action bears the burden of demonstrating that a 12 particular state s law authorizes a survival action and that the plaintiff meets that state s 13 requirements for bringing a survival action. Moreland v. Las Vegas Metropolitan Police Dept., 14 159 F.3d 365, 369 (9th Cir. 1998). California Code of Civil Procedure § 377.20 provides that a 15 cause of action survives a person's death even when the loss or damage occurred simultaneously 16 with the death of a person. A survivor cause of action is a cause of action which belonged to 17 the decedent before death but, by statute, survives that event. Quiroz v. Seventh Ave. Ctr., 140 18 Cal.App.4th 1256, 1264 (2006). Here, the alleged violations of Victor s constitutional rights 19 accrued before and during his death and California law authorizes such a survival action by 20 Victor s estate. Thus, a survival action for Defendants alleged violations of Victor s 21 constitutional rights is available to Victor s estate. 22 Defendants appear to contend that Plaintiff does not meet California s requirements to 23 have standing to bring a survival action. California Code of Civil Procedure § 377.30 states that 24 a cause of action that survives the death of the person may be commenced by the decedent s 25 personal representative or, if none, by the decedent's successor in interest. California Code of 26 Civil Procedure § 377.11 provides that a decedent's successor in interest means the beneficiary 27 28 7 1 of the decedent s estate or other successor in interest who succeeds to a cause of action or to a 2 particular item of the property that is the subject of a cause of action. Under California law, an 3 estate passes to (1) a decedent s surviving spouse or surviving domestic partner; or (2) if there is 4 no surviving spouse or domestic partner, the decedent s children, and (3) if there are no children, 5 the decedent s parents. Cal. Prob. Code § 6402. 6 Plaintiff does not claim to be an administer of Victor s estate; Plaintiff contends she is 7 Victor s successor in interest. As such, the issue is whether Plaintiff is Victor s successor in 8 interest. In a declaration filed along with the complaint, Plaintiff states that no proceeding is 9 pending for the administration of Victor s estate. Plaintiff further states: 10 11 I am the successor in interest, as defined in Section 377.11 of the California Code of Civil Procedure, and succeed to VICTOR LOPEZ s interest in this action. VICTOR was never married and had no children. 12 The complaint also states on page two that Plaintiff is Victor s successor in interest. At first 13 glance, it appears that both Plaintiff s declaration and page two of the complaint resolve the issue 14 of whether Plaintiff is a successor in interest who can sue on behalf of Victor s estate. 15 However, the complaint s later allegations completely confuse the issue. Page eleven of the 16 complaint states that prior to Victor s death, Victor lived with Plaintiff, Victor s wife, and 17 Victor s four sons. 18 husband and son to Plaintiff, who depended on him for support and companionship. These 19 allegations contradict Plaintiff s declaration attached to the complaint. This contradiction makes 20 it unclear whether Victor has a surviving wife and children, and if they, rather than Plaintiff, are 21 the successors in interest to Victor s estate. If Plaintiff is not the successor in interest, Plaintiff 22 does not have standing to assert a violation of Victor s constitutional rights under Section 1983. 23 Given the ambiguity in the complaint and attached declaration, the court has no choice but to 24 dismiss the complaint and grant Plaintiff leave to file an amended complaint in which she 25 clarifies the presence of Victor s wife and children and whether she is a successor in interest to 26 Victor s estate. Page eleven further states that Victor was a faithful and dutiful father and 27 28 8 1 4. Defendant Vasquez 2 Defendant Vasquez contends that the amended complaint does not sufficiently link 3 Defendant Vasquez to any alleged constitutional violations to support a claim under 42 U.S.C. § 4 1983. 5 Prison Director of Wasco State Prison does not provide a sufficient basis for liability under 6 Section 1983. 7 Defendant Vasquez contends that she is entitled to dismissal because her position as the To prevail on any Section 1983 claim, a plaintiff must demonstrate that he or she suffered 8 a specific injury as a result of specific conduct of a defendant and show an affirmative link 9 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72 10 (1976). The Supreme Court recently emphasized that the term supervisory liability, loosely 11 and commonly used by courts and litigants alike, is a misnomer. Ashcroft v. Iqbal, U.S. 129 12 S.Ct. 1937, 1949 (2009). Supervisory personnel are generally not liable under Section 1983 for 13 the actions of their employees under a theory of respondeat superior. Id. at 1948; Taylor v. List, 14 880 F.2d 1040, 1045 (9th Cir. 1989). [A] plaintiff must plead that each Government-official 15 defendant, through the official s own individual actions, has violated the constitution. Iqbal, 16 129 S.Ct. at 1948. A supervisory defendant cannot be held liable based on his or her knowledge 17 and acquiescence in a subordinate s unconstitutional conduct because government officials, 18 regardless of their title, can only be held liable under Section 1983 for his or her own conduct 19 and not the conduct of others. Iqbal, 129 S.Ct. at 1949. 20 The plaintiff in Iqbal, a Pakistani Muslim man, was arrested and detained in the days 21 following the attacks of September 11, 2001. Iqbal,129 S.Ct. at 1942. The plaintiff alleged he 22 had been subjected to harsh conditions of confinement on account of his race, religion, or 23 national origin by former Attorney General of the United States John Ashcroft and Federal 24 Bureau of Investigation ( FBI ) Director Robert Mueller because they had authorized an 25 unconstitutional detention policy. Id. The Supreme Court found that these allegations failed to 26 state a claim. The Supreme Court explained that bare assertions . . . amount[ing] to nothing 27 28 9 1 more than a formulaic recitation of the elements of a constitutional discrimination claim, for 2 the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth. Id. at 3 1951 (quoting Twombly, 550 U.S. at 555). The Supreme Court stated that the court should not 4 discount such allegations because they are unrealistic or nonsensical, but rather because they 5 do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a 6 factual allegation. Id. 129 S.Ct. at 1951. Thus, in Iqbal, the Supreme Court assigned no weight 7 to the plaintiff s conclusory allegation that former Attorney General Ashcroft and FBI Director 8 Mueller knowingly and willfully subjected him to harsh conditions of confinement solely on 9 account of [his] religion, race, and/or national origin and for no legitimate penological interest. 10 Id. (quoting plaintiff's complaint). 11 Here, the complaint contains only legal conclusions about Defendant Vasquez s liability. 12 It is unclear what Defendant Vasquez s role was in the alleged constitutional violation other than 13 Defendant Vasquez s status as the Prison Director of Wasco. 14 Defendants , presumably including Defendant Vasquez, maintained or permitted an official 15 policy or pattern and practice of permitting the occurrence of the types of wrongs set forth in the 16 complaint. 17 train employees regarding medical treatment and evaluation. The court finds that these 18 allegations are too similar to those allegations found deficient in Iqbal. General allegations that 19 Defendant Vasquez had a policy and practice that caused the other Defendants to provide 20 inadequate medical treatment of patients without further information fails to state a claim for 21 liability against Defendant Vasquez. Thus, the complaint does not state a Section 1983 cause of 22 action against Defendant Vasquez. 23 5. Leave to Amend 24 When dismissing a complaint, the Ninth Circuit has stated that leave to amend should be The complaint alleges that The complaint also alleges that Defendants failed to properly supervise, hire, and 25 granted unless the district court determines that the pleading could not possibly be cured by the 26 allegation of other facts. Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001) (internal 27 28 10 1 quotation marks omitted). Here, the court cannot find at this time that amendment would be 2 futile. The court reminds Plaintiff that Section 1983 plainly requires that there be an actual 3 connection or link between the actions of the defendants and the deprivation alleged to have been 4 suffered by plaintiff. Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. 5 Goode, 423 U.S. 362 (1976). 6 participated in the constitutional deprivation. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 7 2002). Thus, in any amended complaint, Plaintiff must link each named defendant with some 8 affirmative act or omission that demonstrates a violation of the Constitution. Plaintiff must demonstrate that each defendant personally 9 The court recognizes that during the prior motion to amend, the Magistrate Judge advised 10 Plaintiff of her need to clarify her ability to file both a survivor action and wrongful death action 11 in any amended complaint; Yet, Plaintiff s standing to file such actions remains unclear. As the 12 court is already giving leave to amend to allege deliberate indifference, Plaintiff will be given 13 one last chance to state her standing to sue for violations of Victor s constitutional rights. 14 Plaintiff is advised that any amended complaint that includes such causes of action must be based 15 upon a well-founded belief that a cognizable or arguable legal theory exists that would support 16 such a theory. See Fed. R. Civ. P. 11 (allowing sanctions to be awarded when litigant asserts 17 frivolous legal theory); Les Shockley Racing Inc. v. National Hot Rod Ass n, 884 F. 2d 504, 510 18 (9th Cir. 1989) (defining legal argument as frivolous if at time of filing, a competent attorney 19 after a reasonable investigation could not have determined that a well-founded basis in fact and 20 in law or a good faith argument for extension of law supported the filing ). 21 Any amended complaint shall be filed within thirty days. Plaintiff is forewarned that 22 failure to file an amended complaint will result in dismissal of this action. 23 B. California s Tort Claims Act 24 Defendants contend that Plaintiff s second cause of action, brought pursuant to California 25 Welfare and Institutions Code, for abuse and neglect of a dependent adult is barred because this 26 claim was not raised in the claim Plaintiff filed pursuant to the California Tort Claims Act. 27 28 11 1 The California Tort Claims Act ( CTCA ) requires that a tort claim against a public 2 entity or its employees be presented to the California Victim Compensation and Government 3 Claims Board, formerly known as the State Board of Control, no more than six months after the 4 cause of action accrues. Cal. Gov t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation 5 of a written claim and action on or rejection of the claim are conditions precedent to suit. State 6 v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (2004); see also Mangold v. 7 California Pub. Utils. Comm n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against 8 a public employee, a plaintiff must allege compliance with the CTCA. Bodde, 32 Cal.4th at 9 1245. 10 11 12 Plaintiff filed a claim pursuant to the CTCA. The court takes judicial notice of the contents of this claim. Defendants contend that Plaintiff s second cause of action for dependent adult abuse 13 pursuant to the Dependent Adult Act focuses on an entirely new cause of action not covered by 14 Plaintiff s claim to the California Victim Compensation and Government Claims Board. A 15 claim must provide the date, place, and other circumstances of the occurrence that gave rise to 16 the claim asserted and provide a general description of the . . . injury, damage or loss incurred so 17 far as it may be known at the time of presentation. Cal. Gov t Code § 910;1 Stockett, 34 Cal.4th 18 at 445. The purpose of the CTCA is not to prevent surprise, rather it is intended to provide 19 the public entity sufficient information to enable it to adequately investigate claims and to settle 20 21 22 23 24 25 26 27 28 1 Cal. Gov t Code § 910 reads: A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars ($ 10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($ 10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. 12 1 them, if appropriate, without the expense of litigation. City of San Jose v. Superior Court, 12 2 Cal. 3d 447, 455 (1974); see also Stockett v. Assoc. of California Water Agencies Joint Powers 3 Ins. Auth., 34 Cal.4th 441, 446 (2004). Because the CTCA is designed to give a public entity 4 notice sufficient for it to investigate and evaluate the claim . . . the statute should not be applied 5 to snare the unwary where its purpose is satisfied, and the claim need not contain the detail and 6 specificity required of the pleading, but need only fairly describe what the entity is alleged to 7 have done. Stockett, 34 Cal.4th at 446. If a plaintiff relies on more than one cause of action, 8 each cause of action must have been reflected in a timely claim. In addition, the factual 9 circumstances set forth in the written claim must correspond with the facts alleged in the 10 complaint. Dixon v. City of Livermore, 127 Cal.App.4th 32, 40 (2005); see also Stockett, 34 11 Cal.4th at 447. A complaint is subject to dismissal if it alleges a factual basis for recovery that is 12 not fairly reflected in the written claim. Stockett, 34 Cal.4th at 447. However, the facts alleged 13 in the claim and complaint do not have to be identical. As the California Supreme court has 14 recently explained: 15 16 17 18 19 The claim, however, need not specify each particular act or omission later proven to have caused the injury. A complaint s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entirely different set of facts. Only where there has been a complete shift of allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim have courts generally found the complaint barred. Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. 20 21 Id.; see also Dixon, 127 Cal.App.4th at 40; White v. Superior Court, 225 Cal.App.3d 1505, 1510- 22 11 (1990). 23 Plaintiff s claim alleged that, prior to incarceration, Victor was on anti-depressant 24 medication and had been seen by a mental health professional. 25 Victor had been seen by members of Wasco s mental health staff. The claim alleged Victor had 26 been displaying bizarre and unhygienic behavior, but he had been cleared for placement back into 27 28 13 The claim further alleged that 1 his cell one day prior to the incident. The claim questioned why someone who had just been 2 seen the day before his death for bizarre and unhygienic behavior had a laundry bag in his 3 possession. The claim concluded by asserting Defendants were negligent for failing to continue 4 CPR, providing Victor with a laundry bag, and failing to administer anti-depressant medication. 5 The current complaint alleges a negligence cause of action and a cause of action under the 6 Dependent Adult Act. This is not the case where Plaintiff has simply added additional facts to 7 the complaint not alleged in the claim. To the contrary, the complaint s facts and claim s facts 8 substantially overlap. In the complaint, Plaintiff continues to allege that Defendants were liable 9 for not giving Victor proper medication, not treating his suicidal ideation, and providing him 10 with laundry bag. 11 action. Instead of only alleging negligence in the complaint, Plaintiff now alleges a new cause 12 of action for abuse of a dependent adult. Additional causes of action need to be separately 13 presented in a claim under Section 945.4. See Stockett, 34 Cal.4th at 447 ( While Stockett's 14 claim did not specifically assert his termination violated the public policies favoring free speech 15 and opposition to public employee conflicts of interest, these theories do not represent additional 16 causes of action and hence need not be separately presented under section 945.4. ) If a plaintiff 17 relies on more than one cause of action, each cause of action must have been reflected in a timely 18 claim. Dixon, 127 Cal.App.4th at 42; Fall River Joint Unified School Dist. v. Superior Court, 19 206 Cal.App.3d 431, 434 (1988). 20 The problem in this case is that the complaint adds an entirely new cause of In the complaint, Plaintiff is seeking to impose liability for abuse under the Dependent 21 Adult Act. Such a cause of action is not included in the negligence allegations present in 22 Plaintiff s claim. As explained more fully by Defendants, negligence is not included within the 23 scope of the Dependent Adult Act. Cal. Welf. & Inst. Code § 15657.2; Sababin v. Superior 24 Court, 144 Cal.App.4th 81, 88 (2006). Thus, given the statutory scheme and the purpose of the 25 CTCA, Plaintiff should have filed a separate tort claim concerning her Dependent Adult Act 26 cause of action. Because she did not, this cause of action must be dismissed. 27 28 14 1 As discussed above, when dismissing a complaint, the court should grant leave to amend 2 unless the court determines that the pleading could not possibly be cured by the allegation of 3 other facts. Bly-Magee, 236 F.3d at 1019. It is now too late for Plaintiff to present another 4 claim under the CTCA that alleges Victor s death violated the Dependent Adult Act. Plaintiff 5 had six months from the date of Victor s death to file such a claim, and that time has now passed. 6 See Cal. Gov t Code § 911.2. Thus, Plaintiff s second cause of action will be dismissed without 7 leave to amend. 8 C. Standing for Wrongful Death 9 While not directly addressed by Defendants, the court notes that Plaintiff s third cause of 10 action is for wrongful death. There are two types of actions that may proceed concerning a 11 decedent -- survival actions and a wrongful death action. As discussed above, a survival action 12 is a personal injury action that survives to permit a decedent s estate to recover damages that 13 would have been personally awarded to the decedent had he survived. Cal. Civ. Pro. Code §§ 14 377.20, 377.30 . In contrast, a wrongful death action is an independent claim for damages 15 personally suffered by a decedent s heirs as a result of the decedent s death. Cal. Civ. Pro. Code 16 § 377.60. A wrongful death claim is a remedy governed by statute. Frazier v. Velkura, 91 17 Cal.App.4th 942, 945 (2001). The statutory right to bring a wrongful death action in California 18 is grounded in the right to inherit from the decedent . . . [and] the purpose behind the wrongful 19 death statute is to provide compensation for the loss of companionship and other losses resulting 20 from decedent s death. Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App.4th 855, 864 (1998). 21 Standing to sue for wrongful death is governed by California Code of Civil Procedure § 22 377.60, and the category of persons eligible to bring wrongful death actions is strictly construed. 23 Cal. Code Civ. Pro. § 377.60; Steed v. Imperial Airlines, 12 Cal.3d 115, 119-20 (1974); Bouley 24 v. Long Beach Memorial Medical Center, 127 Cal.App.4th 601, 606 (2005). A plaintiff who 25 brings a wrongful death suit as an heir must establish the absence of a spouse or issue by the 26 decedent and the entitlement or propriety of the heir to seek recovery under § 377.60, i.e. that the 27 28 15 1 heir actually has standing under § 377.60. See Nelson v. County of Los Angeles, 113 2 Cal.App.4th 783, 789 (2004); Coats v. K-Mart Corp., 215 Cal.App.3d 961, 969-70 (1989). 3 Section 377.60(a) gives standing to heirs if those persons would be entitled to the property of 4 the decedent by intestate succession, but only if there is no surviving issue of the decedent. 5 Chavez, 91 Cal.App.4th at 1440 (quoting Cal. Code Civ. Pro. § 377.60(a)). A decedent s parents 6 become heirs under the wrongful death statute when there is no surviving spouse or issue. Cal. 7 Code Civ. Pro. § 377.60(a); Cal. Prob. Code, § 6402(b); Chavez, 91 Cal.App.4th at 1440. Where 8 a decedent leaves issue, his parents would not be his heirs at all and therefore not entitled to 9 maintain [a wrongful death] action at all. Chavez, 91 Cal.App.4th at 1440; Jolley v. Clemens, 10 28 Cal. App. 2d 55, 74 (1938). However, [r]egardless of their status as heirs, parents may sue 11 for the wrongful death of their child if they were dependent on the decedent. Chavez, 91 12 Cal.App.4th at 1440 (quoting Code Civ. Pro. § 377.60(b)); see also Foster v. City of Fresno, 392 13 F.Supp.2d 1140, 1146 (E.D. Cal. 2005). Dependence refers to financial rather than emotional 14 dependency . . . [and] a parent must show that they were actually dependent, to some extent, 15 upon the decedent for the necessaries of life. Foster, 392 F.Supp.2d at 1146; Chavez, 91 16 Cal.App.4th at 1445. 17 As discussed above, the complaint offers conflicting allegations concerning whether 18 Plaintiff is Victor s heir. If Plaintiff is Victor s heir because he had no wife or children, Plaintiff 19 as Victor s mother has standing to bring a wrongful death action. However, if Victor had a wife 20 or children, Plaintiff only has standing if she can assert financial dependance on Victor. 21 Because the complaint s allegations are inconsistent, leave to amend will be given. 22 ORDER 23 Based on the above memorandum opinion, the court ORDERS that: 24 1. Defendants motions to dismiss are GRANTED; 25 2. The first cause of action, brought under Section 1983, and the third cause of 26 action for wrongful death are DISMISSED with leave to amend; 27 28 16 1 3. 2 3 DISMISSED without leave to amend; 4. 4 5 The second cause of action for violations of the Dependent Adult Act is Any amended complaint SHALL BE FILED within thirty days of this order s date of service; and 5. 6 Plaintiff is forewarned that failure to file an amended complaint within thirty days that complies with this order will result in dismissal of the entire action. 7 8 IT IS SO ORDERED. 9 Dated: 0m8i78 December 15, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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