Estate of Angel Antonio Mendoza-Saravia v. Fresno County Sheriff's Dept. et al., No. 1:2010cv00618 - Document 24 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION and ORDER RE: Defendants' Motion to Dismiss or, in the Alternative, Motion for a More Definite Statement 9 , signed by Judge Oliver W. Wanger on 8/2/2010. (Gaumnitz, R)

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Estate of Angel Antonio Mendoza-Saravia v. Fresno County Sheriff&#039;s Dept. et al. Doc. 24 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 8 ESTATE OF ANGEL ANTONIO MENDOZA-SARAVIA, by and through his estate administrator, JOSE MENDOZASARAVIA, et al; 9 1:10-CV-00618-OWW-SMS MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT (Doc. 9) Plaintiffs, 10 11 12 13 v. FRESNO COUNTY SHERIFF S DEPARTMENT, et al, 14 Defendants. 15 16 I. INTRODUCTION 17 18 Defendants County of Fresno and City of Mendota now move, 19 pursuant to Federal Rule of Civil Procedure Rule 12(b), to dismiss 20 the complaint on grounds, among others, that Plaintiffs lack 21 standing. 22 statement under Rule 12(e). 23 In the alternative, Defendants move for a more definite Plaintiffs are the alleged successors-in-interest and 24 surviving relatives of Jose Mendoza-Saravia, who allegedly died as 25 a result of an encounter with Fresno County Sheriff Deputies on 26 November 26, 2008. 27 Alternatively, they request an opportunity to file an amended 28 complaint. They oppose the merits of the motion. 1 Dockets.Justia.com II. FACTUAL BACKGROUND 1 This 2 action involves the alleged violation of Jose 3 Mendoza-Saravia s civil rights and other injuries. The following 4 facts are derived from the complaint, filed on February 10, 2010. 5 On November 26, 2008, several deputies with the Fresno County 6 Sheriff s Department responded to a disturbance call at 325 Blanco 7 Street, Mendota, California, the then-residence of decedent Jose 8 Mendoza-Saravia. 9 Mr. Mendoza-Saravia, leading to an altercation between the deputies 10 and Mr. Mendoza-Saravia. At an unknown point in time, Mr. Mendoza- 11 Saravia was shot at close range with a beanbag projectile in the 12 upper torso. 13 where he was pronounced dead the same evening. Plaintiffs allege that the deputies confronted Mr. Mendoza-Saravia was transported to the hospital, 14 III. PROCEDURAL BACKGROUND 15 16 On February 10, 2010, Plaintiffs filed the instant action in 17 Fresno County Superior Court, alleging six causes of action: (1) 18 negligence against all defendants; (2) assault and battery against 19 all defendants; 20 the Fourth, Fifth, and Fourteenth Amendments to the Constitution 21 of 22 liability against MK Ballistic Systems;1 (5) strict liability in 23 tort against MK Ballistic Systems; and (6) breach of warranties 24 against MK Ballistic Systems. 25 the United (3) violation of California Civil Rights and States against all defendants; (4) products Plaintiffs seek to recover compensatory and punitive damages 26 27 28 1 MK Ballistic Systems was voluntary dismissed on June 3, 2010. (Doc. 11.) West Coast Ammunition was added as a defendant in this action on June 4, 2010. (Doc. 14.) 2 1 against Defendants Fresno County, the City of Mendota, Fresno 2 County Sheriff s Department, and West Coast Ammunition.2 3 On April 4, 2010, this case was removed on the basis of 4 federal question jurisdiction. 5 Plaintiffs' action is founded on claims arising under federal laws, 6 including the Fourth, Fifth, and Fourteenth Amendments to the 7 Constitution of the United States. 8 9 The notice of removal asserts that On June 23, 2009, Defendants filed a motion to dismiss. Plaintiffs oppose the motion. 10 IV. LEGAL STANDARD 11 12 Under Federal Rule of Civil Procedure 12(b)(6), a motion to 13 dismiss can be made and granted when the complaint fails to state 14 a claim upon which relief can be granted. 15 12(b)(6) is appropriate where the complaint lacks a cognizable 16 legal theory or sufficient facts to support a cognizable legal 17 theory. 18 (9th Cir. 1990). Dismissal under Rule Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 19 To sufficiently state a claim to relief and survive a 12(b)(6) 20 motion, a complaint does not need detailed factual allegations 21 but the [f]actual allegations must be enough to raise a right to 22 relief above the speculative level. Bell Atl. Corp. v. Twombly, 23 24 25 26 27 28 2 Fresno County Sheriff s Department is not a legal entity. Maxwell v. Henry, 815 F. Supp. 213, 215 (S.D. Tex. 1993). Nor is the Fresno County Sheriff's Department a person for purposes of § 1983 litigation. Vance v. County of Santa Clara, 928 F. Supp. 993 (N.D. Cal. 1996). Plaintiff has also sued "Fresno County" which is the proper legal entity to be sued in this type of case. Therefore, as a matter of law, the claims against Defendant Fresno County Sheriff's Department are DISMISSED. 3 1 550 U.S. 544, 555 (2007). Mere labels and conclusions or a 2 formulaic recitation of the elements of a cause of action will not 3 do. Id. Rather, there must be enough facts to state a claim to 4 relief that is plausible on its face. 5 a motion to dismiss, a complaint must contain sufficient factual 6 matter, accepted as true, to state a claim to relief that is 7 plausible on its face. 8 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted). 9 plausibility standard is not akin to a probability requirement, but 10 it asks for more than a sheer possibility that a defendant has 11 acted unlawfully. 12 consistent with a defendant's liability, it stops short of the line 13 between possibility and plausibility of entitlement to relief. 14 Id. (internal citation and quotation marks omitted). Id. at 570. To survive Ashcroft v. Iqbal, --- U.S. ----, 129 The Where a complaint pleads facts that are merely 15 In deciding whether to grant a motion to dismiss, the court 16 must accept as true all well-pleaded factual allegations. Iqbal, 17 129 S.Ct. at 1950. 18 true allegations that are merely conclusory, unwarranted deductions 19 of fact, or unreasonable inferences. 20 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. 21 Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th 22 Cir. July 10, 2009) ( Plaintiffs' general statement that Wal-Mart 23 exercised control over their day-to-day employment is a conclusion, 24 not a factual allegation stated with any specificity. We need not 25 accept Plaintiffs' unwarranted conclusion in reviewing a motion to 26 dismiss. ). A court is not, however, required to accept as Sprewell v. Golden State 27 The Ninth Circuit has summarized the governing standard, in 28 light of Twombly and Iqbal, as follows: In sum, for a complaint to 4 1 survive a motion to dismiss, the non-conclusory factual content, 2 and reasonable inferences from that content, must be plausibly 3 suggestive of a claim entitling the plaintiff to relief. 4 U.S. Secret 5 quotation marks omitted). Service, 572 F.3d 962 (9th Cir. 2009) Moss v. (internal 6 V. DISCUSSION 7 8 Defendants now move, pursuant to Rule 12(b) of the Federal 9 Rules of Civil Procedure, to dismiss the following claims advanced 10 against them: (1) federal civil rights claims; (2) negligence; and 11 (3) assault and battery. 12 Defendants first argue that Plaintiffs lack standing to pursue 13 their survival and wrongful death actions because they do not 14 satisfy California Code of Civil Procedure §§ 377.11 and 377.60, 15 the applicable statutory frameworks. 16 has standing to pursue a claim naturally precedes the question of 17 whether that party has successfully stated a claim. 18 City of Las Vegas, 159 F.3d 365, 369 (9th Cir. 1998). 19 bears the burden of proving that standing exists. Northwest Envtl. 20 Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 21 1997). 22 Saravia and Angie Melissa Castro have standing to sue. Whether a particular party Moreland v. Plaintiff Defendants challenge whether Plaintiffs Jose Mendoza- 23 24 25 A. Standing 1. Plaintiff Jose Mendoza-Saravia 26 Citing California Code of Civil Procedure § 377.11, Defendants 27 assert that Plaintiff Jose Mendoza-Saravia lacks standing to sue, 28 as he is not the decedent's successor-in-interest, defined as the 5 1 beneficiary of decedent's estate.3 Defendants explain: The first two causes of action in the complaint are state law claims for negligence (first) and assault and battery (second). Plaintiff Jose Mendoza-Saravia alleges that he is the personal representative of Decedent s estate. While the complaint is unclear, it appears that Mr. Mendoza-Saravia is bringing a survival action under California law, based on the torts allegedly committed against Decedent. However, he has failed to properly allege that he has standing to bring such an action. 2 3 4 5 6 7 (Doc. 9-1 at 2:23-28.) 8 Plaintiff Jose Mendoza-Saravia rejoins that he satisfies § 9 377.11's requirements because he is the brother of Angel Mendoza10 Saravia and is his successor in interest and administrator of his 11 estate. He relies on two statements to support this assertion: 12 (1) the complaint s sixth paragraph, which states that Jose 13 Mendoza-Saravia is [the] duly qualified and acting personal 14 representative of the estate of Angel Mendoza-Saravia ; and (2) his 15 declaration, which was filed on June 3, 2010 with the opposition. 16 California Code of Civil Procedure § 377.30 provides that [a] 17 cause of action that survives the death of the person ... may be 18 commenced by the decedent's personal representative or, if none, by 19 the decedent's successor in interest. A personal representative 20 means an executor, administrator, administrator with the will 21 annexed, special administrator, successor personal representative, 22 23 3 24 25 26 27 28 Defendants standing arguments apply with equal force to Jose Mendoza-Saravia s federal claims, even though the complaint does not mention § 1983. In order to maintain a § 1983 cause of action, a plaintiff must have standing as a representative or successor in interest under the California state survival statute. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (stating that in a Section 1983 action, the party bringing a survival action must show that the particular state's law allows a survival action and that plaintiff meets those requirements). 6 1 public administrator acting pursuant to Section 7660, or a person 2 who performs substantially the same function under the law of 3 another jurisdiction governing the person's status. Cal. Prob. 4 Code § 58(a); 5 403838, at *11 (E.D. Cal. Feb.17, 2006). The decedent's successor 6 in interest, which Jose Mendoza-Saravia claims to be, means the 7 beneficiary of the decedent's estate or other successor in interest 8 who succeeds to a cause of action or to a particular item of the 9 property that is the subject of a cause of action. 10 Garcia v. Adams, No. F. 04-5999 AWI SMS, 2006 WL Cal. Civ. Proc. Code § 377.11. 11 Although Jose Mendoza-Saravia states that he is the successor 12 in interest to Angel Antonio s Mendoza-Saravia s [] estate and 13 that no proceeding is now pending in California for administration 14 of the decedent s estate, this does not establish standing to sue 15 under California s survival statute. 16 satisfy § 377.32(a)(4), which provides in relevant part: In particular, he does not (a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following [...] 17 18 19 20 (4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest. 21 22 23 Id. 24 Critically, his declaration provides that [a] copy of the 25 final order showing distribution of the decedent s cause of action 26 to the successor in interest is attached hereto. 27 5.) Mr. Mendoza-Saravia, however, fails to attach the final order 28 showing the distribution of the decedent s cause of action. 7 (Doc. 12-1, ¶ 1 Without such an order, he cannot satisfy § 377.32(a)(4).4 2 Providing a final order showing the distribution of the 3 decedent s cause of action is a prerequisite to filing a survival 4 action under § 377.10, et seq. 5 standing and the survivor claims are DISMISSED WITH LEAVE TO AMEND. As such, Mr. Mendoza-Saravia lacks 6 In their opposition brief, Plaintiffs submit that if the 7 motion is granted, it be granted with leave to amend to allow them 8 to 9 submissions and arguments of the Plaintiffs in opposition to the 10 motion, leave to amend is not futile, sought in bad faith, nor 11 would it cause unnecessary delay. Plaintiffs request is GRANTED. 12 See Fed. R. Civ. P. 15(a)(2) ( Leave to amend should be freely 13 given "when justice so requires."). 14 cure the defects in their complaint. Based upon the Any amended complaint shall include the Final Order and 15 conform with 16 Rules 8 and 11 of the Federal Rules of Civil Procedure.5 17 2. 18 Angie Melissa Castro 19 Minor Plaintiff Angie Melissa Castro has advanced, through her 20 mother and guardian ad litem Blanca Estella Castro, a state law 21 wrongful 22 association claim.6 death claim and a Fourteenth Amendment familial 23 24 25 26 4 Plaintiff Jose Mendoza-Saravia s insufficient to satisfy § 377.32(a)(5). declaration is also 5 If permitted under § 377.10, et seq., Plaintiff may include the Final Order in haec verba. 27 6 28 The complaint provides: Angie Melissa Castro is the child of the Decedent, and was dependent on decedent for support. 8 1 Standing to sue in a wrongful death action is governed by 2 California Code of Civil Procedure § 377.60, and the category of 3 persons eligible to bring a wrongful death action is strictly 4 construed. 5 Cal.App.4th 601, 606 (2005); 6 1433, 1438 (2001). 7 cause of action and delineates who may avail themselves of the 8 action. Bouley v. Long Beach Memorial Medical Center, 127 Chavez v. Carpenter, 91 Cal.App.4th Section 377.60 establishes a wrongful death In relevant part, § 377.60 reads: A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: 9 10 11 (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. 12 13 14 (b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, putative spouse means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid. 15 16 17 18 19 Id. 20 Defendants originally filed this motion under Rule 12(e) based 21 on an ambiguity in the complaint, which represented that Ms. Castro 22 was the child of the decedent and that she was dependent on 23 decedent for his support. Defendants claimed these statements 24 were in conflict because under the wrongful death statute, it is 25 not necessary for the surviving issue of a decedent to be dependent 26 27 28 9 1 on the decedent. 7 2 because if the former is true [Ms. Castro is decedent s child], 3 there would be no need to conduct discovery on the issue of 4 dependence. 5 In 6 7 8 9 their Defendants moved for clarification of the issue opposition, however, Plaintiffs clarified any ambiguity over the statements: Angie Melissa Castro was born on February 18, 2009 at 3:31 p.m. in El Salvador. Angie is the daughter of Angel Antonion Mendoza-Saravia and Blanca Estella Castro, therefore, as stated by Defendants in their Motion, there is no need to conduct discovery on the issue of dependence. 10 11 12 (Doc. 12 at 3:16-3:20.) In further support, Plaintiffs attached the declaration of 13 Blanca Estella 14 Castro to their opposition. The declaration provides: 1. I was the girlfriend of Angel Antonio MendozaSaravia [...] 3. 15 My daughter, Angie Melissa Castro, was born on February 18, 2009. 4. Angel Antonio Mendoza-Saravia Angie Melissa Castro. 16 17 18 is the father of 19 (Doc. 12-2 ¶¶ 1, 3-4). 20 Defendants nonetheless argue that Plaintiff Angie Melissa 21 Castro lacks standing to advance a wrongful death cause of action 22 against them. Citing Cheyanna D. V. A,C,. Nielsen, Co., 66 Cal. 23 App. 4th 855 (1998), Defendants argue that she is required to 24 plead that clear and convincing evidence of paternity exists, 25 which she cannot do: 26 27 7 28 However, a step-child must demonstrate dependence under § 377.60. 10 1 2 3 4 5 6 7 Ms. Castro has plainly failed to meet the [clear and convincing] evidence] standard. While she represents that she was Decedent s girlfriend, and represents in a conclusory fashion that Decedent is the father of her daughter, the attached birth certificate makes no reference to Decedent as the father. Furthermore, in contrast to the representation on the birth certification that Angie was born at Fresno Community Regional Medical Center, Ms. Castro represents in her declaration that her daughter was born in El Salvador. Therefore it cannot reasonably be concluded from the pleadings and motion papers that the paternity of Decedent can be established by clear and convincing evidence. As such, Angie Melissa Castro should be dismissed as a plaintiff. 8 9 (Doc. 17 at 5:25-6:4.) 10 Defendants argument can be summarized as follows: Plaintiffs 11 cannot satisfy Cheyanna s clear and convincing evidence standard 12 because: (1) Angie s birth certificate does not list the decedent 13 as the father; and (2) there are inconsistent statements concerning 14 Angie s birthplace. 15 taken together, demonstrate that Plaintiff Angie Melissa Castro 16 lacks standing to pursue a wrongful death claim. 17 According to Defendants, these two factors, This argument was advanced for the first time in Defendants 18 reply brief.8 19 respond, either via motion or at oral argument.9 20 requested to address the ambiguity and/or disparity in the amended 21 pleading. As such, Plaintiffs have not had an opportunity to Plaintiff is The motion is GRANTED WITH LEAVE TO AMEND. 22 23 24 25 26 8 Arguments raised for the first time in a reply brief or at the hearing on a motion are disregarded as a general rule. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992); United States v. Boyce, 148 F.Supp.2d 1069, 1085 (S.D.Cal.2001). However, it appears that the ambiguity stems from Ms. Blanca Estella Castro s declaration, which was attached to Plaintiffs opposition to the present motion. 27 9 28 Counsel for Plaintiffs did not appear at oral argument on August 2, 2010. 11 1 B. 1. 2 3 Merits of Plaintiffs Complaint The Federal Civil Rights Claims (Claim III) complaint alleges that constitutional Defendants rights. violated Specifically, Jose 4 Mendoza-Saravia s the 5 complaint alleges that Defendants deprived Jose Mendoza-Saravia of 6 liberty without due process of law and made an unreasonable 7 seizure. These are conclusions of law. The complaint contains no 8 allegations specific to the federal causes of action, nor does it 9 name as defendants any individual officers or deputies. 10 Title 42 U.S.C. § 1983 provides for liability against any 11 person acting under color of law who deprives another of any 12 rights, privileges, or immunities secured by the Constitution and 13 laws of the United States. 14 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). 15 rights guaranteed by section 1983 are liberally and beneficently 16 construed. 17 (1991)). S. Cal. Gas Co. v. City of Santa Ana, The Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 18 To establish liability under § 1983, a plaintiff must show (1) 19 that he was deprived of a right secured by the United States 20 Constitution or a federal law and (2) that the deprivation was 21 effected under color of state law. 22 1023, 1028 (9th Cir. 2003). 23 Broam v. Bogan, 320 F.3d Defendants argue that Plaintiff fails to allege sufficient 24 facts to support either an excessive force or due process claim. 25 According to Defendants, it certainly cannot be surmised from the 26 complaint 27 indifference to Plaintiffs rights. 28 assert that the complaint s allegations are sufficient to state a that any deputy sheriff 12 acted with deliberate In opposition, Plaintiffs 1 claim and that discovery is necessary to properly analyze the [] 2 cases cited by Defendants. 3 Although Plaintiff did not specifically enumerate a cause of 4 action 5 violated his constitutional rights. 6 makes clear that Plaintiffs advance several independent causes of 7 action pursuant to the § 1983 framework. The relevant paragraph of 8 the complaint provides: 9 10 11 12 13 14 15 under § 1983, the complaint asserts that Defendants The opposition, however, Said Defendants, while acting within their capacities as deputies in the City of Mendota, County of Fresno, State of California, deprived decedent of his liberty without due process of law, made an unreasonable seizure of the decedent thereby depriving decedent of his rights, privileges, and immunities as guaranteed by Article I, § 13 of the California Constitution; and the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States [...] As a proximate result of the Constitutional violations by the defendants, and each of them, the decedent died on November 26, 2008. 16 (Compl. ¶¶ 18, 20.) 17 Other than a general reference to the three-sentence factual 18 summary, which is itself devoid of any factual detail, the 19 complaint does not identify what constitutional deprivations (i.e., 20 facts ) support the federal claims. Plaintiffs confound the 21 pleading posture by inserting new facts in their opposition, 22 i.e., facts that were not included in their complaint. For 23 instance, the opposition states that upon arriving at Jose s home, 24 the officers chased Angel Antonio Mendoza-Saravia into a bedroom 25 where he was unarmed and alone, unable to harm the officers or 26 anyone else. The opposition further provides: While barricaded 27 in the bedroom alone, Angel opened the door and was immediately 28 13 1 shot in the chest by an officer with a bean-bag shotgun. The 2 opposition also submits that Jose was placed in handcuffs by the 3 officers and taken to the Community Regional Medical Center, and 4 that he was pronounced dead as a result of the severe impact [] to 5 the chest. 6 pleading filed on February 10, 2010. None of these facts were included in the boilerplate 7 Where plaintiff has identified a federal constitutional right, 8 such as the Fourth and Fourteenth Amendments, plaintiff must allege 9 who violated those rights, and how. For example, under the § 1983 10 claim, the complaint alleges Defendants made unreasonable search 11 and seizure and deprived him of due process of law, conclusions of 12 law. 13 who denied him of these rights, and how. Plaintiff must, without providing elaborate detail, allege To survive dismissal a complaint must plead enough facts to 14 15 state a claim to relief that is plausible on its face. 16 Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility 17 standard asks for more than a sheer possibility that a defendant 18 has 19 allegations to allow the court to draw the reasonable inference 20 that the defendant is liable for the misconduct alleged. Ashcroft 21 v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 22 868 (2009). Threadbare recitals of the elements of a cause of 23 action, supported by mere conclusory statements, do not suffice. 24 Iqbal, 129 S.Ct. at 1949. 25 threadbare allegations that merely recite the elements of a cause 26 of action will not withstand a motion to dismiss. 27 seeks to pursue this action, he must amend the § 1983 claim to 28 identify the Defendants who violated his constitutional rights and acted unlawfully, demanding instead sufficient Bell Atl. factual Iqbal has made clear that conclusory, 14 If Plaintiff 1 2 how those rights were allegedly violated. Plaintiffs suggest that discovery is necessary to meet the 3 applicable pleading standards, including Iqbal. 4 does not unlock the doors of discovery for a plaintiff armed with 5 nothing more than conclusions. 6 allow Plaintiff to conduct discovery before he has stated valid 7 claims to 8 requirements. Salazar v. Lehman Brothers Bank, 2010 WL 1996374 at 9 2 (E.D. Cal. May 14, 2010) (citing Carpa v. Smith, 1998 WL 723153 10 11 12 relief Iqbal, 129 S.Ct. at 1950. would subvert at 4 (D. Ariz. July 20, 1998)). Rule 8, however, the purpose of the To pleading The motion is GRANTED. In their opposition, Plaintiffs request the opportunity to amend their pleadings. Plaintiffs request to amend is GRANTED. 13 14 15 16 2. State Law Claims Plaintiffs sue Defendants County of Fresno and City of Mendota for negligence and assault and battery. 17 18 19 a. Plaintiff's Negligence (Claim I) complaint alleges Defendants were negligent. 20 Defendants contend that the first cause of action for negligence 21 should be dismissed because as public entities, they are immune 22 from liability for common law negligence. 23 California Government Code § 815(a), which provides: [a] public 24 entity is not liable for an injury, whether such injury arises out 25 of an act or omission of the public entity or a public employee or 26 any other person. 27 28 Defendants point to Plaintiffs, however, correctly note that California Government Code § 815.2(a) provides a statutory basis for liability: 15 A 1 public entity is liable for injury proximately caused by an act or 2 omission of an employee of the public entity within the scope of 3 his employment if the act or omission would, apart from this 4 section, have given rise to a cause of action against that employee 5 or his personal representative. Id. § 815.2(a); see also Eastburn 6 v. Regional Fire Protection Auth'y, 31 Cal.4th 1175 (2003) ( 7 Section 815.2(a) makes a public entity vicariously liable for its 8 employee's 9 employment ). 10 negligent acts or omissions within the scope of Defendants do not dispute that they can be held vicariously 11 liable for the torts of an employee pursuant to § 815.2(a). 12 However, in their reply, they clarify that the motion only relates 13 to their direct liability: 14 15 16 17 18 19 20 21 22 As for their state law claims, it appears from Plaintiffs Opposition that they are confused about the instant motion in relation to the Moving Defendants. To be clear, Moving Defendants only contended that under the Government Code, and pertinent case authority, they cannot be liable for their own allegedly negligence conduct, such as conduct in relation to training and supervision. Moving Defendants fully recognize that they can be vicariously liable for the torts of an employee. However, this does not warrant a denial of the motion. California law clearly makes a legal distinction between direct and vicarious liability, Factually, there is a considerable difference between direct and vicarious liability, especially when it comes to discovery, dispositive motions, and the presentation of evidence at trial. As such, the motion should be granted as to the direct (as opposed to vicarious) liability of Moving Defendants. 23 24 25 (Doc. 17 at 6:6-6:17.) There is no common law tort liability for public entities in 26 California; instead, such liability must be based on statute. 27 Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 899 (2008) 28 ( section 815 abolishes common law tort liability for public 16 See 1 entities ). Critically, California law does not provide a basis to 2 hold a municipality directly liable for its alleged negligence in 3 the selection, training, retention, supervision, and discipline of 4 police officers. 5 1077, 1112 (2004).10 6 direct tort claims against Defendants, the claims are DISMISSED. Munoz v. City of Union City, 120 Cal. App. 4th As such, to the extent Plaintiffs advance 7 Defendants argued in their original motion that Plaintiffs 8 failed to allege facts sufficient to show that the cause of action 9 lies outside the breadth of public entity immunity. For the 10 reasons discussed in §§ V(B)(1)), supra, the motion is GRANTED. 11 See Lopez v. So. Cal. Rapid Transit Dist., 40 Cal.3d 780, 795 12 (1985) ( because under the Tort Claims Act all governmental tort 13 liability is based on statute, the general rule that statutory 14 causes 15 applicable ). 16 opportunity to file an amended pleading. 17 GRANTED. of action In must their be pleaded opposition, with particularity Plaintiffs request is an The request to amend is 18 19 20 21 22 23 24 25 26 27 28 10 Hoener v. County of Sonoma, 2004 WL 1811156 at 7 (N.D. Cal. Aug. 5, 2004) stated: With respect to plaintiff's state negligence claims against the City and County for [Monell conduct], the City and County are entitled to immunity from plaintiff's state law claim. The City and County are public entities. The Ninth Circuit has held that California law does not support a cause of action against a public entity for negligent hiring or supervision. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 840-41 (9th Cir.1996); see also Universal By-Products, Inc. v. City of Modesto, 43 Cal.App.3d 145, 153, 117 Cal.Rptr. 525 (1974) (stating there is no common law liability of a public entity; liability is wholly statutory ). This is consistent with sections of the California Government Code providing that a state governmental entity can be sued in tort only pursuant to an authorizing statute or enactment. See Cal. Gov't Code § 815 et seq.; Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 221 Cal.Rptr. 840, 710 P.2d 907 (1985). 17 b. 1 Assault and Battery (Claim II) 2 Plaintiffs assert their second claim of assault and battery 3 against all defendants, including moving parties City of Mendota 4 and County of Fresno. 5 In order to establish a common law battery claim against a 6 peace officer, Plaintiffs must establish each element of the tort:11 7 (1) an unprivileged touching, that (2) caused damages. 8 also have the burden of proving that the use of force was (3) 9 unreasonable. 10 Plaintiffs Here, Defendants motion to dismiss the second claim for 11 assault and battery is granted for two reasons. 12 law tort of assault and battery is inextricably intertwined with 13 the analysis of the § 1983 claim. See Edson v. City of Anaheim, 63 14 Cal. App. 4th 1269, 1272 (1998). As explained above, Plaintiffs 15 have failed to state facts sufficient to state a claim under § 16 1983.12 17 action. 18 entirely unclear if the Plaintiffs have the requisite standing to 19 assert a claim for assault and battery. 20 First, the state The same analysis defeats the assault and battery cause of Second, as explained in §§ V(A)(1)-(2), supra, it is Defendants motion to dismiss the second claim for assault and 21 11 22 23 24 25 26 27 28 Battery includes assault; in fact, battery is a consummated assault. Assault is, therefore, necessarily included in battery. See Torres v. California, No. 10-CV-0670-LJO-GSA, 2010 WL 2383698 at 10 (E.D. Cal. June 10, 2010) (citing People v. Heise, 217 Cal. 671, 673 (1933)). 12 While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. 18 1 battery is GRANTED WITH LEAVE TO AMEND. 2 3 VI. 4 CONCLUSION For the reasons stated: 5 1. The Complaint is DISMISSED WITH LEAVE TO AMEND. 2. 6 Any amended complaint shall be filed by September 1, 2010 7 8 9 10 and conform with Rules 8 and 11 of the Federal Rules of Civil Procedure. 11 3. 12 13 Responses to the amended complaint shall be filed within twenty days thereto. 14 15 16 IT IS SO ORDERED. 17 Dated: aa70i8 August 2, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 19

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