(PC) Smithee v. California Correctional Institution

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

9

10 DANA SMITHEE, et al., No. 1:19-cv-00004-NONE-JLT

11 Plaintiffs, ORDER ADOPTING IN PART THE

FINDINGS AND RECOMMENDATIONS

12 v. GRANTING DEFENDANTS’ MOTIONS TO

DISMISS

13 CALIFORNIA CORRECTIONAL

INSTITUTION, et al., (Doc. Nos. 66, 67, 79)

14

Defendant.

15

16 This action came before the court after Cyrus Ayers, an inmate at California Correctional

17 Institution (“CCI”), committed suicide by hanging on February 2, 2018. (Doc. No. 65 ¶¶ 8, 59.)

18 Ayers’s mother, Dana Smithee, and his daughter, E.M., by and through her guardian ad litem,

19 Jennifer Montes, brought this civil rights, survival and wrongful death action under 42 U.S.C. §

20 1983 and California law. (Id. ¶¶ 4, 6-7.) Plaintiffs claim that defendants Rhonda Litt-Stoner,

21 Pratap Narayan, Jennifer Seymour, and Karin Celosse were deliberately indifferent in treating

22 Ayers’s suicidal ideation in violation of his rights under the Eighth Amendment and, as a result,

23 caused his death. (Id. ¶¶ 1-15.) Defendants twice moved to dismiss plaintiffs’ second and third

24 amended complaints, and the court granted those motions and dismissed those complaints with

25 leave to amend.1 (Doc. Nos. 41, 47, 54, 59.) Now before the court are defendants’ motions to

26 dismiss plaintiffs’ fourth amended complaint (“4AC”). (Doc. Nos. 65-67.)

27

1 The parties had stipulated to allowing plaintiffs to file the first and second amended complaints.

28

1 On March 30, 2020, the assigned magistrate judge found that plaintiffs’ 4AC had failed to

2 sufficiently plead a federal claim against any of the named defendants and recommended that the

3 4AC be dismissed without further leave to amend. (Doc. No. 79.) On April 10, 2020, plaintiffs

4 objected to those findings and recommendations, arguing that the magistrate judge misapplied

5 Rule 12(b)(6) standard in not construing the allegations in light most favorable to them. (Doc.

6 Nos. 81 at 3-8; 83 at 3-8.)2 Defendant Narayan filed a response thereto on April 17, 2020, (Doc.

7 No. 84), and defendants Litt-Stoner, Seymour, and Celosse together filed a separate response to

8 plaintiffs’ objections on April 24, (Doc. No. 85). The court has reviewed this case de novo

9 pursuant to 28 U.S.C. § 636 (b)(1)(C).

10 The court agrees with the magistrate judge’s analysis and conclusion that defendants

11 Narayan, Litt-Stoner, and Seymour should be dismissed from this action but concludes that

12 defendant Celosse should not be dismissed.

13 ANALYSIS

14 A. Eighth Amendment Violation for Deliberate Indifference in Treating Ayers’s

15 Suicidal Ideation

16 Before turning to the analysis, the court notes that both parties appear to be confused

17 regarding the distinction between plaintiffs Eighth Amendment survival claim and the wrongful

18 death claims under California law. See Garofalo v. Princess Cruises, Inc., 85 Cal. App. 4th 1060,

19 1072 (2000) (“‘Although they are often lumped together without any distinction, they are, in fact,

20 quite distinct.’” (citation omitted)); (see, e.g., Doc. No. 67-1 at 19-20 (defendants mixing

21 plaintiffs’ negligence claim as both a survival claim under California Civil Procedure Code §

22 377.34 and wrongful death claim under California Civil Procedure Code § 377.61)). A survivor

23 cause of action belongs to the decedent but is brought on behalf of the decedent by the decedent’s

24 personal representative or successor in interest. San Diego Gas & Electric Co. v. Superior Court,

25 146 Cal. App. 4th 1545, 1553 (2007) (citing Cal. Code Civ. Proc.§§ 377.20, 377.30); see also id.

26

27 2 Plaintiffs mislabeled the first objections, filed on April 10, 2020, as “opposition,” so they

refiled duplicative objections three days later with the correct label. (See Doc. Nos. 81-83.)

28

1 at 1553 (“[T]he survival statutes do not create a cause of action but merely prevent the abatement

2 of the decedent’s cause of action and provide for its enforcement by the decedent’s personal

3 representative or successor in interest.” (emphasis added)). The survivor claim here is Ayers’s

4 claim for violation of his Eighth Amendment rights resulting in his death, (see Doc. No. 65 ¶¶ 68-

5 122), but by operation of California survival statutes, his claim passes on to his successor in

6 interest or personal representative after his death. See Cal. Civ. Proc. Code § 377.30. Moreover,

7 damages for a survival claim in California (contrary to what plaintiffs are seeking) are limited to

8 “punitive damages and all the decedent’s losses incurred prior to death.” Cal. Code Civ. Proc. §

9 377.34 (emphasis added). Plaintiffs nonetheless seek damages for their own personal losses, such

10 as their loss of Ayers’s companionship—as opposed to damages Ayers suffered before his

11 death—with respect to their survival claim. (See Doc. No. 65 ¶¶ 83, 97, 115; see also Doc. Nos.

12 67-1 at 23; 73 at 30 (plaintiffs appear to conflate the survival claim under § 1983 with their

13 wrongful death claims brought under state law in responding to defendants’ arguments)).

14 Plaintiffs cannot do so under California law.

15 Turning now to the merits, the Supreme Court has “recognized that the Eighth

16 Amendment’s prohibition against cruel and unusual punishment, made applicable to the States

17 through the Fourteenth Amendment’s Due Process Clause, requires the State to provide adequate

18 medical care to incarcerated prisoners.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489

19 U.S. 189, 198–99 (1989). To establish Ayers’s Eighth Amendment claim for failure to treat his

20 suicidal ideation, plaintiffs “must show ‘deliberate indifference’ to [Ayers’s] ‘serious medical

21 needs.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (alteration in original).

22 Defendants do not dispute that Ayers’s suicidal ideation was a “serious medical need.” (See Doc.

23 No. 67-1 at 5-25; see also Doc. No. 79 at 7.) Indeed, the Ninth Circuit has specifically

24 recognized that “[a] heightened suicide risk or an attempted suicide is a serious medical need.”

25 Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (citations omitted). Defendants’ chief

26 contention here is that Celosse was not acting with deliberate indifferent to Ayers’s suicidal

27 ideation. (See Doc. No. 67-1 at 5-8.)

28 /////

1 Under the Eighth Amendment, deliberate indifference “includes ‘both an objective

2 standard—that the deprivation was serious enough to constitute cruel and unusual punishment—

3 and a subjective standard—deliberate indifference.’” Colwell, 763 F.3d at 1066. “To meet the

4 objective element of the standard, a plaintiff must demonstrate the existence of a serious medical

5 need. Such a need exists if failure to treat the injury or condition ‘could result in further

6 significant injury’ or cause ‘the unnecessary and wanton infliction of pain.’” Id. (citation

7 omitted). The “subjective inquiry involves two parts.” Lemire v. California Dep’t of Corr. &

8 Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013). First, plaintiffs “must demonstrate that the risk was

9 obvious or provide other circumstantial or direct evidence that the prison officials were aware of

10 the substantial risk” to Ayers’s safety. Id. (citation omitted). “Second, they must show that there

11 was no reasonable justification for exposing the inmates to the risk.” Id.

12 Here, plaintiffs allege as follows. In November 2017, psychologist Celosse3 rated

13 Ayers—on a Suicide Risk and Self-Harm Evaluation—with “an Intensity of Ideation Score of

14 ‘10’” and noted that Ayers had “collected pills in preparation [for] suicide.” (Doc. No. 65 ¶ 38)

15 (alteration in original); see, e.g., Colburn v. Upper Darby Twp., 946 F.2d 1017, 1025 n.1 (3d Cir.

16 1991) (recognizing that an official has knowledge of “a particular vulnerability to suicide” where

17 there was “a psychiatric diagnosis identifying suicidal propensities.” (citations omitted)). After

18 reviewing Ayers’ medical records, Celosse further noted that Ayers’s “condition had significantly

19 worsened over the past few months,” and that he “had a history of self-harm and suicide.” (Doc.

20 No. 65 ¶ 39) (emphasis added.) Celosse subjectively understood the excessive risk to the health

21 /////

22

23 3 Celosse is a psychologist at CCI. (Doc. No. 65 ¶ 13.) Her responsibilities as a psychologist

24 entail:

25 [B]ased on psychological tests and observations, case history,

treatment progress and social factors, assesses patients and makes

26 recommendations on admission, transfer, discharge and therapeutic

activities; consults with medical personnel regarding findings of

27 medical examinations and evidence of organic disturbances related

to behavior disorders.

28 (Id. ¶ 15.)

1 or safety of Ayers. (Id. ¶¶ 69, 86.) Yet, Celosse “deliberately and consciously”4 failed to

2 recommend any treatments to Ayers. (Id. ¶¶ 41-42, 93, 95); see also Colwell, 763 F.3d at 1066

3 (“In deciding whether there has been deliberate indifference to an inmate’s serious medical needs,

4 we need not defer to the judgment of prison doctors or administrators.” (citation omitted)).

5 Ayers “was not placed under direct observation, no formal [Suicide Risk Assessment Checklist]

6 was performed, no treatment plan was prepared, no wellness check was conducted.” (Doc. No.

7 65 ¶¶ 35, 41) (alteration in original.) Because of Celosse’s failure to take any action, Ayers

8 successfully committed suicide on February 2, 2018. (Id. ¶¶ 42-46, 59, 68, 72, 79, 91, 96.) This

9 deliberate and intentional disregard for the health and safety of CCI inmates is part of a

10 documented and longstanding pattern beginning in 1999 until today. (Id. ¶¶ 22-23, 68-69, 71-76.)

11 Accepting these allegations as true, the court finds that plaintiffs have sufficiently alleged

12 facts showing that Celosse must necessarily have known (both objectively and subjectively) the

13 seriousness of the suicidal ideations Ayers was having when Celosse made her psychological

14 /////

15 /////

16 /////

17 /////

18 /////

19

4 Although plaintiffs often use the word, “should,” to describe what action defendants failed to

20

take, plaintiffs frequently end those allegations with another allegation that defendants

21 “deliberately and consciously” failed to provide Ayers with “constitutionally-mandated suicide

prevention.” (See, e.g., Doc. No. 65 ¶¶ 41-46, 57-58.) Verbosity is “a poor ground for rejecting

22 potentially meritorious claims”; “confusion or ambiguity” of this kind can be “dealt with by

means other than dismissal.” Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Moreover,

23 “[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by

counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to

24

facilitate a proper decision on the merits.” Foman v. Davis, 371 U.S. 178, 181–82 (1962).

25 Accordingly, the court construes these allegations together—in light most favorable to

plaintiffs—to show that defendants failed to take remedial actions “deliberately and consciously.”

26 See, e.g., Estate of Vargas v. Binnewies, No. 116-CV-01240-DAD-EPG, 2017 WL 2289357, at

*4 (E.D. Cal. May 25, 2017) (“Generally, when considering a motion to dismiss such a claim, a

27 district court must assess whether the plaintiff has pled sufficient facts to permit the court to infer

the plaintiff had a ‘serious medical need’ and a defendant was ‘deliberately indifferent’ to that

28

1 assessment of Ayers.5 See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (holding that

2 “deliberately indifference” is a question of fact that is “subject to demonstration in the usual

3 ways, including inference from circumstantial evidence, and a factfinder may conclude that a

4 prison official knew of a substantial risk from the very fact that the risk was obvious.” (emphasis

5 added) (citations omitted)). Construing the allegations further “in the light most favorable” to

6 plaintiffs, Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009), the seriousness of Ayers’s

7 suicidal ideation appeared or should have appeared obvious to Celosse. See Estate of Cole by

8 Pardue v. Fromm, 94 F.3d 254, 260 (7th Cir. 1996) (where “the defendant had the requisite

9 knowledge of substantial risk through circumstantial evidence of the risk’s obviousness,”

10 “evidence of past injury caused by the same risk or evidence that a defendant had recognized the

11 risk before” is unnecessary). Still, Celosse allegedly made no recommendations on how to treat

12 Ayers’s serious suicidal ideation, and there was no reasonable justification for the lack of such a

13 recommendations. See Farmer, 511 U.S. at 842 (to establish deliberate indifference, “it is enough

14 that the official acted or failed to act despite his knowledge of a substantial risk of serious

15 harm.”); see also Cortés–Quińones v. Jiménez–Nettleship, 842 F.2d 556, 558, 560 (1st Cir. 1988)

16 (in the summary judgment context holding that returning plaintiff, a psychiatrically disturbed

17 prisoner, to his crowded jail without any psychiatric treatment, where he was later found dead,

18 raised a genuine dispute of material fact as to whether there was deliberate indifference). Within

19 a few months of Celosse’s assessment, Ayers successfully committed suicide. (Doc. No. 65 ¶¶

20 42-46, 59, 68, 72, 79, 91, 96.) Ayers’s death and Celosse’s inaction fit squarely within a

21 longstanding pattern of CCI staff disregarding the health and safety of inmates. (Id. ¶¶ 22-23, 68-

22

23 5 Plaintiffs do not directly plead that Celosse objectively knew the seriousness of Ayers’s suicidal

ideation. But a 12(b)(6) review is not limited to just “direct allegations;” the court must also

24

consider reasonable “inferential allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562

25 (2007) (citation omitted). If Celosse knew to give an Intensity of Ideation Score of “10” and to

note that Ayers had a history of self-harm and suicide, include how Ayers’s condition had gotten

26 “significantly” worse, then the most reasonably favorable, inferential allegation that can be drawn

is that Celosse objectively knew how serious Ayers’s suicidal ideation was. See DesRosiers v.

27 Moran, 949 F.2d 15, 19 (1st Cir. 1991) (“The requisite state of mind may be manifested by the

officials’ response to an inmate’s known needs or by denial, delay, or interference with prescribed

28

1 69, 71-76.) Based on the foregoing allegations, the court finds that plaintiffs have pled a

2 plausible claim6 that Celosse was deliberately indifferent to Ayers’s Eighth Amendment rights

3 and caused his death. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)

4 (deliberate indifference may be shown “when prison officials deny, delay or intentionally

5 interfere with medical treatment, or it may be shown by the way in which prison physicians

6 provide medical care.”); see, e.g., Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985) (Because

7 defendants knew plaintiff had suffered seizures and that his epilepsy was not under control, and

8 yet took no action to prevent plaintiff’s death, a reasonable juror could find that defendants were

9 acting with deliberate indifference).

10 The court recognizes that it previously dismissed plaintiffs’ claim against Celosse based

11 on substantially similar allegations as the ones set forth in the 4AC. (See Doc. Nos. 47, 59.)

12 However, upon a careful review of the law as set out above, the court is now persuaded that

13 plaintiffs’ Eighth Amendment claim against defendant Celosse has been adequately pled. See

14 Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1042–43 (9th Cir. 2018) (“The law of the

15 case doctrine does not, however, bar a court from reconsidering its own orders before judgment is

16 entered or the court is otherwise divested of jurisdiction over the order.” (citation omitted)).

17 /////

18 /////

19 /////

20 /////

21 /////

22 /////

23 /////

24 /////

25 /////

26

6 See Bissessur v. Indiana Univ. Bd. of Trustees, 581 F.3d 599, 602–03 (7th Cir. 2009) (“A claim

27 has facial plausibility ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’”) (quoting Ashcroft

28

1 Consistent with its inherent power to reconsider interlocutory orders,7 the court now sua

2 sponte reconsiders its previous dismissal of Celosse as a defendant from this action without

3 prejudice. See Henderson v. Muniz, No. 14-CV-01857-JST, 2018 WL 6331008, at *2 (N.D. Cal.

4 Dec. 4, 2018) (“The basis of the Ninth Circuit’s holding was that a trial court should be able to

5 correct a prior order when it concludes it has made a mistake.” (citation omitted)); In re Northrop

6 Grumman Corp. ERISA Litig., No. CV 06-06213 MMM (JCx), 2010 WL 11469724, at *16 (C.D.

7 Cal. Aug. 12, 2010) (noting that district courts have applied Ninth Circuit precedents “liberally in

8 holding that a district court has authority to review any order prior to final judgment or appeal of

9 the issue to be reviewed.”). Therefore, to the extent the previous orders are inconsistent with this

10 order, this order controls. See, e.g., Surf City Steel, Inc. v. Int’l Longshore & Warehouse Union,

11 123 F. Supp. 3d 1219, 1236 n.12 (C.D. Cal. 2015), aff’d, 780 F. App’x 467 (9th Cir. 2019) (“To

12 the extent this ruling is inconsistent with the Court’s analysis in a previous order, the Court

13 hereby reconsiders its prior holding.”).

14 1. Qualified Immunity

15 Defendants also contend that plaintiffs’ Eighth Amendment claim should be dismissed as

16 barred by qualified immunity. (Doc. Nos. 67-1 at 16-18; 77 at 10-12.) Because the magistrate

17 judge did not reach this issue in the findings and recommendations, (see Doc. No. 79 at 20), the

18 court turns to it now. “To determine whether an official is entitled to qualified immunity, we ask

19 two questions: (1) whether the official’s conduct violated a constitutional right; and (2) whether

20 7 District courts have the inherent power “to rescind, reconsider, or modify an interlocutory

21 order,” which is “derived from the common law, not from the Federal Rules of Civil Procedure.”

City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001);

22 see also Bucy v. Nevada Const. Co., 125 F.2d 213, 217 (9th Cir. 1942) (“Rule 60 does not affect,

interfere with, or curtail the common-law power of the federal courts.”). “Nothing in the Rules

23 limits the power of the court to correct mistakes made in its handling of a case so long as the

court’s jurisdiction continues, i.e., until the entry of judgment.” Santa Monica Baykeeper, 254

24

F.3d at 887. A “manifest error” from an interlocutory order may be reconsidered when “justice

25 and good conscience” so require. Bucy, 125 F.2d at 217; see also Laub v. Horbaczewski, No.

LACV1706210JAKKS, 2019 WL 2610951, at *4 (C.D. Cal. Apr. 29, 2019) (“In conducting a sua

26 sponte review, a court is not bound by the standards that govern a party’s motion for

reconsideration.” (citations omitted)). This power “may be exercised by the court either of its

27 own motion or on motion or suggestion by a party or interested person.” Bucy, 125 F.2d at 217;

see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (observing

28

1 that right was ‘clearly established’ at the time of the violation.” Hines v. Youseff, 914 F.3d 1218,

2 1228–29 (9th Cir. 2019).

3 Since the court has concluded that plaintiff has stated a cognizable claim that defendants

4 violated Ayers’s Eighth Amendment right to constitutionally adequate medical care, the only

5 remaining question in connection with defendants’ motion to dismiss on this ground is whether

6 that right was “clearly established” in Ayers’s circumstance. See A.D. v. California Highway

7 Patrol, 712 F.3d 446, 453 (9th Cir. 2013). “‘Clearly established’ means that, at the time of the

8 officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand

9 that what he is doing’ is unlawful.” D.C. v. Wesby, __U.S.__, 138 S. Ct. 577, 589 (2018)

10 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis added); see also Sharp v. Cty.

11 of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (“Plaintiffs must point to prior case law that

12 articulates a constitutional rule specific enough to alert these deputies in this case that their

13 particular conduct was unlawful. To achieve that kind of notice, the prior precedent must be

14 ‘controlling’—from the Ninth Circuit or Supreme Court—or otherwise be embraced by a

15 ‘consensus’ of courts outside the relevant jurisdiction.”)

16 The obligation to provide specific caselaw need not lead to “absurd results” when there

17 are “novel factual circumstances.” Hines, 914 F.3d at 1230. As the Supreme Court further

18 explained:

19 It is not necessary, of course, that “the very action in question has

previously been held unlawful.” That is, an officer might lose

20 qualified immunity even if there is no reported case “directly on

point.” But in the light of pre-existing law, the unlawfulness of the

21 officer’s conduct “must be apparent.”

22 Ziglar v. Abbasi, __U.S.__, 137 S. Ct. 1843, 1866–67 (2017) (emphasis added) (citations

23 omitted).

24 Most importantly for purposes of resolving the present motion, the disposition of qualified

25 immunity at the pleading stage turns on whether, “viewing the [allegations] most favorably to

26 [Ayers], and given existing case law at that time, it ‘beyond debate’ that the prison officials

27 pursued a medically unreasonable course of treatment by declining” not to recommend any

28 treatment to Ayers. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (alteration in

1 original). Plaintiffs point to the decision in Clouthier v. Cty. of Contra Costa, 591 F.3d 1232 (9th

2 Cir. 2010), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.

3 2016), as the pre-existing law that clearly established Celosse’s alleged inaction as unlawful.

4 (Doc. No. 74 at 31.) In Clouthier, a plaintiff similarly died by hanging. See Clouthier, 591 F.3d

5 at 1240. Before his death, the plaintiff expressed his suicidal intent to the defendant, a mental

6 health specialist. Id. at 1245. The defendant knew plaintiff’s suicidal ideation was “the real deal”

7 and that plaintiff was not “out of the woods,” yet the defendant removed “key suicide prevention

8 measures” that were put in place to help plaintiff. Id. Based on these facts, the Ninth Circuit held

9 that there was a triable issue as to whether plaintiff’s constitutional right was clearly established

10 and, thus, the defendant was not entitled to qualified immunity on summary judgment. Id. at

11 1245, 1254; see also Arellano v. Dean, No. 15-CV-2247 JLS (JLB), 2020 WL 1157190, at *2-3,

12 6 (S.D. Cal. Mar. 10, 2020) (holding it was clearly established in May 2014 that the “[f]ailure to

13 report a prisoner’s suicidal ideations is not an adequate response to such a serious medical need”);

14 Rocha v. Kernan, No. EDCV 17-869-GW(FFMX), 2019 WL 2949031, at *14-15 (C.D. Cal. Mar.

15 13, 2019) (holding that while “such ‘obvious’ cases are rare” in qualified immunity context,

16 refusing to implement adequate suicide prevention policies “would seemingly fit the bill” and that

17 dismissal was inappropriate).

18 In light of the decision in Clouthier, as well as other similar decisions, and because the

19 court has concluded that plaintiffs have stated a cognizable Eighth Amendment claim against

20 defendant Celosse, dismissal on qualified immunity grounds is inappropriate at this time. See

21 Keates v. Koile, 883 F.3d 1228, 1240 (9th Cir. 2018) (“Our denial of qualified immunity at this

22 stage of the proceedings does not mean that this case must go to trial” because “[o]nce an

23 evidentiary record has been developed through discovery, defendants will be free to move for

24 summary judgment based on qualified immunity.”) (quoting O’Brien v. Welty, 818 F.3d 920, 936

25 (9th Cir. 2016)).

26 /////

27 /////

28 /////

1 B. State Law Claims8

2 Under the California Government Claims Act, “no suit for money or damages” under

3 California law may be brought against a California public entity or its employee “until a written

4 claim therefore has been presented to the public entity and has been acted upon by the board, or

5 has been deemed to have been rejected by the board.” Cal. Gov. Code § 945.4. “‘Money or

6 damages’ includes all actions where the plaintiff is seeking monetary relief, regardless whether

7 the action is founded in tort, contract or some other theory.” Lozada v. City and County of San

8 Francisco, 145 Cal. App. 4th 1139, 1152 (2006). On this threshold issue, defendants argue that

9 plaintiffs failed to file a government claim with respect to the state law claims for wrongful death

10 on behalf of Smithee and E.M. before filing suit, as required by § 945.4. (Doc. No. 67-1 at 21-

11 22.) Defendants have requested that the court take judicial notice of the government claim filed

12 by plaintiffs on June 18, 2018. (Id.) (citing 67-2, Ex. A at 7); see Khoja v. Orexigen

13

14 8 Unlike a survival claim that belongs to the decedent, a wrongful death claim belongs to and

seeks to compensate “specified heirs of the decedent for losses suffered as a result of a decedent’s

15 death.” San Diego Gas & Elec. Co., 146 Cal. App. 4th at 1550–51 (emphasis added); see also

Nelson v. County of Los Angeles (2003) 113 Cal. App. 4th 783, 789 (holding that “persons who

16

are not in the chain of intestate succession” are barred from bringing a wrongful death claim). ).

17 “Because a wrongful death action compensates an heir for his or her own independent pecuniary

losses, it is one for ‘personal injury to the heir.’ Thus, in a wrongful death action the ‘injury’ is

18 not the general loss of the decedent, but the particular loss of the decedent to each individual

claimant.” Id. (citations omitted). An heir’s pecuniary loss “may include (1) the loss of the

19 decedent’s financial support, services, training and advice, and (2) the pecuniary value of the

decedent’s society and companionship—but he may not recover for such things as the grief or

20

sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental

21 value of the loss.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1263 (2006). “The

elements of the cause of action for wrongful death are the tort (negligence or other wrongful act),

22 the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” Id.

Here, plaintiffs plead a “negligence” claim for the death of Ayers and seek damages for loss of

23 companionship. (Doc. No. 65 ¶¶ 116-122.) Plaintiffs also plead a “wrongful death” claim based

on defendants’ negligence causing Ayers’s death and ask for loss-of-companionship damages.

24

(Id. ¶¶ 123-127.) Notwithstanding plaintiffs’ separation of these claims, they are essentially the

25 same claim for wrongful death based on negligence—in other words, it is a distinction alleged by

plaintiffs without a legal difference. In addition, defendants—like plaintiffs—appear to be

26 confused about the distinction between survival and wrongful death claims. (See Doc. No. 67-1

at 20.) Defendants argue, for instance, that § 377.34 limits the damages on Smithee’s and E.M.’s

27 wrongful death claims based on negligence. (See id.) It does not. Section 377.34 applies to

survival claims—not wrongful death claims. See San Diego Gas & Electric Co., 146 Cal. App.

28

1 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“‘[A] court may take judicial notice of

2 matters of public record without converting a motion to dismiss into a motion for summary

3 judgment.’” (citation omitted)). The court will do so. The government claim lists only Ayers as

4 the claimant, even though California Government Code § 910(a) mandates that each claimant’s

5 name to be listed on the claim form. (See Doc. No. 67-2, Ex. A at 6); Cal. Gov. Code § 910(a).

6 In effect, plaintiffs have filed a government claim only on behalf of Ayers, but not themselves.

7 (See Doc. No. 77 at 15.) It follows that state claims brought by plaintiffs Smithee and E.M. are

8 barred by § 945.4 due to this failure.

9 In opposition, plaintiffs argue in a conclusory manner that the government claim is in

10 “substantial compliance” with Section 910(a), without any reasoning supporting that contention.

11 (Doc. No. 74 at 10-11.) Under California law, courts are empowered to find a government claim

12 to be “valid if it substantially complies with all of the statutory requirements for [a] valid claim

13 even though it is technically deficient in one or more particulars.” Olson v. Manhattan Beach

14 Unified Sch. Dist., 17 Cal. App. 5th 1052, 1060 (2017) (citation omitted). Critically, however,

15 “the doctrine cannot cure total omission of an essential element from the claim or remedy a

16 plaintiff’s failure to comply meaningfully with the statute.” Sparks v. Kern Cty. Bd. of

17 Supervisors, 173 Cal. App. 4th 794, 800 (2009) (internal quotation marks and citation omitted).

18 It is certainly arguable that listing the name of each claimant is an “essential element” of a

19 government claim or a meaningful aspect of the statute. But the court need not reach this issue—

20 which has not been briefed by either party—since “a plaintiff must allege facts demonstrating or

21 excusing compliance with the [Government Claims Act’s] claim presentation requirement.” State

22 of California v. Superior Court, 32 Cal. 4th 1234, 1243 (2004) (alteration in original). Plaintiffs

23 here have pled no facts in the 4AC showing how they substantially complied with the claim

24 presentation requirement. (See Doc. No. 65.) Section 945.4 therefore bars plaintiffs from

25 bringing the wrongful death claims. Since this is the first time the court addresses this issue, (see

26 Doc. Nos. 54, 79), plaintiffs will be granted leave to amend in this respect. See Nat’l Council of

27 La Raza v. Cegavske, 800 F.3d 1032, 1041–42 (9th Cir. 2015) (“It is black-letter law that a

28 district court must give plaintiffs at least one chance to amend a deficient complaint, absent a

QAO OUUET IN IN VR □□□ OO POR Ore PAY VI a

1 | clear showing that amendment would be futile.” (citations omitted)).

2 CONCLUSION

3 For the reasons explained above, the court adopts the pending findings and

4 | recommendations (Doc. No. 79) in part as follows:

5 1. Defendants Narayan, Seymour, and Litt-Stoner are DISMISSED from this action;

6 2. Defendants’ motion to dismiss plaintiffs’ survival claim against Celosse based on Ayers’s

7 Eighth Amendment rights and plaintiffs’ Fourteenth Amendment claim is DENIED;

8 3. Plaintiffs’ wrongful death claims against Celosse are DISMISSED with leave to amend;

9 and

10 4. Within thirty (30) days of service of this order, plaintiffs shall file an amended complaint

11 or a notice that they have elected not to amend and further and wish to proceed only on

12 their survival claim against defendant Celosse based on Ayers’s Eighth Amendment rights

13 and their Fourteenth Amendment claim.

14 | IT IS SO ORDERED. si □

Dated: _ August 18, 2020 J aL Al 5 7 a

16 UNITED STATES DISTRICT JUDGE

17

18

19

20

21

22

23

24

25

26

27

28

13