Estate of Ronnie Kong v. City of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ESTATE OF RONNIE KONG, by and Case No. 22-cv-1858-BAS-DDL

through successor in interest, Touch

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Kong; TOUCH KONG, an individual, ORDER:

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Plaintiff,

(1) GRANTING DEFENDANTS’

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v. PARTIAL MOTION TO

15 DISMISS (ECF No. 7); and

CITY OF SAN DIEGO; SAN DIEGO

16 POLICE DEPARTMENT; ANDREW

(2) GRANTING PLAINTIFF LEAVE

CAMPBELL; CHRISTOPHER LUTH;

17 TO AMEND

AND TONY MARASCHIELLO,

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Defendants.

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21 This action arises from a May 2020 police shooting in which Plaintiff Touch Kong’s

22 son, Ronnie Kong, was fatally shot by a team of SWAT officers responding to a 911 call.

23 Plaintiff filed the present action against the City of San Diego (“City”) and the San Diego

24 Police Department (“SDPD” and, together with the City, “Municipal Defendants”), as well

25 as the individual SDPD officers who responded to the scene (“Individual Defendants”).1

26 Her Complaint alleges several constitutional violations under 42 U.S.C. § 1983 (“Section

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1 SDPD officers Andrew Campbell, Christopher Luth, and Tony Maraschiello are the Individual

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1 1983”) and § 1985(3). Plaintiff also asserts claims under California law for common law

2 assault and battery and deprivation of civil rights, which she brings as survival actions.

3 Finally, Plaintiff presses a wrongful death action claim under state law. (See generally

4 Compl., ECF No. 1.)

5 Now before the Court is Defendants’ partial motion to dismiss. (Mot. to Dismiss

6 (“Mot.”), ECF No. 7.) Municipal Defendants argue that the Section 1983 claims pressed

7 against them warrant dismissal under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

8 because Plaintiff’s allegations do not meet the requirements of Monell v. Department of

9 Social Services of the City of New York, 436 U.S. 658 (1978). (Mot. at 9:27–12:24.)

10 Collectively, Defendants also argue that Plaintiff is precluded from bringing state law

11 claims for assault, battery, and deprivation of civil rights because she is not a “real party in

12 interest” to those claims under Cal. Civ. Proc. Code § 367—an argument they style as a

13 “standing” challenge. (Mot. at 15:9–23.) And, finally, Defendants aver that all Plaintiff’s

14 state law claims—including her wrongful death claim—fail under Rule 12(b)(6) for her

15 noncompliance with the claim-presentment requirement of the California Tort Claims Act

16 (“CTCA”), Cal. Gov’t Code § 945.4 et seq. (Id. at 12:25–15:8.) Plaintiff opposes (Opp’n,

17 ECF No. 8), and Defendants reply (Reply, ECF No. 9).

18 The Court finds this motion suitable for determination on the papers submitted and

19 without oral argument. See Fed. R. Civ. P. 78(b); Civ. L. R. 7.1(d)(1). For the reasons set

20 forth below, the Court GRANTS Defendants’ Motion and DISMISSES WITHOUT

21 PREJUDICE the action.

22 I. BACKGROUND2

23 On around May 29, 2020, at approximately 5:00 p.m., a resident on the 3800 block

24 of Euclid Avenue in San Diego, California, called 911. (Compl. ¶ 21.) The caller reported

25 a firearm incident with a possible murder in the vicinity. (Id.) The caller identified

26 Plaintiff’s son, Ronnie Kong, as the suspect. (Id.) Police and SWAT officers from SDPD

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2 These facts are taken from the Complaint. (ECF No. 1.) For the instant Motion, the Court accepts

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1 responded to the scene. (Id. ¶ 22.) When they arrived, SDPD officers, including the

2 Individual Defendants, surrounded the apartment where Ronnie Kong was living. (Id.)

3 They called for Ronnie Kong to emerge from the building, which he did. (Id. ¶ 23.) When

4 Ronnie Kong exited his apartment, he allegedly walked a few steps down the stairs and

5 then was shot multiple times by the Individual Defendants. (Id.) He was critically injured

6 and died on the scene. (Id.)

7 Plaintiff commenced the instant lawsuit in November 2022. (See generally Compl.)

8 At the time she filed her Complaint, she proceeded pro se. However, she obtained counsel

9 just before executing service and prior to Defendants’ filing of the pending Motion. (See

10 Not. of Appearance, ECF No. 4.)

11 The Complaint contains seven separate claims in relation to the death of her son.

12 The first three are federal civil rights claims under Section 1983. The next three are various

13 California common law and statutory claims. The last claim is an alleged violation of 42

14 U.S.C. § 1985(3). The claims are listed in more fulsome detail below:

15 • Count 1: Excessive force and unreasonable seizure under the Fourth

Amendment against the Individual Defendants. (Compl. ¶¶ 25–33.)

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17 • Count 2: Unconstitutional customs and practices exhibiting deliberate

indifference to the rights and liberties of the public at large, and Ronnie Kong

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in particular, against the Municipal Defendants. (Id. ¶¶ 34–44.)

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• Count 3: Interference with familial integrity as a matter of substantive due

process under the Fourteenth Amendment against Individual Defendant

21 Andrew Campbell and the Municipal Defendants. (Id. ¶¶ 45–52.)

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• Count 4: Common law assault and battery against the Individual Defendants

23 and the City. (Id. ¶¶ 53–59.)

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• Count 5: A wrongful death action pursuant to Cal. Civ. Proc. Code §§

25 377.10(b) and 377.60 against the Individual Defendants and the City. (Id. ¶¶

26 60–66.)

• Count 6: Civil rights violations pursuant to Cal. Civ. Code §§ 51.7 and 52.1

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and Cal. Gov’t. Code §§ 815.2 and 820 against all Defendants. (Id. ¶¶ 67–

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• Count 7: Conspiracy to interfere with civil rights pursuant to 42 U.S.C. §

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1985(3) against the Individual Defendants. (Id. ¶¶ 76–80.)

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4 Plaintiff seeks monetary damages, including compensatory damages, statutory damages,

5 and punitive damages under Section 1983. (Id., Prayer for Relief ¶¶ A–C.)

6 II. LEGAL STANDARD

7 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the

8 allegations made in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d

9 729, 731 (9th Cir. 2001). Dismissal under Rule 12(b)(6) can be based upon either the lack

10 of a cognizable legal theory or the absence of sufficient facts alleged under an otherwise

11 cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534–35 (9th

12 Cir. 1984). When evaluating the propriety of a defendant’s motion to dismiss, a court may

13 not look beyond the complaint’s four corners. Schneider v. Cal. Dep’t of Corrs., 151 F.3d

14 1194, 1197 n.1 (9th Cir. 1998). The court must accept the allegations in the complaint as

15 true and must construe them and draw all reasonable inferences from them in favor of the

16 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996).

17 To survive a motion to dismiss for insufficient factual allegations, a complaint must

18 plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

19 v. Twombly, 550 U.S. 554, 570 (2007). A claim has facial plausibility when it is supported

20 by factual content that enables the court to reasonably infer that the defendant is responsible

21 for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

22 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a

23 defendant’s liability, it stops short of the line between possibility and plausibility of

24 ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). A plausible claim is

25 supported by “more than labels and conclusions” or “a formulaic recitation of the elements

26 of a cause of action.” Twombly, 550 U.S. at 555.

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1 Courts have an obligation to construe pro se complaints liberally when evaluating

2 them under Twombly and Iqbal for facial plausibility.3 See Hebbe v. Pliler, 627 F.3d 338,

3 341–42 (9th Cir. 2010). But while pro se pleadings “must be held to a less stringent

4 standard than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94

5 (2007) (per curiam), a plaintiff’s pro se status does not excise her from the requirement

6 that she state a plausible claim to defeat a Rule 12(b)(6) challenge, see Hebbe, 627 F.3d at

7 341–42. Accord Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (“[A] pro se complaint

8 must state a plausible claim for relief.”). Indeed, the Court cannot assume that Defendants

9 “have violated the . . . law[] in ways that have not been alleged” simply because Plaintiff

10 was pro se at the time she filed her Complaint. See Associated Gen. Contractors of Cal.,

11 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

12 III. ANALYSIS

13 Defendants move to dismiss four of Plaintiff’s seven claims on several bases. First,

14 Municipal Defendants argue that Plaintiff’s Section 1983 claims against them (Count 2

15 and, in part, Count 3) warrant dismissal under Rule 12(b)(6) because her allegations of

16 municipal liability are conclusory and recitations of the requisite elements under Monell.4

17 (Mot. at 9:27–12:24.) Second, Defendants aver that Counts 4 and 6 must be dismissed

18 because the Plaintiff is not a “real party in interest” to those claims under Cal. Civ. Proc.

19 Code § 367. (Id. at 15:9–23.) Finally, Defendants aver that Plaintiff fails to plead a

20 requisite element of all her state law claims: that she complied with the CTCA’s claim-

21 presentment requirement. (Id. at 12:25–15:8.) In fact, Defendants contend all the state law

22 claims (Counts 4 through 6) must be dismissed with prejudice as time-barred because even

23 if Plaintiff were to now present her claims, such presentment would be far too delinquent

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3 As mentioned previously, although Plaintiff is represented by counsel in this action now—and

27 had the benefit of counsel in preparing her Opposition—her Complaint is a pro se filing.

4 While Municipal Defendants do not explicitly attack Count 3, that claim also must be dismissed

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1 to be permissible under the CTCA. The Court addresses each of these arguments, in turn,

2 below.

3 A. Monell Liability

4 Section 1983 “creates a private right of action against individuals who, acting under

5 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

6 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

7 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

8 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks omitted). “To

9 establish [Section] 1983 liability, a plaintiff must show both (1) deprivation of a right

10 secured by the Constitution and laws of the United States, and (2) that the deprivation was

11 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

12 F.3d 1128, 1138 (9th Cir. 2012).

13 Municipal entities such as cities, counties, and other local government bodies may

14 be held liable for claims under Section 1983. Monell v. New York City Dep’t of Social

15 Servs., 436 U.S. 658 (1978). In Monell, the Supreme Court “explained that while a

16 municipality may not be held liable under § 1983 for the torts of its employees on a theory

17 of respondeat superior, liability may attach where the municipality itself causes the

18 constitutional violation through the execution of an official policy, practice or custom.”

19 Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 2002) (citing Monell, 436 U.S. at 690–91).

20 Here, Plaintiff principally employs Monell to seek recovery from the Municipal Defendants

21 for the Individual Defendants’ purported excessive and unjustified use of lethal force, in

22 alleged violation of the Fourth Amendment, when they shot and killed her son.5 She also

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5 In general, “Fourth Amendment rights are personal rights which . . . may not be vicariously

25 asserted.” Alderman v. United States, 394 U.S. 165, 174 (1969). “In § 1983 actions, however, the

survivors of an individual killed as a result of an officer’s excessive use of force may assert a Fourth

26 Amendment claim on that individual’s behalf if the relevant state’s law authorizes

a survival action.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998)

27 (emphasis added). “The party seeking to bring a survival action bears the burden of demonstrating that a

particular state’s law authorizes a survival action and that the plaintiff meets that state’s requirements for

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1 relies on Monell to seek recovery from the Municipal Defendants for Individual

2 Defendants’ alleged intrusion upon her right—secured by the Fourteenth Amendment’s

3 due process clause—to be free of state interference with familial relations and integrity,

4 which also arises from the shooting death of her son. (See Compl. ¶¶ 34–44 (Count 2);

5 Compl. ¶¶ 45–52 (Count 3).)

6 To successfully establish Monell liability, a plaintiff must show: (1) the plaintiff

7 possessed a constitutional right of which she was deprived; (2) the municipality had a

8 policy, practice, or custom6; (3) that policy, practice, or custom is deliberately indifferent

9 to plaintiff’s constitutional right; and (4) the policy, practice, or custom at issue is “the

10 ‘moving force’ behind” the constitutional violation alleged. Whitaker v. Garcetti, 486 F.3d

11 572, 581 (9th Cir. 2007). Municipal Defendants contend that Plaintiff fails to allege

12 adequately the second element of Monell: a discrete policy, custom, or practice.

13 The “policy, custom, or practice” requirement stems from the core principle

14 ensconced in Monell that “‘municipal liability under § 1983 attaches where—and only

15 where—a deliberate choice to follow a course of action is made from among various

16 alternatives’ by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389 (1989)

17 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483–84 (1986) (plurality)). A

18 policy, custom, or practice may be established in three ways, by showing: (1) “a city

19 employee committed the alleged constitutional violation pursuant to a formal governmental

20 policy or a longstanding practice or custom which constitutes the standard operating

21 procedure of the local governmental entity”; (2) “the individual who committed the

22 constitutional tort was an official with final policy-making authority and that the

23 challenged action itself thus constituted an act of official government policy”; and (3) “an

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dispute that Plaintiff qualifies as the successor-in-interest to her son’s estate. Therefore, she may assert a

26 Fourth Amendment excessive force claim on Ronnie Kong’s behalf. See, e.g., id.

6 A survey of decisional law concerning Monell discloses that courts often refer to the terms

27 “policy, practice, or custom” and “official policy” interchangeably. Yet, as will become clear below,

“official policy” and “express” or “formal” policy are not analogous. Rather an “express” or “formal”

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1 official with final policy-making authority ratified a subordinate’s unconstitutional

2 decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th

3 Cir. 1992) (citations and internal quotations omitted); see also Trevino v. Gates, 99 F.3d

4 911, 918 (9th Cir. 1996) (quoting same).

5 “Policies of action” and “policies of inaction” may both give rise to liability under

6 Monell. Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (citation omitted). A policy

7 of inaction “is based on a government body’s ‘failure to implement procedural safeguards

8 to prevent constitutional violations.’” Id. (quoting Tsao, 698 F.3d at 1143). A “failure to

9 train” or “failure to investigate” are among the commonly recognized policies of inaction.

10 Id.; see Brizuela v. City of Sparks, 3:19-cv-0692-MMD-VPC, 2022 WL 3229389, at *35,

11 *37 (D. Nev. Aug. 10, 2022) (recognizing “failure to investigate” as valid theory for Monell

12 liability and denying summary judgment).

13 The “plausibility standard” enunciated in Twombly and Iqbal applies to Monell

14 claims. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636–37 (9th Cir. 2012).

15 Thus, while courts differ in their opinions as to the degree of specificity and detail needed

16 to defeat a Rule 12(b)(6) challenge to a Monell claim, such a claim necessarily fails if it is

17 premised upon the “bare allegation that the individual officers’ conduct conformed to

18 official policy, custom, or practice.” Id.

19 It appears from the Complaint Plaintiff seeks to allege the existence of an official

20 policy pursuant to several possible avenues of Monell liability. In particular, she seems to

21 aver the Fourth and Fourteenth Amendment violations alleged in the Complaint stem from:

22 (1) a formal governmental policy; (2) a practice or custom; (3) an official policy of inaction,

23 namely failure to adequately train, investigate, and discipline; and (4) ratification by a final

24 policymaker. For the reasons set forth below, the Complaint lacks the requisite factual

25 content to invoke any one of these methods.

26 1. Formal Governmental Policy

27 One way in which Plaintiff can demonstrate a “policy, practice, or custom” as a

28 prerequisite of Monell is to show that the Municipal Defendants employed a “formal” or

1 “express municipal policy,” which was the moving force behind the Fourth and Fourteenth

2 Amendment violations alleged in the Complaint. See Gillette, 979 F.2d at 1346–47; City

3 of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

4 A Monell claim predicated upon a formal policy differs from one premised upon a

5 practice or custom in two respects. First, formal policies often are committed to writing.

6 See Pembaur, 475 U.S. at 480–81. They include, inter alia, ordinances, regulations,

7 statutes, and policy statements. Id.; Praprotnik, 485 U.S. at 127.7 Second, a single

8 constitutional violation undertaken pursuant to a formal policy may be sufficient to

9 establish municipal Section 1983 liability. City of Oklahoma City v. Tuttle, 471 U.S. 808,

10 823–24 (1985). In other words, Plaintiff need not attribute a history or pattern of similar

11 constitutional violations attributable to the relevant formal policy in order to pursue her

12 Monell claim. It is sufficient to show the express policy attaches to the constitutional tort

13 at issue. See Lowry v. City of San Diego, 818 F.3d 840, 855 (9th Cir. 2016) (distinguishing

14 “official policy” from “custom”), rev’d on other grounds, 858 F.3d 1248 (2017) (en banc).

15 To successfully plead Monell liability under this theory, a plaintiff must “specify the

16 content of the policies, customs, or practices the execution of which gave rise to [his or

17 her] Constitutional injuries.” La v. San Mateo Cnty. Transit Dist., No. 14-CV-01768-

18 WHO, 2014 WL 4632224 (N.D. Cal. Sept. 16, 2014); see also Rapinoe v. Gore, No. 21-

19 CV-1779 TWR (WVG), 2022 WL 686461 (S.D. Cal. Mar. 8, 2022) (“Rapinoe must do

20 more than allege Defendants ‘maintained or permitted an official policy, custom or practice

21 of knowingly permitting the occurrence of the type of wrongs.’”). Put differently, a

22 plaintiff “must identify a specific policy or custom and then articulate . . . the basis for

23 concluding [how] the identified policy or custom represents ‘official policy.’” M.S. v. City

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25 7 Because they are written, demonstrating the existence of a formal policy perhaps is the most

straightforward way in which to satisfy the second element of Monell. But despite being straightforward,

26 this route often is elusive, for municipalities have every incentive not to promulgate facially unlawful and

unconstitutional edicts as official policy. See, e.g., Sarah Mikva Pfander, The Path to Municipal Liability

27 for Racial Discriminatory Policing, 69 UCLA L. Rev. 1270, 1292–93 (Jan. 2023) (“Because police

departments draft their use of force policies to avoid civil liability for excessive force violations, [express

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1 of Fontana, EDCV 16-02498 JGB (DTBx), 2017 WL 10545379, at *6 (C.D. Cal. Apr. 13,

2 2017) (citing Monell, 436 U.S. at 691). Plaintiff’s allegations fail at the first benchmark.

3 The Complaint contains a single allegation that seeks to demonstrate a formal policy

4 was the moving force behind the Individual Defendants’ unreasonable and excessive use

5 of lethal force that killed Plaintiff’s son. (Compl. ¶ 38.) Plaintiff alleges that Municipal

6 Defendants’ “expressly adopted official policies . . . [have] resulted in repeated incidents

7 of officer involved shootings and excessive force, against members of the general public,

8 inmates, suspects, and defendants.” (Id.) She essentially avers that Municipal Defendants

9 employ a collection of unnamed, unstated, and undefined “policies,” which purportedly

10 give rise to the precise flavor of constitutional injuries both her son and, by extension, she

11 endured. Providing details about the perceived consequences of the Individual Defendants’

12 alleged misconduct is not the same as identifying a specific, express policy of the

13 Municipal Defendants that directed the Individual Defendants to act in the manner they

14 did. Cf. Garcia v. Cnty. of Napa, No. 21-CV-03519-HSG, 2022 WL 110650, at *6 (N.D.

15 Cal. Jan. 12, 2022) (holding “Plaintiffs’ allegations that Napa County has policies ‘[t]o use

16 or tolerate the use of unlawful deadly force, of covering up constitutional rights, and for

17 encouraging a ‘code of silence’ fail for being too vague . . . to adequately allege the policy

18 at issue”; collecting cases) (alterations in original).

19 In short, Plaintiff fails to point to a tangible formal policy, such as an ordinance,

20 regulation, policy statement, or official decision. See Hardrick v. City of Detroit, 876 F.3d

21 238, 244–45 (6th Cir. 2017) (holding unconstitutional policy under Monell based on city

22 ordinance); Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 2013) (holding

23 Memphis Police Department General Order 5-74(3)(b)(3), which governs appropriate use

24 of deadly force, constitutes a “policy” for Monell purposes). Instead, she offers a formulaic

25 recitation of the second Monell element—that Municipal Defendants have an official

26 policy—in lieu of any apposite formal policy. Cf. Segura v. City of La Mesa, --- F. Supp.

27 3d. ---, 2022 WL 17905529, at *6 (S.D. Cal. Dec. 23, 2022) (opining that bare and

28 sweeping allegations of an unlawful policy or custom in the absence of facts supporting

1 their existence and applicability are insufficient; collecting cases). But “a complaint that

2 tracks Monell’s requirement of official policy with bare allegations cannot stand.” Strauss

3 v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Therefore, Plaintiff fails to

4 demonstrate a “policy, custom, or practice” of Municipal Defendants by way of a formal

5 policy.

6 2. Longstanding Practice or Custom

7 A failure to allege a formal policy does not necessarily spell the end for Plaintiff’s

8 Monell claims. She still may establish liability through allegations that demonstrate the

9 constitutional harms suffered were the result of a “longstanding practice or custom which

10 constitutes the ‘standard operating procedure’ of the local government entity.” Ulrich v.

11 City & Cnty. of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002).

12 “Practices” and “customs” differ from express policies in that they generally have

13 “not been formally approved by an appropriate decisionmaker” but are still “so widespread

14 as to have the force of law.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir.

15 2011). Unlike allegations of an express policy, “liability for improper custom may not be

16 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient

17 duration, frequency and consistency that the conduct has become a traditional method of

18 carrying out policy.” Trevino, 99 F.3d at 918.

19 Courts are “somewhat split” on the level of detail and the number of similar

20 unconstitutional incidents a plaintiff must show to establish a longstanding practice or

21 custom. See Ingram v. Mouser, No. 1:19-cv-0308-DCN, 2021 WL 329559, at *5 (D. Idaho

22 Feb. 1, 2021) (observing “[s]ome [courts] allow very generic allegations, and others require

23 more details than a mere possibility that a policy exists,” but that both approaches are

24 grounded in “good policy arguments”). As one district court surveying the relevant case

25 law recently opined, “[T]here is no per se rule” for the number of unconstitutional incidents

26 a pleading must identify to establish a practice or custom under Monell, but “[t]he Ninth

27 Circuit and district courts within the Ninth Circuit have repeatedly declined to infer a

28 custom [or practice] of constitutional violations based on two unconstitutional incidents

1 alone.” Wettstein v. Cnty. of Riverside, EDCV 19-1298 JGB (KKx), 2020 WL 2199005,

2 at *5 (C.D. Cal. Jan. 22, 2020) (citing, inter alia, Meehan v. Cnty. of Los Angeles, 856 F.3d

3 102, 107 (9th Cir. 1988); Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir.

4 2017)).

5 The Complaint principally seeks to demonstrate Monell liability through allegations

6 of “practices” or “customs.” The problem that plagues Plaintiff’s practice-or-custom

7 allegations is different from the one that felled her formal-policy allegations. To her credit,

8 Plaintiff does not rely merely upon vague and ambiguous practices and customs. Several

9 she details are, in fact, cognizable practices and customs, which have been recognized by

10 other courts to pass muster at the Rule 12(b)(6) stage, so long as the record demonstrates

11 they are of sufficient duration, frequency, and consistency. For example, Plaintiff alleges

12 Municipal Defendants have a practice or custom of “using unreasonable and excessive

13 force, including deadly force.” (Compl. ¶ 35.) Other courts have found that allegations a

14 police department has a practice or custom of using excessive or unreasonable deadly force

15 can, if supported by factual content demonstrating that practice or custom is longstanding,

16 form the basis of a Monell claim. See, e.g., Ponce v. City of Fontana, No. EDCV 15-0074-

17 VAP (SPx), 2015 WL 13765047, at *4 (C.D. Cal. July 17, 2015) (denying Rule 12(b)(6)

18 motion where plaintiff alleged defendant’s police department had a custom of using

19 “excessive deadly force”). Plaintiff also alleges that Municipal Defendants encourage and

20 facilitate a “code of silence” among SDPD officers, “pursuant to which false reports were

21 generated and [incidents of] excessive and unreasonable force w[ere] covered up.”

22 (Compl. ¶ 35.) Again, this Court’s sister tribunals have found that similar allegations

23 describe in sufficient detail cognizable practices or customs. See, e.g., Spearman v.

24 Elizondo, 230 F. Supp. 3d 888, 893 (N.D. Ill. 2016) (finding allegation that a “code of

25 silence” pervaded among officers in police department “may be read as referring to a set

26 of interrelated, mutually-reinforcing customs or practices, all of which contribute to civil

27 rights violations of the kind alleged by [plaintiff],” and denying Rule 12(b)(6) motion).

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1 Rather, the problem with this strand of Plaintiff’s theory of “official policy” is that

2 she fails to posit facts that enable the Court to reasonably infer the practices and customs

3 alleged are of “sufficient duration, frequency and consistency that the conduct has become

4 a traditional method of carrying out policy.” See Trevino, 99 F.3d at 918. Here, reading

5 the Complaint in a light most favorable to Plaintiff, she attempts to allege only one Fourth

6 Amendment violation attributable to the practices and customs identified: the shooting

7 death of her son.8 (See Compl. ¶¶ 20–24.) This is patently insufficient: “Liability for

8 improper custom may not be predicated on isolated or sporadic incidents.” Trevino, 99

9 F.3d at 918; Lowry, 818 F.3d at 855 (similar); see also Oyenik, 696 F. App’x at 794

10 (opining that “one or two incidents are insufficient to establish a custom or policy”)9;

11 Safadi v. City of Lynnwood, No. C23-886-RSM, 2023 WL 4492338, at *1 (W.D. Wash.

12 July 12, 2023) (“[T]he occurrence of a single incident of unconstitutional action by a non-

13 policy-making employee is not sufficient to show the existence of an unconstitutional

14 custom or policy” (citing Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir.

15 1989))). Nor does her averment that the various practices and customs she identifies are

16 “widespread,” “longstanding” and, therefore, “constitute a standard operating procedure,”

17 save the day. (See Compl. ¶ 38.) Twombly and Iqbal do not permit the presumption of

18 truthfulness to attach to such conclusory allegations; Plaintiff cannot survive a Rule

19 12(b)(6) challenge through recital of the elements of a Monell claim. See Ulrich, 308 F.3d

20 at 985. Plaintiff must, at a minimum, allege specific examples of death and injury of

21 citizens due to SDPD officers’ use of excessive and unreasonable force beyond just the

22 case of Ronnie Kong.

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8 The Court notes that the allegations supporting Count 1—Plaintiff’s claim that the Individual

25 Defendants violated her son’s Fourth Amendment rights—are sparse and, therefore, not particularly

strong. (See Compl. ¶¶ 21–23 (alleging that Individual Defendants were called to an apartment building

26 where Ronnie Kong was believed to have killed a person with a firearm, that Ronnie Kong emerged when

summoned, and that Individual Defendants then shot Ronnie Kong multiple times, killing him).) But this

27 Court makes no judgment now on the sufficiency of Count 1.

9 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule

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1 In sum, because Plaintiff fails to identify other similar incidents in which the

2 Municipal Defendants’ purported practices and customs manifested themselves in

3 constitutional violations, she is precluded from pursuing a Monell claim under a practices-

4 or-customs theory.

5 3. Policies of Inaction

6 As mentioned above, Monell liability attaches not just to official policies of action

7 but also, in certain circumstances, to official polices of inaction. See Jackson, 749 F.3d at

8 763. The Complaint touches upon two theories of inaction: (1) Municipal Defendants’

9 purported failure to adequately train SDPD officers and (2) Municipal Defendants’

10 purported failure to investigate officers’ excessive use of force and to discipline offending

11 officers. (Compl. ¶ 35.)

12 Failure to Train: To state a claim for failure to train, a plaintiff must plead (1) “the

13 existing training program” is inadequate “in relation to the tasks the particular officers must

14 perform”; (2) the officials have been deliberately indifferent “to the rights of persons with

15 whom the police come into contact”; and (3) the inadequacy of the training “actually

16 caused” the deprivation of the alleged constitutional right. Merritt v. Cnty. of Los Angeles,

17 875 F.2d 765, 770 (9th Cir. 1989) (internal citations and quotation marks omitted); see also

18 City of Canton, 489 U.S. at 388 (opining that the inadequacy of police training may serve

19 as the basis for municipal liability under Section 1983 “only where the failure to train

20 amounts to deliberate indifference to the rights of persons with whom the police come into

21 contact”); Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153–54 (9th Cir. 2021).

22 Plaintiff alleges Municipal Defendants failed to “train” and “retrain” SDPD officers.

23 (Compl. ¶ 35.) These allegations are insufficient in at least two respects. First, the

24 Complaint does not allege with sufficient specificity which training programs were

25 deficient, or how they were so. Instead, it merely concludes that ambiguous training

26 programs of Municipal Defendants are “inadequate,” and then repeats the same language

27 of the other requisite elements to establish a failure to train theory of Monell liability. See

28 Koistra v. Cnty. of San Diego, No. 16CV2539-GPC(AGS), 2017 WL 4700073 (S.D. Cal.

1 Oct. 19, 2017) (dismissing plaintiff’s complaint that merely regurgitated elements of the

2 failure to train standard); Sekerke v. City of Nat’l City, No. 19CV1360-LAB (MSB), 2020

3 WL 4435416 (S.D. Cal. Aug. 3, 2020) (same). Second, Plaintiff cannot establish the

4 inadequacy of an existent training program based upon just one alleged constitutional

5 violation. See Hyde v. City of Willcox, 23 F.4th 863, 874–75 (9th Cir. 2022) (“While

6 deliberate indifference can be inferred from a single incident when the unconstitutional

7 consequences of failing to train are patently obvious, an inadequate training policy itself

8 cannot be inferred from a single incident.”) (citations and internal quotation marks

9 omitted).

10 Deficient Review, Investigation, and Discipline: Failure to review and investigate

11 complaints of police officer misconduct and to discipline appropriately offending officers

12 may amount to an official policy of inaction for the purpose of Monell. See, e.g., Peterson

13 v. City of Chicago, No.: 14-cv-9881, 2015 WL 13882814, at *6 (N.D. Ill. June 23, 2023)

14 (“Plaintiff may proceed on a Monell claim based on Defendant City of Chicago’s alleged

15 intentional failure to investigate and discipline police misconduct regarding the types of

16 constitutional deprivations alleged in Plaintiff’s amended complaint[.]”).

17 Plaintiff alleges the Municipal Defendants “[m]aintain[] grossly inadequate

18 procedures for reporting, supervising, investigating, reviewing, disciplining and

19 controlling intentional misconduct by officers”; “fail[] to . . . discipline” SDPD officers,

20 including the Individual Defendants; and fail to “implement corrective action” against and

21 terminate problem officers. (Compl. ¶ 35.) Like Plaintiff’s failure-to-train allegations,

22 these averments are at once too ambiguous and lacking in the necessary factual support.

23 Plaintiff does not identify the investigatory procedures for reviewing police misconduct

24 she purports to be inadequate, does not allege with any level of precision the type of

25 complaints and/or misconduct the Municipal Defendants overlooked, does not identify a

26 single instance in which an SDPD officer was inadequately investigated or disciplined, and

27 does not identify any other constitutional violations arising out of this policy of inaction.

28 Cf. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 803 (9th Cir. 2018) (noting that a

1 failure-to-discipline theory of Monell liability requires a showing of “widespread” or

2 “repeated constitutional violations” that were ignored); accord Pineda v. Hamilton Cnty.,

3 977 F.3d 483, 495 (6th Cir. 2020) (“‘[A] claim based on inadequate investigation’ requires

4 ‘not only an inadequate investigation in this instance,’ but also ‘a clear and persistent

5 pattern of violations’ in earlier instances. David v. City of Bellevue, 706 F. App’x 847, 853

6 (6th Cir. 2017). That is, ‘there must be multiple earlier inadequate investigations and they

7 must concern comparable claims.’ Stewart v. City of Memphis, 788 F. App’x 341, 344 (6th

8 Cir. 2019).”).

9 Accordingly, Plaintiff fails to allege Municipal Defendants can be held liable under

10 Monell for instituting policies of inaction.

11 4. Ratification

12 A Monell claim based on a ratification theory applies where a municipal policy

13 maker (1) has knowledge of the subordinate’s alleged conduct, (2) approves of the

14 subordinate’s decision and the basis for it, and (3) a conscious, affirmative choice to ratify

15 the conduct. See Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003), vacated on other

16 grounds by, Brosseau v. Haugen, 543 U.S. 194 (2004); Gillette, 979 F.2d at 1348. In the

17 context of police shootings and excessive force, courts have found that ratification can

18 occur either before, during, or after the alleged constitutional deprivation. See, e.g.,

19 Hammond v. Cnty. of Madera, 859 F.2d 797, 802–03 (9th Cir.1988) (finding ratification

20 based upon police chief’s signing a letter refusing to sustain any complaints of excessive

21 force against the department); Hulstedt v. City of Scottsdale, 884 F. Supp. 2d 972, 1014–

22 15 (D. Ariz. 2012) (finding allegations that police chief “approv[ed] the decision to shoot

23 and the decision of the Shooting Review Board” sufficient to demonstrate ratification of

24 the actions of the individual police officers).

25 Here, Plaintiff alleges that the Municipal Defendants “ratified,” inter alia, the use of

26 excessive lethal force by SDPD officers, including the Individual Defendants. (Compl. ¶

27 35.) She also alleges that Municipal Defendants customarily are engaged in “ratifying

28 wrongful conduct by police officers and supervisors which result in serious injuries and

1 death to members of the public . . . .” (Id. ¶ 35). These allegations are conclusory and,

2 therefore, insufficient to state a plausible Monell claim. Crucially, Plaintiff does not

3 surpass the first hurdle of ratification: she points to no specific policy-making official who

4 ratified the alleged constitutional torts against Ronnie Kong. Indeed, she does not allege

5 any of the Individual Defendants are final policymakers, but instead avers the Individual

6 Defendants were responding SDPD officers directly involved in the alleged constitutional

7 tort at issue. (See Compl. ¶ 11.) For this reason, the Court cannot even begin to assess the

8 other requisite elements of Monell ratification and, therefore, finds this variant of Counts

9 2 and 3 deficient. See Price, 513 F.3d at 966 (quoting Ulrich, 308 F.3d at 984–85).

10 * * * *

11 Plaintiff fails to allege enough facts to plead plausible Section 1983 claims against

12 the Municipal Defendants under Monell. Therefore, the Court GRANTS the Motion to

13 the extent it seeks Rule 12(b)(6) dismissal of Count 2 in its entirety and Count 3 against

14 the Municipal Defendants. (ECF No. 7.)

15 However, that dismissal shall be WITHOUT PREJUDICE. It is not clear at this

16 moment that amendments would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130–31

17 (9th Cir. 2000) (en banc) (holding that district court abuses discretion in not granting leave

18 to amend where amendment is not futile). Despite not being able to do so on her first

19 attempt, with the aid of counsel, Plaintiff very well may be able to identify, for example, a

20 formal use-of-force policy on the City’s books or in SDPD’s files, or to allege facts that

21 support a finding of a “practice” or “custom” of excessive force, a policy of inaction, or a

22 final policy maker’s ratification of Ronnie Kong’s shooting. Accordingly, the Court

23 GRANTS Plaintiff leave to file a First Amended Complaint.

24 B. State Law Claims

25 Defendants attack Plaintiff’s state law claims on two bases. First, they contend

26 Plaintiff lacks “standing” to assert Counts 4 and 6. To be clear, Defendants’ argument is

27 not entrenched in Article III, § 2 of the United States Constitution, and the Motion does

28 not raise a Rule 12(b)(1) challenge. Defendants really argue Plaintiff lacks statutory

1 standing. They claim that because the alleged assault, battery, and deprivation of civil

2 rights were inflicted upon Ronnie Kong, Plaintiff “is not a real party in interest as required

3 by [Cal. Civ. Proc. Code] § 367” and, therefore, cannot sue. (Mot. at 15:9–23.) Second,

4 Defendants aver that all Plaintiff’s state law claims must be dismissed due to her failure to

5 comply with the CTCA’s claim-presentment requirement. (Id. at 12:25–15:8.) While the

6 Court rejects Defendants’ so-called “standing” arguments, it agrees that Counts 4, 5, and 6

7 must be dismissed for Plaintiff’s failure to comply with the CTCA.

8 1. California Code of Civil Procedure § 367

9 Under Section 367, “[e]very action must be prosecuted in the name of the real party

10 in interest, except as otherwise provided by statute.” Cal. Civ. Proc. Code § 367 (emphasis

11 added); see Limon v. Circle K Stores Inc., 84 Cal.App.5th 671, 691 (2022) (“Code of Civil

12 Procedure, section 367 . . . largely prohibits persons from pursuing claims they themselves

13 do not own.”). Indeed, the state legislature may “grant [individuals] a right to sue for the

14 benefit of others, i.e., to make him a real party in interest.” Jasmine Networks, Inc. v.

15 Superior Ct., 180 Cal.App.4th 980, 992 (2009). One such statutory creation of the

16 California legislature is a survival action pursuant to Cal. Civ. Proc. Code §§ 377.20 and

17 377.30.

18 “In a survival action, a decedent’s estate may recover damages on behalf of the

19 decedent for injuries that the decedent has sustained [while alive].” Davis v. Bender

20 Shipbuilding & Repair Co., 27 F.3d 426, 429 (9th Cir. 1994); Oh v. Teachers Ins. &

21 Annuity Ass’n of Am., 53 Cal.App.5th 71, 82 (2020) (holding a survival action is

22 “derivative” of a decedent’s other claims and, thus, cannot be pressed as a standalone cause

23 of action). Survival actions “prevent the abatement of the cause of action of the injured

24 person and provide for its enforcement by or against the personal representative of the

25 deceased.” Quiroz v. Seventh Ave. Ctr., 140 Cal.App.4th 1256, 1264 (2006) (quoting Grant

26 v. McAuliffe, 41 Cal.2d 859, 864 (1953)). By statute, the California legislature prescribes

27 who is authorized to step in the shoes of a decedent’s estate and commence claims

28 belonging to it on its behalf. See Estate of Wilson by and through Jackson v. Cnty. of San

1 Diego, 20-cv-0457-BAS-DEB, 2022 WL 789127, at *24 (S.D. Cal. Mar. 14, 2022)

2 (holding that standing to bring a survival action is statutory in origin).

3 Under Section 377.30, a “personal representative” or “successor in interest” of the

4 estate may commence a survival action. A successor in interest is defined as “the

5 beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause

6 of action or to a particular item of the property that is the subject of a cause of action.” Cal

7 Civ. Proc. Code § 377.11. If the decedent left behind a will, the “beneficiary” is defined

8 as the person or persons “who succeed to a cause of action, or to a particular item of

9 property that is the subject of a cause of action, under the decedent’s will.” Id. § 377.10(a).

10 If the decedent died intestate, the “beneficiary” is the person who succeeds a cause of action

11 or particular item of property under Sections 6401 and 6402 of the Probate Code. Id. §

12 377.10(b). Under Section 6502 of the Probate Code, a decedent’s parent is the

13 “beneficiary” of the decedent’s estate if there is no surviving spouse or issue. Cal. Prob.

14 Code § 6402(b).

15 Plaintiff clearly brings Counts 4 and 6 as survival actions. (See Compl. ¶ 53

16 (identifying “Plaintiff ESTATE OF RONNIE KONG” as the Plaintiff for the purpose of

17 Count 4); ¶ 70 (“Plaintiff asserts the violations of RONNIE KONG’s rights pursuant to

18 California’s Survival Statute, Code of Civil Procedure § 377.30 et seq.”).) She alleges the

19 estate on whose behalf she asserts Counts 4 and 6 belongs to her decedent son, thereby

20 enabling this Court to infer she qualifies as a “beneficiary” under Cal. Prob. Code § 6402(b)

21 and has statutory standing. (See, e.g., Compl. ¶¶ 1–3.)

22 Defendants, however, contend—without providing much reasoning—that Plaintiff

23 cannot bring Counts 4 and 6 as survival actions because she is precluded from doing so by

24 Cal. Civ. Proc. § 367. But it is entirely unclear to the Court how Defendants reconcile this

25 argument with Section 367’s explicit exception—that persons who are not real parties in

26 interest may nonetheless commence an action when “otherwise provided by statute”—and

27 Cal. Civ. Proc. Code §§ 377.20 and 377.30—which confers an estate’s personal

28 representative or successor in interest the right to commence a survival action on its behalf.

1 Sections 377.20 and 377.30 of the California Code of Civil Procedure prevent precisely

2 the sort of claims pressed here from extinguishing with the death of the victim. If Ronnie

3 Kong were still alive, he would be entitled to bring those causes of action in this court. But

4 he is not. So, instead, his claims survive by operation of California law and pass to his

5 estate on whose behalf its successor in interest is authorized to sue.

6 Notably, Defendants do not provide a single case that suggests common law assault

7 and battery claims or California civil rights violations cannot be brought as survival

8 actions. By contrast, this Court’s own cursory survey of decisional law discloses that such

9 claims are quite commonplace in the context of fatal torts. Cf. L.V.B. v. City of Chino, No.

10 EDCV 09-2223 DMG (DTBx), 2010 WL 11596566, at *1 (C.D. Cal. Feb. 18, 2010)

11 (permitting survival act claims alleging assault and battery past Rule 12(b)(6) stage);

12 Wallace v. City of Hesparia, 369 F. Supp. 3d 990, 1021 n.12 (C.D. Cal. 2019) (“[T]he

13 Court agrees with the reasoning set forth in [Dela Torre v. City of Salinas, No. C-09-0626

14 RMW, 2010 WL 3743762 (N.D. Cal. Sept. 17, 2010)] and [Medrano v. Kern Cnty. Sheriff’s

15 Officer, 921 F. Supp. 2d 1009 (E.D. Cal. 2013)] that a person’s Bane Act claim [Cal. Civ.

16 Code § 52.1] survives the person’s death under California Code of Civil Procedure §

17 377.20[.]”); Anderson v. Cnty. of Fresno, 1:21-cv-1134-ADA-SAB, 2023 WL 2761168, at

18 *25 (E.D. Cal. Apr. 3, 2023) (Report & Recommendation) (collecting cases interpreting

19 claims for deprivation of civil rights under California law to survive a person’s death).

20 Because Defendants do not argue Plaintiff is not a proper “successor in interest,” the Court

21 is left without any apparent basis for Defendants’ belief Counts 4 and 6 fail for lack of

22 statutory standing. (See Compl. ¶¶ 8–9.) Accordingly, the Court summarily rejects this

23 strand of the Motion.

24 2. California Tort Claims Act

25 Under California law, “[s]uits for money damages or damages against a public entity

26 are regulated by the [CTCA].” DiCampli-Mintz v. Cnty. of Santa Clara, 55 Cal.4th 983,

27 989 (2012). The CTCA provides, in pertinent part: “[N]o suit for money damages may be

28 brought against a public entity on a cause of action for which a claim is required to be

1 presented . . . until a written claim therefor has been presented to the public entity and has

2 been acted upon . . ., or has been deemed to have been rejected[.]” Cal. Gov’t Code §

3 945.4. The CTCA’s claim-presentment requirement applies with equal force to public

4 employees. See Wills v. City of Monterey, 617 F. Supp. 3d 1107, 1126 (N.D. Cal. 2022).

5 The CTCA’s claim-presentment requirement’s purpose is to “provide the public entity

6 sufficient information to enable it to adequately investigate claims and to settle them, if

7 appropriate, without the expense of litigation.” City of Stockton v. Superior Ct., 42 Cal.4th

8 730, 746 (2007). “Timely claim presentation is not merely a procedural requirement, but

9 is . . . a condition precedent to plaintiff’s maintaining an action against [public entities and

10 employees], and thus [is] an element of the plaintiff’s cause of action.” Shirk v. Vista

11 Unified Sch. Dist., 42 Cal.4th 201, 209 (2007) (internal citation omitted).

12 Plaintiff acknowledges in her Opposition that Counts 4 through 6 are covered by the

13 CTCA. She also admits that she never presented those claims to the City in compliance

14 with Cal. Gov’t Code § 945.2. (Opp’n at 2.) Thus, the Court agrees with Defendants that

15 Plaintiff cannot proceed with Counts 4 through 6 as presently alleged. See Shirk, 42 Cal.4th

16 at 209.

17 However, Defendants contend that Plaintiff should not be permitted an opportunity

18 to amend Counts 4 through 6, because such amendment would be futile. (Mot. 14:21–23.)

19 According to Defendants, Plaintiff must have presented her state law claims within one

20 year of accrual or lose her right to bring them. Because her claims accrued approximately

21 three years ago, and because she did not present a claim to the City during that time,

22 Defendants aver Plaintiff’s state law claims must be dismissed with prejudice.

23 The Court agrees with Defendants that Plaintiff’s state law clams are time barred.

24 The CTCA prescribes that claims relating to a cause of action for death or injuries to the

25 person or injuries to personal property must be presented no later than six months after the

26 accrual of the cause of action. Cal. Gov’t Code § 911.2(a); see also id. § 810.8. A claimant

27 may apply for leave to file a late claim, see id. § 911.4(a), but she must do so “within a

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1 reasonable time not to exceed one year after the accrual of the cause of action,” id. §

2 911.4(b).

3 “Accrual of the cause of action for purposes of the government claims statute is the

4 date of accrual that would pertain under the statute of limitations applicable to a dispute

5 between private litigants.” Shirk, 42 Cal.4th at 209; see Cal. Gov’t Code § 911.4(c)(1).

6 “Generally speaking, a cause of action accrues at the time when the cause of action is

7 complete with all of its elements.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797,

8 806–07 (2005) (internal citation and quotation marks omitted). California courts typically

9 find that a cause accrues the moment at which the claimant sustained the underlying injury.

10 Nguyen v. W. Digital Corp., 229 Cal.App.4th 1552, 1538–39 (2014); see Cal. Gov’t Code

11 § 911.4(c)(1). An important exception to this general rule is the “discovery rule,” which

12 “postpones accrual of a cause of action until the plaintiff discovers, or has reason to

13 discover, the cause of action.” Fox, 35 Cal.4th at 807.

14 But the instant case does not entail a difficult application of California claim accrual

15 analysis. It is well-established that in the context of survival action, the relevant question

16 is when the decedent—not the plaintiff stepping in the shoes of the decedent’s estate—

17 knew or had reason to know of his injury. See, e.g. MacEachern v. City of Manhattan

18 Beach, 623 F. Supp. 2d 1092, 1102 (C.D. Cal. 2009); Estate of Jackson v. City of Modesto,

19 No. 1:21-CV-0415 AWI EPG, 2021 WL 4819604, at *20 (E.D. Cal. Oct. 14, 2021)

20 (reasoning that because a survival act is derivative of claims that belonged to the decedent

21 before death and survives to the decedent’s estate, courts should examine what the decedent

22 “would have known or suspected for purposes of accrual of the survival claims”). Here,

23 Ronnie Kong would have been aware of the Individual Defendants’ conduct, and the

24 physical injuries he sustained by the Individual Defendants’ use of lethal force, on May 29,

25 2020—the day of the shooting. Therefore, Counts 4 and 6 accrued on May 29, 2020, and

26 Plaintiff had until November 30, 2020 to present those claims and had until May 29, 2021

27 to apply for leave to file late claims.

28

1 The same is true of Count 5, which is Plaintiff’s wrongful death action. Unlike a

2 survival action, a wrongful death action is a substantive claim that belongs to the heirs of

3 a decedent. Scroggs v. Coast Cmty. Coll. Dist., 193 Cal.App.3d 1399, 1403 (1987). Still,

4 accrual of a wrongful death action for the purpose of CTCA presentment does not depend

5 on what the heir or heirs entitled to sue knew or should have known. “[A] wrongful death

6 action has its own statute of limitations, which runs from the date of death[.]” Horwich v.

7 Superior Ct., 21 Cal.4th 272, 283 (1999). Thus, although Count 5 belongs to Plaintiff, the

8 date on which Ronnie Kong died is the date on which Count 5 accrued. Thus, Plaintiff’s

9 wrongful death claim also should have been presented to the City on November 30, 2020

10 and an application for leave to file a late claim should have been presented on May 29,

11 2021, at the latest.

12 Plaintiff is approximately two years delinquent under the CTCA. This likely

13 disentitles her from proceeding with Counts 4 through 6. Nevertheless, the Court declines

14 Defendants’ invitation to dismiss Plaintiff’s state law claims with prejudice at this time.

15 To do so would be premature, for Plaintiff still has a narrow route for redress under the

16 CTCA. The CTCA permits her to petition a California state court “for an order relieving”

17 her from the CTCA’s claim-presentment requirement. See Cal. Gov’t Code § 946.6(a). If

18 she does so, and if that petition is granted, her failure to file a timely claim would not doom

19 Counts 4 through 6. Thus, the Court cannot say at this time that there are no facts Plaintiff

20 can allege to satisfy all the elements of her state law claims.

21 Accordingly, the Court GRANTS Defendants’ Motion to the extent it seeks

22 dismissal of Counts 4 through 6, but WITHOUT PREJUDICE.

23 IV. CONCLUSION

24 For the foregoing reasons, the Court GRANTS Defendants’ Motion and, therefore

25 DISMISSES WITHOUT PREJUDICE Count 2, Count 3 against the Municipal

26 Defendants only, and Counts 4 through 6. (ECF No. 7). The Court further GRANTS

27 Plaintiff leave to file a First Amended Complaint, which she must do by no later than

28 September 10, 2023. If Plaintiff chooses to do so, her amendments must be limited to

| ||}seeking to correct the deficiencies identified in this Order, including her failure to allege

2 || municipal liability under Monell and her failure to abide by the CTCA’s claim-presentment

3 requirement.

4 IT IS SO ORDERED. / ,

5 ||DATED: August 2, 2023 Ypilag (Lyohaa 6

6 United States District Judge

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~IJAL