Lea v. City of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KIMBERLINA ALEXA LEA, Case No.: 3:22-cv-01581-RBM-VET

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANTS’

MOTION TO DISMISS

14 CITY OF SAN DIEGO, et al.,

PLAINTIFF’S FIRST AMENDED

15 Defendants. COMPLAINT

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[Doc. 30]

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19 Presently before the Court is Defendants City of San Diego, Ace Ybanez, Joshua

20 Clabough, Jason Gonzalez, Joshua Leiber, David Burns, Kevin Cummings, and Miles

21 McCarde’s (collectively, “Defendants”) Motion to Dismiss Plaintiff Kimberlina Alexa

22 Lea’s (“Plaintiff”) First Amended Complaint (“Motion to Dismiss”). (Doc. 30-1.)

23 Plaintiff, appearing pro se, filed a response to Defendants’ Motion to Dismiss

24 (“Response”). (Doc. 32.) Defendants did not file a reply.

25 The Court finds the matter suitable for determination on the papers and without oral

26 argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below,

27 Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

28

1 I. BACKGROUND

2 Plaintiff filed this action on October 13, 2022 against the City of San Diego and

3 certain officers related to the death of her father, Richard Price. (Doc. 1.) Defendants filed

4 a motion to dismiss Plaintiff’s initial complaint, which the Court granted on June 28, 2023.

5 (Doc. 22.) The Court granted Plaintiff leave to amend. (Id. at 5, 7.)1

6 Plaintiff filed a First Amended Complaint (“FAC”) (Doc. 23) in which she alleges

7 that on July 9, 2020, Price was in an altercation with an individual who pulled a gun on

8 him. (Id. at 2, 9.) Price then picked up his legal airsoft pellet gun for self-protection. (Id.)

9 At the time of the incident, Price was under the influence of phencyclidine (PCP),

10 methamphetamine, and amphetamine, which impaired his mental faculties and “prevented

11 him from fully comprehending the situation.” (Id. at 2, 8.) Plaintiff alleges that “[u]pon

12 arrival at the scene, Defendant Sergeant Woodward, ID 6287, failed to properly identify

13 [Price] and neglected to recognize his impaired state, choosing not to deescalate the

14 situation.” (Id. at 9.) Defendants then discharged over 40 rounds, causing a fatal gunshot

15 wound to Price’s head. (Id. at 2, 9.)2

16 Plaintiff filed this lawsuit on behalf of her father’s estate and herself. (Id. at 3, 6.)

17 Plaintiff brings five claims against Defendants: (1) use of excessive force in violation of

18 42 U.S.C. § 1983 (Count 1); (2) a § 1983 claim against the City of San Diego pursuant to

19 Monell v. Department of Social Services, 436 U.S. 658 (1978) (Count 2);3 (3) battery

20 (Count 3); (4) intentional infliction of emotional distress (Count 4); and (5)

21 negligence/wrongful death (Count 5). (Id. at 1, 10–24.)

22 Plaintiff alleges that the City of San Diego’s “policies, customs, or practices …

23 contributed to the unconstitutional actions leading to [] Price’s death.” (Id. at 3.)

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1 The Court cites the CM/ECF pagination unless otherwise noted.

26 2 The Court notes that on page two of the FAC, Plaintiff states that Price was shot 40 times;

however, on page nine of the FAC, Plaintiff states that Defendants discharged over 40

27

rounds. This potential discrepancy does not affect the Court’s analysis.

28 3 This claim is commonly referred to as a Monell claim.

1 Specifically, Plaintiff alleges that the City of San Diego has a “consistent practice of

2 inadequately investigating and addressing complaints of officer misconduct, including

3 those filed against the officers involved in the incident with [] Price.” (Id. at 14.) Plaintiff

4 also alleges that “[t]he City of San Diego adheres to a policy or custom of racial profiling

5 and bias….” (Id.)

6 Plaintiff also alleges that “Defendants’ failure to adequately train and supervise their

7 officers played a crucial role in the tragic outcome” and that Defendants “have failed to

8 provide adequate training and supervision…concerning constitutional rights, de-escalation

9 techniques, and appropriate force application.” (Id. at 3, 15.) Specifically, Plaintiff alleges

10 that “[t]he City of San Diego maintains policies and training procedures governing the use

11 of force by its law enforcement officers[,]” which “delineate the circumstances in which

12 force may be employed and the appropriate levels of force based on the exigency of the

13 situation.” (Id. at 13.) Plaintiff alleges that “[t]he first sergeant on the scene, instead of

14 utilizing their training and negotiation skills, which should have been taught by the…City

15 of San Diego, failed to de-escalate the situation.” (Id. at 12.) Plaintiffs also alleges that

16 “officers arriving on the scene without being called highlights the potential mishandling of

17 the situation and further emphasizes the need for proper training and de-escalation

18 techniques by the City of San Diego….” (Id.)

19 Finally, Plaintiff alleges that the City of San Diego and its officer demonstrate “a

20 pattern of misconduct and deliberate indifference to the constitutional rights of citizens[,]”

21 which “evinces a systematic issue within the systematic issue within the San Diego Police

22 Department[.]” (Id. at 4, 13, 15, 16.)

23 II. LEGAL STANDARD

24 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a party may move to

25 dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.

26 R. Civ. P. 12(b)(6). At the motion to dismiss stage, all material factual allegations in the

27 complaint are accepted as true and are construed in the light most favorable to the non-

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

1 To avoid dismissal under Rule 12(b)(6), a complaint need not contain detailed

2 factual allegations; rather, the plaintiff must plead “enough facts to state a claim to relief

3 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

4 “A claim has facial plausibility when the plaintiff pleads factual content that allows the

5 court to draw the reasonable inference that the defendant is liable for the misconduct

6 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

7 In other words, “the non-conclusory ‘factual content,’ and reasonable inferences from that

8 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v.

9 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Where

10 a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops

11 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting

12 Twombly, 550 U.S. at 557).

13 When a Rule 12(b)(6) motion is granted, “a district court should grant leave to amend

14 even if no request to amend the pleading was made, unless it determines that the pleading

15 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N.

16 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

17 III. DISCUSSION

18 A. Statute of Limitations

19 Defendants contend that Plaintiff’s FAC is barred by the applicable statute of

20 limitations. (Doc. 30-1 at 9–11.) Defendants argue that all of Plaintiff’s claims are subject

21 to a two-year statute of limitations, that the incident underlying Plaintiff’s claims occurred

22 on July 9, 2020, and that her initial complaint was not filed until October 13, 2022, more

23 than two years later. (Id. at 9–10.) Defendants also argue that even with the additional

24 time to file her complaint granted under California Emergency Rule 9, Plaintiff’s claim is

25 still time-barred. (Id. at 10–11.)

26 In response, Plaintiff contends that her original complaint “was mailed off on July

27 7, 2022, well within the statute of limitations, and assigned case number 22-cv-1003-RBM-

28 WVG by the Honorable Judge Montenegro.” (Doc. 32 at 2, 8–10.) Case number 22-cv-

1 1003-RBM-WVG, filed on July 11, 2020, also concerns the wrongful death of Plaintiff’s

2 father, who was fatally shot by police on July 9, 2020. (Doc. 32-2 at 6–8.) Defendants did

3 not file a reply brief responding to Plaintiff’s statute of limitations arguments.

4 “Section 1983 provides a federal cause of action, but in several respects relevant

5 here federal law looks to the law of the State in which the cause of action arose. This is so

6 for the length of the statute of limitations: It is that which the State provides for personal-

7 injury torts.” Wallace v. Kato, 549 U.S. 384, 387 (2007) (citations omitted); see also

8 Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011)

9 (“California’s statute of limitations for personal injury actions governs claims brought

10 pursuant to 42 U.S.C. § 1983.”) (citations omitted); Canatella v. Van De Kamp, 486 F.3d

11 1128, 1132 (9th Cir. 2007) (holding California’s statute of limitations “for assault, battery,

12 and other personal injury claims” applies to § 1983 claims). In California, “[a]n action for

13 assault, battery, or injury to, or for the death of, an individual caused by the wrongful act

14 or neglect of another,” including claims for intentional infliction of emotional distress,

15 must be filed within two years. Cal. Civ. Proc. Code § 335.1; see also Moss v. Provident

16 Life & Acc. Ins. Co., No. 09cv0674 DMS (WVG), 2009 WL 4043065, at *2 (S.D. Cal.

17 Nov. 20, 2009) (claims for intentional infliction of emotional distress are governed by Cal.

18 Civ. P. Code § 335.1). Thus, all of Plaintiff’s claims are subject to a two-year statute of

19 limitations.

20 “[T]he accrual date of a § 1983 cause of action is a question of federal law that is

21 not resolved by reference to state law.” Wallace, 549 U.S. at 388. “[A]ccrual occurs when

22 the plaintiff has a complete and present cause of action, that is, when the plaintiff can file

23 suit and obtain relief.” Id. (finding that the petitioner could have filed suit as soon as the

24 wrongful arrest occurred) (internal citations and quotation marks omitted). Therefore, the

25 statute of limitations for Plaintiff’s 42 U.S.C. § 1983 claims began running on July 9, 2022,

26 the date the wrongful death allegedly occurred. Likewise, the statute of limitations for

27 Plaintiff’s tort claims for battery, intentional infliction of emotional distress, and wrongful

28 death began running on July 9, 2020, the date of injury. Mariscal v. Innovasis, Inc., No.

1 2:18-cv-08285-SVW-SK, 2019 WL 2970833, at *1 (C.D. Cal. May 17, 2019) (an action

2 accrues on the date of injury) (citing Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1109 (1988)).

3 California’s tolling rules also apply to Plaintiff’s claims. See Nares v. City & Cnty.

4 of San Francisco, Case No. 22-cv-07497-AGT, 2023 WL 3102554, at *1 (N.D. Cal. Apr.

5 25, 2023) (applying California’s tolling rules to § 1983 claims). “Under Emergency Rule

6 9(a), which the Judicial Council of California adopted, ‘statutes of limitations ... that

7 exceed[ed] 180 days [were] tolled from April 6, 2020, until October 1, 2020.’” Id. (quoting

8 Cal. Rules of Court, App. I, Emergency Rule 9(a)). Thus, the statute of limitations for

9 Plaintiff’s claims did not begin to run until October 1, 2020 and Plaintiff’s complaint must

10 have been filed on or before October 1, 2022. Id. at *2 (“[a plaintiff] cannot benefit from

11 tolling that predated his accrual date. Tolling pauses a statute of limitations that would

12 otherwise be running.”); see also Lantzy v. Centex Homes, 31 Cal. 4th 363, 370 (2003)

13 (“[T]he limitations period stops running during the tolling event, and begins to run again

14 only when the tolling event has concluded.”) (emphasis omitted).

15 Here, Plaintiff explains that her original complaint “was mailed off on July 7, 2022,

16 well within the statute of limitations, and assigned case number 22-cv-1003-RBM-WVG

17 by the Honorable Judge Montenegro.” (Doc. 32 at 2.) Although this complaint does not

18 specify any causes of action and was filed under a different case number, this complaint

19 also concerns the allegedly wrongful death of her father and was filed on July 11, 2020.

20 (Doc. 32-2 at 6–8.) Thus, Plaintiff’s complaint appears to be timely. Walton v. Guinn, 187

21 Cal. App. 3d 1354, 1359 (Ct. App. 1986) (“For purposes of the statute of limitations,

22 however, the commencement of the action relates back to the filing of the original

23 complaint, except where a ‘wholly different case is pleaded’ by the amendment.”) Further,

24 Defendants have not filed a reply brief responding to Plaintiff’s statute of limitations

25 arguments. Therefore, at this juncture, the Court cannot find that Plaintiff’s claims are

26 barred by the statute of limitations.

27 B. Plaintiff’s Monell Claim

28 Defendants argue that dismissal of Plaintiff’s Monell claim is appropriate because

1 “Plaintiff adds only conclusory statements to the FAC which appear to be addressed to a

2 ‘custom and practice’ of racial profiling and discrimination and inadequate training []

3 without any factual support for the allegations.” (Doc. 30-1 at 11–12.) Defendants also

4 contend that “[t]he official policy and failure to train allegations are entirely conclusions”

5 and that “Plaintiff has still not alleged any facts supporting her contention that the City has

6 ‘policies, customs, usages, and practices’ regarding unlawful arrests, use of excessive

7 force, and covering up such conduct.” (Id.)

8 In response, Plaintiff argues that she has alleged that “the City of San Diego adheres

9 to a policy or custom of racial profiling and bias” and “fail[s] to provide adequate training

10 and supervision” and that “these allegations are consistent with the court’s guidance[.]”

11 (Doc. 32 at 3.) Plaintiff asserts that “over 300 American citizens, including my late father,

12 Richard Price, were deprived of due process at the hands of San Diego Police officers” and

13 that “in the past two decades, 217 individuals have tragically lost their lives following

14 encounters with San Diego-area law enforcement[.]” (Id. at 9.) Likewise, Plaintiff asserts

15 that in the United States there were 1,200 killings by police in 2022. (Id. at 9, 11.) Plaintiff

16 concludes that “[t]he statistics and reports [she] ha[s] cited serve to underline the existence

17 of systemic issues and provide substantial support for my allegations of unconstitutional

18 policies and practices within the San Diego Police Department” (id. at 9) and that “people

19 would be alive today…had the officers been trained[] and held accountable” (id. at 11).

20 The Court notes, however, that Plaintiff did not allege these statistics in her FAC.

21 Municipalities cannot be held vicariously liable under 42 U.S.C. § 1983 for the

22 actions of their employees. Monell, 436 U.S. at 694. “Instead, it is when execution of a

23 government’s policy or custom, whether made by its lawmakers or by those whose edicts

24 or acts may fairly be said to represent official policy, inflicts the injury that the government

25 as an entity is responsible under § 1983.” Id. To prevail in a civil action against a local

26 governmental entity, the plaintiff must establish “(1) that he possessed a constitutional right

27 of which he was deprived; (2) that the municipality had a policy; (3) that this policy

28 ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the

1 policy is the ‘moving force behind the constitutional violation.’” Oviatt By & Through

2 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris,

3 489 U.S. 378, 389–91 (1989)).

4 A plaintiff may establish municipal liability under 42 U.S.C. § 1983 in one of three

5 ways. “First, the plaintiff may prove that a city employee committed the alleged

6 constitutional violation pursuant to a formal governmental policy or a longstanding practice

7 or custom which constitutes the standard operating procedure of the local governmental

8 entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal quotation marks

9 omitted) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Second, the

10 plaintiff may establish that a governmental official with “final policy-making authority”

11 ratified a subordinate’s unconstitutional conduct. Id. at 1346–47 (citations omitted).4

12 Third, a municipality may be held liable for inadequate training of its employees where

13 “the need for more or different training is so obvious, and the inadequacy so likely to result

14 in the violation of constitutional rights, that the policymakers of the city can reasonably be

15 said to have been deliberately indifferent to the need.” City of Canton, 489 U.S. at 390.

16 Here, as set forth below, Plaintiff’s Monell claim “lack[s] any factual allegations that

17 would separate [it] from the ‘formulaic recitation of a cause of action’s elements’ deemed

18 insufficient by Twombly.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)

19 (quoting Twombly, 550 U.S. at 555).

20 1. Governmental Policies, Practices, and Customs

21 “A decision to adopt a particular course of action by the government’s authorized

22 decisionmakers surely represents an act of official government ‘policy.’ In other words, a

23 policy is a deliberate choice to follow a course of action made from among various

24 alternatives by the official or officials responsible for establishing final policy with respect

25 to the subject matter in question.” Oviatt By & Through Waugh, 954 F.2d at 1477 (internal

26 quotation marks and citations omitted). A custom is a “widespread practice that, although

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28 4 This second avenue for liability is not at issue in the present case.

1 not authorized by written law or express municipal policy, is so permanent and well-settled

2 as to constitute a custom or usage with the force of law.” City of St. Louis v. Praprotnik,

3 485 U.S. 112, 127 (1988) (internal quotation marks and citation omitted).

4 Plaintiff alleges in the FAC that City of San Diego maintains policies governing the

5 use of force by law enforcement officers, which delineate the circumstances in which force

6 may be employed and the appropriate levels of force based on the exigency of the situation.

7 (Doc. 23 at 13.) Plaintiff then alleges that the City of San Diego’s “policies, customs, or

8 practices…contributed to the unconstitutional actions leading to [] Price’s death.” (Id. at

9 3.) However, Plaintiff does not support this conclusory allegation with any specific factual

10 allegations regarding which policy, custom, and/or practice contributed to Price’s death

11 and how. Plaintiff also alleges “[t]he City of San Diego exhibits a consistent practice of

12 inadequately investigating and addressing complaints of officer misconduct[.]” (Doc. 23

13 at 14.) However, Plaintiff does not support this conclusory statement with any specific

14 factual allegations regarding how the City of San Diego treats complaints of officer

15 misconduct. Plaintiff also does not allege how the City of San Diego’s failure to investigate

16 or address complaints of officer misconduct led to Price’s death.

17 Likewise, Plaintiff alleges that “[t]he City of San Diego adheres to a policy or custom

18 of racial profiling and bias…as demonstrated in the targeting of Richard Lewis Price solely

19 based on his appearance as a person of color.” (Id.) However, Plaintiff does not allege

20 that an official policy of racial profiling and bias was authorized by the City of San Diego’s

21 decisionmaker. Further, Plaintiff’s allegations regarding the treatment of one individual

22 are not sufficient to establish a “longstanding practice or custom,” Gillette, 979 F.2d at

23 1346, that is so widespread that it is “permanent and well-settled as to constitute a custom

24 or usage with the force of law.” City of St. Louis, 485 U.S. at 127 (internal quotation marks

25 and citation omitted).

26 2. Inadequate Training

27 To state a Monell claim for failure to train, a plaintiff must allege: (1) inadequate

28 training and (2) deliberate indifference to the rights of persons with whom the untrained

1 employees come into contact. Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation

2 omitted). “‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a

3 municipal actor disregarded a known or obvious consequence of his action.” Id. “A less

4 stringent standard of fault for a failure-to-train claim would result in de facto respondeat

5 superior liability on municipalities.” Id. at 62 (internal quotation marks and citation

6 omitted). “Thus, when city policymakers are on actual or constructive notice that a

7 particular omission in their training program causes city employees to violate citizens’

8 constitutional rights, the city may be deemed deliberately indifferent if the policymakers

9 choose to retain that program.” Id. at 61 (internal quotation marks and citation omitted).

10 Typically, “[a] pattern of similar constitutional violations by untrained employees is

11 ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.”

12 Id. at 62 (internal quotation marks and citation omitted).

13 Here, Plaintiff alleges that “Defendants’ failure to adequately train and supervise

14 their officers played a crucial role in the tragic [death]” and, specifically, that Defendants

15 “have failed to provide adequate training and supervision…concerning constitutional

16 rights, de-escalation techniques, and appropriate force application.” (Doc. 23 at 3, 15.)

17 Plaintiff also alleges that “[t]he City of San Diego maintains…training procedures

18 governing the use of force by its law enforcement officers[,]” which “delineate the

19 circumstances in which force may be employed and the appropriate levels of force based

20 on the exigency of the situation.” (Id. at 13.) Plaintiff then alleges that “[t]he first sergeant

21 on the scene, instead of utilizing their training and negotiation skills, which should have

22 been taught by the…City of San Diego, failed to de-escalate the situation.” (Id. at 12.)

23 Plaintiff also alleges that “officers arriving on the scene without being called highlights the

24 potential mishandling of the situation and further emphasizes the need for proper training

25 and de-escalation techniques by the City of San Diego….” (Id.)

26 Plaintiff does not support these conclusory allegations with factual allegations

27 regarding the training procedures currently in place, their deficiencies, and how the

28 inadequate training resulted in Price’s death. Plaintiff’s allegations are also inconsistent.

1 On one hand, Plaintiff seems to allege that Defendants were trained in the appropriate use

2 of force but failed to comply with the training. On the other hand, Plaintiff seems to allege

3 that, had Defendants been trained properly, they would have known to de-escalate the

4 situation rather than using excessive force. Thus, the need for more or different training is

5 not “so obvious” and the inadequacy is not “so likely to result in the violation of

6 constitutional rights, that the policymakers of the city can reasonably be said to have been

7 deliberately indifferent to the need.” City of Canton, 489 U.S. at 390.5

8 Additionally, Plaintiff does not allege a “pattern of similar constitutional violations”

9 resulting from the same inadequate training and cannot show that the City of San Diego

10 had “actual or constructive notice” of an omission in its training program that they chose

11 not to rectify. See Connick, 563 U.S. at 61–62. Thus, Plaintiff has not alleged deliberate

12 indifference to the rights of persons with whom the untrained employees come into contact.

13 Id. at 61.

14 Accordingly, the Court GRANTS Defendants’ Motion as to Plaintiff’s Monell claim

15 and DISMISSES Plaintiff’s Monell claim without prejudice. However, the Court

16 GRANTS Plaintiff leave to amend her FAC. Cook, Perkiss & Liehe, 911 F.2d at 247.

17 C. Government Claims Act

18 Defendants argue that Plaintiff’s claims for battery, intentional infliction of

19 emotional distress, and wrongful death should be dismissed because she did not comply

20 with California’s Government Claims Act (“Claims Act”). (Doc. 30-1 at 12.) Specifically,

21 Defendants argue that Plaintiff did not file a timely claim with the City of San Diego

22 pursuant to California Government Code Sections 911.2(a) and 945.4 (id. at 13) and is not

23 permitted to rely on her father’s claim (id. at 14–16). Finally, Defendants argue that

24

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26 5 The Court is also hesitant to infer inadequate training in the present case. Here, Plaintiff

alleges that her father was under the influence of several drugs and carrying an airsoft gun

27

at the time of the incident. Therefore, it is not immediately apparent that Defendants’

28 conduct may have constituted excessive force.

1 Plaintiff should not be granted leave to amend these three claims because Plaintiff is not

2 able remedy her failure to comply with the Claims Act. (Id. at 16.)

3 In response, Plaintiff acknowledges that the original claim in this matter was filed in

4 the name of her father but submits that this “naming discrepancy” does not render the claim

5 invalid. (Doc. 32 at 3.) The claim form attached to Plaintiff’s Response is dated January

6 8, 2021, identifies Price as the claimant, and states:

7 On Thursday, July 9, 2020, in the 4200 block of Menlo Avenue in the San

Diego neighborhood of City Heights, San Diego Police Department officers

8

fatally shot Richard Lewis Price. The officers that opened fire on Mr. Price

9 have been identified as David Burns, Joshua Clabough, Kevin Cummins,

Jason Gonzalez, Joshua Lieber, Miles McArdle, and Ace Ybanez. … San

10

Diego Police Officers used excessive deadly force resulting in the wrongful

11 death of Mr. Price.

12 (Doc. 32-3 at 2.) Plaintiff argues that “a claim filed in name of the deceased can still be

13 pursued through the appropriate legal representative of the estate” pursuant to California

14 Probate Sections 9620, 9630, and 8400. (Id. at 3–4.) Likewise, in the FAC, Plaintiff

15 alleges that a “claim was filed on 1/8/2021, indicating the City of San Diego’s awareness

16 of the incident. The claim was filed under Richard Lewis Price’s name due to an error by

17 Plaintiff’s former attorney. Plaintiff, as Richard Lewis Price’s daughter and representative

18 of his estate, seeks to proceed as the proper representative of this case.” (Doc. 23 at 8.)6

19 “A claim relating to a cause of action for death or for injury to person or to personal

20 property or growing crops shall be presented … not later than six months after the accrual

21 of the cause of action.” Cal. Gov’t Code § 911.2(a). “[N]o suit for money or damages may

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

23 presented … until a written claim therefor has been presented to the public entity and has

24 been acted upon by the board, or has been deemed to have been rejected by the board … .”

25

26 6 The Court notes that, after filing her FAC, Plaintiff also filed a letter attaching her father’s

Claim Against the City of San Diego and her correspondence with her former counsel

27

regarding his failure to name her as a “claimant.” (Doc. 25.) However, this

28 correspondence (id. at 5–13) is not material to the Court’s analysis.

1 Id. § 945.4. In other words, “[t]he filing of a claim is a condition precedent to the

2 maintenance of any cause of action against the public entity and is therefore an element

3 that a plaintiff is required to prove in order to prevail.” DiCampli-Mintz v. Cnty. of Santa

4 Clara, 55 Cal. 4th 983, 990 (2012) (quotation mark and citation omitted) (emphasis

5 omitted). “Each theory of recovery against the public entity must have been reflected in a

6 timely claim.” Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051, 1060 (2013)

7 (quotation and citation omitted). Additionally, “a plaintiff must allege facts demonstrating

8 or excusing compliance with the claim presentation requirement. Otherwise, his complaint

9 is subject to a general demurrer for failure to state facts sufficient to constitute a cause of

10 action.” State of California v. Superior Ct., 32 Cal. 4th 1234, 1243 (2004).

11 “Where two or more persons suffer separate and distinct injuries from the same act

12 or omission, each person must submit a claim, and one cannot rely on a claim presented by

13 another.” Nelson v. Cnty. of Los Angeles, 113 Cal. App. 4th 783, 796 (2003); see also

14 Nguyen v. Los Angeles Cnty. Harbor/UCLA Med. Ctr., 8 Cal. App. 4th 729, 732–734

15 (1992) (claim filed for injured child does not permit parents to sue for negligent infliction

16 of emotional distress without filing their own claim for their separate and distinct injury);

17 Lewis v. City and County of San Francisco, 21 Cal. App. 3d 339, 341 (1971) (wrongful

18 death plaintiffs could not rely on decedent’s pre-death tort claim for her personal injuries);

19 Castaneda, 212 Cal. App. 4th at 1062–63 (finding trial court abused its discretion in

20 denying state’s motion for judgment on the pleadings with respect to decedent daughter’s

21 wrongful death cause of action because she never complied with Claims Act). “Because

22 this rule is based on the purpose of the claim statutes—which is to provide sufficient

23 information to enable the entity to adequately investigate claims and to settlement, if

24 appropriate, without the expense of litigation—the statutory requirements have not been

25 met by the person who has not filed a claim, and the doctrine of substantial

26 compliance…does not apply.” Nelson, 113 Cal. App. 4th at 797 (internal citation omitted).

27 The Court addresses each of Plaintiff’s state law claims separately.

28

1 1. Battery

2 As stated above, “[w]here two or more persons suffer separate and distinct injuries

3 from the same act or omission, each person must submit a claim, and one cannot rely on a

4 claim presented by another.” Nelson, 113 Cal. App. 4th at 796. In the FAC, Plaintiff states

5 a claim for “battery against the Plaintiff” and alleges that “the [p]laintiff suffered severe

6 damages, including physical pain, suffering, and emotional distress.” (Doc. 23 at 16–17.)

7 Plaintiff also alleges that “[t]he [p]laintiff incurred economic damages, including but not

8 limited to medical expenses and lost wages, in an amount to be proven at trial.” (Id. at 17.)

9 As pled, it is unclear whether Plaintiff is stating a claim for battery on behalf of herself or

10 on behalf of her father. In this section of the FAC, Plaintiff seems to use the word

11 “plaintiff” to refer to both herself and her deceased father. While any claim for battery

12 brought in Plaintiff’s individual capacity on behalf of herself must be dismissed due to her

13 failure to comply with the Claims Act, Plaintiff may pursue a battery claim on behalf of

14 her father. See Deen v. City of Redding, Civ. No. S-13-1569 KJM CMK, 2014 WL

15 1513353, at *6 (E.D. Cal. Apr. 11, 2014) (“[T]he injuries from the excessive force, battery,

16 and negligence are decedent’s…and so do not give rise to wrongful death damages [for an

17 heir].”) (emphasis added); see also Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256,

18 1276–79 (2006) (finding that a an heir’s claim for wrongful death damages was timely but

19 that several survivor causes of action, e.g., negligence, on behalf of the decedent were not).

20 2. Intentional Infliction of Emotional Distress

21 In Nguyen, a minor child filed a claim against a county hospital alleging that she

22 sustained injuries because of negligent medical treatment. 8 Cal. App. 4th at 731. “[T]he

23 plaintiff parents, appeal from a nonsuit order as to their causes of action for negligent

24 infliction of severe emotional distress.” Id. The parents did not file a claim naming

25 themselves as claimants. Id. at 731–32. On appeal, the “parents argue[d] their claim was

26 derivative of their daughter’s claim and therefore they were entitled to rely upon the tort

27 claim filed by their daughter.” Id. at 733. The California Court of Appeal disagreed and

28 held:

1 The plaintiff parents’ causes of action for negligent infliction of severe

emotional distress arose out of the same transaction as their daughter's medical

2

malpractice claim. However, the injuries allegedly suffered by the plaintiff

3 parents were separate and distinct from those suffered by their daughter. The

plaintiff parents’ claims were for emotional injuries as witnesses to their

4

daughter’s injuries and for emotional injuries and economic damages as direct

5 victims of the County’s negligence. The alleged emotional injuries and

economic damages were personal to the plaintiff parents. Therefore, the

6

plaintiff parents could not rely on their daughter’s tort claim.

7

8 Id. at 734. Here, like the parent plaintiffs in Nguyen, Plaintiff has filed a claim for the

9 intentional infliction of emotional distress arising out of the same incident as her father’s

10 claims but based on her own separate and distinct emotional, physical, and economic

11 injuries. (See Doc. 23 at 1, 19–22.)7 These injuries are personal to Plaintiff, meaning she

12 cannot rely on her father’s Claims Act claim to assert her own claim for intentional

13 infliction of emotional distress. See Nguyen, 8 Cal. App. 4th at 734. Therefore, the Court

14 finds that plaintiff has not complied with the Claims Act and dismisses her claim for

15 intentional infliction of emotional distress.

16 3. Wrongful Death—Negligence

17 In Castaneda, a decedent was in custody from approximately October 2004 to

18 February 2007. 212 Cal. App. 4th at 1057–59. Nine days after his release, the decedent

19 was diagnosed with invasive squamous cell carcinoma, which had already spread to his

20 lymph nodes. Id. at 1059. He died a year later. Id. While still alive, the decedent presented

21 a timely government tort claim and filed a single cause of action for violations of California

22 Government Code Section 845.6 regarding inadequate medical care in custody. Id. The

23 decedent’s daughter “as heir and beneficiary of the estate…amended the complaint to

24 allege a new, separate cause of action for wrongful death.” Id. However, the daughter

25 never filed a government tort claim. Id. The court explained that “[i]t has long been the

26

7 As pled, it does not appear Plaintiff is seeking damages on behalf of her father’s estate on

27

this claim. The Court will treat Plaintiff’s claim for intentional infliction of emotional

28 distress as brought in her individual capacity on behalf of herself only.

1 law in California, that an action for wrongful death is wholly distinct from an action by the

2 decedent, in his lifetime, for the injuries which ultimately cause his death.” Id. at 1063

3 (quotation and citation omitted). The court held the decedent’s daughter “could not utilize

4 [the decedent’s] tort claim for his predeath personal injuries as a substitute for her own

5 wrongful death claim. Because [decedent’s daughter] did not comply with the Act, she

6 cannot state a cause of action.” Id.

7 Here, Plaintiff alleges that “[a]s a direct and proximate result of [the City of San

8 Diego’s] negligence, [Price] suffered severe injuries, pain, and emotional distress,

9 ultimately resulting in his death.” (Doc. 23 at 24.) Plaintiff also alleges that “[a]s a result

10 of [the City of San Diego’s] negligence, [she]…suffered the loss of her father, emotional

11 distress, and financial harm, including medical expenses and lost wages.” (Id.) Thus, as

12 pled, Plaintiff appears to be bringing a claim for wrongful death/negligence on behalf of

13 both herself and her father. Under Castaneda, Plaintiff cannot utilize her father’s Claims

14 Act claim as a substitute for her own wrongful death/negligence claim, and her personal

15 claim for wrongful death/negligence must be dismissed. However, Plaintiff may bring a

16 negligence claim on behalf of her father. See Deen, 2014 WL 1513353, at *6; Quiroz, 140

17 Cal. App. 4th at 1276–79.

18 4. Conclusion

19 “Statutorily prescribed prerequisites to statutory causes of action [are] jurisdictional

20 and the failure to satisfy such preconditions [is] fatal to the action.” California State Univ.,

21 Fresno Assn., Inc. v. Cnty. of Fresno, 9 Cal. App. 5th 250, 265 (2017). Additionally, the

22 time to file a late-claim application has long passed. See Munoz v. State of California, 33

23 Cal. App. 4th 1767, 1779 (1995) (“When the underlying application to file a late claim is

24 filed more than one year after the accrual of the cause of action, the court is without

25 jurisdiction to grant relief….”) (internal citation omitted). Therefore, the Court finds that

26 amendment would be futile and DISMISSES Plaintiff’s individual claims for battery,

27 intentional infliction of emotional distress, and wrongful death/negligence brought on

28 behalf of herself with prejudice. However, Plaintiff may pursue claims for battery and/or

1 wrongful death/negligence on behalf of her father. See Deen, 2014 WL 1513353, at *6;

2 Quiroz, 140 Cal. App. 4th at 1276–79.

3 D. Federal Rule of Civil Procedure 12(f)—Motion to Strike

4 Defendants argue “Plaintiff asserts allegations that are unnecessarily emotionally

5 charged, redundant to the point of unnecessarily repeating other averments already set

6 forth, have little, if any bearing on the claims being asserted.” (Doc. 30-1 at 18.) Therefore,

7 Defendants request that the Court strike page 3, paragraph 5 and all references to punitive

8 damages; page 4, paragraph 8 as conclusory; page 4, paragraphs 9 and 10 as duplicative

9 and irrelevant; page 8, paragraph 7 as irrelevant; page 10, paragraphs 14/15 as irrelevant

10 and inflammatory; page 12, paragraph 7 as conclusory; page 12, paragraph 8 as irrelevant

11 and inflammatory; page 13, paragraphs 3 and 4 as irrelevant and inflammatory; page 14,

12 paragraphs 6 and 7 as irrelevant and inflammatory; page 15, paragraphs 9 and 10 as

13 irrelevant and inflammatory; page 16, paragraph 11; page 20, paragraph 31 as

14 inflammatory and irrelevant; page 20, paragraph 32 as irrelevant; page 21, paragraphs 33

15 and 34 as irrelevant; and page 22, paragraph 36 as inflammatory. (Id.)

16 “The court may strike from a pleading an insufficient defense or any redundant,

17 immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on

18 motion made by a party either before responding to the pleading or, if a response is not

19 allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(f).

20 “Motions to strike are generally not granted unless it is clear that the matter to be stricken

21 could have no possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky

22 Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Further, “allegations supplying

23 background or historical material or other matter of an evidentiary nature will not be

24 stricken unless unduly prejudicial to defendant.” Id.

25 As a preliminary matter, the Court DENIES Defendants’ motions to strike page 4,

26 paragraph 5 and page 12, paragraph 7 as conclusory. Conclusory allegations are not subject

27 to a motion to strike under Rule 12(f), which only permits motions to strike “redundant,

28 immaterial, impertinent, or scandalous matter.” Likewise, the Court DENIES Defendants’

1 motion to strike page 16, paragraph 11 as Defendants have not provided any basis in their

2 motion. The Court also DENIES Defendants’ motion to strike page 3, paragraph 5 and all

3 references to punitive damages because “a Rule 12(f) motion is not the proper method by

4 which to strike a claim for punitive damages.” Fitch v. Galland, No. 1:16-CV-00489-JLT,

5 2017 WL 1231869, at *6 (E.D. Cal. Jan. 6, 2017) (citing Whittlestone, Inc. v. Handi-Craft

6 Co., 618 F.3d 970, 974 (9th Cir. 2010)).

7 Defendants move to strike all of the remaining claims as irrelevant or inflammatory;

8 however, as stated above, “[m]otions to strike are generally not granted unless…the

9 matter…could have no possible bearing on…the litigation,” and “allegations supplying

10 background or historical material or other matter of an evidentiary nature will not be

11 stricken unless unduly prejudicial to defendant.” LeDuc, 814 F. Supp. at 830. None of the

12 claims identified by Defendants are irrelevant or inflammatory to the point of being

13 prejudicial. Thus, the Court DENIES Defendants’ motion to strike in its entirety.

14 IV. CONCLUSION

15 For the reasons set forth above, the Court GRANTS IN PART and DENIES IN

16 PART Defendants’ Motion to Dismiss. Specifically, the Court:

17 1) GRANTS Defendants’ Motion to Dismiss Plaintiff’s Monell claim, DISMISSES

18 the claim without prejudice, and GRANTS Plaintiff leave to amend her Monell

19 claim;

20 2) GRANTS Defendants’ Motion to Dismiss Plaintiff’s individual claims for

21 battery, intentional infliction of emotional distress, and wrongful

22 death/negligence brought on behalf of herself and DISMISSES those claims

23 with prejudice; and

24 3) DENIES Defendants’ Motions to Strike pursuant to Federal Rule of Civil

25 Procedure 12(f).

26 Plaintiff may file an amended complaint on or before Tuesday, March 19, 2024 which

27 cures the Monell claim deficiencies noted above. Plaintiff is cautioned that conclusory

28 allegations unsupported by specific factual allegations are insufficient to properly comply

1 || with the Federal Rules of Civil Procedure. If Plaintiff fails to file an amended complaint

2 ||on or before March 19, 2024, the case will proceed on Plaintiff’s remaining claim for

3 excessive force in violation of 42 U.S.C. § 1983 (not specifically addressed the

4 ||Defendants in their Motion to Dismiss) and any claim for battery or negligence

5 || brought on behalf of Plaintiff’s father.

6 IT IS SO ORDERED.

7 |{|DATE: March 6, 2024

8

10 UNITED STATES DISTRICT JUDGE

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