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Cardenas v. State of California


May 20, 2005


The opinion of the court was delivered by: Ronald M. Whyte United States District Judge


This is a civil rights action stemming from events leading to the death of Rodolfo Cardenas ("Cardenas"). The state of California, the California Department of Justice, the California Department of Corrections, the Parole Fugitive Apprehension Team, the Bureau of Narcotics Enforcement, Officer Michael Walker ("Walker"), Officer Jason Lara ("Lara"), Special Agent Steve Davies ("Davies"), Officer Brian Link ("Link"), and Officer Cesar Sanchez ("Sanchez") (collectively "defendants") move to dismiss portions of a complaint in intervention (" the complaint") filed by plaintiff Dora Barela ("Barela"), Cardenas' mother. Cardenas' wife and children ("the Cardenas plaintiffs") also move to remand the case to state court. The court has read the moving and responding papers and considered the arguments of counsel. For the reasons set forth below, the court grants in part and denies in part defendants' motion to dismiss and denies the Cardenas plaintiffs' motion to remand.


Barela's complaint alleges that, on February 17, 2004, the individual defendants were staking out a house in San Jose. Compl. ¶ 19. Defendants were looking to arrest an individual, David Gonzales, for a parole violation. Id. Barela asserts that defendants mistook Cardenas for Gonzales, even though the two men did not look alike. Id. at ¶ 20. Defendants pursued Cardenas in unmarked cars, without lights or sirens, at a high rate of speed and in a reckless manner. Id. at ¶ 21. Cardenas stopped his van and tried to flee on foot. Id. at ¶ 22. Walker, wearing plain clothes and not identifiable as a police officer, got out of his unmarked car and, with other defendants, pursued Cardenas. Id. at ¶ 23. Cardenas had nothing in his hands and was not threatening anyone. Id. at ¶¶ 24, 27. Without warning, Walker shot Cardenas in the back. Id. ¶ 24.

Walker, Lara, Davies, Link, and Sanchez searched and handcuffed Cardenas. Id. at 25. Despite the fact that Cardenas needed immediate medical care, defendants refused to let paramedics help him. Id. Cardenas was "awake and alert" immediately after the shooting, and was in "extreme conscious pain." Id. at 31. Following the shooting, defendants gave false statements, concealed or altered evidence, and tampered with witnesses to exonerate themselves. Id. at ¶¶ 32, 33. Barela alleges the investigation did not conform to accepted police standards and practices, and was biased in defendants' favor. Id. ¶ 34.

Cardenas died intestate. The Cardenas plaintiffs brought suit on July 19, 2004 against defendants for wrongful death and excessive use of force. The parties stipulated to allow Barela to join the lawsuit as a plaintiff. Barela claims that she relied on Cardenas for "financial and other support" at the time of his death.

Id. at ¶ 2.*fn1 Barela sued defendants for (1) violation of 42 U.S.C. § 1983 ("section 1983"), including violations of the Fourth and Fourteenth Amendments of the United States Constitution, (2) violation of Article I, sections 1 and 13 of the California Constitution, (3) violation of California Civil Code § 52.1, (4) negligence, and (5) assault and battery.*fn2

Defendants removed the action to federal court on February 28, 2005. The Cardenas plaintiffs brought a motion to remand on March 30, 2005.


A. Standard for Dismissal

Dismissal under Rule 12(b)(6) is proper only when a complaint exhibits either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The court must accept the facts alleged in the complaint as true. Id. "A complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In addition, "[c]ivil rights complaints are to be liberally construed." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992).

B. Standing

1. Survival Claim

Defendants first challenge Barela's ability to seek redress for Cardenas' death. Under California, there are two means by which a plaintiff can bring a claim stemming from someone else's death: survival and wrongful death actions. In a survival action, the plaintiff "steps into the shoes" of the decedent: "[s]urvival statutes . . . seek damages for a decedent's injuries and harm sustained prior to the death of the decedent. Recovery becomes an asset of the decedent's estate." In re Estate of Lowrie, 118 Cal. App. 4th 220, 226 n.3 (2004). California's survival statute, Code of Civil Procedure section 377.30, entitles "successor[s] in interest" to bring such actions:

A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.

In turn, California Probate Code section 7000 provides that title to the property of a decedent who dies intestate passes to the decedent's heirs according to the laws of intestate succession. Also, California's Code of Civil Procedure defines "successor in interest" as "the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action." § 377.11.*fn3 Thus, a plaintiff may be able to bring a survival action if she is (1) the beneficiary of the decedent's estate, (2) an heir under the laws of intestate succession, or (3) the decedent's personal representative. Barela does not meet these requirements. For one, Barela does not allege that she stands to take from Cardenas' estate by virtue of any testamentary document. In addition, because Cardenas' wife and children survived him, Barela, is not an heir under the rules of intestate succession. See Cal. Prob. Code §§ 6401(c)(2)(B) and 6402(b) (decedent's parent is only heir if he has no surviving spouse or children); cf. Lowrie, 118 Cal. App. 4th at 227-31 (plaintiff had standing to bring Elder Abuse claim on behalf of grandfather because she took from his estate).

Barela does, however, have standing to assert a wrongful death claim. In contrast to a survival action, wrongful death claims "belong to the 'decedent's heirs and other specified relations . . . and are meant to compensate them for their own losses resulting from the decedent's death." Lowrie, 118 Cal. App. 4th at 226 n.3 (quoting Cal. Elder Law Litigation: An Advocate's Guide,§ 6.46, at 411). California's wrongful death statute provides: A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:

(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.

(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents.

Cal Code Civ. Proc. § 377.60 (emphasis added).*fn4 Because Barela alleges that she was financially dependent on Cardenas, she has standing to assert a wrongful death claim under section 377.60(b).

Barela then argues that her ability to bring a wrongful death cause of action also entitles her to bring a survival cause of action. Barela claims that, as a financially dependent parent, she "succeeds" to wrongful death cause of action. According to Barela, this "succession" transforms her into a "successor in interest" under the survival statute. Barela is mistaken. A wrongful death cause of action "arises on the death of the injured person." Grant v. McAuliffe, 41 Cal.2d 859, 864 (1953). To be a "successor in interest" under the survival statute, Barela must have obtained a cause of action that Cardenas could have brought on his own behalf had he survived. See Cal. Code Civ. Proc. § 377.11 ("successor in interest" must receive cause of action as "beneficiary of the decedent's estate"). Of course, had Cardenas lived, he could not have brought a wrongful death claim on his own behalf. Thus, the fact that Barela has standing under the wrongful death statute has no bearing on the issue of whether she has standing under the survival statute. The court thus dismisses her survival claim without prejudice.*fn5

2. Fourth Amendment Claim

Next, defendants argue that Barela cannot maintain a section 1983 civil rights claim for violation of Cardenas' Fourth Amendment rights.*fn6 Compl. ¶¶ 37-42. In Rakas v. Illinois, 439 U.S. 128 (1969), the Supreme Court established that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Id. at 133-34 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). The Ninth Circuit recognizes an exception to this rule for survival actions under section 1983:

[T]he general rule is that only the person whose Fourth Amendment rights were violated can sue to vindicate those rights. In [section] 1983 actions, however, the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. 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 bringing a survival action.

Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998) (citations omitted). Because Barela does not have standing to assert a survival action, her Fourth Amendment claim must fail.

Barela contends that she has standing to assert Cardenas' Fourth Amendment rights under 42 U.S.C. § 1988(a). That provision requires courts to look to state law to resolve damages issues under section 1983 but forbids courts from applying state law when it is "inconsistent with the Constitution and laws of the United States." Id.*fn7 Barela cites Galindo v. Brownell, 255 F. Supp. 930 (S.D. Cal. 1966), Alvarez v. Wiley, 71 Cal. App. 3d 599 (1977), Garcia v. Superior Court, 42 Cal. App. 4th 177 (1996), Davis v. City of Ellensburg, 651 F. Supp. 1248 (E.D. Wash. 1987), and Venerable v. City of Sacramento, 185 F. Supp. 2d 1128 (E.D. Cal. 2002) for the proposition that denying her claim for violation of Cardenas' Fourth Amendment rights would be inconsistent with the federal Constitution. Barela's authority is not persuasive. For one, Galindo (1) preceded Rakas and (2) while noting that it involves fatal police shooting, does not specify whether the decedent's Fourth Amendment rights or the plaintiff's Fourteenth Amendment rights are at issue. See Galindo, 255 F. Supp. at 931.*fn8 Second, Alvarez held only that equitable relief was unavailable under section 1983 in a wrongful death action, and thus is wholly inapposite. See Alvarez, 71 Cal. App. 3d at 604. Third, Garcia held that the decedent's sister had standing to bring a section 1983 survival action "in her capacity as representative of his estate." Garcia, 42 Cal. App. 4th at 179. Garcia distinguished this "recovery by the representative of the estate" from "a wrongful death action by decedent's heirs." Id. at 186-87. Fourth, Davis involved Washington law and resolved the narrow issue of whether a wrongful death action brought on behalf of the decedent's parents was barred by their failure to allege dependency. See Davis, 651 F. Supp. at 1257. Finally, Venerable supports defendants' position. In that case, parents and children of the decedent brought a section 1983 claim and a state wrongful death action. The court held that the children had standing to bring a survival action on behalf of the decedent as his "successors in interest." See Venerable, 185 F. Supp. 2d at 1130. The court also noted that the decedent's mother could bring a survival action on the children's behalf as their guardian ad litem. See id. However, the decedent's father conceded that he "may only be a party to the fourteenth amendment claim for deprivation of the right to familial association with his son." Id. at 1130 n.3. Thus, the court dismisses Barela's Fourth Amendment claim without prejudice.

3. Bane Act Claims

Defendants also challenge Barela's attempt to bring claims under the Bane Act, California Civil Code section 52.1(a), (b). Compl. ¶¶ 46-48. The Bane Act provides that

[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with . . . may institute and prosecute in his or her own name and on his or her own behalfa civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.

Id. In Bay Area Rapid Transit v. Superior Court,38 Cal. App. 4th 141, 144 (1995) ("BART"), the parents of a teenager who was killed by a police officer sued the officer and the subway system that employed him for wrongful death and civil rights violations made actionable by the Bane Act. The trial court overruled defendants' demurrer. The court of appeal reversed, reasoning that the Bane Act cannot apply vicariously:

We have no wish to denigrate in any way the degree of the loss suffered by the [parents], or indeed for the loss of a child by any parent. We cannot, however, accept the particular legal theory advanced in support of the [parent's] attempt to include a Bane Act cause of action in their lawsuit for wrongful death. The Bane Act is simply not a wrongful death provision. It clearly provides for a personal cause of action for the victim of a hate crime.

Id. at 144.

Barela argues BART is no longer good law. BART relied on Boccato v. City of Hermosa Beach, 29 Cal. App. 4th 1797, 1809 (1994) for the proposition that the Bane Act must be read in conjunction with section 51.7, which provides that all persons have the right to be free from 'violence, or intimidation by threat of violence committed against their persons' because of race, color, religion, ancestry, etc. This reinforces the rational interpretation of the Bane Act, i.e., that it is limited to plaintiffs who themselves have been the subject of violence or threats.

BART, 38 Cal. App. 4th at 144. However, in 2000, the California Legislature overruled Boccato. See Stats. 2001, c. 261 (A.B. 587) ("[i]t is the intent of the Legislature in enacting this act to clarify that an action brought pursuant to Section 52.1 of the Civil Code does not require the individual . . . to be a member of a protected class identified by race, color, religion, or sex, among other things"). Barela contends that, by overruling Boccato, the Legislature concomitantly overruled BART.

The court disagrees. For one, BART relied on more than just Boccato. The court also declined to find that the Bane Act applied derivatively "[i]n the absence of a clear legislative intent." BART, 38 Cal. App. 4th at 145. The fact that the Legislature subsequently amended the Bane Act-but did not mention BART-suggests that the court was correct. Moreover, the Bane Act only protects plaintiffs "whose exercise or enjoyment of rights" have been violated by "threats, intimidation, or coercion." See Cal. Civ. Code § 51(a) & (b). If the Legislature truly intended the Bane Act to serve as a wrongful death statute, these words would be odd choices. "Threats, intimidation, or coercion" are felt most intensely in person. Plaintiffs like Barela are one step removed: indeed, defendants' alleged wrongdoing was directed at Cardenas.*fn9 Thus, because the Bane Act is not a wrongful death statute, the court dismisses Barela's Bane Act claim without prejudice.

4. Injunctive Relief

Finally, defendants argue that Barela lacks standing to sue for injunctive relief. Compl. at 18. To have such standing, Barela must allege that "she 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Barela makes no such allegation. Barela's sole contention is that the Bane Act authorizes her to seek injunctive relief. Because Barela does not have standing under the Bane Act, the court dismisses her claim for injunctive relief.

C. Claim for "Cover Up"

Barela alleges that defendants engaged in a post-shooting "cover up" of damaging evidence. Compl. ¶¶ 32-34, 37. Defendants correctly assert that Barela's section 1983 cause of action based on these allegations can only proceed if she proves that defendants impaired her constitutional due process right of access to the courts. See Delew v. Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998) ("the Constitution guarantees plaintiffs the right of meaningful access to the courts, the denial of which is established where a party engages in pre-filing actions which effectively covers-up evidence and actually renders any state court remedies ineffective"). In response, Barela clarifies that she "does not attempt to assert a separate claim for 'cover-up,'" but merely offers evidence "to help prove that underlying Fourth Amendment violation . . . or to help prove supervisory or municipal liability." Opp. Mot. Dism. at 22:11-14. Thus, the court will not construe Barela's pleadings to state a claim for an independently tortious "cover up."

D. Claims Against State Entities

In addition to the State of California, Barela names the California Department of Justice, the California Department of Corrections, the Parole Fugitive Apprehension Team, and the Bureau of Narcotics Enforcement in her complaint. Compl. ¶¶ 4-11. Defendants move to dismiss these entities from the complaint. In response, Barela asserts that "[l]ocal police departments are public entities and can be sued for civil rights violations." Opp. Mot. Dism. at 25:17-18. Although Barela is correct, she also alleges that the entities listed above are "departments" of the State of California. Compl. ¶ 5. Therefore, she will get a judgment against the State of California if her claims succeed. See Cal. Gov't Code § 900.6 ("'State' means the State any office, officer, department, division, bureau, board, commission, or agency of the State claims against which are paid by warrants drawn by the Controller"). Because the entities listed above add nothing to Barela's lawsuit, the court grants defendants' motion to dismiss them.

E. Claims Against Davies, Link, Sanchez, and Lara

Defendants argue that Davies, Link, Sanchez, and Lara ("the non-shooting defendants"), who were not present when Walker shot Cardenas, cannot be liable unless they personally participated in the alleged constitutional deprivation. According to Barela, however, the non-shooting defendants can be liable in two ways.*fn10

First, Barela asserts that the non-shooting defendants can be liable "where their pre-shooting use of excessive and unreasonable force caused an escalation of events that led to the plaintiff's injury." Opp. Mot. Dism. at 15:13-14. For example, Barela claims, in Alexander v. City of San Francisco, 29 F.3d 1355 (9th Cir. 1994), the Ninth Circuit determined that an allegation that officers "used excessive force in creating the situation which caused [the decedent] to take the actions he did" stated "a classic Fourth Amendment violation." Id. at 1366. The flaw in this argument is that, as discussed, Barela cannot assert Cardenas' Fourth Amendment rights. Indeed, unlike this case, the plaintiff in Alexander had standing to assert the decedent's Fourth Amendment rights because he was the executor of the decedent's estate. See id. at 1357.

Barela also contends that the non-shooting defendants can be liable under traditional tort principles of negligence if their pre-shooting conduct was a substantial factor in causing the harm. Barela alleges that the non-shooting defendants (1) mistook Cardenas for Gonzalez and (2) pursued him in a "dangerous and reckless manner." Compl. ¶¶ 20, 21. Defendants note that, before they removed this proceeding, the state court struck "a similar claim" from the Cardenas plaintiffs' First Amended Complaint. Mot. Dism. at 6:6-12. Defendants urge this court to apply the prior court's order under 28 U.S.C. § 1450 ("[a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court"). The court declines to do so. For one, the state court's order was directed at the Cardenas plaintiffs, not Barela. In addition, the order granted the motion "without prejudice to [the Cardenas] plaintiffs bringing a motion for leave to amend to add a separate cause of action grounded upon the alleged vehicle pursuit." Fong Decl. Supp. Opp. Mot. Dism. Ex. B. Thus, this court will consider Barela's claim on its merits.

The existence and scope of a legal duty is a question of law. "This is because 'legal duties are . . . merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.' Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection." Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1093-94 (2004) ("Union City") (quoting Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 434 (1976)) (citations omitted). Courts generally balance the so-called Rowland factors to determine whether a duty exists. These factors include (1) the foreseeability of the harm, (2) the degree of certainty that the injured party suffered the harm, (3) the closeness of the connection between the defendant's conduct and the injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden on the defendant. See Rowland v. Christian, 69 Cal. 2d 108, 112-13 (1968). In cases involving a public agency, courts also must consider (1) the consequences to the community of imposing a duty of care, (2) the availability, cost, and precedence of insurance, (3) the extent of the agency's powers, (4) the role imposed upon the agency by law, and (5) the limitations imposed on the agency by budget. See Thompson v. County of Alameda, 27 Cal. 3d 741, 750 (1980).

Barela contends that the court does not need to evaluate the Rowland factors because the California Supreme Court has already determined that "police ow[e] the decedent a duty of care for their conduct well before [the] shooting." Opp. Mot. Dism. at 17:8-9. For support, Barela cites Grudt v. City of Los Angeles, 2 Cal. 3d 575 (1970) and Munoz v. Olin, 24 Cal. 3d 629 (1979).

In Grudt, the decedent, who was slightly deaf, was driving in a high crime area. Two plainclothes officers in an unmarked car attempted to stop the decedent, but he did not respond. Grudt, 2 Cal. 3d at 581. Another plainclothes officer approached the decedent's car at a red light and tapped on the window with a shotgun. The parties introduced conflicting evidence at trial as to whether the officers then shot the decedent or whether he suddenly accelerated first. Id. at 582. Even though the plaintiff had not mentioned negligence in her complaint, the California Supreme Court held that she could pursue such a claim because she had raised it in the pretrial conference order. Id. at 585-86. The court then held that there was enough evidence that the officers breached their duty of due care to survive a motion for non-suit. Id. at 587.

In Munoz, the decedent was walking through an alley where there had been several recent cases of arson. According to the police, officers witnessed him start a fire and then flee. Munoz, 24 Cal. 3d at 633-34. The decedent's widow sued for wrongful death; the jury returned a verdict for the plaintiffs. Citing Grudt, the officers "d[id]not dispute that an officer's lack of due care can give rise to negligence liability for the intentional shooting death of a suspect." Id. at 634. Instead, the officers contended that there was insufficient evidence of their negligence-a conclusion with which the California Supreme Court ultimately disagreed. See id. at 635-37.

However, in Adams v. City of Fremont, 68 Cal. App. 4th 243 (1988), without mentioning Grudt or Munoz, a California appellate court reexamined the Rowland factors to hold that "police officers responding to a crisis involving a person threatening suicide with a loaded firearm have no legal duty under tort law that would expose them to liability if their conduct fails to prevent the threatened suicide from being carried out." Id. at 248. In Adams, an armed man situated in brush area in his backyard threatened to kill himself. The officers' attempts to defuse the situation failed, and the man ultimately died from a self-inflicted gunshot wound. Id. at 256. The court of appeal reasoned that the Rowland factors suggested that the officers owed the man no duty to prevent his suicide:

On balance, the relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out. The foreseeability and certainty of harm suffered are factors which favor imposing a duty. The absence of moral blame, the remoteness of the connection between the conduct of appellants and the harm suffered, the policy of preventing future harm, consequences to the community, the role of law enforcement in society, and the potential detriment to the public in imposing judicial allocation of resources all heavily favor shielding law enforcement personnel from tort liability in instances such as this.

Id. at 276.

In Union City, another California appellate court extended Adams to a situation not just where the police failed to prevent harm, but where "police conduct . . . directly inflicted harm." Id. at 1099. The police responded to a call that a woman with a knife was threatening herself and her family. The woman, who the police believed was high on methamphetamine, was acting irrationally. When she began to move in the direction of her father, an officer shot her. The woman's relatives sued the officer and the city, alleging, inter alia, that the police employed unreasonable tactics. The appellate court determined that the officers owed the woman no duty of care because "the need to protect the overall safety of the community by encouraging law enforcement officers to exercise their best judgment in deciding how to deal with public safety emergencies vastly outweighs the societal value of imposing tort liability for judgments they make in emergency situations." Id. at 1097. Responding to plaintiffs' argument that Grudt and Munoz held otherwise, the court noted that "neither Grudt nor Munoz actually analyzed the duty issue or involved a crisis situation such as in the present case." Id. at 1100.

Defendants argue that Adams and Union City suggest that defendants' "pre-shooting tactical decisions," including "how they responded to the urgent information they received concerning the whereabouts of fugitive parolee David Gonzalez," and "their actions taken during the vehicle pursuit" did not give rise to a duty of care. Mot. Dism. at 8:28-9:5. Defendants note that Cardenas "generally does match the description of the fugitive parolee" and "fled from Agent Walker when he followed him to determine his identity." Mot. Dism. at 10 n.3. Defendants contends that (1) it is not foreseeable that mis-identifying Cardenas and "driving very aggressively" in a "dangerous and reckless manner" would lead to Cardenas being shot, (2) defendants' conduct was not morally blameworthy because they were attempting to apprehend a fugitive parolee, (3) the law already imposes tort liability on police officers for negligent operation of police vehicles,*fn11 and (4) recognizing a duty here would chill effective law enforcement.

The difficulty with defendants' arguments is that this is a motion to dismiss, and the court is bound by the allegations in Barela's complaint. Barela's allegations are substantially different than defendants' characterization of the facts:

Rodolfo Cardenas did not match the physical description of David Gonzalez . . . . Without having any reasonable basis to believe that Rodolfo Cardenas had committed or was about to committ [sic] any crime, Defendant Walker and the other Individual Defendants pursued Rodolfo Cardenas, who was driving a van.

Defendants pursued Rodolfo Cardenas in unmarked cars . . . without proper emergency lights or sirens, at a high rate of speed . . . . Rodolfo Cardenas stopped the van he was driving . . . got out . . . and ran.

Compl. ¶¶ 19-22. Thus, two of defendants' central factual claims-that (1) Gonzalez and Cardenas look alike and that (2) Cardenas fled from Walker when Walker tried to determine Cardenas' identity-are not mentioned in the complaint.

Based on Barela's allegations, the court cannot absolve the non-shooting defendants from owing a duty of reasonable care toward Cardenas. Adams and Union City are manifestly different. Both cases rejected claims that police tactics during stand-offs could give rise to a duty of due care. Here, according to Barela, the non-shooting defendants mistook Cardenas for Gonzalez and then pursued him without identifying themselves as police officers. While Adams and Union City were reluctant to impose the specter of tort liability upon officers who must decide how to approach a delicate, pre-existing, and hazardous situation, Barela alleges that the non-shooting defendants' own conduct created danger out of whole cloth. In addition, both Adams and Union City had the benefit of a full-fledged factual record. Here, at this early stage, this court cannot adequately evaluate Rowland factors such as the moral blameworthiness of the non-shooting defendants' conduct and the burden that recognition of a duty of care in these circumstances would impose upon police. Moreover, defendants' claim that tort law already imposes liability for the negligent operation of police vehicles is belied by their later attempt to seek immunity under California Vehicle Code section 17004, which exempts public employees from damages while responding to emergencies. For these reasons, the court denies the non-shooting defendants' motion to dismiss Barela's negligence claim.

F. Immunity

Defendants argue that (1) they are immune from any injury that results from a vehicle pursuit, (2) they are immune for their "discretionary acts" during the pursuit, and (3) the State of California is immune from liability. The court disagrees.

First, defendants argue that California Vehicle Code section 17004 shields them from liability for Cardenas' death. That provision states that "[a] public employee is not liable for civil damages on account of personal injury to or death of any person . . . resulting from the operation, in the line of duty, an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law . . . ." Cal. Veh. Code § 17004. However, Cardenas' death did not "resul[t] from the operation" of an emergency vehicle. No case of which the court is aware has applied Vehicle Code section 17004 to a post-pursuit shooting.

Defendants also argue that they cannot be liable for their "discretionary" decision to pursue Cardenas in unmarked cars without lights or sirens. California Government Code section 820.2 provides that "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." However, "[t]here is no immunity 'if the injury . . . results, not from the employee's exercise of discretion vested in him to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so.'" Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998) (quoting McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 261 (1969)). Because the court has rejected defendants' argument that they had no duty of care during their pursuit of Cardenas, whether they were negligent is an open question. Thus, discretionary immunity is inappropriate.

Finally, defendants argue that the State of California is immune from liability here. California Government Code section 815.2 provides that "[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." Defendants argue that because they are immune under Vehicle Code section 17004 and Government Code section 820.2, the state cannot be liable for their actions. As noted above, the court holds that defendants are not immune under these statutes. Thus, the court denies defendants' immunity arguments.

G. State Constitutional Claims

Barela seeks damages under Article I, sections 1 and 13 of the California Constitution. Compl. ¶¶ 43-45. Defendants move to dismiss these claims on the grounds that neither provision authorizes a private right of action for money damages. Article I, section 1 of the California Constitution ("section 1") provides that "[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Article I, section 13 of the California Constitution ("section 13") is similar to the Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

In Katzberg v. Regents of the University of California, 29 Cal. 4th 300 (2002), the California Supreme Court elucidated how courts should determine whether a provision of the state constitution gives rise to a private right of action for damages. The court first looked to "whether there is evidence from which we may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation." Id. at 317. Where there is no such intent, the court instructed other courts to evaluate (1) whether there are other, adequate remedies, (2) the extent to which a constitutional tort would change established tort law, and (3) the importance of the particular constitutional provision. Id. Even if these factors suggest recognizing a constitutional tort, courts must also weigh "the existence of any special factors counseling hesitation in recognizing a damages action, including deference to legislative judgment, avoidance of adverse policy consequences, considerations of government fiscal policy, practical issues of proof, and the competence of courts to assess particular types of damages." Id.

Defendants rely exclusively on Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App. 3d 1224 (1990). In Clausing, a student sought money damages under section 1 based on allegations that a teacher had beaten and humiliated him. The trial court sustained defendants' demurrers. The court of appeal affirmed, reasoning that section 1only authorizes injunctive relief:

Although citizens have a private cause of action against public entities for violation of the right to privacy, no case has ever held that California Constitution, article I, section 1, imposes a mandatory duty on public entities to protect a citizen's right to privacy. The constitutional mandate is simply that the government is prohibited from violating the right; if it does, an aggrieved citizen may seek an injunctive remedy in court.

Id. at 1238. However, Katzberg seemed to disapprove of Clausing. Indeed, Katzberg noted that Clausing "summarily concluded" that money damages were unavailable and "overlooked" Porten v. University of San Francisco, 64 Cal. App. 3d 825, 829 (1976), which overruled a demurrer on a cause of action that sought money damages under section 1. See Katzberg, 29 Cal. 4th at 315 n.16. In addition, defendants' argument that section 13 does not create a private right of action consists of three sentences:

A plaintiff claiming an unreasonable search and seizure already has . . . a possible action for wrongful death, negligence, battery, and violation of civil rights under [section] 1983. These alternative remedies, thus, weigh against creating a damages action under Article I, Section 13. Further, no California case has recognized a damages action under Article I, Section 13.

Mot. Dism. at 17:11-16. Defendants make no argument about Katzberg's most important factor: the existence of intent either to authorize or withhold a damages remedy.*fn12 Yet Barela's briefing on these issues is even more sparse. Citing space constraints, Barela does not mention the Katzberg factors at all. The court is thus inclined to dismiss Barela's state constitutional theories without prejudice. If Barela wishes to submit additional briefing on the Katzberg factors, she may do so.*fn13

H. Remand Issues

The Cardenas plaintiffs move to remand on grounds that (1) the removal was untimely; and (2) the federal court lacks subject matter jurisdiction.

1. Timeliness of Removal

Defendants who want to remove a case to federal court must file a notice of removal within 30 days after receipt of the first pleading in the state action that sets forth a removable claim. 28 U.S.C. § 1446(b):

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

The Cardenas plaintiffs argue that the "other paper" can be unfiled papers, see Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000), or deposition testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072,1078 (10th Cir. 1999). They further contend that removal was untimely because defendants had notice of Barela's federal civil rights claims at the latest on December 22, 2004, the date of a letter sent by the State to counsel for Barela.

The court has reviewed both the text of the December 22, 2004 letter from Supervising Deputy Attorney General Tyler Pon and the Stipulation to Permit Complaint in Intervention by Decedent's Mother, Dora Barela. Nothing in the text of either document states that Barela intends to make a federal claim. The only specific grounds for intervention named was Barela's standing under state code provision Cal. Civ. Proc. Code section 377.60 to assert a wrongful death claim. Thus, even if this court were to adopt the rule of the Fifth and Tenth circuits, Cardenas plaintiffs name no "other paper" sufficient to put defendants on notice of Barela's federal claims prior to January 31, 2005.

Defendants allege they received a copy of the Complaint in Intervention by mail on February 2, 2005. Since defendants filed their notice of removal within 30 days of January 31, 2005, on February 28, 2005, removal was timely.

2. Subject Matter Jurisdiction

a. Federal Question

Federal courts have removal jurisdiction if a civil action commenced in state court might have been brought originally in federal court. 28 U.S.C. § 1441(a). The statute defines a federal question in pertinent part as follows:

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.

28 U.S.C. § 1441(b).

The Cardenas plaintiffs argue that the court lacks subject matter jurisdiction. First, they argue that Barela lacks standing to assert Fourth Amendment and "cover-up" claims pursuant to 42 U.S.C. sections 1983 and 1988. Second, the Cardenas plaintiffs argue that Barela's Fourteenth Amendment claim for deliberate interference in her right to familial relationship does not rest on any federal statute, but instead depends on Cal. Civ. Proc. Code section 377.60(b). The Cardenas plaintiffs rely on Chavez v. Carpenter,91 Cal. App.4th 1433 (2001)to support this contention. Chavez addresses dependent parents' standing under section 377.60. It does not decide who may bring a federal claim under 42 U.S.C. section 1983.

Defendants counter that section 1983 created a cause of action for federal constitutional violations. Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). "'Section 1983 provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.'" Id. (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)). Defendants are correct. Section 1983 provides the cause of action, not the state code. Barela's First and Fourteenth Amendment claims on her own behalf survived defendants' motion for dismissal. Thus, the court retains federal question jurisdiction over these claims.

b. Supplemental Jurisdiction

Supplemental jurisdiction over the remaining claims is discretionary, including claims that involve intervention:

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

28 U.S.C. § 1367(a). If the claims are transactionally related, the federal court has jurisdiction over the state law claims of persons who are to parties to the federal claim. Mendoza v. Zirble Fruit Co., 301 F.3d 1163, 1173-74 (9th Cir. 2002). When an action is properly removed based on a claim arising under the Constitution, treaties, or laws of the United States per 28 U.S.C. § 1441(b), the court may not remand the entire action. Ukiah Automotive Investments v. Mitsubishi Motors of North America, Slip Copy, 2004 WL 2623229, 1 (N.D. Cal., 2004). However, the court may remand matters in which state law predominates:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

28 U.S.C. § 1441(c).

The Cardenas plaintiffs' and Barela's claims all arise out of the same transaction: the shooting death of Cardenas. The wrongful death claims in particular must be consolidated in a single cause of action, and dependent parents do not have a separate and independent cause of action from the heirs or personal representative. Mayerhoff v. Kaiser Foundation Health Plan, Inc., 71 Cal. App. 3d 803, 805 (1977); see also Villaman v. Schee, 15 F.3d 1095, 2 (9th Cir. 1994).

The Cardenas plaintiffs argue that this court should remand because state claims predominate. They argue that "predominate" should be interpreted as follows: "If the federal court finds that the federal claim, while plausible, is not really the plaintiff's main mission, that it is only an incident or adjunct of the state claim, and that the state claim is the crux of the action, the federal court can remand all claims in which it finds that state law 'predominates.'" David A. Seigel, Commentary on 1988 and 1990 Revisions of Section 1441. They argue that the state claims predominate because (1) the federal law raised by Barela is not essential to her cause of action; (2) no construction of federal law is implicated (3) there is no showing her federal rights cannot be enforced in state court through section 377.60.

Defendants counter that the standard for supplemental jurisdiction is properly met when all claims arise out of the same case or controversy and plaintiffs do not allege that the state issues are "more important, more complex, more time consuming to resolve, or in any other way more significant than their federal counterparts," Borough of West Mifflin v. Lancaster, 45 F.3d 780, 790 (3rd Cir. 1995) (denying remand); see also Miller v. Lovette, 879 F.2d 1066 (2nd Cir. 1989) (finding it an abuse of discretion to deny supplemental jurisdiction over state tort claims brought in conjunction with federal civil rights claims alleging excessive use of force). Defendants argue that the Cardenas plaintiffs do not allege facts supporting a finding that state issues predominate.

Defendants also contend that supplemental jurisdiction also depends on economy, convenience, fairness and comity, Harrell v. 20th Century Ins. Co., F.2d 203 (9th Cir. 1991), and that to sever the claims would prejudice the parties, add expense and could lead to inconsistent results. The court agrees. The claims all arise out of the same transaction. The Cardenas plaintiffs have not demonstrated that the state law issues predominate over the federal constitutional claims. Thus, the court retains supplemental jurisdiction over all claims in this case.


For the foregoing reasons, it is hereby ordered as follows:

1. Dora Barela's claims under the California Code of Civil Procedure section 377.30 are DISMISSED with leave to amend;

2. Dora Barela's claim under 42 U.S.C. section 1983 for violation of the decedent's Fourth Amendment rights is DISMISSED with leave to amend;

3. Dora Barela's claim under California Civil Code section 52.1 is DISMISSED with leave to amend;

4. Dora Barela's claim for injunctive relief is DISMISSED with leave to amend; 5. Barela's claim for damages under Article I, sections 1 and 13 of the California constitution is DISMISSED with leave to amend;

6. Defendants' motion to dismiss Dora Barela's Complaint in Intervention against the California Department of Justice, the California Department of Corrections, the Parole Fugitive Apprehension Team, and the Bureau of Narcotics Enforcement as separately named defendants is GRANTED;

7. Defendants' motion to dismiss Barela's alleged "cover up" claim is MOOT;

8. Defendants' motion to dismiss Barela's claims for individual liability of defendants Davies, Link, Sanchez, and Lara is DENIED;

9. Cardenas plaintiffs' motion to remand this entire action to state court is DENIED.

Counsel for Jeanette Cardenas, et. al.:

John C Stein Counsel for Dora Barela: Julia Sherwin Michael J. Haddad

Counsel for Defendants:

Craig Eugene Modlin Tyler Bruce Pon, Esq.

Counsel are responsible for distributing copies of this order to co-counsel, as necessary.

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