The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
[TENTATIVE] ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION TO REMAND ACTION TO STATE COURT [Re Docket Nos. 5, 14]
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).
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.
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.
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 ...