The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE [Dkt No. 4]
This civil rights action arises out of the fatal shooting of Sergio Garcia-Vasquez by San Diego County sheriff deputies. The matter is before the court on defendants' Motions To Dismiss And To Strike Plaintiffs' Complaint ("Motion"). Plaintiffs are the estate of Garcia-Vasquez and his two minor children through their guardian ad litem, Stephen G. Lincoln. Plaintiffs filed Opposition to the Motion, and Defendants filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED IN PART and DENIED IN PART.
The Complaint alleges that on July 28, 2005, San Diego County Sheriff Deputies John Spach and Shawn Aitken responded to a report of a domestic dispute at Garcia-Vasquez's home in Vista, California. They entered the residence. A confrontation ensued. Deputy Aitken allegedly cornered Garcia-Vasquez, then shot him once in the leg and again in the back, killing him.
Plaintiff the Garcia-Vasquez Estate has as its personal representative Elizabeth Sorely Regalado-Hernandez ("Regalado), the common-law wife of Garcia-Vasquez, who resides in Oaxaca, Mexico, "where such common law marriage is sufficient to confer legal rights." Compl. ¶ 3. The two other plaintiffs are minor children Aranza and Diego Vasquez-Regalado, the twin son and daughter of the decedent. They reside in Ciudad Oaxaca, Oaxaca, Mexico. The court granted the application to appoint as guardian ad litem Stephen G. Lincoln, a San Diego, California resident identified as a close family friend unrelated to the children and with no interests adverse to them. Dkt No. 7.
The Complaint names as defendants the County of San Diego, Deputies Spach and Aitken, and Captain Robert Ahern. Plaintiffs allege eight causes of action: One, a 42 U.S.C. § 1983 ("Section 1983") claim brought by the children against defendants Spach and Aitken based on Right of Association, purportedly actionable under their Fourteenth Amendment substantive due process right to the familial love, society, and companionship of their father caused by the allegedly unreasonable use of deadly force against him, in violation of his Fourth and Fourteenth Amendment rights; Two, a Section 1983 claim for Wrongful Death brought by the children against defendants Spach and Aitken on the same premises as the first cause of action; Three, a Section 1983 claim of Excessive Force brought by the estate plaintiff against Spach and Aitken; Four, a Section 1983 Monell*fn1 claim brought by all plaintiffs against the County of San Diego; Five, a Section 1983 Supervisory Liability claim brought by all plaintiffs against defendant Ahern; Six, a CAL. CODE CIV. P. § 377.60 Wrongful Death claim brought by the children against defendants Spach, Aitken, and the County of San Diego; Seven, a Battery claim brought by the estate plaintiff against Spach, Aitken, and the County of San Diego; and Eight, a Negligence claim brought by the estate plaintiff against all the defendants.
Defendants move to dismiss the Complaint for failure to state a claim upon which relief can be granted under FED.R.CIV.P ("Rule") 12(b)(6), and for lack of jurisdiction under Rule 12(b)(2). They also move to strike portions of the Complaint pursuant to Rule 12(f), on grounds: Complaint paragraphs 22, 29, 36, 47, and 51 request damages that are not recoverable as a matter of law; the "prior event" allegations in Complaint paragraphs 12, 14, 15, 43, and 51 (describing incidents of shootings by other deputies in unrelated incidents) should be stricken as immaterial, impertinent, and scandalous; and one or the other of claims One and Two should be stricken as redundant, repetitive, and duplicative. Defendants argue, among other things: the individual plaintiffs are without standing to assert constitutional claims; none of the plaintiffs can recover emotional distress damages associated with Garcia-Vasquez's death; and no excessive force or wrongful death claim can be asserted against persons not alleged to have personally shot the decedent.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal on grounds of failure to state a claim is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, dismissal is warranted where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.
In reviewing a Rule 12(b)(6) motion to dismiss, the court must assume the truth of all factual allegations and must construe them as well as all reasonable inferences in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on the motion, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the Court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). In granting a Rule 12(b)(6) motion, leave to amend is ordinarily denied only when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
Motions to strike are properly granted if the pleading contains "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f).
The individual plaintiff children base their claims on a deprivation of their asserted "substantive due process right to the familial love, society and companionship of their father . . . as guaranteed by the Fourteenth Amendment" through defendants' purportedly unjustified use of force to kill Garcia-Vasquez in alleged violation of his Fourth Amendment rights. Compl. ¶ 21 ("The unreasonable use of deadly force causing the constitutional deprivations and death to SERGIO GARCIA-VASQUEZ, simultaneously deprived Plaintiffs ARANZA and DIEGO VASQUEZ-REGALADO of" their alleged substantive due process rights). Defendants contend the First, Second, Fourth, Fifth, and Sixth causes of action must be dismissed because, as foreign ...