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Estate of Kosakoff v. City of San Diego

June 3, 2009

ESTATE OF ALAN KOSAKOFF, BY ITS PERSONAL REPRESENTATIVE HAROLD KOSAKOFF; ARLENE KOSAKOFF, AN INDIVIDUAL; KOSAKOFF, AN INDIVIDUAL, PLAINTIFFS,
v.
CITY OF SAN DIEGO; SAN DIEGO POLICE DEPARTMENT; WILLIAM LANDSDOWNE; OFFICE GOTTFRIED; OFFICER LENAHAN; OFFICER DOUGLAS; DOES 1-100 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING MOTION TO HAROLD DISMISS COUNTERCLAIM [Doc. No. 20]

In this 42 U.S.C. § 1983 wrongful death action, Defendants submit three counterclaims against plaintiff Arlene Kosakoff: (1) indemnity; (2) negligence; and (3) negligent entrustment. Plaintiffs move to dismiss these counterclaims under Fed. R. Civ. P. 12(b)(6). Defendants filed an opposition and Plaintiffs replied. For the following reasons, the Court DENIES Plaintiffs' motion.

BACKGROUND

Because this is a motion to dismiss, the Court draws the following facts from the Counterclaim. At the time of his demise, Alan Kosakoff ("Decedent") was the thirty-five year old son of Arlene and Harold Kosakoff. As a diagnosed paranoid schizophrenic, Decedent took medication to control his disease. However, starting one-year prior to the incident, Decedent began refusing his medication, which caused him to behave irrationally and aggressively. Arlene knew of his condition, his refusal to medicate, and his recent erratic behavior.

On the night of the incident, Decedent was driving Arlene's Toyota Corolla with her consent. Decedent drove the Toyota at dangerous speeds and ran red lights, prompting a vehicle pursuit by San Diego Police Department officers. Eventually, Decedent drove into Arlene's garage at 14122 Half Moon Bay Drive. As officers attempted to remove Decedent from the vehicle, Decedent attempted to drive the Toyota in reverse. Officers shot Decedent, causing his death.

Plaintiff filed a complaint alleging eight causes of action: (1) right of association under 42 U.S.C. § 1983; (2) wrongful death under section 1983; (3) excessive force under section 1983; (4) failure to properly screen, hire, train, supervise, and discipline under section 1983; (5) wrongful death under California Code of Civil Procedure § 377.60, et seq.; (6) battery; (7) intentional infliction of emotional distress; and (8) negligence. Defendants answered and filed a three-count Counterclaim against Arlene Kosakoff for negligence, negligent entrustment, and indemnity. Plaintiffs currently move to dismiss the counterclaims under Rule 12(b)(6). The Court finds this matter amenable to disposition without oral argument pursuant to Local Rule 7.1(d).

LEGAL STANDARD

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544 (2007). The court's review is limited to the contents of the complaint and it must accept all factual allegations pled in the complaint as true, drawing all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). Notwithstanding this deference, it is improper for a court to assume "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, a court need not credit conclusory legal allegations cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

DISCUSSION

i. Parties' Arguments

Plaintiffs believe Defendants failed to present a prima facie case of negligence: they assert Ms. Kosakoff had no duty to Defendants and Defendants suffered no harm.

Defendants assert their Counterclaim is a claim for indemnity under California's comparative-negligence scheme. As such, Defendants argue they properly allege Arlene negligently allowed Decedent to drive her Corolla, causing injury to Decedent and his estate.

ii. Analysis

California employs the doctrine of partial indemnity based on ...


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