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Bessie Johnson, Charlie Johnson and As v. Executive Protective Agency K-9 & Investigative Services

February 17, 2011

BESSIE JOHNSON, CHARLIE JOHNSON AND AS SURVIVING HEIRS OF DARRYL JOHNSON, DECEASED,
PLAINTIFFS,
v.
EXECUTIVE PROTECTIVE AGENCY K-9 & INVESTIGATIVE SERVICES, INC., ET. AL.,
DEFENDANTS.



The opinion of the court was delivered by: John A. Houston United States District Judge

DEFENDANTS BRIAN SULLIVAN AND LUIS LARA'S MOTION TO DISMISS PLAINTIFFS' FIFTH CAUSE OF ACTION [Doc. No.113] ORDER GRANTING

INTRODUCTION

Plaintiffs, Bessie Johnson and Charlie Johnson, originally filed this action on March 28, 2007, seeking relief under 42 U.S.C. section 1983 and for negligence. They named Executive Protective Agency K-9 & Investigative Services, Inc. ("Executive Protection Agency"), Franklin R. Whiteley, Park Crest Apartments, City of San Diego, San Diego Police Department and Does 6 through 100 as defendants. Defendants San Diego Police Department and City of San Diego moved to dismiss the action on May 1, 2007. The Honorable Napoleon A. Jones, Jr. granted the motion and dismissed Defendants City of San Diego and San Diego Police Department with leave to amend. Plaintiffs filed a First Amended Complaint on October 3, 2007, again asserting claims under section 1983 and for negligence. Executive Protective Agency, Whiteley, City of San Diego, San Diego Police Department, South Crest Apartments, Park Crest Properties and does 7 through 100 were named as defendants. On December 18, 2008, Defendants City of San Diego and San Diego Police Department filed a motion to dismiss or in the alternative motion for partial summary judgment and filed a second motion to dismiss or in the alternative motion for summary judgment on May 7, 2009. Defendants Executive Protective Agency and Whiteley filed a motion for summary judgment on May 18, 2009. Plaintiffs filed oppositions and filed a motion for leave to file a Second Amended Complaint. Judge Jones granted Plaintiffs' motion for leave and denied Defendants' motions as moot by order filed September 28, 2009. Thereafter, the action was transferred to this Court.

In the Second Amended Complaint ("SAC"), Plaintiffs assert claims for excessive force, negligence, assault and battery and violations of California Civil Code section 52.1 and name Executive Protection Agency, Whiteley, Brian Sullivan, Luis Lara, Park Crest Properties, City of San Diego, San Diego Police Department, Lansdowne, Officer Christopher Tivanian, Officer Michael DeWitt, Officer Mark Brenner and Does 7 through 100 as defendants.

Now pending before the Court is Defendants Sullivan and Lara's motion to dismiss/motion to strike Plaintiffs' fifth cause of action for assault and battery. Plaintiffs filed an opposition and Defendants filed a reply. The motion was set for hearing, but was taken under submission pursuant to Local Rule 7.1. Upon a thorough review of the parties' submissions and the pleadings in the matter, this Court GRANTS the motion to dismiss and DENIES the motion to strike as moot.*fn1

LEGAL STANDARD

Defendants seek to dismiss the action for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). 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 is warranted under Rule 12(b)(6) 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, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations," he must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable fo the misconduct alleged." Id. In other words, "the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

DISCUSSION

Defendants seek dismissal of the assault and battery cause of action of Plaintiffs' Second Amended Complaint filed on June 15, 2009. They argue the complaint filed nearly three years after the incident giving rise to the action*fn2 is barred by California's two year statute of limitations. Defendants further argue Plaintiffs fails to state a claim for battery because Plaintiffs fail to establish damages.

I. Statute of Limitations

Defendants contend the assault and battery claim is a survivor action and does not relate back to the original complaint filed on March 28, 2007, which only asserted a wrongful death cause of action. Therefore, they argue the claim, first asserted in the proposed Second Amended Complaint, is barred by the two year statute of limitations. In opposition, Plaintiffs argue the statute of limitations issue was previously raised by Defendants in opposition to Plaintiffs' motion for leave to amend and was resolved by the Court. In reply, Defendants argue the Court did not authorize Plaintiffs to add new parties or authorize a survivor cause of action that was already barred by the statute of limitations.

The law of the case doctrine precludes a court from reconsidering an issue previously decided by the same court, or a higher court, in the same case. Moore v. Jas.H. Matthews & Co., 682 F.2d 830, 833 (9th Cir. 1982). The doctrine applies to a court's explicit holdings and those decided by necessary implication. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). A court may depart from the previous decision if (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Alexander, 106 F.3d 874 (9th Cir. 1997).

In the order filed September 28, 2009, Judge Jones clearly found the newly added claims, including the assault and battery claim, related back to the original pleadings because they "arose out of the same incident as the previously-alleged claims and are based on the same operative facts." See Order at 6 (Doc. No. 96). As such, unless Defendants demonstrate circumstances exist to permit this Court from departing from ...


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