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Dionne Smith-Downs, Assuccessor and v. City of Stockton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 8, 2011

DIONNE SMITH-DOWNS, ASSUCCESSOR AND INTEREST TO DECEDENT JAMES EARL RIVERA, JR., PLAINTIFF,
v.
CITY OF STOCKTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Dionne Smith-Downs ("Plaintiff") seeks redress from Defendants San Joaquin County, the City of Stockton, and individually named police officers Eric Azarvant, Gregory Dunn, Deputy Sheriff John Nesbitt, Blair Ulring, and Sheriff Steve Moore (collectively, "Defendants") regarding a fatal incident between Defendants and Plaintiff's son, sixteen-year-old James Rivera ("Decedent").

Presently before the Court is Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

It is clear in this circuit that standing "is a threshold issue that precedes consideration of any claim on the merits." Cotton v. City of Eureka, 2010 WL 5154945 at *3 (N.D. Cal. 2010), citing Moreland v. City of Las Vegas, 159 F.3d 365, 369 (9th Cir. 1998). Any party who seeks 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 [it]." Moreland, 159 F.3d at 369.

California Code of Civil Procedure § 377.32 states that one who "seeks to commence an action or proceeding . . . as the decedent's successor in interest under the article, shall execute and file an affidavit or a declaration under penalty of perjury" that confirms decedent's personal information, the facts of their death, and other information confirming that the plaintiff is the proper successor to decedent's interests. A certified copy of the decedent's death certificate is required to also be attached to the affidavit or declaration. Id.

For purposes of this statute, a successor in interest is "the beneficiary of the decedent's estate." Id. § 377.11. When a decedent does not leave a will, a beneficiary of the decedent's estate is defined under the statute as "the sole person or all of the persons who succeed to a cause of action." Id. § 377.10.

In two previous orders, the Court requested appropriate documentation proving that Plaintiff complied with the requirements under California Code of Civil Procedure. The Court is in receipt of both Plaintiff's Declaration, as well as the declaration of decedent's father, James E. Rivera, Sr. However, the declarations still fail to comply with California Code. Each declarant now states that they alone are the decedent's successor in interest, and that "[n]o other person has a superior right to commence the action" in this Court. Such cannot be the case. Either both Mr. Rivera and Ms. Smith-Downs are BOTH successors in interest as defined by section 377 and therefore both necessary parties to the instant suit, or one has a superior right to commence the action, and there is some legal explanation for the parties' decision to include only one parent in the instant suit. Since standing continues to be a threshold matter, the Court cannot move forward on the case's merits.*fn1

Therefore, Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 35) is GRANTED with leave to amend. Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.

Notwithstanding this Order, The Court declines to provide Plaintiff with any additional attempts to correct their Complaint's defects, and will be granted no additional leave to amend.

IT IS SO ORDERED.


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