ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‟ MOTION TO DISMISS
This matter comes before the Court on Defendants City of Vallejo, Robert Nichelini, Jeremie Patzer, Tom Liddicoet, and David Jackson‟s (collectively "Defendants") Motion to Dismiss (Doc. #34) Plaintiff Andrew Washington, Jr.‟s, by and through his Guardian ad Litem, Alejandra Raya ("Plaintiff"), First Amended Complaint ("FAC") (Doc. 27) for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion (Doc. 42).*fn1 For the reasons set forth below, Defendants‟ motion is GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
As alleged in the FAC, on September 15, 2004, Andrew Washington ("Mr. Washington"), father of Plaintiff Andrew Washington, Jr., a minor, was involved in a traffic accident. FAC ¶¶ 9, 31. Mr. Washington was located and questioned by Vallejo Police Officers after he left the scene of the accident, but "fled on foot" following said questioning. Id. at ¶¶ 31, 34. Mr. Washington appeared to be, and was, in fact, unarmed. Id. at ¶ 33. After being "cornered" by Defendant Officer Patzer just before midnight, Mr. Washington attempted to scale a chain link fence and Officer Patzer "shot Mr. Washington with a [t]aser weapon," designed, manufactured, and sold by non-moving Defendant Taser International, Inc. Id. at ¶¶ 35, 36, 52. The electric shock from the taser caused Mr. Washington to fall face down into a "storm culvert." Id. at ¶¶ 37. While Mr. Washington was still lying face down in the water, Officer Patzer shot the taser at Mr. Washington 17 separate times in less than 3 minutes, causing Mr. Washington to suffer a cardiac arrest. Id. at ¶¶ 39, 40, 42. Mr. Washington subsequently died at Sutter Solano Hospital at 1:43am on September 16, 2004, as a result of being tasered. Id. at ¶¶ 42-44, 52, 59.
On February 28, 2005, Plaintiff filed a wrongful death products liability action in state court against the non-moving Defendant Taser International, Inc., which was subsequently removed to this Court by Taser International, Inc. Doc. #1. On March 2, 2005, Plaintiff and Defendants entered into a tolling agreement, which extended the six month statute of limitations under the California Tort Claims Act. Doc. #34 at pg. 2-3. The parties subsequently entered into several more tolling agreements, ultimately extending the statute of limitations to file a 5 government tort claim to December 16, 2006 ("tolling agreement").
Id. On December 15, 2006, Plaintiff filed a governmental tort claim with the appropriate public entity pursuant to the California Tort Claims Act. Id. at 3-4. 9
On November 19, 2007, Plaintiff filed his Amended Complaint, adding the moving Defendants and asserting eight new claims for relief under various state law torts and 42 U.S.C. section 1983 against them. Doc. #27. Defendants filed the pending motion to dismiss on January 3, 2008, asking this Court to dismiss all of Plaintiff‟s claims as untimely. Docs. #32-34. Shortly thereafter, this case was stayed, due to the City of Vallejo‟s ongoing bankruptcy proceedings, and on March 22, 2011, it was ordered reopened.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure section 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal 2 conclusions," however, are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion 5 to dismiss, a plaintiff needs to plead "enough facts to state a 6 claim to relief that is plausible on its face." Twombly, 550 U.S. 7 at 570. Dismissal is appropriate where the plaintiff fails to 8 state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990). Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure section 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Additionally, the Court may "consider a motion to dismiss accompanied by affidavits as a motion for summary judgment" under Rule 12(b)(6), but if it does so, the "parties shall be permitted to present all material pertinent to the motion." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (citing FED. R. CIV. P. 12(b)(6), 56).
2. Statute of Limitations
A complaint may be dismissed under Rule 12(b)(6) if it was filed outside of the applicable statute of limitations and "the running of the statute is apparent on the face of the complaint." Huynh, 465 F.3d at 997 (9th Cir. 2006); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). To determine whether it is apparent on the face of the complaint that the 2 statute of limitations has run, the Court must: ""First, . . . 3 decide what choice-of-law rule governs the selection of the statute 4 of limitations. Second, the Court must apply that rule to 5 determine which jurisdiction‟s limitations law applies. Third, and 6 finally, the Court [must] determine whether [the] plaintiff‟s 7 claims fall within the relevant limitations period.‟" Huynh, 465 8 F.3d at 997 (quoting Cruz v. United States, 387 F.Supp.2d 1057, 9 1070 (N.D. Cal. 2005)).
To determine the statute of limitations for claims under 42 U.S.C. section 1983 ("Section 1983"), a Court "should borrow the general or residual [state] statute [of limitations] for personal injury actions." Owens v. Okure, 488 U.S. 235, 250 (1989); accord Wilson v. Garcia, 471 U.S. 261, 280 (1985). In ...