The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE UNOPPOSED MOTION TO DISMISS (DOC. 7)
This civil rights/wrongful death action concerns the fatal shooting of John J. Soliz, Jr. ("Decedent") on the evening of May 22, 2010 by Bakersfield Police Department Officer Timothy Berchtold, who was responding to a call that Mr. Soliz was threatening to kill himself. Doc. 1. Named Plaintiffs are: Ana Soliz, Decedent's mother; and Dominique Soliz, Johnique Soliz, and Monique Soliz, Decedent's sisters. Id. The Complaint asserts a Fourth Amendment excessive force claim under 42 U.S.C. § 1983, a claim for damages under California Civil Code § 52.1, as well as state law wrongful death and negligence claims against the City of Bakersfield (the "City"), its Police Department, and Officer Berchtold. Id.
Before the Court for decision is Defendants' motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6). Doc. 7. Defendants advance the following arguments:
(1) All of the state law claims against all Defendants should be dismissed due to Plaintiffs' failure to allege compliance with the California Tort Claims Act, Cal. Gov. Code § 9;
(2) Plaintiffs Johnique and Monique Soliz's state law causes of action should be dismissed for failure to timely present tort claims to the City;
(3) Because Plaintiffs Johnique and Monique Soliz failed to timely file tort claims with the City, they are precluded from advancing state law claims against the individual defendants;
(4) Plaintiffs do not have standing to sue because Decedent has a surviving son and Ana Soliz (the mother of Decedent), who might be entitled to sue if she was financially dependent upon decedent, has not alleged such dependence; and
(5) Because 42 U.S.C. § 1983 excessive force claims are personal rights which may not be vicariously asserted, the federal claim may only be pursued by a person who is the rightful successor in interest to Decedent's estate. Therefore, because Decedent has a surviving son, "there is significant doubt cast upon" Plaintiffs' self-identification as successors in interest and no Plaintiff has filed an affidavit under Cal. Civ. Pro. § 377.32 (requiring of any person who seeks to commence an action as the successor in interest to execute and file an affidavit or declaration stating, among other things, that the affiant is "the decedent's successor in interest," and "no other person has a superior right to commence the action or proceeding..").
Plaintiffs failed to timely file any opposition to the motion, so are not entitled to be heard in opposition to the motion or at oral argument pursuant to Local Rule 230(c). Because the issues are clearly defined, the Court VACATES the hearing on this motion, currently set for August 27, 2012, and decides the matter on the pleadings pursuant to Local Rule 230(g).
A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Thus, "bare assertions ... amount[ing] to nothing more than a 'formulaic recitation of the elements'... are not entitled to be assumed true." Iqbal, 129 S. Ct. at 1951. A court should "dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, "a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. To the ...