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Dominguez v. County of Kern

United States District Court, E.D. California

June 9, 2014

ADRIANA DOMINGUEZ, as guardian ad litem for J.S., Plaintiffs,
v.
COUNTY OF KERN, et al., Defendants.

INDINGS AND RECOMMENDATIONS GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS (Doc. 11, 12)

JENNIFER L. THURSTON, Magistrate Judge.

I. Introduction

Through his guardian ad litem Adriana Dominguez, J.S. brings this suit against the County of Kern, Sheriff Donny Youngblood, Deputies Sword, Greer, Miller, Kelley, Almanza, Brock and Stephens ("Defendants") and CHP Officers Phillips and Bright as well as against and Does 1-10. In this action, J.S. alleges the Defendants subjected David Silva, the child's father, to excessive force and, as a result, caused his death. (Doc. 1) Plaintiff alleges causes of action under 42 U.S.C. § 1983 under state law for false arrest/false imprisonment, battery (wrongful death), negligence (wrongful death), and violation of California Civil Code § 52.1 ("§ 52.1"). Id. at 1.

Defendants move to dismiss Plaintiff's complaint and argue she lacks capacity and standing. (Doc. 11 at 12; Doc. 12-1 at 11-12) Further, Defendants assert that, even if Plaintiff has standing, her claims for Silva's pain and suffering are improper and that the remainder of the complaint fails to state a claim for relief. (Doc. 11 at 3; Doc. 12-1 at 14, 16.) For the reasons discussed below, the Court RECOMMENDS that Defendants' motions be GRANTED IN PART and DENIED IN PART.

II. Background

Plaintiff alleges that at approximately 11:00 p.m. on May 7, 2013, David Silva was found asleep on the front lawn of a house across the street from the Kern Medical Center in Bakersfield, California. (Doc. 1 at 6) Phillips and Bright arrived at the scene and one or both of them awakened Silva with a "knuckle-rub" on his chest. Id . At the time, Silva was unarmed and did not have a weapon or anything that resembled a weapon. Id . Despite this, the rest of the officer-Defendants "converged" on Silva and began to beat him. Id . The officers used their batons, fists, boots, and a police dog to batter Silva. Id . During the beating, some of the officers placed Silva in restraints including handcuffs, hobble restraints or other restraints. Id . Silva "cried out in pain and begged for mercy." Id . "Before, during, and after the beating, [Silva] was in obvious and critical need of emergency medical care and treatment." Id. at 7.

Plaintiff asserts eleven causes of action for: (1) unlawful detention and arrest in violation of the Fourth Amendment; (2) excessive force in violation of the Fourth Amendment; (3) denial of medical care in violation of the Fourth Amendment; (4) violation of due process under the Fourteenth Amendment; (5) Monell liability; (6) conspiracy to interfere with civil rights under 42 U.S.C. § 1985 ("§ 1985"); (7) civil conspiracy under § 1985; (8) false arrest/false imprisonment; (9) battery; (10) negligence; and (11) violation of § 52.1. Defendants move to dismiss all eleven causes of action on the ground Plaintiff does not have standing to bring them. Defendants also assert that none of the causes of action states a claim for relief and that Plaintiff has failed to plead compliance with the California Tort Claims Act.

III. Legal Standards

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 plaintiff'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 , 556 U.S. 662, 678 (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 , 556 U.S. at 681. 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 extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc. , 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

IV. Discussion

A. Plaintiff's Standing

J.S. is Silva's minor daughter and brings this suit by and through her guardian ad litem, Adrian Dominguez, "both in her individual capacity as a child of [Silva] and in representative capacity as a successor in interest to [Silva] pursuant to California Code of Civil Procedure § 377.60(a)." (Doc. 1 at 1) Defendants assert Plaintiff does not have standing because she fails to comply with the five requirements of California Code of Civil Procedure § 377.32.[1] (Doc. 11 at 12; Doc. 12-1 at 12-13) Moreover, Defendants assert that because she is a child, J.S. is not permitted to prosecute this action.

Noting the same failure to proceed via an appointed guardian ad litem, on May 5, 2014, the Court ordered Plaintiff to show cause why the matter should not be dismissed based upon her lack of capacity. (Doc. 10) In response, Ms. Dominguez, the child's mother, filed her petition to be appointed as the guardian ad litem and the Court granted this request. (Docs. 18, 19) Given this turn of events, Defendants no longer dispute Plaintiff has standing and is proceeding properly through her guardian ad litem. (Doc. 22 at 2; Doc. 23 at 2) Thus, the motions to dismiss as to this argument are RECOMMENDED to be DENIED as MOOT.

B. The Garlick Action

Currently pending before the Court is another action brought by Silva's significant other, Tara Garlick, and the couple's four children, by and through their guardian ad litem, Judy Silva. See Garlick v. County of Kern, No. 1:13-cv-01051-LJO-JLT, 2014 WL 1845034, at *1 (May 8, 2014) ("the Garlick action"). The Garlick action concerns the plaintiffs' claims for the wrongful death of Silva. Id . As the Court noted in its order permitting Ms. Silva's motion to amend the complaint to add J.S., among others, as plaintiffs, "California law permits only one action for wrongful death." Id. at *4, citing Cross v. Pacific Gas & Elec. Co. , 60 Cal.2d 690, 694 (1964). The Court therefore ordered Plaintiff here to "address whether any part of this matter can be maintained in light of the fact that [the Garlick action] was filed earlier and also asserts wrongful death claims." (Doc. 17 citing Cross , 60 Cal.2d at 694).

Plaintiff argues that under Cross, "all parts of [Plaintiff's] matter can be maintained despite the earlier filing of the complaint in [the Garlick action]." Doc. 21 at 10. Plaintiff states "that Cross instructs that all heirs should join in a single action and that there cannot be a series of suits by heirs against the tortfeasor for their individual damages." Doc. 21 at 12 (citing Cross , 60 Cal.2d at 694). But Plaintiff argues that Cross "simply requires that her matter and those of [Silva's] other heirs be joined-not that her matter be dispensed with completely." Id.

The court in Cross held that California's wrongful death statute "is a procedural statute establishing compulsory joinder." Cross , 60 Cal.2d at 692. As the Court noted previously, "[a]ll heirs are necessary parties and plaintiff heirs have a mandatory duty to join all known omitted heirs in the single action' for wrongful death.'" Garlick, 2014 WL 1845034, at *4 (quoting Ruttenberg v. Ruttenberg , 53 Cal.App.4th 801, 808 (1997)). Thus, it is apparent that J.S. cannot maintain a wrongful death action separate from the Garlick action. However, ...


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