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Moore v. City of Vallejo

United States District Court, E.D. California

October 17, 2014

LISA MOORE and EUGENE MOORE, individually and as co-successors in interest of decedent JEREMIAH EUGENE MOORE, Plaintiffs,
v.
CITY OF VALLEJO, a public entity; CITY OF VALLEJO POLICE CHIEF JOSEPH KREINS, in his individual and official capacities; OFFICER SEAN KENNEY, individually; and DOES 1-20, individually, jointly, and severally, Defendants

Page 1254

For Lisa Moore, Plaintiff: Michael Joseph Haddad, LEAD ATTORNEY, Genevieve K. Guertin, Julia Sherwin, Thomas Kennedy Helm, IV, Haddad & Sherwin, Oakland, CA.

For Eugene Moore, Plaintiff: Julia Sherwin, Michael Joseph Haddad, LEAD ATTORNEYS, Genevieve K. Guertin, Thomas Kennedy Helm, IV, Haddad & Sherwin, Oakland, CA.

For City of Vallejo, Joseph Kreins, Chief of Police, City of Vallejo, Sean Kenney, Law Enforcement Officer, City of Vallejo, Defendants: Furah Z. Faruqui, LEAD ATTORNEY, City of Vallejo, Vallejo, CA.

Page 1255

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.

Defendants City of Vallejo (" the City" ), City of Vallejo Police Chief Joseph Kreins (" Chief Kreins" ) and Officer Sean Kenney (" Officer Kenney" ) (collectively " Defendants" ) move to dismiss (Doc. #21) the first, second, fourth, fifth, sixth, and seventh causes of action in Plaintiffs Lisa and Eugene Moore's (collectively " Plaintiffs" ) First Amended Complaint (" FAC" ) (Doc. #13).[1] Defendants' motion is granted in

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part and denied in part for the reasons set forth below.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

According to the FAC, on or about October 21, 2012, at approximately 1:30 a.m., Vallejo Police Department officers (collectively " the officers" ), including Officer Kenney, fatally shot Decedent Jeremiah Eugene Moore (" Decedent" ) at his home. Before they arrived, the officers were informed that Decedent was suffering from developmental disabilities including an Autism Spectrum Disorder, mental illness, and/or emotional disturbance. Upon arrival, the officers found Decedent walking naked in front of his home without a weapon and posing " no significant or immediate threat" to the officers. The officers commanded Decedent to get on the ground, and when he did not the officers, including Officer Kenney, shot Decedent multiple times. Plaintiffs allege that the officers falsely reported that Decedent was threatening them with a gun inside his home when the officers shot him.

Plaintiffs filed the FAC in April 2014 on their own behalf as well as co-successors in interest for their son, Decedent. The seven causes of action pled in the FAC are: (1) violation of 42 U.S.C. § 1983 (" § 1983" ) against Officer Kenney and Does 1-20; (2) violation of § 1983 against the City, Chief Kreins, and Does 1-20 based on municipal and supervisory liability; (3) violation of the Americans with Disabilities Act and the Rehabilitation Act against the City; (4) violation of California Civil Code § 52.1 against Officer Kenney, the City, and Does 1-20; (5) negligence against all Defendants; (6) assault and battery against Officer Kenney, the City, and Does 1-20; and (7) violation of California Civil Code § 51.7 against Officer Kenney, the City, and Does 1-20.

II. OPINION

A. Request for Judicial Notice

Both parties have submitted requests for judicial notice. Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. The exceptions are material attached to, or relied on by, the complaint so long as authenticity is not disputed, or matters of public record, provided that they are not subject to reasonable dispute. E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) and Fed.R.Evid. 201).

Attached to their motion to dismiss is Defendants' request for judicial notice of the Government Tort Claim filed by Plaintiffs in connection with this litigation. MTD at Exh. 1. Such a document is a matter of public record and is necessarily relied on by Plaintiffs in bringing their state law claims, and so the Court takes judicial notice of this document.

In their opposition, Plaintiffs request the Court take judicial notice of the following facts: (1) the City and Officer Kenney have been named as co-defendants in nine civil rights cases; (2) between 2007 and 2012, there were thirteen fatal officer-involved shootings by Vallejo Police Department officers; and (3) the shooting of Decedent was the ...


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