United States District Court, C.D. California
R.A., a minor, by and through his guardian ad litem Adrianne Penrose, individually and as a successor in interest to John C. Armes, deceased, Plaintiff,
CHRIS MORRIS; TANYA ARMES, a nominal defendant; D.A., a minor, a nominal defendant, Defendants.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS 
OTIS D. WRIGHT, II, District Judge.
This case arises from the fatal shooting of John C. Armes. At the time of the shooting, the decedent's significant other was pregnant with R.A, who is currently a minor. By and through his guardian ad litem , Plaintiff filed suit as a representative of decedent's estate and individually against three defendants and seeks wrongful death and survival damages under federal and state law. Defendant Chris Morris filed the instant Motion to Dismiss Plaintiff's Third Amended Complaint. For the reasons discussed below, the Court DENIES in part and GRANTS in part Defendant's Motion. (ECF No. 56.)
II. FACTUAL BACKGROUND
On February 11, 2013, John C. Armes was fatally shot by Christopher Morris. (TAC ¶ 16.) The decedent was a fugitive felon and Morris was a parole agent for the California Department of Corrections and Rehabilitation Fugitive Apprehension Team. (Id ¶ 4; Mot. 4.)
Just before the shooting, Armes' vehicle crashed into Morris'. (Opp'n 8.) Armes climbed out a car door window and attempted to flee on foot. (TAC ¶ 16.) According to Plaintiff, Armes "had nothing in his hands" and "did not pose an immediate threat of death or serious injury to any individual, including any of the deputies on the scene." (Id. ) Plaintiff alleges that Armes did not pose a threat to Morris because Morris "was in a position of safety and cover behind a vehicle." (Id. ) Plaintiff further alleges that a "cellphone video taken by a bystander depicts the shooting" and confirms that Armes had nothing in his hands as he was running away and no one was in immediate danger when he was shot. (Id. ¶ 18.) Plaintiff concludes that Morris' use of "deadly force against decedent was excessive and objectively unreasonable, " and "unrelated to any legitimate law enforcement objective." (Id. ¶ 19.)
At the time of the shooting, decedent's significant other, Adrianne Penrose, was pregnant with R.A. (SAC ¶ 3.) On January 13, 2014, counsel filed an Application for Appointment of Adrianne Penrose as Guardian Ad Litem for R.A and a declaration required by California Code of Civil Procedure § 377.32 to file suit as a representative of decedent's estate. (ECF No. 1.) The Court granted the Application. (ECF No. 2.) By and through his guardian ad litem , R.A. filed suit in his individual capacity and as a successor in interest. (TAC ¶ 3.) Plaintiff alleges he is decedent's successor in interest as defined in § 377.11 and succeeds decedent's interest as his biological child. (Id. ¶ 21.)
On January 22, 2014, Plaintiff filed suit against the County of Riverside, United States Marshals Service and DOES 1-10, inclusive. (ECF No. 5.) On June 10, 2014, pursuant to a Joint Stipulation to Amend, Plaintiff filed a First Amended Complaint naming Chris Morris as a defendant. (ECF No. 18.) Morris is sued in his individual capacity. (TAC ¶ 27.) On August 29, 2014, Plaintiff filed a Request for the Clerk to Enter Default against Morris. (ECF No. 35.) The Clerk entered default; however, on September 10, 2014, Morris filed a Stipulation to Set Aside Default because service was defective. (ECF No. 41.)
On September 11, 2014, Plaintiff filed a Second Amended Complaint naming only Morris as a defendant. (ECF No. 43.) After Plaintiff filed the Second Amended Complaint, the parties settled several issues and requested the Court grant Plaintiff leave to file a Third Amended Complaint. (ECF No. 46.) The Court granted leave. (ECF No. 47.) On October 23, 2014, Plaintiff filed a Third Amended Complaint ("TAC") naming Morris as a defendant and Tanya Armes and D.A., a minor, as nominal defendants. (ECF No. 48.) Tanya was listed as decedent's wife on his death certificate and D.A. is Tanya and decedent's daughter. (Id. ) Tanya and D.A. have not responded to Plaintiff's TAC.
Plaintiff brings a Fourth Amendment excessive force and Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983. (TAC.) Plaintiff also asserts two state law wrongful death claims for battery and negligence. (Id. ) Plaintiff seeks survival and wrongful death damages under federal and state law, including pain and suffering and loss of enjoyment of life, funeral and burial expenses, and loss of financial support. (Id. ¶ 29.) Plaintiff seeks exemplary and punitive damages. (Id. ¶ 46.) Plaintiff also seeks attorney's fees. (Id. ¶ 30.)
On November 21, 2014, Morris filed the instant Motion to Dismiss Plaintiff's Third Amended Complaint "based on Plaintiff's lack of standing to bring this action under Federal Rule of Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6)." (ECF No. 56.) Tanya and D.A. did not join. (Id. ) Defendant requests the Court take judicial notice of state records that establish decedent's fugitive felon status at the time of the shooting and his criminal history. (Id. )
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a complaint for lack of subject-matter jurisdiction. The Article III case or controversy requirement limits a federal court's subject-matter jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co. , 598 F.3d 1115, 1121-22 (9th Cir. 2010). When a motion to dismiss attacks subject-matter jurisdiction on the face of the complaint, the court assumes that the factual allegations in the complaint are true and draws all reasonable inferences in the plaintiff's favor. Doe v. Holy See , 557 F.3d 1066, 1073 (9th Cir. 2009).
A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones , 319 F.3d 483, 494 (9th Cir. 2003). The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). That is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint... as true and... in the light most favorable" to the plaintiff. Lee v. City of L.A. , 250 F.3d 668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001).
As a general rule, a court should freely give leave to amend a complaint that has been dismissed. Fed.R.Civ.P. 15(a). But a court may deny leave to amend when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co. , 806 ...