United States District Court, S.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS [DOC.
Thomas J. Whelan United States District Judge
City of El Cajon and El Cajon Police Officer Samson Pak move
to dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs oppose.
Court decides the matter on the papers submitted and without
oral argument. See Civ. L.R. 7. l(d. 1). For the
reasons that follow, the Court DENIES Defendants' motion
Larry and Judy Hauser are the parents and successors in
interest of decedent, Kelsey Hauser. (Compl. [Doc.
1] ¶ 2.) Defendant City of El Cajon is the employer of
Defendant Samson Pak and other police officers referred to
herein. (Id. ¶ 6.)
January 16, 2016, at approximately 1:30 a.m., Kelsey was a
passenger in a stolen 2014 Toyota Yaris driven by Geoffrey
Sims. (Compl. ¶ 10.) El Cajon police officers
attempted to the stop the car, but Sims fled from the
officers. (Id.) Defendant Officer Samson Pak engaged
in a high speed pursuit of the car on both the freeway and
surface streets. (Id.)
the Yaris drove into a cul-de-sac on a surface street,
Officer Pak, a short distance ahead of several other
officers, rammed the right passenger side of the car with his
police car, at a speed of approximately 25 miles per hour.
(Compl. ¶ 11.) As he did so, Officer Pak saw
Sims in the driver's seat, Kelsey in the passenger seat,
two males in the back seat, and a dog in between Sims and
hitting the Yaris with the front of his vehicle, Officer Pak
got out of his vehicle with his gun drawn. (Compl.
¶ 12.) The Yaris slowly backed up, and Officer Pak
“moved from behind the car to a position in front of
the car, then immediately to a position approximately 15 feet
off the passenger side of the car.” (Id.) As
the car moved backward then forward at a very slow rate of
speed, Officer Pak fired several shots “into the Yaris
at the passenger.” (Id.) Kelsey was hit twice,
in the jaw and chest. (Id.) She was conscious and in
severe pain until paramedics arrived, but died following
several emergency medical procedures. (Id. ¶
13.) The Complaint alleges and Defendants' motion concurs
that at no point did Kelsey do anything that posed a threat
to Officer Pak. (Id. ¶ 12; P&A
[Doc. 6-1] 10:16-17.) A gunshot also hit and killed the dog
in the front seat. (Compl. ¶ 12.) No shots hit
the driver. (Id.)
November 27, 2016, Kelsey's parents filed two claims
against Officer Pak under 42 U.S.C. § 1983: a 4th
Amendment excessive force claim on Kelsey's behalf, and a
14th Amendment loss of familial relationship claim brought on
their own behalf. (Compl. ¶¶ 14-21.)
Defendants now seek to dismiss these two causes of action,
arguing the Complaint fails to allege sufficient facts to
support a 4th or 14th Amendment claim, and that Officer Pak
is entitled to qualified immunity. (P&A
14:22-15:3.) Plaintiffs oppose the motion. (See
Opp'n [Doc. 7].)
Court must dismiss a cause of action for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the
legal sufficiency of the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). A complaint may be dismissed as a matter of law either
for lack of a cognizable legal theory or for insufficient
facts under a cognizable theory. Balisteri v. Pacifica
Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In
ruling on the motion, a court must “accept all material
allegations of fact as true and construe the complaint in a
light most favorable to the non-moving party.”
Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has
interpreted this rule to mean that “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555 (2007). The allegations in
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) (quoting
Twombly, 550 U.S. at 570).
allegations in the complaint are assumed true, but a court is
not required to accept legal conclusions couched as facts,
unwarranted deductions, or unreasonable inferences. See
Papasan v. Allain, 478 U.S. 265, 286 (1986);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).