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Eason v. Wal Mart Stores, Inc.

United States District Court, E.D. California

November 18, 2017





         Plaintiff filed his Complaint in the Eastern District of California against Walmart, but it was quickly transferred to the Western District of Arkansas. ECF Nos. 4, 5. After an Answer was filed, the case was re-transferred to this district. ECF No. 17. Walmart now moves for Judgment on the Pleadings. ECF No. 38. After Judgment on the Pleadings was filed, plaintiff filed an Addendum to the Complaint, and later sought to amend his complaint (ECF 45, 46). That motion is adjudicated pursuant to the order section of this ruling. The requested amendment to the complaint does not affect the grounds set forth in the Motion for Judgment on the Pleadings as the amendment seeks to add new claims; it will be adjudicated as if the Motion to Amend were to be granted.

         Plaintiff admits in his Complaint, and his First Amended Complaint (FAC), that he attempted robbery upon a guard associated with an armored money transportation service (Garda World Security Services, [“Garda”]. The robbery attempt took place at a Walmart store in Sacramento on April 17, 2012 as the guard exited Walmart when plaintiff shot the Garda transport officer with a taser weapon. The armed guard, after quickly recovering from the taser shot, and after having given the money bag to a Walmart security guard, gave chase to plaintiff and eventually shot plaintiff in the knee, and fired further shots into plaintiff's get-away car driven by another person.[1] It is not clear whether plaintiff ever got into his get-away car or whether plaintiff simply fled after being shot, but he apparently did not ultimately flee in the car, and was later found in a dumpster and arrested. Plaintiff is now serving federal time for the robbery attempt.

         It is not clear at all from the Complaint/FAC, how a Garda employee from an armored transport company which apparently contracts with Walmart to pick up money from its store, involves Walmart in plaintiff's alleged injuries. However, the Motion for Judgment on the Pleadings is not directly based on this potential problem, perhaps because such might require evidence outside the pleadings. It will not be discussed here.[2]

         For the reasons set forth here, Walmart's motion is well taken on both the statute of limitations and Cal. Civil Code section 3333.3.

         Motion for Judgment on the Pleadings

         Walmart moves for judgment based on the California statute of limitations and California law precluding actions against those who are injured in the course of committing a felony, or in fleeing the scene after committing the felony. The standards for such a motion are as follows:

Judgment on the pleadings is appropriate “when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law.” 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990). In considering a motion for judgment on the pleadings, the court reviews the pleadings only. The allegations of the non-moving party must be accepted as true. See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. 1989); see also Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 882 (9th Cir. 2011). A motion for judgment on the pleadings is functionally identical to a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6); the same legal standard applies. See Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011).

Delido v. Sunrise Express Inc., 2017 WL 3279018 *1 (E.D. Cal. 2017).

         Statute of Limitations

         As indicated previously, the robbery took place in 2012 with the complaint not filed until 2016.[3] On the face of things, the California statute of limitations, Cal. Code Civ. P. section 335.1, [4] indisputably the statute that applies here, provides a two year statute of limitations for wrongful acts involving assault, battery, personal injury and death. Thus, unless some type of tolling exists, this federal complaint is barred by the referenced limitations statute. Plaintiff does not contest the initial application of the statute, but argues only that he is entitled to equitable tolling.

         Walmart reasonably anticipated a statutory tolling of the limitations period, and briefed Ca. Code Civ.Pro. section 352.1 As Walmart correctly observes, this tolling statute, dealing with a two year tolling for incarcerated prisoners, only applies to causes of action that accrued during the incarceration or custody. However, the issue is a bit closer than Walmart intimates, but nevertheless to be decided in Walmart's favor.

         The sine qua non for application of the “prisoner's tolling” statute is that plaintiff was in some type of custody at the time at the time the cause of action accrued. Under any reading of plaintiff's complaint, the cause of action accrued when plaintiff was shot because he was clearly aware of his injury at that time as well as of who shot him. See Jolly v. Eli Lilly, 44 Cal.3d 1103 (1998)(holding that a cause of action accrues when a plaintiff reasonably becomes aware of injury and factual cause). Just as clearly, plaintiff was not incarcerated at the time he was shot. However, the tolling will start when any type of ...

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