United States District Court, E.D. California
ESTATE OF CARMEN MENDEZ, JORGE MENDEZ, SR., JORGE MENDEZ, JR., KYLAND RILEY, ROSARIO SANCHEZ, BERTHA MENDEZ, and DOMINGO MENDEZ, Plaintiffs,
CITY OF CERES, CERES POLICE DEPARTMENT, BRENT SMITH, and DOES 1 TO 50, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS (ECF No.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
PRELIMINARY STATEMENT TO PARTIES AND
in the Eastern District of California carry the heaviest
caseloads in the nation, and this Court is unable to devote
inordinate time and resources to individual cases and
matters. Given the shortage of district judges and staff,
this Court addresses only the arguments, evidence, and
matters necessary to reach the decision in this order. The
parties and counsel are encouraged to contact the offices of
United States Senators Feinstein and Harris to address this
Court's inability to accommodate the parties and this
action. The parties are required to reconsider consent to
conduct all further proceedings before a Magistrate Judge,
whose schedules are far more realistic and accommodating to
parties than that of U.S. Chief District Judge Lawrence J.
O'Neill, who must prioritize criminal and older civil
trials set before Chief Judge O'Neill trail until he
becomes available and are subject to suspension mid-trial to
accommodate criminal matters. Civil trials are no longer
reset to a later date if Chief Judge O'Neill is
unavailable on the original date set for trial. Moreover,
this Court's Fresno Division randomly and without advance
notice reassigns civil actions to U.S. District Judges
throughout the Nation to serve as visiting judges. In the
absence of Magistrate Judge consent, this action is subject
to reassignment to a U.S. District Judge from inside or
outside the Eastern District of California.
August 18, 2018, a City of Ceres police officer fatally shot
fifteen-year-old Carmen Mendez following pursuit of a vehicle
in which Mendez was a passenger. ECF No. 1 at ¶¶
18-19. Relatives, including decedent's father
(collectively, “Plaintiffs”), brought suit
against the City of Ceres, the Ceres Police Department, Brent
Smith (Chief of Police for Ceres), and Does 1-50
(collectively, “Defendants”), alleging various
claims under 42 U.S.C. § 1983, and under the
constitution and laws of California. Before the Court is a
Motion for Judgement on the Pleadings filed by Defendants.
ECF No. 1. The Court finds it appropriate to rule on
Defendant's motion without oral argument. See
Local Rule 230(g). For the following reasons, the Court
GRANTS IN PART and DENIES IN PART the motion.
August 18, 2018, fifteen-year-old Carmen Mendez
(“Carmen”) was a passenger in a vehicle being
pursued by police for reasons not stated in Plaintiffs'
complaint. See ECF No. 1 at ¶ 19. According to
the allegations, when the vehicle eventually came to a stop,
Carmen exited and ran on foot toward a nearby orchard.
Id. at ¶ 20. It is further alleged that, while
he ran, Carmen was unarmed and “non-threatening,
” but, nonetheless, Carmen was shot in the back several
times by at least one police officer. Id. at
¶¶ 21-22. The complaint additionally alleges that
“[o]ther law enforcement officers at the scene reacted
with anger to [the] unnecessary shooting” of Carmen.
Id. at ¶ 25. Carmen succumbed to his injuries.
Id. at ¶ 26.
December 10, 2018, Carmen's father, two brothers, aunt,
grandmother, and grandfather filed suit against Defendants,
with Carmen's father, Jorge Mendez, Sr., also filing on
behalf of Carmen's estate, as one of Carmen's
successors-in-interest. ECF No. 1 at ¶¶ 5-11. The
Plaintiffs' suit alleges three claims under 42 U.S.C.
§ 1983 (“§ 1983”), one claim under
California's constitution, and four claims under
California state law. See generally ECF No. 1.
Absent from the lawsuit is Carmen's mother, Stephanie
Beidleman, though she did serve, separate from this action, a
notice of tort claims on the City of Ceres and
others. ECF Nos. 9-1 at 1-2, 13-1 at Ex. 1.
February 21, 2019, Defendants filed their Motion for Judgment
on the Pleadings (“motion”), alleging nine
deficiencies in Plaintiffs' suit that, they claim,
entitle Defendants to judgment under Federal Rule of Civil
Procedure 12(c). See generally ECF No. 9-1.
Defendants urge this Court to find: that Plaintiffs have
failed to meet the pleading standard under
Twombly/Iqbal throughout their
complaint; that Plaintiffs have failed to join a
necessary party; that certain claims and parties are
duplicative; that certain Plaintiffs are ineligible for
relief under certain claims; and that certain novel claims
have no legal basis. Id. On March 7, 2019,
Plaintiffs responded, denying each ground raised by
Defendants and urging this Court to allow their suit to
proceed as filed. ECF No. 11. Defendants' Reply was filed
on March 14, 2019. ECF No. 13.
12(c) of the Federal Rules of Civil Procedure states that
“[a]fter the pleadings are closed- but early enough not
to delay trial-a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12. A motion filed under Rule
12(c) and one filed under Rule 12(b) are “functionally
identical, ” with timing being the “principal
difference” between them. Dworkin v. Hustler
Magazine Inc., 867 F.2d 1188, 1192 (1989). Because the
motions are functionally identical, the standard of review
under both is the same. Gregg v. Hawaii, Dept. of Pub.
Safety, 870 F.3d 883, 887 (2017). “A judgment on
the pleadings is properly granted when, taking all the
allegations in the pleadings as true, the moving party is
entitled to judgment as a matter of law.” Nelson v.
City of Irvine, 143 F.3d 1196, 1200 (1998). Like a
motion brought under Rule 12(b)(6), leave to amend a pleading
“should be granted even if no request is made
unless amendment would be futile.” Pac. W.
Grp., Inc. v. Real Time Sols., Inc., 321 Fed.Appx. 566,
569 (2008) (emphasis original).
urge this Court to find that Plaintiffs' Complaint is
substantially deficient on nine grounds. ECF No. 9-1.
Specifically, Defendants argue that: (1) Plaintiffs have
failed throughout their complaint to allege sufficient facts
under Twombly/Iqbal; (2) the case must be stayed
because Plaintiffs failed to join a necessary party,
Carmen's mother; (3) the Ceres Police Department must be
dismissed from the action since naming it and the City of
Ceres is duplicative; (4) the Ceres Chief of Police, Brent
Smith (“Smith”), must be dismissed from the
action because naming him in his official capacity is
duplicative and no allegations support naming him in his
individual capacity; (5) any Monell
claimshave been insufficiently pled and must be
dismissed; (6) Plaintiffs' two claims for right of
intimate association are duplicative, and in any event are
inapplicable to any relative other than Carmen's father
and brothers; (7) Plaintiffs' cause of action brought
under California's constitution fails to state a claim
upon which relief can be granted; (8) Plaintiffs' Bane
Act claim fails to state a claim upon which relief may be
granted and can only be brought on behalf of Carmen's
estate; and (9) Plaintiffs include duplicative, superfluous
language in their Bane Act claim that should be stricken.
argument is addressed in turn below.
Joinder of Carmen's Mother
urge this Court to find that Plaintiffs failed to join a
necessary party-Carmen's mother-under Federal Rule of
Civil Procedure 19 and that, as a result, this case must be
stayed until she is joined. ECF Nos. 9-1 at 1-2, 13 at 3-4.
Defendants base their assertion on the fact that Carmen's
mother is a successor-in-interest of Carmen's estate,
together with Carmen's father, as Carmen was a minor at
the time of his death. Id.
respond that Defendants' objection fails for two
procedural reasons: Defendants have failed to parse which
claims they believe require joinder of Carmen's mother,
and Defendants' objection was waived when Defendants
failed to raise the issue in their first responsive pleading.
ECF No. 11 at 2. Plaintiffs also contend, substantively, that
Carmen's mother is not a necessary party because
Carmen's mother can bring a claim against Carmen's
estate should Carmen's father, as successor-in-interest,
prevail in this action. Id. at 2-3. As a final
matter, Plaintiffs argue that, should the Court find
Carmen's mother a necessary party, the cure is to name
her as a nominal defendant. Id. at 3.
Law and Analysis
Rule of Civil Procedure 19 requires joinder of necessary
parties, with certain exceptions. Fed.R.Civ.P. 19. “A
Rule 19 motion poses three successive inquiries, ”
E.E.O.C. v. Peabody W. Coal Co., 610 F.3d 1070, 1078
(9th Cir. 2010) (internal quotations and citation removed),
which were not briefed or analyzed fully by the parties here.
The first inquiry requires determining whether a party is
necessary pursuant to the rule. Id. That inquiry
involves a two-pronged analysis, pursuant to which the Court
examines first “whether complete relief can be afforded
if the action is limited to the existing parties, ” and
second, “whether the absent party has a legally
protected interest in the subject of the action, and if so,
whether the party's absence will impair or impede the
party's ability to protect that interest or will leave an
existing party subject to multiple, inconsistent legal
obligations with respect to that interest.” White
v. Univ. of Cal., 765 F.3d 1010, 1026 (9th Cir. 2014)
(internal quotations omitted). Either a negative answer to
the first prong or an affirmative answer to the second prong
means a party is necessary. If a party is not necessary, the
inquiry stops. If a party is necessary, the Court engages, in
order, the successive steps of the Rule 19 inquiry to
determine if the necessary party is indispensable and
whether, in fact, the action cannot proceed without that
party. Peabody, 610 F.3d at 1078.
The Wrongful Death Claim
analysis of how Rule 19 applies to the wrongful death claim
brought under Cal. Code Civ. Proc. § 377.60 is
relatively straightforward, as the case of Ruttenberg v.
Ruttenberg, 53 Cal.App.4th 801, 808 (1997), instructs
that heirs for such claims “have a mandatory duty to
join all known omitted heirs in the ‘single action'
for wrongful death” because “wrongful death
actions are considered to be ‘joint, single and
indivisible.' ” Indeed, “only one action for
wrongful death may be brought whether, in fact, it is
instituted by all or only one of the heirs.”
Ruttenberg, 53 Cal.App.4th at 807. Notwithstanding
this, “a non-joined heir is not an ‘indispensable
party' to a wrongful death action” under California
law. Id. at 807.
federal procedure, failure to join necessary parties is
waived if objection is not made in defendant's first
responsive pleading; it is only the absence of an
indispensable party which may (possibly) be raised
later.” Citibank, N.A. v. Oxford Properties
& Fin. Ltd., 688 F.2d 1259, 1262 n.4 (9th Cir.
1982). Because a non-joined heir is not indispensable for
purposes of a wrongful death claim, the Court concludes that
Defendants waived their argument for joinder, as it relates
to this claim, by failing to object in their first responsive
Court, however, may raise sua sponte joinder under
Rule 19. CP Nat. Corp. v. Bonneville Power
Admin., 928 F.2d 905, 911 (9th Cir. 1991) (“The
absence of ‘necessary' parties may be raised by
reviewing courts sua sponte …”). The
issue of joinder may be raised to protect the interests of an
absent party. McCowen v. Jamieson, 724 F.2d 1421,
1424 (9th Cir. 1984) (raising joinder under Rule 19 sua
sponte, the court stated: “We are acting to
protect the [absent party's] interest …”).
Consideration of judicial economy is also appropriate,
although judicial economy is not a factor specified in Rule
19. Shimkus v. Gersten Companies, 816 F.2d 1318,
1322 (9th Cir. 1987). Here, Carmen's mother is a
necessary party, and her interest in the wrongful death claim
will be impaired by the complete foreclosure of her ability
to bring her own such claim in a separate suit under
California law. Nonjoinder of Carmen's mother also
presents a substantial probability of one or more suits
concerning the same claims and issues being brought
subsequent to final adjudication of this case. That burdens
the courts, and new controversies among the parties might be
invited. Therefore, the Court finds that joinder of a
necessary party, Carmen's mother, is required in order to
protect her interest and for reasons of judicial economy,
including the possibility of a separate suit or suits related
to the wrongful death claim in this matter.
motion to stay pending joinder is DENIED; however, the Court
orders, sua sponte, joinder of Carmen's mother
as a Plaintiff to the wrongful death claim.
The Remaining Claims Under § 1983, and
California's State Law and Constitution
the remaining claims, the Court finds that complete relief
can be afforded to those already party to the action, as the
first portion of Rule 19 “is concerned only with
‘relief as between the persons already parties, not as
between a party and the absent person whose joinder is
sought.' ” Eldredge v. Carpenters 46 N. Cal.
Ctys. Joint Apprenticeship & Training Comm., 662
F.2d 534, 537 (9th Cir. 1981) (quoting 3A Moore's Federal
Practice P 19.07-1(1), at 19-128 (2d ed. 1980)). Plaintiffs
and Defendants make no argument that current parties cannot
be provided complete relief in relation to the present
parties, and the Court finds nothing to support a
determination otherwise. Relief available to current
Plaintiffs vis-à-vis Defendants is in no way limited
by the absence of Carmen's mother, and the same is true
of Defendants vis-à-vis current Plaintiffs.
Legally Protected Interest
the second prong of ‘necessity' as it relates to
the remaining claims, the Court starts with Defendants'
incompletely developed suggestion that the decedent's
mother is a necessary party because she is a
successor-in-interest to Carmen's estate. ECF No. 9-1 at
1-2. Defendants do not explain why, as a
successor-in-interest, Carmen's mother is necessary, but
the Court will begin by assuming that Defendants are
suggesting that she has a legally protected interest in the
proceedings. A successor-in-interest would be deemed
necessary if both of the following are true: 1) the person
has a legally protected interest in the subject of that
action; and 2) either protection of that interest will be
impaired by absence, or the person's absence will subject
an existing party to multiple, inconsistent legal obligations
with respect to that interest. Fed.R.Civ.P. 19.
Court notes that Defendants do not cite any authority
suggesting that all successors-in-interest must be party to
§ 1983 claims, and the Court has found nothing to
support that proposition. Indeed, as to the first claim for
unreasonable force under § 1983 and the fifth claim for
unreasonable force under California's Bane Act (the only
claims brought on behalf of Carmen's estate by a
successor-in-interest), should Carmen's father recover on
behalf of the estate, Carmen's mother in turn may recover
from the estate as an additional successor-in-interest. The
simple reason that Carmen's mother is a
successor-in-interest does not require her joinder. The
Court's analysis, however, would be incomplete if it
Res Judicata and Collateral
issue of joinder becomes murkier when the Court evaluates the
necessity of Carmen's mother as it relates to the
doctrines of collateral estoppel and res judicata. The
Supreme Court has long recognized the applicability of both
doctrines to claims brought under § 1983. See, e.g.,
Preiser v. Rodriguez, 411 U.S. 475, 497 (1973) (noting
with approval the application of res judicata to § 1983
cases by federal courts). In Allen v. McCurry, 449
U.S. 90, 96-97 (1980), the Court noted that it had previously
given “implicit approval” to the finding of lower
courts “that § 1983 presents no categorical bar to
the application of res judicata and collateral estoppel
concepts.” The Allen Court only solidified
that position and made it explicit. 449 U.S. at 94-105.
Ninth Circuit also has recognized that California's
application of res judicata and collateral estoppel may
extend to family members in actions such as the one before
this Court because the concept of privity in California
“has been expanded [ ] to a relationship between the
party to be estopped and the unsuccessful party in the prior
litigation which is ‘sufficiently close' so as to
justify the application of the doctrine of collateral
estoppel.” Aguilar v. Los Angeles County, 751
F.2d 1089, 1093 (9th Cir. 1985) (citing federal district
court and state appellate court cases). Under this
formulation of privity, the Ninth Circuit affirmed the
finding of a son as his parents' privy in a medical
negligence action for the son's injuries, and the court
upheld dismissal of the parents' action for failure to
join a necessary party-their son. Id. at 1093-94.
The Ninth Circuit affirmed the dismissal because a California
state court might apply, though not certainly, collateral
estoppel principles to the son's suit if his parents'
action proceeded separately in federal court. Id. at
1093 (“a California court could well apply the
collateral estoppel doctrine to bar [son's] suit if his
parents' suit is allowed to proceed and proves
unsuccessful, since the underlying issue of the County's
negligence is identical in both suits”). That risk,
even though not definite, was sufficient under the joinder
inquiry, according to the court. Id. at 1094. The
Ninth Circuit also considered other applications of res
judicata and collateral estoppel against family members by
California courts in reaching its decision. Id. at
“later decisions have dulled Aguilar's
sharp edge.” Blumberg v. Gates, 204 F.R.D.
453, 455 (C.D. Cal. 2001). Under these cases, the Ninth
Circuit changed the calculus for determining whether an
absent party's legally protected interest will be
impaired or impeded if litigation proceeds in the party's
absence. Under the new calculus, the court recognized that
“[i]mpairment may be minimized if the absent party is
adequately represented in the suit.” Makah Indian
Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). The
Ninth Circuit has stated:
the question whether that party is adequately represented
parallels the question whether a party's interests are so
inadequately represented by existing parties as to permit
intervention of right under Fed.R.Civ.P. 24(a). Consequently,
we will consider three factors in determining whether
existing parties adequately represent the interests of the
[absent parties]: whether “the interests of a present
party to the suit are such that it will undoubtedly make
all” of the absent party's arguments; whether the
party is “capable of and willing to make such
arguments”; and whether the absent party would
“offer any necessary element to the proceedings”
that the present parties would neglect.
Shermoen v. United States, 982 F.2d 1312, 1318 (9th
Cir. 1992); see also Sw. Ctr. for Biological
Diversity v. Babbitt, 150 F.3d 1152, 1153-54 (9th
the Court need not decide whether the interests of
Carmen's mother would be represented adequately by an
existing party, such as Carmen's father. Carmen's
mother clearly has an interest in this litigation, and the
Court has ordered that she be joined for purposes of the
wrongful death claim. See § A(2)(a)
above. Given similar considerations as those above,
concerning judicial economy and possible impairment of the
mother's interests should this suit go forward without
her, the Court finds that Carmen's mother should be
joined to all claims in which she has an interest either in
her personal capacity or as successor-in-interest.
foregoing reasons, the Court ORDERS that Carmen's mother,
Stephanie Beidleman, be joined to this action.
Court not ordered joinder of Carmen's mother sua
sponte, Defendants' request for joinder would face
an additional problem to their successor-in-interest
argument. As noted previously, “[i]n federal procedure,
failure to join necessary parties is waived if objection is
not made in defendant's first responsive pleading; it is
only the absence of an indispensable party which may
(possibly) be raised later.” Oxford
Properties, 688 F.2d at 1262 n.4. Here, Defendants'
belated objection would fail at the second and third stages
of the three successive inquiries for necessary joinder:
whether joinder is feasible and whether in equity and good
conscience the suit should be dismissed. Neither party fully
briefed these issues, and Defendants point to no authority at
all to support their position that Carmen's mother is
indispensable. In that critical omission, Defendants fail in
their burden of persuasion. Because Defendants do not carry
their burden, the Court need not delve deeper into this
issue. Shermoen, 982 F.2d at 1317 (“The moving
party has the burden of persuasion in arguing for
dismissal.”). Accordingly, the Court declines to find
Carmen's mother indispensable even if she is necessary,
and thus, Defendants waived their objection when they did not
include it in their first responsive pleading.
of the foregoing reasons stated in § A, Defendants
motion to stay the proceedings and join Carmen's mother
is DENIED, but as noted above, the Court orders joinder
Request to Dismiss Ceres Police Department
move to dismiss the Ceres Police Department (“Police
Department”) from the action, arguing that naming the
Police Department as a defendant is duplicative of naming the
City of Ceres (“the City”), which is also a
defendant in the action. ECF Nos. 9-1 at 4, 13 at 4-5.
Plaintiffs counter that the Police Department is a separately
suable entity under California law, which means they may be
named as a defendant. ECF No. 11 at 4-5. Plaintiffs do not
specify separate facts or theories of liability for the
Police Department as compared to the City, and neither
Plaintiffs nor Defendants parse their arguments separately
for claims brought under § 1983 versus those brought
under state law.
Law and Analysis
capacity to be sued is determined “by the law of the
state where the court is located.” Fed.R.Civ.P. 17.
California law, in turn, provides that a “public entity
may sue and be sued.” Cal. Gov. Code § 945. The
Ninth Circuit has found that, in the absence of a state court
decision indicating otherwise, the definition of
“public entity” includes a police department.
Shaw v. Cal. Dep't of Alcoholic Beverage
Control, 788 F.2d 600, 605 (9th Cir. 1986). Thus, in
California, a police department “may be sued in Federal
court.” Id.; see also Streit v. County of
Los Angeles, 236 F.3d 552, 565-67 (9th Cir. 2001)
(finding, in the context of a § 1983 action, that local
law enforcement agencies may be sued in federal court). The
pronouncement from the Ninth Circuit is clear:
“Municipal police departments … can be sued in
federal court for alleged civil rights violations.”
Karim-Panahi v. Los Angeles, 839 F.2d 621, 624 n. 2
(9th Cir. 1988).
discussion of the cases cited above, Defendants point to
United States v. Kama, 394 F.3d 1236 (9th Cir.
2005), and district court cases that rely on Kama,
in support of their position that the police department must
be dismissed from this suit. ECF No. 13 at 5. But
Kama is distinguishable from this case in important
ways that render it unpersuasive. First, it is the concurring
opinion, signed by one judge, that states as dictum,
“municipal police departments and bureaus are
generally not considered ‘persons'
within the meaning of 42 U.S.C. § 1983.”
Kama, 394 F.3d at 1239-40 (emphasis added). Second,
Kama concerned a suit for return of seized property
under Federal Rule of Criminal Procedure 41(g), brought
against law enforcement in Oregon, not California-which facts
are not relevant to the matter currently before this Court.
Id. at 1236-39. The context of Kama renders
it inapposite. The Court joins other district courts that
have found the same.
may name the Ceres Police Department as a defendant under
California law, even if the City is ultimately liable. What
Plaintiffs would have to allege (and prove) in order to
establish that a police department acted as a
“person” under the color of law for purposes of
§ 1983 liability is an entirely different matter not
before the Court on this motion.
addressed whether the Police Department can be named as a
Defendant under California law, a few words are warranted on
whether naming it is duplicative of naming the City.
Defendants argue that the Police Department should be
dismissed as a redundant defendant, citing Abeytia v.
Fresno Police Dep't, No. 1:08-cv-01528 OWW GSA, 2009
WL 1674568 (E.D. Cal. June 12, 2009). ECF Nos. 9-1 at 4, 13
at 4-5. The somewhat cursory reasoning provided in
Abeytia is premised on the assumption, rejected
above, that a municipal police department is not a
“person” under § 1983. No. 1:08-cv-01528 OWW
GSA, 2009 WL 1674568, at *9. The court in Abeytia
cited other district court cases to support its conclusion;
the Ninth Circuit cases Shaw, Streit, and
Karam-Panahi, cited above, were not assessed.
Court adopts now the reasoning of Payne v. County of
Calaveras, No. 1:17-cv-00906-DAD-SKO, 2018 WL 6593347,
at *4 (E.D. Cal. Dec. 14, 2018). In Payne, the court
was faced with similar arguments from litigants:
[D]efendants … argu[e] that the issue is not whether a
sheriff's department is suable in federal court, but
rather, “[t]he question is whether a department of a
municipality can be sued separately in addition to
the municipality for the same alleged wrongs.” [ ] If
that is indeed the question, it must be also be answered in
the affirmative. Defendants have not directed the court to
any legal authority requiring the court to dismiss a
municipal entity as a redundant defendant where the
municipality itself is also named as a defendant. On the
contrary, in Streit, the Ninth Circuit explicitly
held that because the Los Angeles Sheriff's Department
“acts for the County in its capacity as the
administrator of the Los Angeles County jails, ...
both the LASD and the County are subject to
liability under section 1983.” 236 F.3d at 555- 56
No. 1:17-cv-00906-DAD-SKO, 2018 WL 6593347, at *3-4.
absence of authority showing that the Ninth Circuit
subsequently reaching a different conclusion from that
reached in Streit, this Court, like the court in
Payne, finds that both a municipality and the
municipality's police department may be named in an
action under California law if both are amenable to suit.
Accordingly, Defendants' motion to dismiss the Ceres
Police Department from this suit is DENIED.
Fourth Amendment Unreasonable Force Claims: ...