United States District Court, N.D. California
AG. G., a minor, by and through his guardian ad litem, JESSICA AQUINO; AR. G., a minor, by and through her guardian ad litem, JESSICA AQUINO; KARLA GONSALEZ, individually; and AGUSTIN GONSALEZ, JR., individually; Plaintiffs,
CITY OF HAYWARD, a municipal corporation; MARK KOLLER, individually; PHILLIP WOOLEY, individually; MICHAEL CLARK, individually; TASHA DECOSTA, individually; and DOES 1-100, inclusive, Defendants. Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS IN
PART AND GRANTING IN PART, AND GRANTING DEFENDANTS'
MOTION FOR MORE DEFINITE STATEMENT RE: DKT. NO. 11
M. RYU JUDGE.
City of Hayward, Chief of Police Mark Koller, Officer Phillip
Wooley, Officer Michael Clark, and Sergeant Tasha DeCosta
move to dismiss the First Amended Complaint
(“FAC”) filed by Plaintiffs AG. G. and AR. G., by
and through their guardian ad litem, Jessica Aquino, Karla
Gonsalez, and Agustin Gonsalez, Jr. (collectively
“Plaintiffs”). Defendants also move for a more
definite statement pursuant to Rule 12(e). The court held a
hearing on June 27, 2019. Having considered the parties'
submissions and oral argument, the court grants the motion to
dismiss in part and denies it in part, and grants the motion
for a more definite statement.
FACTS AND PROCEDURAL HISTORY
make the following allegations in the FAC, all of which are
taken as true for purposes of this motion. On November 15,
2018, Agustin Gonsalez was at the residence of his former
girlfriend, Christina Rodriguez, who was with her sister,
Deanna Rubio. [Docket No. 9 (FAC) ¶ 15.] Gonsalez was
“in the midst of a mental health crisis, ” was
acting erratically, and had threatened to hurt himself with a
razor blade. Id. At some point in the evening,
Gonsalez got into a verbal fight with a neighbor, which
escalated into a physical altercation. Id. ¶
16. The neighbor called 911 and reported that Gonsalez had a
knife, was threatening him, and was “crazy.”
Id. In fact, Gonsalez did not have a knife; he had a
razor blade that was 1.54 inches long. Id.
¶¶ 16, 17.
DeCosta, Wooley, and Clark answered the 911 call.
Id. ¶ 17. Gonsalez made several expletive
statements. Id. As they exited the patrol car,
DeCosta, a Sergeant and therefore the ranking officer on
scene, told Wooley and Clark “Hold on, he's
threatening.” Id. According to Plaintiffs,
DeCosta “made this statement to caution  Wooley and
Clark from approaching Mr. Gonsalez.” Id.
However, Wooley and Clark disregarded DeCosta's warning,
drew their guns, and proceeded towards Gonsalez. Id.
Gonsalez was walking towards Rodriguez and away from the
officers. Id. ¶ 18.
then said, “you can't shoot me, ”
“rounded the front of a parked vehicle, and walked
slowly toward[s]  Wooley and Clark, facing them as they
continued to approach him.” Id. Wooley and
Clark ordered Gonsalez to drop the knife. Id.
Gonsalez had no knife to drop; instead, he kept his hands at
or below his waist in front of him, while holding on to the
razor blade. Id. Wooley and Clark never reached for
their tasers; instead, they fired thirteen shots at Gonsalez,
striking him ten times. Id. Although she was the
supervising officer at the scene, DeCosta failed to intervene
and failed to prevent Wooley and Clark from shooting
Gonsalez. Id. ¶ 23. Gonsalez was subsequently
handcuffed and transported to a hospital where he passed away
later that night. Id. ¶ 21.
filed this lawsuit on February 7, 2019. On April 12, 2019,
they filed the FAC with the following claims: (1) violation
of 42 U.S.C. § 1983 for wrongful death asserted by AR.
G. and AG. G. against Wooley, Clark, and DeCosta; (2)
violation of 42 U.S.C. § 1983 for deprivation of
familial relationship rights asserted by all Plaintiffs
against Wooley and Clark; (3) a Monell violation
asserted by AR. G. and AG. G. against the City of Hayward and
Koller; (4) a survival action pursuant to section 1983
asserted by AR. G. and AG. G.; (5) wrongful death negligence
asserted by AR. G. and AG. G. against Wooley, Clark, and
DeCosta; (6) violation of the Bane Act, California Civil Code
§ 52.1, asserted by AR. G. and AG. G. against Wooley,
Clark, DeCosta, and the City of Hayward; and (7) battery
asserted by AR. G. and AG. G. against Clark, Wooley, and the
City of Hayward. See FAC.
move to dismiss the FAC on the following grounds: (1) minors
AR. G. and AG. G. lack standing because the FAC fails to
allege that a guardian ad litem was appointed by the court;
(2) the minors' survivor claims are also defective
because AG. G. and AR. G. have not complied with the
requirements of California Code of Civil Procedure section
377.32 and therefore cannot proceed as successors-in-interest
on behalf of Gonsalez; and (3) the FAC does not allege
sufficient facts to support claims against Koller and
DeCosta. Defendants also move for a more definite statement
under Rule 12(e), asserting that the FAC does not specify
which Defendants are named in the fourth claim, which is the
section 1983 survival action.
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the claims alleged in the complaint. See
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). When reviewing a motion to dismiss for
failure to state a claim, the court must “accept as
true all of the factual allegations contained in the
complaint, ” Erickson, 551 U.S at 94, and may
dismiss a claim “only where there is no cognizable
legal theory” or there is an absence of
“sufficient factual matter to state a facially
plausible claim to relief.” Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009); Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001)) (quotation marks omitted). A claim has
facial plausibility when a plaintiff “pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citation
omitted). In other words, the facts alleged must demonstrate
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555 (2007) (citing Papasan v. Allain, 478 U.S. 265,
286 (1986)); see Lee v. City of L.A., 250 F.3d 668,
679 (9th Cir. 2001), overruled on other grounds by
Galbraith v. Cnty of Santa Clara, 307 F.3d 1119 (9th
Federal Rule of Civil Procedure 12(e)
Rule of Civil Procedure 12(e) provides that “a party
may move for a more definite statement of a pleading . . .
which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Motions for a more
definite statement are “viewed with disfavor” and
rarely granted. Cellars v. Pacific Coast Packaging,
Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). However,
courts may require a more definite statement “when the
pleading is so vague or ambiguous that the opposing party
cannot respond, even with a simple denial, in good faith or
without prejudice to himself.” Id. (quotation
and citation omitted).