ORDER ON TASER INTERNATIONAL'S RULE 12(b)(6) MOTION TO DISMISS

ANTHONY W. ISHII, Chief Judge.

This is a civil rights lawsuit brought by Plaintiff Jesse Lucas ("Lucas") against Defendants the City of Visalia ("the City"), Visalia police officers Carmen Esparza ("Esparza") and Sean O'Rafferty ("O'Rafferty"), and Taser International, Inc. ("Taser Int."). Lucas alleges violations of 42 U.S.C. § 1983 and various state laws, including products liability. The Court granted in part and denied in part two prior motions to dismiss that had been filed by the City and its officers. The active complaint is the Second Amended Complaint ("SAC"). Taser Int. now moves under Rule 12(b)(6) to dismiss the ninth and tenth causes of action. For the reasons that follow, the motion will be granted in part and denied in part.

BACKGROUND

From the SAC, it is alleged that Lucas's girlfriend called 911 for medical assistance for Lucas, who appeared to have suffered a seizure(s). Lucas has a history of seizures. Personnel from American Ambulance Co. and the Visalia Fire Department arrived at Lucas's residence and conferred with Lucas, who repeatedly and clearly refused medical treatment and requested that the everyone was to leave his home. Lucas indicated that he had previously suffered one or more seizures and just needed to go to bed.

Police officers later arrived. O'Rafferty arrived first, and he was advised that Lucas appeared to be mentally altered, was combative when treatment was attempted, but he had not injured anyone. O'Rafferty then approached Lucas, who was sitting on the stairs directly inside the front door of his residence, and spoke to him. Lucas continued to refuse treatment and to insist that all personnel leave his home so that he could go to bed. Esparza then arrived and entered the house. Lucas told Esparza the same thing he told O'Rafferty—that he did not want treatment, he wanted all personnel to leave, and that he would go to bed. Lucas then stood up, said that he was going to bed, and that everyone was to leave his home.

O'Rafferty and Esparza pursued Lucas up the stairs. Once Lucas reached the second floor landing, he turned around and again told the officers to leave. Esparza ordered Lucas to go back downstairs, but Lucas continued to tell the officers to leave so that he could sleep. Without warning, Esparza then shot Lucas with her taser gun and shocked him. Lucas fell to the ground and Esparza told him to turn over on his stomach and put his hands behind his back. Then, in order to gain compliance, Esparza cycled her taser a second time and again shocked Lucas. Lucas sustained significant injuries from the taser applications.

RULE 12(b)(6) FRAMEWORK

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir.2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir.2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir.2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated ... laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As the Supreme Court has recently explained:

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, to avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949; see Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir.2009).

If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002).

DEFENDANT'S MOTION

1. Tenth Cause of Action—Strict Products Liability, Manufacturing and Design Defects Defendant's Argument

Taser Int. argues that the tenth cause of action for "design and/or manufacturing defects" rests entirely on conclusory allegations. The allegations generally track the legal elements for strict liability, but there are no facts pled that identify what aspect of the product makes it defective. Nothing identifies how the product deviated from Taser Int.'s specifications or identifies a specific design defect.

Plaintiff's Opposition

Lucas argues that his strict products liability claim has been properly pled. The SAC alleges that Taser Int. manufactured, inspected, tested, marketed, etc. the subject taser weapon, that the weapon contained "design and/or manufacturing defects," and that the defects were the proximate cause of Lucas's injuries. Lucas also argues that he alleges that the taser weapon is unreasonably dangerous because it is sold without adequate warnings. Also, Lucas argues that Taser Int.'s motion is dilatory since Taser Int. did not file a motion to dismiss prior complaints that contained the same allegations.

Legal Standard

California recognizes strict liability for three types of product defects—manufacturing defects, design defects, and warning defects (inadequate warnings or failure to warn). Anderson v. Owens-Corning Fiberglas Co., 53 Cal.3d 987, 995, 281 Cal.Rptr. 528, 810 P.2d 549 (1991); Karlsson v. Ford Motor Co., 140 Cal.App.4th 1202, 1208, 45 Cal.Rptr.3d 265 (2006).

Under the "design defect" theory, a design is defective in one of two ways. Soule v. General Motors Corp., 8 Cal.4th 548, 566-67, 34 Cal.Rptr.2d 607, 882 P.2d 298 (1994); Karlsson, 140 Cal. App.4th at 1208, 45 Cal.Rptr.3d 265. First, under the "consumer expectations test," a product's design is defective if it has failed to perform as safely as its ordinary consumers would expect when used in an intended or reasonably foreseeable manner. Barker v. Lull Engineering Co., 20 Cal.3d 413, 430, 143 Cal.Rptr. 225, 573 P.2d 443 (1978); Karlsson, 140 Cal. App.4th at 1208, 45 Cal.Rptr.3d 265; see also Soule, 8 Cal.4th at 562, 566, 34 Cal.Rptr.2d 607, 882 P.2d 298. Second, under the "risk-benefit test," a product's design is defective if the design embodies "excessive preventable danger," that is, the risk of danger inherent in the design outweighs the benefits of such design. Barker, 20 Cal.3d at 430, 143 Cal.Rptr. 225, 573 P.2d 443; Ford v. Polaris Industries, Inc., 139 Cal.App.4th 755, 766, 43 Cal.Rptr.3d 215 (2006); see also Soule, 8 Cal.4th at 562, 567, 34 Cal.Rptr.2d 607, 882 P.2d 298. California courts have explained that:

Jones v. John Crane, Inc., 132 Cal.App.4th 990, 1002, 35 Cal.Rptr.3d 144 (2005) (quotations omitted) (citing Soule, 8 Cal.4th at 562-63, 567, 34 Cal.Rptr.2d 607, 882 P.2d 298). "The two tests provide alternative means for a plaintiff to prove design defect and do not serve as defenses to one another." McCabe v. American Honda Motor Co., Inc., 100 Cal.App.4th 1111, 1121, 123 Cal.Rptr.2d 303 (2002).

Under the "manufacturing defect" theory, generally a "manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." Barker, 20 Cal.3d at 429, 143 Cal.Rptr. 225, 573 P.2d 443; In re Coordinated Latex Glove Litigation, 99 Cal.App.4th 594, 605, 121 Cal.Rptr.2d 301 (2002). The "manufacturing defect" theory posits that "a suitable design is in place, but that the manufacturing process has in some way deviated from that design." In re Coordinated Latex, 99 Cal.App.4th at 613, 121 Cal.Rptr.2d 301.

Discussion

Initially, the Court is not persuaded by Lucas's point that Taser Int. answered prior complaints that contained the same allegations in the SAC. Taser Int.'s prior answers contained the affirmative defense that the complaint failed to state a claim. See Court's Docket Doc. Nos. 16 (at ¶ 80), 32 (at ¶ 94). A defense of "failure to state a claim upon which relief may be granted" may be asserted in an answer, through a Rule 12(b)(6) motion to dismiss, through a Rule 12(c) motion, or at trial. See Fed. R. Civ. Pro. 12(b), (h)(2). The operative complaint is the SAC, not the original or first amended complaints. That Taser Int. chose to utilize a Rule 12(b)(6) motion regarding the SAC, instead of filing an answer and expressly pleading the defense, is proper. See Fed. R. Civ. Pro. 12(h)(2).

As for the substance of the tenth cause of action, the Court agrees with Taser Int.'s assessment. The relevant allegation of the tenth cause of action is Paragraph 86, which reads in part: "[Taser Int.] designed, manufactured, sold, distributed ... the subject Taser ordnance which contained design and/or manufacturing defects, which were capable of causing, and in fact did cause, personal injuries to people while being used in a manner reasonably foreseeable...." SAC ¶ 86. The problem with the allegation is that it simply tracks the general elements of strict products liability and contains no pertinent factual allegations. "What is conspicuously absent from these claims is an identification of what aspect of the [taser weapon] makes [its] design," or manufacture, defective. Altman v. HO Sports Co., 2009 U.S. Dist. LEXIS 108971, *23 (E.D.Cal. Nov. 19, 2009).

If Lucas intends to allege a manufacturing defect, he must identify/explain how the taser weapon either deviated from Taser Int.'s intended result/design or how the taser weapon deviated from other seemingly identical taser models. See Barker, 20 Cal.3d at 429, 143 Cal.Rptr. 225, 573 P.2d 443; In re Coordinated Latex, 99 Cal.App.4th at 605, 613, 121 Cal.Rptr.2d 301. A bare allegation that the taser weapon had "a manufacturing defect" is an insufficient legal conclusion. Iqbal, 129 S.Ct. at 1949-50.

If Lucas intends to allege a design defect claim, he should identify which design defect theory he wishes to utilize. Under the consumer expectations test, Lucas "should describe how the [taser weapon] failed to meet the minimum safety expectations of an ordinary consumer" of taser weapons. Altman, 2009 U.S. Dist. LEXIS 108971 at *23 (emphasis added); Barker, 20 Cal.3d at 430, 143 Cal.Rptr. 225, 573 P.2d 443; Karlsson, 140 Cal.App.4th at 1208, 45 Cal.Rptr.3d 265. Under the risk-benefits test, Lucas should allege that the risks of the design outweigh the benefits, and then "explain how the particular design of the [taser weapon] caused [Lucas] harm." See Altman, 2009 U.S. Dist. LEXIS 108971 at *23-*24 (emphasis added). Again, a bare allegation that the taser weapon suffered from a "design defect" is an insufficient legal conclusion. Iqbal, 129 S.Ct. at 1949-50.

Dismissal of tenth cause of action is appropriate because the complaint contains no factual allegations that identify what aspect of the subject taser's design and manufacture made it defective. Since it is not clear that amendment would be futile, the Court will dismiss the SAC with leave to amend.1

2. Ninth Cause of Action—Negligence Products Liability, Warning Defect

Defendant's Argument

Taser Int. argues that no facts support a determination that it failed to warn the City or that a failure to warn caused injury. Instead, the SAC alleges that Taser Int. provided the very warnings upon which Lucas basis his claim. The SAC alleges that Taser Int. informed the City that taser weapons: can cause strong muscle contractions, can adversely affect persons at risk for seizures, there are neuro-electrical risks associated with their use, and there is a risk that repetitive electrical stimuli can induce seizures in some individuals. Despite this allegation, Lucas then alleges that the taser weapon is defective because it is sold without warnings as to the effects of multiple shocks and shocking people who might suffer from seizures or neurological conditions. Because Lucas alleges that Taser Int. did in fact give warnings, it cannot maintain a failure to warn products liability claim.

Plaintiff's Opposition

Lucas argues that the SAC does not allege the absence of any warning, rather it alleges the presence of inadequate warnings. Although each taser weapon contains a cursory warning regarding neuro-electrical risks, the warning is not adequate. Taser was in possession of documentation and research regarding the risks of using taser weapons on persons with neurological or seizure disorders, but did not provide that information to Visalia. The SAC identifies this information.2 The brief warning about "repetitive stimuli" merely indicates that taser weapons may cause seizures, it does not clearly warn against use of taser weapons on someone who has just had a seizure or someone who is known to have a seizure disorder.

Relevant Allegations

Under the ninth cause of action, Lucas alleges:

SAC ¶¶ 79-80.

Under the second cause of action for Monell liability, Lucas alleges that the City failed to properly: (1) apprise and instruct its officers of the dangers associated with administering multiple shocks on individuals who have a history of episodic seizures; (2) apprise and instruct officers on the dangers associated with administering multiple shocks on individuals who have a history of seizures; and (3) instruct officers on the appropriateness of using a taser weapon when an individual refuses only to receive medical treatment. See SAC ¶ 32. The SAC continues:

Id. (emphasis added); see also ¶ 33 (containing nearly identical allegations as ¶ 32).

Legal Standard

A "plaintiff may seek recovery in a `products liability case' either `on the theory of strict liability in tort or on the theory of negligence.'" Merrill v. Navegar, Inc., 26 Cal.4th 465, 478, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001). "[F]ailure to warn in strict liability differs markedly from failure to warn in the negligence context." Carlin v. Superior Court, 13 Cal.4th 1104, 1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347 (1996); Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 1002, 281 Cal.Rptr. 528, 810 P.2d 549 (1991). Under a negligence theory, the "manufacturer has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom he should expect to use the product or be endangered by its probable use, if the manufacturer has reason to believe that they will not realize its dangerous condition." Artiglio v. General Electric Co., 61 Cal.App.4th 830, 835, 71 Cal.Rptr.2d 817 (1998); Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1076-77, 91 Cal.Rptr. 319 (1970). In other words, "[n]egligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about." Carlin, 13 Cal.4th at 1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347; Anderson, 53 Cal.3d at 1002, 281 Cal.Rptr. 528, 810 P.2d 549. In contrast, "the reasonableness of the [manufacturer's] failure to warn is immaterial" under a strict liability theory. Carlin, 13 Cal.4th at 1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347; Anderson, 53 Cal.3d at 1002, 281 Cal.Rptr. 528, 810 P.2d 549. A plaintiff must show that a manufacturer failed to give an adequate warning, and whether a warning is adequate is generally a question of fact for a jury. See Schwoerer v. Union Oil Co., 14 Cal.App.4th 103, 111, 17 Cal.Rptr.2d 227 (1993); Judicial Council of California, Civil Jury Instructions (CACI) § 1222. However, a manufacturer is under no duty to warn against obvious or generally known and recognized dangers. See Krawitz v. Rusch, 209 Cal.App.3d 957, 966, 257 Cal.Rptr. 610 (1989); Holmes v. J.C. Penney Co., 133 Cal.App.3d 216, 220, 183 Cal.Rptr. 777 (1982).

Discussion

It is possible to read the ninth cause of action as alleging both the complete absence of warnings regarding "seizure risks," as well as alleging inadequacy of warnings that were actually given. However, Lucas's opposition clarifies that he is not alleging the complete absence of a warning, rather he is alleging that warnings given by Taser Int. were inadequate. Since this is a reasonable reading of the ninth cause of action, see SAC ¶ 80, the Court will construe the ninth cause of action as alleging only inadequate warnings, not the complete absence of any warnings.3

With this understanding of the ninth cause of action, the Court cannot dismiss the claim. There appears to be tension between Paragraph 324 of the second cause of action and Paragraph 79 of the ninth cause of action. Paragraph 32 states that the City knew of the various seizure risks because Taser Int. specifically gave the City "informational materials" that contained a section on "Seizure Risks," which in some way stated that the use of a taser weapon can adversely affect persons at risk for seizures. See SAC ¶ 32. The informational material was in addition to the warning that appears on the taser weapon itself. See id. The Court can see how Paragraph 32 could support the point made by Taser Int. On the one hand, Lucas is alleging that Taser Int. did not adequately warn. See SAC ¶ 79. On the other hand, Lucas alleges that Taser Int. gave the City warnings on seizure risks, the City was actually aware of and realized the seizure risks because of the warnings, but the City acted with deliberate indifference, i.e. did not act on the warnings, by not training its officers. See SAC ¶ 32. If the City realized the particular identified seizure risks because of the information provided by Taser,5 see id., then it would appear that the warnings were adequate. With adequate warnings, there can be no liability for negligent warning defects. See CACI § 1222.

Nevertheless, to the extent that there are inconsistencies between Paragraphs 32 and 79, the situation is governed by Rule 8(d). Under Rule 8(d)(3), a "party may state as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. Pro. 8(d)(3). Because a party "may not be sure in advance upon which legal theory she will succeed," Rule 8(d) permits that party to "set forth two or more statements of a claim or defense alternately or hypothetically," and to "state as many separate claims or defenses as the party has regardless of consistency."6 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). Rule 8(d) "permits inconsistency in both legal and factual allegations ... and has been interpreted to mean that a court may not construe [a plaintiff's] first claim as an admission against another alternative or inconsistent claim."7 Independent Enters. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1175 (3d Cir.1997); see also Henry v. Daytop Village, 42 F.3d 89, 95 (2d Cir. 1994); Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir.1985). "[A] policy which permits one claim to be invoked as an admission against an alternative or inconsistent claim would significantly restrict, if not eliminate, the freedom to plead inconsistent claims provided by Rule 8(e)(2)." Molsbergen, 757 F.2d at 1019; see Aholelei v. Department of Pub. Safety, 488 F.3d 1144, 1149 (9th Cir.2007). At this point, the Court will view any inconsistency between Paragraphs 32 and 79, i.e. the second and ninth causes of action, as permissible under Rule 8(d). See Fed. R. Civ. Pro. 8(d)(2), (3); Cleveland, 526 U.S. at 805, 119 S.Ct. 1597; Aholelei, 488 F.3d at 1149; Independent Enters., 103 F.3d at 1175; Molsbergen, 757 F.2d at 1019. Dismissal of the ninth cause of action is inappropriate.8

CONCLUSION

Taser Int. moves to dismiss the ninth and tenth causes of action alleged against it. With respect to the ninth cause of action, Taser Int.'s argument is essentially that the second and ninth causes of action are fatally inconsistent. However, at this stage in the proceedings, to the extent that there are inconsistencies, those inconsistencies are permissible under Rule 8(d). See Fed. R. Civ. Pro. 8(d); Cleveland, 526 U.S. at 805, 119 S.Ct. 1597; Independent Enters., 103 F.3d at 1175; Molsbergen, 757 F.2d at 1019. Dismissal is inappropriate.

With respect to the tenth cause of action, Taser Int.'s reading is correct. The SAC alleges only insufficient legal conclusions instead of necessary facts. See Iqbal, 129 S.Ct. at 1949-50. As explained above, Lucas needs to identify what specific aspect of the taser weapon is defective. That is, to properly allege design and manufacturing defects, Lucas must specifically allege what makes the design defective or what about the particular taser weapon in question deviated from the intended result/design. See Altman, 2009 U.S. Dist. LEXIS 108971 at *23; Barker, 20 Cal.3d at 429-30, 143 Cal.Rptr. 225, 573 P.2d 443; Karlsson, 140 Cal.App.4th at 1208, 45 Cal.Rptr.3d 265; In re Coordinated Latex, 99 Cal.App.4th at 605, 613, 121 Cal.Rptr.2d 301. Because it is not clear at that this point that amendment would be futile, dismissal with leave to amend is appropriate.

Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss:

1. The ninth cause of action in the second amended complaint is DENIED;

2. The tenth cause of action in the second amended complaint is GRANTED without prejudice to amendment;

3. Plaintiff may file an amended complaint, consistent with this order, no later than fourteen (14) days after service of this order; and

4. If Plaintiff fails to file an amended complaint within fourteen (14) days of service of this order, then the dismissal will be automatically converted to a dismissal with prejudice and Defendant Taser International shall file an answer to the second amended complaint, consistent with this order, within twenty-one (21) days of service of this order.

IT IS SO ORDERED.