ANTHONY W. ISHII, Senior District Judge.
On April 10, 2012, Plaintiffs Jorge H. Medrano and Ronnie Medrano filed suit in this Court against Defendants Kern County Sheriff's Officer, County of Kern, and Does 1 to 10, alleging causes of action for (1) violation of civil rights under 42 U.S.C. § 1983; (2) violation of civil rights under California Civil Code §§ 43 and 52.1, and California Constitution Art. 1, § 13; and (3) wrongful death.
This case arises from the death of Rodolfo Medrano ("Decedent"), the brother of Plaintiffs, due to an officer-involved shooting on May 29, 2011, at 2750 South Union Avenue, Bakersfield, CA, 93307. See Compl. ¶ 11. Plaintiffs allege Decedent was in a wheelchair when, without warning, unidentified "sheriff officers" employed by the County repeatedly and unjustifiably shot Decedent, causing his death. Id. Plaintiffs allege Decedent made no aggressive movements, no furtive gestures, and no physical movements which would suggest to a reasonable officer that he posed a threat of violence. Id. ¶ 12. Plaintiffs contend Defendants' actions violated Decedent's Fourth Amendment right to be free from unreasonable searches and seizures, and deprived them of their Fourteenth Amendment rights to substantive due process, privacy, as well as the fundamental right to familial association with their brother. Id. ¶ 19. Plaintiffs further contend Defendants' actions deprived Decedent of the rights, privileges, and immunities secured to him by Article 1, Section 13, of the California Constitution; and California Civil Code §§ 43 and 52.1. Id. ¶ 33. Finally, Plaintiffs allege they have sustained substantial economic and non-economic damages resulting from Decedent's death due to Defendants' conduct, including funeral and burial expenses. Id. ¶¶ 53-54.
The County filed the instant motion to dismiss, arguing that the Complaint fails to state a claim against the County because it is so ambiguous and unintelligible, and should therefore be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, the County contends that the Complaint is so vague, ambiguous, and unintelligible that the County is unable to reasonably frame a responsive pleading thereto and Plaintiffs should be required to provide a more definite statement,
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 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). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed.R.Civ.P. 12(b)(6). "A claim has facial plausibility," and thus survives a motion to dismiss, "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion to dismiss, the court accepts all material facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). However, the court need not accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear ... the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Federal 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." Fed.R.Civ.P. 12(e). "However, motions for a more definite statement are disfavored, and `ordinarily restricted to situations where a pleading suffers from unintelligibility rather than want of detail.'" Dri-Eaz Products, Inc. v. Nguyen, No. C 11-1654Z, 2012 WL 1537598, at *1, 2012 U.S. Dist. LEXIS 60860, at *4 (W.D.Wash. May 1, 2012) (quoting Hayton Farms Inc. v. Pro-Fac Corp. Inc., No. C10-520-RSM, 2010 WL 5174349, at *4, 2010 U.S. Dist. LEXIS 132167, at *4 (W.D.Wash. Dec. 14, 2010)). A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted in order to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D.Cal.1981). The Court must deny the motion if the complaint is specific enough to notify defendant of the substance of the claim being asserted. See Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D.Cal. 1996). The Court may also deny the motion if the detail sought by a motion for a more definite statement is obtainable through the discovery process. Beery v. Hitachi Home Electronics (America), Inc., 157 F.R.D. 477, 480 (C.D.Cal.1993).
The County contends the Complaint fails to state a claim against the County under Title 42 U.S.C. § 1983; the Tom Bane Civil Rights Act, Cal. Civ.Code § 52.1 (the "Bane Act"); Cal. Civ.Code § 43; Art. 1, § 13 of the California Constitution; or for wrongful death.
Local governments can be "persons" subject to liability under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a local government unit may not be held responsible for the acts of its employees under a respondent superior theory of liability. Id. at 691, 98 S.Ct. 2018; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir.1995). Rather, to state a claim for municipal liability, a plaintiff must allege that he suffered a constitutional deprivation that was the product of a policy or custom of the local government unit. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). A Section 1983 plaintiff may establish local government liability based on official policy or custom only by (1) alleging and showing that a city or county employee committed the alleged constitutional violation under a formal governmental policy or longstanding practice or custom that is the customary operating procedure of the local government entity; (2) establishing that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself was an act of official governmental policy which was the result of a deliberate choice made among various alternatives; or (3) proving that an official with final policy-making authority either delegated policy-making authority to a subordinate or ratified a subordinate's unconstitutional decision or action and the basis for it. See Monell, 436 U.S. at 691, 98 S.Ct. 2018; Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992).
The County argues the Complaint fails to state a Section 1983 cause of action because Plaintiffs have failed to identify the agents or employees of the County whose actions were consistent with County customs or policy. The County further contends the Complaint fails to identify any policy or custom which resulted in the alleged constitutional violations. Plaintiffs respond that Defendants have not fulfilled their duty under Federal Rule of Civil Procedure 26 to disclose:
Fed.R.Civ.P. 26(a)(1)(A). Plaintiffs contend Defendants have strategically circumvented this duty to provide information within their possession in order to bring the instant motion. The Court agrees that the failure to identify the individual officers allegedly involved is not fatal to Plaintiffs' Section 1983 claim against the County where the Complaint sets forth the date, location, and victim of the shooting, and alleges that the officers involved were employed by the County.
To state a claim for Monell liability, a plaintiff must allege "a formal governmental policy or a `longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.'" Gillette, 979 F.2d at 1346 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989)). A "policy" is a "deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Fogel v. Collins, 531 F.3d 824, 834 (9th Cir.2008). A "custom" for purposes of municipal liability is a "widespread practice that, although not authorized by written law or express municipal policy, is so permanent
The Bane Act, is an anti-hate crime statute. See In re Joshua H., 13 Cal.App.4th 1734, 1748 n. 9, 17 Cal.Rptr.2d 291 (Cal.App.1993). The Bane Act "provides that a person may bring a cause of action `in his or her own name and on his or her own behalf against anyone who `interferes by threats, intimidation or coercion,' with the exercise or enjoyment of any constitutional or statutory right." Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal.App.4th 141, 144, 44 Cal.Rptr.2d 887 (Cal.App.1995) (quoting Cal. Civ.Code § 52.1). Plaintiffs' Second Cause of Action brought under the Bane Act alleges Defendants violated Decedent's rights under Article 1, Section 13, of the California Constitution to be free from unreasonable searches and seizures and the right to be free from the use of unreasonable and excessive force.
In Bay Area Rapid Transit, the parents of a 19-year-old African-American male shot and killed by a white police officer sought damages for civil rights violations under the Bane Act. See Bay Area Rapid Transit, 38 Cal.App.4th at 142, 44 Cal.Rptr.2d 887. The parents argued that the officer's conduct, which resulted in their son's death, also interfered with their constitutional right to parent. Id. at 144, 44 Cal.Rptr.2d 887. The California Court of Appeal held that while the Bane Act provides a personal cause of action for a victim of a hate crime, it "is not a wrongful death provision" and "does not provide derivative liability for the parents of a victim of a hate crime, or for any other
However, as pleaded, Plaintiffs' Bane Act claim is in the nature of a survival cause of action, rather than a wrongful death cause of action. Unlike wrongful death, a survival claim is not a new cause of action that vests in heirs on the death of the decedent, but rather is a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event; the survival statutes do not create a cause of action, but merely prevent abatement of a cause of the injured person and provide for its enforcement by or against the personal representative of the deceased. Grant v. McAuliffe, 41 Cal.2d 859, 864, 264 P.2d 944 (Cal.1953); Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1264-65, 45 Cal.Rptr.3d 222 (Cal.App.2006). In Dela Torre v. City of Salinas, the mother of a woman tasered, shot, and killed by police officers filed suit alleging, among other things, that the defendants had violated the decedent's rights under the Bane Act by interfering with her exercise or enjoyment of various rights secured by the United States and California Constitutions. See No. C-09-00626 RMW, 2010 WL 3743762, at *6 (N.D.Cal., Sep. 17, 2010). In Dela Torre, the court concluded that the decedent's Bane Act cause of action survived her death under California Code of Civil Procedure § 377.20, and therefore her mother, as successor in interest, had standing to assert a claim for violation of § 52.1 on the decedent's behalf. Id. at *7 (citing Moore ex rel. Moore v. County of Kern, Nos. 1:05-cv-1115-AWI-SMS, 1:06-cv-0120-OWW-SMS, 2007 WL 2802167, at *5-6 (E.D.Cal., Sep. 23, 2007)); cf. Arres v. City of Fresno, No. CVF 10-1628 LJO SMS, 2011 WL 284971, at *26 (E.D.Cal., Jan. 26, 2011) (dismissing Bane Act claim to the extent plaintiffs sought derivative relief for their own injuries caused by police shooting of decedent); but see Abston v. City of Merced, No. 09-CV-00511-OWW-GSA, 2009 WL 3398809, at *5-6 (E.D.Cal., Oct. 20, 2009) (finding that decedent's wife lacked standing to bring Bane Act claim on behalf of decedent's estate). While there appears to be some disagreement in this District as to the effect of the Bay Area Rapid Transit decision on a plaintiff's ability to bring a survival cause of action under the Bane Act on behalf of a decedent, the Court agrees with the reasoning set forth in Dela Torre. Accordingly, the County's motion to dismiss the Second Cause of Action is denied.
The County contends the Complaint fails to state a wrongful death cause of action because "[t]he required factual allegations must be such as to reveal the inapplicability of immunities, qualified
In California, the cause of action for wrongful death is "a pure creature of the statute" and "exists only so far and in favor of such person as the legislative power may declare." Justus v. Atchison, 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122 (1977); Rosales v. Battle, 113 Cal.App.4th 1178, 1182, 7 Cal.Rptr.3d 13 (Cal.App.2003); Chavez v. Carpenter, 91 Cal.App.4th 1433, 1438-40, 111 Cal.Rptr.2d 534 (Cal.App.2001); Fraizer v. Velkura, 91 Cal.App.4th 942, 945, 110 Cal.Rptr.2d 918 (Cal.App.2001). Standing to sue is governed by California Code of Civil Procedure § 377.60, and the categories of persons eligible to bring wrongful death actions are strictly construed. Cal.Code Civ. Pro. § 377.60; Steed v. Imperial Airlines, 12 Cal.3d 115, 119-20, 115 Cal.Rptr. 329, 524 P.2d 801 (Cal.1974); Bouley v. Long Beach Memorial Medical Center, 127 Cal.App.4th 601, 606, 25 Cal.Rptr.3d 813 (Cal.App.2005); Chavez, 91 Cal. App.4th at 1438, 111 Cal.Rptr.2d 534; Fraizer, 91 Cal.App.4th at 945, 110 Cal.Rptr.2d 918; Marks v. Lyerla, 1 Cal.App.4th 556, 559-60, 2 Cal.Rptr.2d 63 (Cal. App.1991). The legislative determination as to how far to extend a statutorily created right of action "is conclusive, unless it appears beyond rational doubt that an arbitrary discrimination between persons or classes similarly situated has been made without any reasonable cause therefor." Justus, 19 Cal.3d at 581, 139 Cal.Rptr. 97, 565 P.2d 122; Holguin v. Flores, 122 Cal.App.4th 428, 437-38, 18 Cal.Rptr.3d 749 (Cal.App.2004).
Section 377.60 establishes the wrongful death cause of action and delineates who may avail themselves of the action. In relevant part, it reads:
Cal.Code Civ. Pro. § 377.60.
Probate Code § 6402 sets the order of intestate succession under § 377.60. See Chavez, 91 Cal.App.4th at 1440, 111 Cal.Rptr.2d 534; Fraizer, 91 Cal.App.4th at 946, 110 Cal.Rptr.2d 918. When there is no surviving spouse or domestic partner, § 6402, in relevant part, provides the following succession:
Cal. Prob.Code § 6402(a)-(d). A plaintiff who brings a wrongful death suit as an heir must establish the absence of issue by the decedent and the entitlement or propriety of the heir to seek recovery under § 377.60. See Nelson v. County of Los Angeles, 113 Cal.App.4th 783, 789, 6 Cal.Rptr.3d 650 (Cal.App.2004); Coats v. K-Mart Corp., 215 Cal.App.3d 961, 969-70, 264 Cal.Rptr. 12 (Cal.App.1989); Jolley v. Clemens, 28 Cal.App.2d 55, 74-75, 82 P.2d 51 (Cal.App.1938).
Here, Plaintiffs are brothers of the decedent. A sibling is not the "surviving spouse, domestic partner, children, [or] issue of deceased children." Cal.Code Civ. P. § 377.60(a). For purposes of the California wrongful death statute, Plaintiffs would have to establish the absence of surviving issue and standing through the intestate succession statute. Under intestate succession, siblings may recover as heirs if there is no issue of the decedent, and no surviving parents of the decedent. Cal. Prob.Code § 6402(c). The Complaint alleges Plaintiffs are successors in interest to Decedent, but there are no specific allegations concerning the existence of any spouse, issue, or surviving parents of Decedent. Accordingly, the Court will grant the County's motion to dismiss the Third Cause of Action. Plaintiffs shall be granted leave to amend to add factual allegations establishing Plaintiffs' standing under California Code of Civil Procedure § 377.60(a).
Here, although the Court agrees that portions of the Complaint are inelegantly pleaded, the nature of the claims asserted by Plaintiffs are intelligible and unambiguous. The information sought by the County — specifically, which Doe officers employed by the County are referred to in the Complaint — is available through the discovery process. As discussed
Accordingly, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
Cal. Civ.Code § 43.
