MARGARET M. MORROW, District Judge.
Plaintiffs Rebecca and Jose Lopez filed this action on October 24, 2014, individually and as successors in interest to their son, Gabriel Lopez. They named as defendants the County of Los Angeles ("the County"), Los Angeles Sheriff's Department ("LASD"), City of San Fernando ("San Fernando"), and San Fernando Police Department ("SFPD").
On March 30, 2015, San Fernando and SFPD filed a motion to dismiss plaintiffs' claims,
On August 12, 2014, Gabriel Lopez was the victim of a fatal officer-involved shooting in San Fernando, California.
Plaintiffs assert that Lopez did not pose any reasonable threat of violence to the officers because he did not make any "aggressive movements," "furtive gestures," or "physical movements" from which a reasonable officer could have believed that he posed a risk of death or serious bodily injury to any individual.
On September 5 and October 14, 2014, plaintiffs assert that they filed claims for damages with the County as required by the Government Claims Act, California Government Code § 910, et seq.
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory," or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995).
The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555 (2007) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). Thus, a plaintiff's complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' . . . 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise the right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)" (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or 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," citing Iqbal and Twombly).
Defendants contend that all of plaintiffs' claims fail because they are not plausibly alleged under Rule 8, Twombly, and Iqbal. The court addresses each claim in turn.
California Government Code § 815, et seq., provides immunity to public entities in California. Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111, 1124 (9th Cir. 2013). Under the Act, a public entity is not "liable for its conduct or omission to the same extent as a private person or entity." Arres v. City of Fresno, No. CV F 10 1628 LJO SMS, 2011 WL 284971, *23 (E.D. Cal. Jan. 26, 2011) (citing Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1128 (2002)). Rather, it is liable "as provided by statute." Hoff v. Vacaville Unified School Dist., 19 Cal.4th 925, 932 (1998) (citing CAL. GOV'T. CODE § 815(a) (emphasis added)).
"[B]ecause under the [Government] Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable." Lopez v. So. Cal. Rapid Transit Dist., 40 Cal.3d 780, 795 (1985); Arres, 2011 WL 284971 at *23. Thus, "to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 819 (1960). Moreover, "the plaintiff must plead facts sufficient to show his cause of action lies outside the breadth of any applicable statutory immunity." Keyes v. Santa Clara Valley Water Dist., 128 Cal.App.3d 882, 885 (1982).
Plaintiffs' complaint does not allege the statutory provision pursuant to which the defendants, each of which is a government entity, can be sued for wrongful death. The theory of liability alleged in the complaint is somewhat unclear; while the complaint pleads that the defendant municipal entities directly caused Gabriel's death by shooting him, that is implausible.
Plaintiffs, however, have failed to allege any specific statutory basis for either direct or vicarious liability in their complaint. Because they have failed to do so, their wrongful death claim must be dismissed. See Lang v. County of Sonoma, No. C12 0983 TEH, 2012 WL 4674527, *5 (N.D. Cal. Oct. 2, 2012) ("But he has failed to properly plead either vicarious liability claims under Government Code section 815.2 or any statutory basis for direct municipal liability claims. Accordingly, the Court DISMISSES both the negligence and IIED claims against the municipal entities without prejudice to Plaintiff's proper re-pleading of such claims"); Arres, 2011 WL 284971 at *24 ("The complaint pleads no statutory basis to impose wrongful death-negligence liability on the City. Plaintiffs seek to impose liability on the City beyond that alleged or permitted by the Claims Act to further warrant dismissal of the wrongful death-negligence claim against the City"). This claim is therefore deficient and must be dismissed.
Even were the wrongful death claim not deficient because it fails to identify the statutory basis for liability under the Government Claims Act, it would have to be dismissed because it fails plausibly to plead a claim for wrongful death.
Consequently, plaintiffs have failed to state a wrongful death claim under Rule 8, Twombly, and Iqbal, and the claim must be dismissed for this reason as well. See Nastrom v. New Century Mortgage Corp., No. 11-CV-01998 DLB, 2012 WL 2090145, *3 (E.D. Cal. June 8, 2012) ("As Defendants indicate, Plaintiffs fail to clearly allege the most basic facts underlying their asserted claims and fail to distinguish between the alleged conduct of the multiple named defendants. . . . Plaintiffs have provided neither `fair notice' of the nature of the claim nor the `grounds' on which their claims rest"); Estillore v. Countrywide Bank FSB, No. CV F 10-1243 LJO GSA, 2011 WL 348832, *5 (E.D. Cal. Feb. 2, 2011) ("The complaint fails to satisfy F.R.Civ.P. 8. The complaint fails to distinguish alleged wrongdoing of the lender defendants and the complaint's other defendants First Mutual Mortgage, Inc. [ ]and Financial Title Co. . . . The complaint focuses on origination of Mr. Estillore's loans but fails to allege facts that ReconTrust or MERS were involved in loan origination. . . . The complaint lacks specific, clearly defined allegations to give fair notice of claims plainly and succinctly [and this] warrant[s] dismissal of this action"); Franco v. Fed. Nat. Mortgage Ass'n, No. CV 10-00735 DAE KSC, 2011 WL 1842970, *5 (D. Haw. May 13, 2011) ("Plaintiff's allegations do not distinguish between Defendants and do not detail what specific conduct resulted in the fraudulent misrepresentation sufficient to survive Iqbal-Twombly"); see also Cortes v. Arizona, No. CV 12-2204 PHX DGC, 2013 WL 173802, *1 (D. Ariz. Jan. 16, 2013) ("Plaintiff's complaint does not satisfy the pleading requirements set forth in Twombly and Iqbal. The entirety of the complaint is an incoherent and disjointed, very brief story about an event apparently involving the Phoenix Municipal Court . . ., but it is unclear from the factual narrative how Defendant is liable for any such claims").
Plaintiffs assert two claims under § 1983. First, they contend that defendants used excessive force in violation of Gabriel's Fourth Amendment right to be free from unreasonable searches and seizures. Second, they contend that the excessive force violated their Fourteenth Amendment right to be free, as parents, from interference with their familial relationship.
Section 1983 creates a cause of action against any person who, acting under color of state law, abridges rights established by the Constitution or laws of the United States.
Here, there is no question here that defendants are municipal actors.
Generally, a plaintiff can demonstrate municipal liability for a constitutional violation in one of three ways. First, he can show that a person or entity with decision-making authority within the municipality expressly enacted or authorized an unconstitutional policy or gave an unconstitutional order. See Monell, 436 U.S. at 694 (holding that municipal liability is properly imposed where a policymaker "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers"); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) ("[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question").
Second, a plaintiff can prove that his injury was the result of a municipal custom, i.e., a practice "so permanent and settled" as to constitute a "custom or usage" of the municipal defendant. See Monell, 436 U.S. at 691; see also Pembaur, 475 U.S. at 481-82 n. 10. If a plaintiff elects to employ this method of proving municipal liability, she need not show that the "custom has [ ] received formal approval through the body's official decisionmaking channels." Pembaur, 475 U.S. at 481-82 n. 2. Rather, "liability is attributed through a policymaker's actual or constructive knowledge of and acquiescence in the unconstitutional custom or practice." Doggett v. Perez, 348 F.Supp.2d 1179, 1187 (E.D. Wash. 2004); see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1989) ("[A] local government may be liable for its custom irrespective of whether official policymakers had actual knowledge of the practice at issue. The existence of custom as the basis for liability under § 1983 thus serves a critical role in insuring that local government entities are held responsible for widespread abuses or practices that cannot be affirmatively attributed to the decisions or ratification of an official policymaker but are so pervasive as to have the force of law"). Only "a longstanding practice or custom which constitutes the `standard operating procedure' of the local government entity" will support the imposition of municipal liability based on custom. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (citing Ulrich v. City and County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) ("Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy").
Finally, a local governmental body can be held liable if its failure to train employees or failure to provide a different kind of training causes a constitutional violation, and the failure amounts to deliberate indifference to the rights of individuals with whom those employees come into contact. See City of Canton v. Harris, 489 U.S. 378, 388-89 (1989) ("[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury"); Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1186 (9th Cir. 2002) ("[A] plaintiff can allege [a claim for municipal liability by pleading] that through its omissions the municipality is responsible for a constitutional violation committed by one of its employees"). A plaintiff employing either the second or third method of proving municipal liability
Defendants argue that plaintiffs' § 1983 claims must be dismissed because their allegations are "conclusory" and fail to state a plausible claim for relief.
Thus, to be viable, plaintiffs' claim must satisfy the plausibility standard articulated in Iqbal. 556 U.S. at 678 ("A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement,'" quoting Twombly, 550 U.S. at 555, 557); al-Kidd v. Ashcroft, 580 F.3d 949, 974 (9th Cir. 2009) (stating that Iqbal clarified that the pleading standard described in Twombly applies to civil rights cases); see also Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (applying Twombly to a Monell claim); Harvey v. City of Fresno, No. 1:08-CV-01399-OWW-DLB, 2009 WL 3157524, *6 (E.D. Cal. Sept. 28, 2009) (applying the standard outlined in Iqbal and Twombly to a municipal liability claim under § 1983).
After Iqbal, Monell allegations must identify the challenged policy, custom, or failure to train, explain why it is deficient, and state how it harmed plaintiff. Where a claim is based on a failure to train, the complaint must also plead facts showing that the municipality's conduct amounted to deliberate indifference. Young, 687 F.Supp.2d at 1153 (stating that to plead a viable Monell claim, plaintiff must allege "the challenged policy/custom, explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference, i.e. explain[ ] how the deficiency involved was obvious and the constitutional injury was likely to occur"); see also Harvey v. City of South Lake Tahoe, No. CIV S-10-1653 KJM EFB PS, 2011 WL 3501687, *3 (E.D. Cal. Aug. 9, 2011) (dismissing plaintiff's municipal liability claims because "[p]laintiff has not identified any [municipal] policy or custom in his first amended complaint, has not alleged that the . . . employees acted pursuant to a County policy or custom, and has not alleged that their conduct conformed to an official policy or custom. Additionally, because he has not identified any such policy or custom, he also has not explained how the policy or custom is deficient, has not explained how the policy or custom caused him harm, and has not explained how the policy or custom amounted to deliberate indifference" (citations omitted)); Shoval v. Sobzak, No. 09-CV-01348-H (JMA), 2009 WL 2780155, *2 (S.D. Cal. Aug. 31, 2009) (allegations that the San Diego Sheriff's Department authorized, sanctioned, and ratified an individual defendant's unconstitutional actions, that the County failed to train or supervise the individual defendant in a reckless or grossly negligent manner, and that it was Sheriff's Department custom to allow officers to "proceed without supervision and with explicit authorization to use unconstitutional means" did not state a municipal liability claim because plaintiff did "not allege any facts to support holding the County of San Diego liable under one of the theories that can show a policy or custom of a municipality. These bare bones allegations are little more than a formulaic recitation of the elements of a municipal civil rights claim and are insufficient to raise Plaintiff's right to relief above the speculative level").
Plaintiffs' complaint fails to plead a plausible Monell claim based on defendants' alleged policies and practices.
Because plaintiffs fail plausibly to allege that defendants are liable under Monell, their second and third cause of actions under § 1983 must be dismissed. See, e.g., White v. City of Vacaville, No. 2:12-cv-00515-GEB-GGH, 2012 WL 1455221, *6 (E.D. Cal. Apr. 26, 2012) ("Plaintiff's allegations `simply recite the elements of [a Monell claim and do not] contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Therefore, Plaintiff's Monell claim against the City is dismissed"); Warner, 2011 WL 662993 at *4 ("Here, Plaintiffs' Monell claim consists of formulaic recitations of the existence of unlawful policies, customs, or habits. Plaintiffs do not allege any specific facts giving rise to a plausible Monell claim. Therefore, Defendants' motion to dismiss is granted as to Plaintiffs' second cause of action"); Williams v. City of Cleveland, No. 1:09 CV 1310, 2009 WL 2151778, *4 (N.D. Ohio July 16, 2009) ("To merely state that the City has a policy or custom is not enough; Plaintiff must allege facts, which if true, demonstrate the City's policy, such as examples of past situations where law enforcement officials have been instructed to [commit constitutional violations]").
The Bane Act is an anti-hate crime statute. See In re Joshua H., 13 Cal.App.4th 1734, 1748 n. 9 (1993). It "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 (1995) (quoting CAL. CIV. CODE § 52.1). Plaintiffs' Bane Act claim alleges that defendants violated not only Gabriel's rights, but their rights under Article 1, Section 13, of the California Constitution, to be free from unreasonable searches and seizures and from the use of unreasonable and excessive force.
Defendants rely on Bay Area Rapid Transit Dist. v. Superior Court, 38 Cal.App.4th 141 (1995) ("BART" ). In BART, plaintiffs alleged that an officer's conduct, which resulted in their son's death, interfered with their constitutional right to parent and thus violated § 52.1. Id. at 144. Based on the statutory language of § 52.1, which allows the individual with whose rights the defendant purportedly interfered to bring an action "in his or her own name and on his or her own behalf," the court concluded that "[t]he Bane Act is simply not a wrongful death provision. It clearly provides for a personal cause of action for the victim of a hate crime." Id. Reading § 52.1 in conjunction with § 51.7, which states that individuals have the right to be free from violence or threats of violence due to various personal characteristics, such as race or religion, the court held that § 52.1 claims can only be asserted by plaintiffs who themselves have been subjected to interference with constitutional rights, violence or threats. Id. Because it found that the Bane Act did not provide a cause of action for persons who were not present and did not witness the violence, threats, or interference, and because plaintiffs' claim was a wrongful death claim based on violation of their own constitutional rights, the court sustained defendant's demurrer. Id. at 144-45.
Cases interpreting BART have held that the decision does not prevent parents from bringing a survival action on behalf of a deceased child whose constitutional rights were violated. This is because "[u]nlike a wrongful death cause of action, a survival cause of action 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 the event." Moore ex rel. Moore v. County of Kern, No. 05-CV-1115-AWI-SMS, 2007 WL 2802167, *6 (E.D. Cal. Sept. 23, 2007). Thus, where plaintiffs allege claims as successors in interest, i.e., where the claim "is based on the violation of [the decedent's] constitutional rights," BART does not preclude relief. See Dela Torre v. City of Salinas, No. C 09 00626 RMW, 2010 WL 3743762, *7 (N.D. Cal. Sept. 17, 2010); see also Estate of Crawley v. Kings Cnty., No. 13-CV-02042-LJO, 2014 WL 2174848, *11 (E.D. Cal. May 23, 2014) ("Accordingly, the holding in Bay Area Rapid Transit Dist. appears to be limited to whether a parent may state their own personal claim under the Bane Act on the theory that the death of their child interfered with the parents' constitutional right to parent"); Medrano v. Kern Cnty. Sheriff's Officer, 921 F.Supp.2d 1009, 1016 (E.D. Cal. 2013) ("[T]he Court agrees with the reasoning set forth in Dela Torre"); Cooke, 2013 WL 1196990 at *8 ("Although Plaintiffs have alleged sufficient facts to state [a] claim under the Bane Act as to certain Defendants, Plaintiffs have not alleged sufficient facts to establish their standing to do so. As noted, Plaintiffs have not shown that they have survival standing, which is a prerequisite to proceeding on their Bane Act claim").
Thus, to the extent plaintiffs allege this claim as the survivors of Gabriel, the claim is cognizable and cannot be dismissed for lack of standing. Plaintiffs also allege, however, that defendants interfered with their rights.
Moreover, to the extent plaintiffs assert the claim as a survival cause of action, it is deficient and must be dismissed. This is because plaintiffs allege that "defendants fatally assaulted, battered, shot and killed Gabriel."
In order for a statute to impose a mandatory duty under § 815.6, however, "it must require, rather than merely authorize or permit, that a particular action be taken or not taken." Haggis v. City of Los Angeles, 22 Cal.4th 490, 498 (2000). "Based on [its] plain language, it is clear that section[ ] 52.1 do[es] not require that a particular action be taken or not taken." See Gonzalez v. County of Los Angeles, No. CV 08-02177 DDP (RZx), 2008 WL 2951272, *3 (C.D. Cal. July 28, 2008); Valdez v. City of San Jose, No. 4:09 CV 0176 KAW, 2013 WL 6108052, *14 (N.D. Cal. Nov. 18, 2013) ("Section 52.1 merely authorizes actions for equitable and declaratory relief for interference or attempted interference by `a person or persons' with an individual's constitutional rights. . . . [T]h[is] provision[ ] do[es] not give rise to [a]mandatory duty"); see also Mayfield v. City of Oakland, No. CV 07-0583EMC, 2007 WL 2261555, *8 (N.D. Cal. Aug. 6, 2007) (implying that § 52.1 does not impose a mandatory duty, but finding that municipal actors could be held vicariously liable).
The Bane Act merely provides a right of action for the victim of a hate crime; it imposes no particular obligation. It also "does not include any implementing guidelines or rules, which is required to establish a mandatory duty claim." See Aguilar v. Corral, No. CV 07-1601 LKK/KJM, 2007 WL 2947557, *4 (E.D. Cal. Oct. 9, 2007) (citing O'Toole v. Superior Court, 140 Cal.App.4th 488, 510 (2006) (holding that a statute gives rise to a mandatory duty only if the statute affirmatively requires that a particular action be taken and provides implementing guidelines or rules)).
For this reason, because plaintiffs allege a direct liability Bane Act claim against defendants, the claim is deficient and must be dismissed. As noted in Mayfield, municipal actors such as defendants can be held vicariously liable under the Bane Act. See CAL. GOV'T CODE § 815.2(a) ("A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative"); Mayfield, 2007 WL 2261555 at *8. Because the complaint alleges that defendants themselves violated plaintiffs' and Gabriel's rights, they cannot invoke § 815.2(a). To the extent they seek to do so, in any amended complaint, plaintiffs should identify the underlying conduct by the unnamed police officers that violated Gabriel's rights, and plead why defendants should be held vicariously liable for that conduct, e.g., under § 815.2(a).
To state an intentional interference with emotional distress ("IIED") claim under California law, a plaintiff must plead "(1) that the defendant's conduct was outrageous, (2) that the defendant intended to cause or recklessly disregarded the probability of causing emotional distress, and (3) that the plaintiff's severe emotional suffering was (4) actually and proximately caused by defendant's conduct." Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). Defendants argue this claim must be dismissed because plaintiffs fail to identify any statute authorizing them to assert the claim, and because they fail adequately to allege the second and third elements of an IIED claim.
The court's earlier conclusion that plaintiffs had failed to allege any statutory basis for imposing wrongful death liability on defendants is equally applicable with respect to the IIED claim. Plaintiffs cite no statutory authority authorizing them to plead such a claim against defendants. The cause of action is therefore deficient, and must be dismissed. See Hoff, 19 Cal.4th at 932 ("A public entity is not liable for injury arising from an act or omission except as provided by statute"). In any amended complaint, plaintiffs must identify the statutory provision authorizing them to bring this claim.
Furthermore, plaintiffs fail to allege facts pleading the elements of an IIED claim. First, they assert in conclusory fashion that defendants intended to cause them emotional distress. This is not sufficient under Iqbal and Twombly. See Helmer v. Bank of Am., N.A., No. 12-CV-00733 TLN, 2013 WL 4546285, *7 (E.D. Cal. Aug. 27, 2013) ("Thus, Plaintiff's conclusory averments of intent without supporting factual allegations are insufficient to support his claim for IIED under the standard set forth by Federal Rule of Civil Procedure 12(b)(6)"); Settlemyers v. Play LV Gaming Operations, No. 09 CV 02253 RCJ GW, 2011 WL 1042569, *5 (D. Nev. Mar. 18, 2011) ("The allegation of intent to cause injury [in plaintiff's IIED claim] is conclusory"); Brown v. Allstate Ins. Co., 17 F.Supp.2d 1134, 1139 (S.D. Cal. 1998) ("Plaintiff's conclusory allegations of outrageous conduct, intent, and severe emotional suffering are so inadequate so as to justify dismissal without prejudice").
Plaintiffs also fail to allege severe emotional distress. "Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it." Hughes v. Pair, 46 Cal.4th 1035, 1051 (2009) (holding that "discomfort, worry, anxiety, upset stomach, concern, and agitation" did not rise to this level). Plaintiffs allege no facts that satisfy this demanding standard; they simply assert, again in conclusory fashion, that they have and will continue to suffer emotional distress as a result of defendants' conduct. This is insufficient to plead severe emotional distress. See Landucci v. State Farm Ins. Co., ___ F.Supp.3d ___, 2014 WL 3962845, *9 (N.D. Cal. Aug. 14, 2014) ("Here, Plaintiff fails to allege any form of emotional distress beyond [a] conclusory allegation . . . . Accordingly, Plaintiff has failed to plead sufficient facts to satisfy the `severe or extreme emotional distress' prong"); Schultz v. Stericylce, Inc., No. CV F 13-1244 LJO MJS, 2013 WL 4776517, *8 (E.D. Cal. Sept. 4, 2013) (finding that allegations of "pain and suffering, extreme and severe mental anguish, and emotional distress with no fact[s] to support such symptoms or conditions" failed to meet "severe emotional distress" prong); Ratachie v. AmeriCredit Fin. Servs., Inc., No. CV 11-01351 PHX PGR, 2012 WL 4951218, *3 (D. Ariz. Oct. 17, 2012) ("While the IIED claim in the SAC alleges that the plaintiff `suffered severe and debilitating emotional distress, humiliation, and degradation' as a result of the defendant's actions, there are no supporting factual enhancements regarding emotional distress that are sufficient to nudge the plaintiff's claim `across the line from conceivable to plausible' as is required").
Finally, plaintiffs fail to allege facts suggesting that defendants' conduct was directed towards them, as opposed to Gabriel. "The law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant." Christensen v. Superior Court, 54 Cal.3d 868, 905 (1991) (citing Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 1489 (1986)). "The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff." Id. "Where reckless disregard of the plaintiff's interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory." Id. (citing RESTATEMENT (SECOND) OF TORTS § 868, cmt. g (1979)). Stated differently, plaintiffs "must allege that the conduct complained of was directed at them, or occurred in their presence." Jacobsen v. Marin Gen. Hosp., 192 F.3d 881, 887 (9th Cir. 1999). Plaintiffs make no such allegations in their complaint. The IIED claim is therefore deficient, and must be dismissed.
For the reasons stated, the court grants defendants' motions to dismiss plaintiffs' complaint with leave to amend.
Plaintiffs may not plead additional claims or add allegations that are not intended to cure the specific defects the court has noted. Should any amended complaint exceed the scope of leave to amend granted by this order, the court will strike the offending portions under Rule 12(f). See FED.R.CIV.PROC. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading."); see also Barker v. Avila, No. 2:09-cv-00001-GEB-JFM, 2010 WL 3171067, *1-2 (E.D. Cal. Aug. 11, 2010) (striking an amendment to federal law claim where the court had granted leave to amend only state law claims).
Section 377.60 states, in relevant part:
In the absence of surviving issue, a parent may have standing to bring a wrongful death cause of action due to the laws of intestate succession. Id., § 377.60(a); see CAL. PROB. CODE § 6402(b) (establishing that a decedent's parents become heirs where there is no surviving issue); Cooke, 2013 WL 1196990 at *6 ("Section 377.60(a) affords standing to those persons entitled to the decedent's property through intestate succession, but only if there is no surviving issue of the decedent"); Kelly v. Qualitest Pharm., Inc., No. F06-116 AWI-LJO, 2006 WL 2536627, *4 (E.D. Cal. Aug. 31, 2006) ("For purposes of intestate succession, parents may recover as heirs if there is no issue of the decedent" (internal quotation marks omitted)); Chavez v. Carpenter, 91 Cal.App.4th 1433, 1440 (2001) ("[W]here a decedent leaves issue, his parents would not be his heirs at all . . . and therefore not entitled to maintain this [wrongful death] action at all" (internal quotation marks omitted)). Thus, to plead a wrongful death cause of action adequately, a parent suing 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." Medrano v. Kern Cnty. Sheriff's Officer, 921 F.Supp.2d 1009, 1018 (E.D. Cal. 2013).
Plaintiffs allege that Gabriel died without issue; they also allege that he was unmarried and that they are his parents and only successors. This suffices to plead standing under § 377.60, and defendants do not contend otherwise.
"California law requires a plaintiff who commences a survival action . . . as a decedent's `successor in interest' to `execute and file an affidavit or declaration under penalty of perjury, stating: (1) the decedent's name; (2) the date and place of decedent's death; (3) that no proceedings are pending in California for the administration of the decedent's estate; (4) either that the declarant is the decedent's successor in interest or is authorized to act on behalf of the decedent's successor in interest; and (5) that no other person has a superior right to commence the action or proceeding for the decedent.'" Soliz v. City of Bakersfield, No. 1:12 CV 00841 LJO, 2012 WL 3645358, *4 (E.D. Cal. Aug. 21, 2012) (citing Dillard v. Curtis, No. CV 04-1449 PJH, 2004 WL 2496130, *7 (N.D. Cal. Nov. 3, 2004) (in turn citing CAL. CODE CIV. PROC. § 377.32(a), (b))). Although plaintiffs did not attach the requisite affidavit to their complaint, they appended one to their opposition. Plaintiffs' affidavit satisfies the requirements of § 377.32. California law requires only that plaintiffs file an affidavit, not that it be a part of the complaint. The County and LASD withdrew their motion to dismiss on this basis in their reply.
