Bhandari v. Nat'l City
| Decision Date | 02 May 2022 |
| Docket Number | 3:21-cv-01652-BTM-MDD |
| Parties | SOPHIA BHANDARI, individually and as Successor in Interest to TONY GARZA WILSON, Deceased, and SIERRA WILSON and TONY PHILIP WILSON, individually, Plaintiffs, v. NATIONAL CITY, a municipal corporation, NATIONAL CITY POLICE DEPARTMENT, CHIEF JOSE TELLEZ, OFFICERS JONATHAN TAYLOR and EVAN DAVIS; and CORPORAL CHARLES STEVENS, and DOES 1-50, inclusive, Defendants. |
| Court | U.S. District Court — Southern District of California |
Pending before the Court is Defendants' motion to dismiss the complaint for failure to state a claim. (ECF No. 7 (“Mot.”).)[1] For the reasons discussed below the Court GRANTS in part and DENIES in part the motion.
Plaintiffs Sophia Bhandari, Sierra Wilson, and Tony Philip Wilson are the children of the decedent in this action, Tony Garza Wilson (“Wilson”). The complaint makes the following allegations. Shortly after midnight on Sunday September 29, 2019, National City Police Department (“NCPD”) dispatched officers in response to multiple calls concerning Wilson, who was “breaking and throwing things, ” and “clearly having some form of emotional disturbance or psychotic break.” (Id. at 3 (¶ 4).)
Officers Taylor and Davis arrived first. Plaintiffs allege that the officers could see that Wilson was an older gentleman and below average in size, specifically, 5 feet, 6 inches and 150 pounds. (Id. at 4 (¶ 15).) Wilson was 61 years old. (Id.) Both officers had their firearms drawn and Wilson put his hands in the air, indicating surrender. (Id. (¶ 16).) Officers Taylor and Davis then screamed at Wilson to “get down” to which Wilson “immediately dropped to the cement porch on his hands and knees.” (Id. (¶ 17).) Despite complying with the officers' demands to the best of Wilson's abilities given the size of the porch (about “4 feet wide”), and the lack of time to process the commands, Officer Taylor grabbed Wilson by the back of the head or neck and “violently smashed his face into the concrete.” (Id. (¶ 18).) The complaint further alleges that Officer Taylor repeatedly shocked Wilson with a Taser in drive-stun mode and that there was no legitimate purpose to the shocks. (Id. (¶ 19).)
Corporal Stevens arrived and joined Officers Taylor and Davis in pinning Wilson to the porch and holding him down so Wilson could not breath. (Id. at 5 (¶ 20).) Wilson “flailed his legs in response to being suffocated ” but the officers numbers at the top of documents. ordered him to stop kicking. (Id.) Officer Taylor continued to use the drive-stun on Wilson “for no purpose other than the wanton infliction of excruciating pain.” (Id.) Wilson went into cardiac arrest from the combined effects of the trauma and compression asphyxia. (Id.)
The complaint alleges that the officers did not timely administer aid and Wilson was taken to Scripps Hospital, “where he was diagnosed with anoxic encephalopathy, a brain injury due to the oxygen deprivation caused by the cardiac arrest and lack of timely CPR.” (Id. (¶¶ 21; 23).) After placing Wilson on life support for more than two weeks, the family, following medical advice, removed the life support. Wilson died on October 15, 2019. (Id. (¶ 23).)
Plaintiff Bhandari brings Wilson's cause of action as his successor-in-interest. According to Plaintiffs, the use of force against Wilson was “excessive and objectively unreasonable under the circumstances, especially because [Wilson] was unarmed and never posed a threat.” (Id. (¶ 22).) Plaintiffs also bring a substantive due process claim, as well as municipal and supervisory liability claims under 42 U.S.C. § 1983 against National City (“City”), NCPD, and Chief Jose Tellez (“Tellez”) for maintaining an unconstitutional policy or custom and failure to adequately train employees.
Defendants now move to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot.)
Under Federal Rule of Civil Procedure 8, each pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief” and “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.12(b)(6).
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990).
A complaint may survive a motion to dismiss only if it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint and draws all reasonable inferences in favor of the plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).
Where a motion to dismiss is granted, “[l]eave to amend should be granted unless the pleading ‘could not possibly be cured by the allegation of other facts.'” Velez v. Cloghan Concepts LLC, 387 F.Supp.3d 1072, 1078 (S.D. Cal. 2019) (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)).
Defendants claim that Plaintiffs have failed to establish standing to bring a survival action because the required declaration of the successor in interest was filed after the complaint. They also claim the untimely declaration is deficient because it does not contain all the required statutory language and Plaintiffs provided no signature by the siblings attesting to their agreement that Plaintiff Bhandari be the successor in interest.
In § 1983 actions, a decedent's survivors may bring a claim for the violation of their or the decedent's substantive constitutional rights. Ruiz v. City of San Diego, 2020 U.S. Dist. LEXIS 227467, *4 (S.D. Cal. 2020). The party seeking to bring the survival action bears the burden of demonstrating that state law authorizes a survival action, and that the plaintiff meets the requirements to bring the survival action. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).
California law provides that a survival action “may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.” Cal. Civ. Code § 377.30. The person seeking to commence an action as the decedent's successor in interest is required to “execute and file an affidavit or declaration” stating, inter alia, (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. Cal. Civ. Code § 377.32(a). Additionally, the plaintiff must attach a certified copy of the decedent's death certificate to the affidavit or declaration. Cal. Civ. Code § 377.32(c).
As a preliminary matter, there is no statutory command that the declaration be filed with the complaint. See Parsons v. Tickner, 31 Cal.App.4th 1513, 152324 (1995) (“[Section § 377.32] does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.”). After filing the complaint, Plaintiffs provided a declaration with an attached death certificate noting the time and place of death as mandated. (ECF No. 6.) This was permissible.
Defendants further argue that, while Plaintiff Bhandari's declaration acknowledges that all siblings have equal right to commence the action, she qualifies the statement by attesting the siblings agreed Bhandari should be the successor in interest in this action. Section 377.30's express language provides for “the decedent's successor in interest” as a singular individual. Cal. Civ. Code § 377.30. Other provisions of the survival statute “indicate that a single successor in interest may properly commence an action, even if other ‘beneficiaries' exist.” Estate of Elkins v. Pelayo, 2020 U.S. Dist. LEXIS 89857, *16-17 (E.D. Cal. 2020). In that light, Plaintiff Bhandari may proceed as the sole successor in interest despite having siblings. There is also no requirement that the siblings must affirm their agreement via signatures. Instead, § 377.33 “authorizes courts ‘to issue orders to ensure that awards of survival damages are properly administered by successors in interest” because “there may be beneficiaries who are not acting as successors and who may be prejudiced by the single party who is acting as the successor in interest.” Id. at *18. See also Cal. Law Revision Com., West's Ann. Cal. Code Civ. Proc. § 377.33. Accordingly, Plaintiffs have proceeded properly under the statute.
Defendants seek dismissal of Plaintiffs' first and second claims of excessive force on the assertion of qualified immunity.[2]
"Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'"...
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