Estate of Ronnie Kong v. City of San Diego
| Docket Number | 22-cv-1858-BAS-DDL |
| Decision Date | 02 August 2023 |
| Parties | ESTATE OF RONNIE KONG, by and through successor in interest, Touch Kong; TOUCH KONG, an individual, Plaintiff, v. CITY OF SAN DIEGO; SAN DIEGO POLICE DEPARTMENT; ANDREW CAMPBELL; CHRISTOPHER LUTH; AND TONY MARASCHIELLO, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER: (1) GRANTING DEFENDANTS' PARTIAL MOTION TO DISMISS (ECF NO. 7); AND (2) GRANTING PLAINTIFF LEAVE TO AMEND
This action arises from a May 2020 police shooting in which Plaintiff Touch Kong's son, Ronnie Kong, was fatally shot by a team of SWAT officers responding to a 911 call. Plaintiff filed the present action against the City of San Diego (“City”) and the San Diego Police Department (“SDPD” and, together with the City “Municipal Defendants”), as well as the individual SDPD officers who responded to the scene (“Individual Defendants”).[1]Her Complaint alleges several constitutional violations under 42 U.S.C § 1983 (“Section 1983”) and § 1985(3). Plaintiff also asserts claims under California law for common law assault and battery and deprivation of civil rights, which she brings as survival actions. Finally, Plaintiff presses a wrongful death action claim under state law. (See generally Compl., ECF No. 1.)
Now before the Court is Defendants' partial motion to dismiss. (Mot. to Dismiss (“Mot.”), ECF No. 7.) Municipal Defendants argue that the Section 1983 claims pressed against them warrant dismissal under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) because Plaintiff's allegations do not meet the requirements of Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). (Mot. at 9:27-12:24.) Collectively, Defendants also argue that Plaintiff is precluded from bringing state law claims for assault, battery, and deprivation of civil rights because she is not a “real party in interest” to those claims under Cal. Civ. Proc. Code § 367-an argument they style as a “standing” challenge. (Mot. at 15:9-23.) And, finally, Defendants aver that all Plaintiff's state law claims-including her wrongful death claim-fail under Rule 12(b)(6) for her noncompliance with the claim-presentment requirement of the California Tort Claims Act (“CTCA”), Cal. Gov't Code § 945.4 et seq. (Id. at 12:25-15:8.) Plaintiff opposes (Opp'n, ECF No. 8), and Defendants reply (Reply, ECF No. 9).
The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Fed.R.Civ.P. 78(b); Civ. L. R. 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendants' Motion and DISMISSES WITHOUT PREJUDICE the action.
On around May 29, 2020, at approximately 5:00 p.m., a resident on the 3800 block of Euclid Avenue in San Diego, California, called 911. (Compl. ¶ 21.) The caller reported a firearm incident with a possible murder in the vicinity. (Id.) The caller identified Plaintiff's son, Ronnie Kong, as the suspect. (Id.) Police and SWAT officers from SDPD responded to the scene. (Id. ¶ 22.) When they arrived, SDPD officers, including the Individual Defendants, surrounded the apartment where Ronnie Kong was living. (Id.) They called for Ronnie Kong to emerge from the building, which he did. (Id. ¶ 23.) When Ronnie Kong exited his apartment, he allegedly walked a few steps down the stairs and then was shot multiple times by the Individual Defendants. (Id.) He was critically injured and died on the scene. (Id.)
Plaintiff commenced the instant lawsuit in November 2022. (See generally Compl.) At the time she filed her Complaint, she proceeded pro se. However, she obtained counsel just before executing service and prior to Defendants' filing of the pending Motion. (See Not. of Appearance, ECF No. 4.)
The Complaint contains seven separate claims in relation to the death of her son. The first three are federal civil rights claims under Section 1983. The next three are various California common law and statutory claims. The last claim is an alleged violation of 42 U.S.C. § 1985(3). The claims are listed in more fulsome detail below:
Plaintiff seeks monetary damages, including compensatory damages, statutory damages, and punitive damages under Section 1983. (Id., Prayer for Relief ¶¶ A-C.)
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the allegations made in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). Dismissal under Rule 12(b)(6) can be based upon either the lack of a cognizable legal theory or the absence of sufficient facts alleged under an otherwise cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534-35 (9th Cir. 1984). When evaluating the propriety of a defendant's motion to dismiss, a court may not look beyond the complaint's four corners. Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). The court must accept the allegations in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
To survive a motion to dismiss for insufficient factual allegations, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). A claim has facial plausibility when it is supported by factual content that enables the court to reasonably infer that the defendant is responsible for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). A plausible claim is supported by “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Courts have an obligation to construe pro se complaints liberally when evaluating them under Twombly and Iqbal for facial plausibility.[3]See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). But while pro se pleadings “must be held to a less stringent standard than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), a plaintiff's pro se status does not excise her from the requirement that she state a plausible claim to defeat a Rule 12(b)(6) challenge, see Hebbe, 627 F.3d at 341-42. Accord Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (). Indeed, the Court cannot assume that Defendants “have violated the . . . law[] in ways that have not been alleged” simply because Plaintiff was pro se at the time she filed her Complaint. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Defendants move to dismiss four of Plaintiff's seven claims on several bases. First, Municipal Defendants argue that Plaintiff's Section 1983 claims against them (Count 2 and, in part, Count 3) warrant dismissal under Rule 12(b)(6) because her allegations of municipal liability are conclusory and recitations of the requisite elements under Monell.[4](Mot. at 9:27-12:24.) Second, Defendants aver that Counts 4 and 6 must be dismissed because the Plaintiff is not a “real party in interest” to those claims under Cal. Civ. Proc. Code § 367. (Id. at 15:9-23.) Finally, Defendants aver that Plaintiff fails to plead a requisite element of all her state law claims: that she complied with the CTCA's claimpresentment requirement. (Id. at 12:25-15:8.) In fact, Defendants contend all the state law claims (Counts 4 through 6) must be dismissed with prejudice as time-barred because even if Plaintiff were to now present her claims, such presentment would be far too delinquent to be permissible under the CTCA. The Court addresses each of these arguments, in turn, below.
Section 1983 “creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks omitted). “To establish [Section] 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of...
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