Lavenant v. City of Palm Springs

• Decision Date: 08 August 2018
• Docket Number: Case No. EDCV 17-2267-KK
• Court: U.S. District Court — Central District of California
• Parties: ANA LAVENANT, et al., Plaintiff(s), v. CITY OF PALM SPRINGS, et al., Defendant(s).

ANA LAVENANT, et al., Plaintiff(s), v. CITY OF PALM SPRINGS, et al., Defendant(s).

Case No. EDCV 17-2267-KK

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

August 8, 2018

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND

I.INTRODUCTION

Plaintiffs Ana Lavenant and Jose Ortiz ("Plaintiffs"), individually and as successors-in-interest of their son Abraham Ortiz, filed a First Amended Complaint ("FAC") pursuant to 42 U.S.C. § 1983 ("Section 1983") and California law against defendants City of Palm Springs ("Defendant Palm Springs"), Officers David Etchason and Michael Heron ("Defendant Officers"), and unnamed Does (collectively, "Defendants"). Defendants filed a Motion to Dismiss ("Motion"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Defendants' Motion is GRANTED IN PART and DENIED IN PART with leave to amend.

II.PROCEDURAL HISTORY

On November 6, 2017, Plaintiffs filed a Complaint pursuant to Section 1983. Dkt. 1. Plaintiffs' claims arise out of an officer-involved shooting on November 4, 2016, resulting in the death of 26-year-old Abraham Ortiz. Id.

On May 8, 2018, Plaintiffs on their own accord filed the operative First Amended Complaint. Dkt. 30, FAC. The FAC sues Defendant Palm Springs pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) and Defendant Officers in both their individual and official capacities for the following:

1. First Cause of Action: Defendants violated civil rights by unreasonably using deadly force, which Plaintiffs bring in their capacity as successors-in-interest to Abraham Ortiz;

2. Second Cause of Action: Defendants violated civil rights by interfering with Plaintiffs' parent-child relationship, which Plaintiffs bring in their individual capacities;

3. Third Cause of Action: Defendant Palm Springs discriminated on the basis of disability in violation of the Americans with Disabilities Act ("ADA"), which Plaintiffs bring in their capacity as successors-in-interest to Abraham Ortiz;

4. Fourth Cause of Action: Defendants committed a wrongful death, which Plaintiffs bring in their individual capacities;

5. Fifth Cause of Action: Defendants violated California's Bane Act, which Plaintiffs bring in their capacity as successors-in-interest to Abraham Ortiz;

6. Sixth Cause of Action: Defendants Etchason and Palm Springs committed battery, which Plaintiffs bring in their capacity as successors-in-interest to Abraham Ortiz; and7. Seventh Cause of Action: Defendants were negligent, which Plaintiffs bring in their capacity as successors-in-interest to Abraham Ortiz.

FAC at 7-15.

On June 8, 2018, Defendants filed the instant Motion to Dismiss the FAC arguing:

1. Plaintiffs' First and Second Causes of Action against Defendant Palm Springs for "'municipal liability' fail to state a claim upon which relief can be granted, as they contain only legal conclusions and are devoid of sufficient facts";

2. Plaintiffs' Third Cause of Action against Defendant Palm Springs for violation of the ADA "fails to state a claim upon which relief can be granted, as it contains only legal conclusions and is devoid of sufficient facts";

3. Plaintiffs' Fourth, Sixth, and Seventh Causes of Action for violations of California law "fail to state claims upon which relief can be granted against Officers Etchason and Heron, as Plaintiffs fail to plead a statutory basis authorizing suit against the public employees";

4. Plaintiffs' Seventh Cause of Action "fails to state a claim upon which relief can be granted on behalf of Plaintiffs as individuals, as Plaintiffs have failed to sufficiently plead any 'duty' owed to them by any defendant";

5. Plaintiffs' Seventh Cause of Action "fails to state a claim upon which relief can be granted as against City of Palm Springs, as there is no state statute that sets forth a duty of care with respect to hiring, training, retention, supervision, or discipline of police officers";

6. Under Federal Rule of Civil Procedure 12(f) ("Rule 12(f)"), Plaintiffs' allegations they are suing Defendant Officers in their official capacity"must be stricken as redundant, immaterial, and impertinent given Plaintiffs' concurrent attempts to sue the City of Palm Springs";

7. Under Rule 12(f), Plaintiffs' references to the Fourteenth Amendment in their First Cause of Action "must be stricken as immaterial and impertinent given their claim for 'excessive force' as successors-in-interest to Abraham Ortiz is grounded in the Fourth Amendment, and the Fourteenth Amendment's substantive due process provisions do not apply"; and

8. Under Rule 12(f), Plaintiffs' allegations in their Fourth Cause of Action for wrongful death "that the City of Palm Springs is 'directly liable because of its failure to properly train and supervise the Defendant Officers . . .' (FAC ¶ 49) must be stricken as immaterial and impertinent given California law does not support a direct liability" theory against a municipality for "'failure to train and supervise' police officers."

MTD at 1-3. On June 29, 2018, Plaintiffs filed an Opposition. Dkt. 23. On July 12, 2018, Defendants filed a Reply. Dkt. 33. The matter thus stands submitted.

III.ALLEGATIONS IN THE FAC

According to the FAC, on November 4, 2016, at approximately 1:00 p.m., Defendant Officers and a Community Service Officer responding to 911 calls arrived in the parking lot of a Rite Aid in Palm Springs. FAC ¶ 4. "Callers reported that a man, later identified as Mr. [Abraham] Ortiz, was behaving erratically." Id. Defendant Officers "should have known" Abraham Ortiz was suffering from a "mental disability and/or was having a mental health crisis" because of the "911 reports that he was behaving erratically and strangely and from their interactions with and observations of him." Id. ¶ 17.

Initially, Abraham Ortiz "complied with officers' commands" and indicated he "had a screwdriver on his person as he was a mechanic." FAC ¶ 18. After a patdown search, the officers retrieved the screwdriver and confirmed that Abraham Ortiz was not otherwise armed. Id. He then complied with further commands and sat down on the curb. Id.

"At this point, the officers unnecessarily escalated a situation involving a clearly mentally disabled suspect." FAC ¶ 19. "Defendant Officers acted unreasonably and contrary to proper training on dealing with mentally disturbed persons - insisting that Mr. Ortiz remove his jacket (which they had already searched) and then attempting to handcuff him - thereby escalating the situation so that a physical struggle with Mr. Ortiz ensued." Id. "Officer Etchason alleged Mr. Ortiz grabbed Officer Etchason's leg and pulled on his double retention holster." Id. ¶ 20. Abraham Ortiz "would not have been able to access the weapon from pulling down on the holster alone; rather, a double retention holster additionally requires the release of a hood, back strap, or other lever to safely release the gun from the holster." Id. "Contrary to proper training," Officer Etchason then unholstered his weapon and, "without warning," proceeded to shoot Abraham Ortiz in the stomach, "even though Etchason had control of his weapon." Id. "Mr. Ortiz did not pose an immediate threat of death or serious injury to anyone at the time of the shooting." Id. During the incident, "Officer Heron acted unreasonably in his encounter and arrest of Mr. Ortiz and failed to take steps to prevent the unnecessary use of deadly force by his fellow officer." Id. ¶ 21.

Though Abraham Ortiz was "initially alive and breathing after he was shot, he eventually died as a result of the gun shots." FAC ¶ 22.

Plaintiffs claim "[b]ased upon the principles set forth in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), Defendant City of Palm Springs is liable for all injuries sustained by Plaintiffs". FAC ¶ 23. Plaintiffs add Defendant Palm Springs "bears liability because its policies, practices and/or custom[s] were a cause of Mr. Ortiz's death and Plaintiffs' injuries." Id.

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IV.STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim "where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In considering whether a complaint states a claim, a court must accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, the court need not 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, 1055 (9th Cir. 2008). Although a complaint need not include detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint "must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).

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V.DISCUSSION

A. PLAINTIFFS SUFFICIENTLY ALLEGE CLAIMS UNDER MONELL AGAINST DEFENDANTS IN THE FIRST AND SECOND CAUSES OF ACTION

1. Applicable Law

An "official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."...