LUCAS v. CITY of VISALIA, 1:09-CV-1015 AWI DLB.

• Decision Date: 21 July 2010
• Docket Number: No. 1:09-CV-1015 AWI DLB.,1:09-CV-1015 AWI DLB.
• Citation: 726 F.Supp.2d 1149
• Parties: Jesse Ray LUCAS, Plaintiffs, v. CITY OF VISALIA, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

726 F.Supp.2d 1149

Jesse Ray LUCAS, Plaintiffs,

v.CITY OF VISALIA, et al., Defendants.

No. 1:09-CV-1015 AWI DLB.

United States District Court,E.D. California.

July 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Amy Lifson-Leu, Cristina Martell Shea, David Evan Weiss, Megan Kathleen Demeter, Reed Smith LLP, San Francisco, CA, for Plaintiffs.

Leonard Charles Herr, Dooley, Herr and Peltzer & Richardson, Visalia, CA, Holly Gibeaut, Phv, James Michael Arrowood, Taser International, Inc., Scottsdale, AZ, Mildred K. O'Linn, Manning Marder Kass Ellrod & Ramirez LLP, Los Angeles, CA, for Defendants.

ORDER ON TASER INTERNATIONAL'S RULE 12(b)(6) MOTION TO DISMISS

ANTHONY W. ISHII, Chief Judge.

This is a civil rights lawsuit brought by Plaintiff Jesse Lucas (“Lucas”) against Defendants the City of Visalia (“the City”), Visalia police officers Carmen Esparza (“Esparza”) and Sean O'Rafferty (“O'Rafferty”), and Taser International, Inc. (“Taser Int.”). Lucas alleges violations of 42 U.S.C. § 1983 and various state laws, including products liability. The Court granted in part and denied in part two prior motions to dismiss that had been filed by the City and its officers. The active complaint is the Second Amended Complaint (“SAC”). Taser Int. now moves under Rule 12(b)(6) to dismiss the ninth and tenth causes of action. For the reasons that follow, the motion will be granted in part and denied in part.

BACKGROUND

From the SAC, it is alleged that Lucas's girlfriend called 911 for medical assistance for Lucas, who appeared to have suffered a seizure(s). Lucas has a history of seizures. Personnel from American Ambulance Co. and the Visalia Fire Department arrived at Lucas's residence and conferred with Lucas, who repeatedly and clearly refused medical treatment and requested that the everyone was to leave his home. Lucas indicated that he had previously suffered one or more seizures and just needed to go to bed.

Police officers later arrived. O'Rafferty arrived first, and he was advised that Lucas appeared to be mentally altered, was combative when treatment was attempted, but he had not injured anyone. O'Rafferty then approached Lucas, who was sitting on the stairs directly inside the front door of his residence, and spoke to him. Lucas continued to refuse treatment and to insist that all personnel leave his home so that he could go to bed. Esparza then arrived and entered the house. Lucas told Esparza the same thing he told O'Rafferty-that he did not want treatment, he wanted all personnel to leave, and that he would go to bed. Lucas then stood up, said that he was going to bed, and that everyone was to leave his home.

O'Rafferty and Esparza pursued Lucas up the stairs. Once Lucas reached the second floor landing, he turned around and again told the officers to leave. Esparza ordered Lucas to go back downstairs, but Lucas continued to tell the officers to leave so that he could sleep. Without warning, Esparza then shot Lucas with her taser gun and shocked him. Lucas fell to the ground and Esparza told him to turn over on his stomach and put his hands behind his back. Then, in order to gain compliance, Esparza cycled her taser a second time and again shocked Lucas. Lucas sustained significant injuries from the taser applications.

RULE 12(b)(6) FRAMEWORK

[1] 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 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir.2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir.2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994). But, the Court is not required “to 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, 1056-57 (9th Cir.2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). Furthermore, Courts will not assume that plaintiffs “can prove facts which [they have] not alleged, or that the defendants have violated ... laws in ways that have not been alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As the Supreme Court has recently explained:

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 ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, to avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949; see Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008). “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.” Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a ‘probability requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully. 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.’

...

Determining whether a complaint states a plausible claim for relief will ... be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.

Iqbal, 129 S.Ct. at 1949-50. “In sum, for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir.2009).

[2] If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002).

DEFENDANT'S MOTION

1. Tenth Cause of Action-Strict Products Liability, Manufacturing and Design Defects Defendant's Argument

Taser Int. argues that the tenth cause of action for “design and/or manufacturing defects” rests entirely on conclusory allegations. The allegations generally track the legal elements for strict liability, but there are no facts pled that identify what aspect of the product makes it defective. Nothing identifies how the product deviated from Taser Int.'s specifications or identifies a specific design defect.

Plaintiff's Opposition

Lucas argues that his strict products liability claim has been properly pled. The SAC alleges that Taser Int. manufactured, inspected, tested, marketed, etc. the subject taser weapon, that the weapon contained “design and/or manufacturing defects,” and that the defects were the proximate cause of Lucas's injuries. Lucas also argues that he alleges that the taser weapon is unreasonably dangerous because it is sold without adequate warnings. Also, Lucas argues that Taser Int.'s motion is dilatory since Taser Int. did not file a motion to dismiss prior complaints that contained the same allegations.

Legal Standard

[3] California recognizes strict liability for three types of product defects-manufacturing defects, design defects, and warning defects (inadequate warnings or failure to warn). Anderson v. Owens-Corning Fiberglas Co., 53 Cal.3d 987, 995, 281 Cal.Rptr. 528, 810 P.2d 549 (1991); Karlsson v. Ford Motor Co., 140 Cal.App.4th 1202, 1208, 45 Cal.Rptr.3d 265 (2006).

[4] [5] Under the “design defect” theory, a design is defective in one of two ways. Soule v. General Motors Corp., 8 Cal.4th 548, 566-67, 34 Cal.Rptr.2d 607, 882 P.2d 298 (1994); Karlsson, 140 Cal.App.4th at 1208, 45 Cal.Rptr.3d 265. First, under the “consumer expectations test,” a product's design is defective if it has failed to perform as safely as its ordinary consumers would expect when used in an intended or...