Ovando v. City of Los Angeles

• Decision Date: 28 March 2000
• Docket Number: No. CV99-11835-GAF(AJWx).,CV99-11835-GAF(AJWx).
• Citation: 92 F.Supp.2d 1011
• Court: U.S. District Court — Central District of California
• Parties: Destiny OVANDO, et al., Plaintiffs, v. CITY OF LOS ANGELES, et al., Defendants.

92 F.Supp.2d 1011

Destiny OVANDO, et al., Plaintiffs, v. CITY OF LOS ANGELES, et al., Defendants.

No. CV99-11835-GAF(AJWx).

United States District Court, C.D. California.

March 28, 2000.

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Gregory A. Yates, Beverly Hills, CA, for plaintiffs.

James K. Hahn, City Attorney, Cecil Marr, Senior Asst. County Atty., Don W. Vincent, Supervising Asst. City Atty., Paul N. Paquette, Deputy City Atty., Los Angeles, CA, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND CERTIFYING THIS ORDER FOR INTERLOCUTORY APPEAL [FED.R.CIV.P. 12(b)(6); 28 U.S.C. § 1292(B)]

FEESS, District Judge.

I. INTRODUCTION

This is a lawsuit arising out of what has become known in both the local and national media as the Los Angeles Police Department ("LAPD") "Rampart" scandal. First exposed by former LAPD Officer Rafael Perez ("Perez"), one of the named defendants in this case, the events involved in the Rampart affair reportedly include a wide variety of misconduct by LAPD officers including the shooting of unarmed suspects, the planting of evidence to justify those shootings, the preparation of false police reports to cover up the misconduct and the presentation of perjured testimony resulting in the false convictions and imprisonment of a number of innocent citizens.

One of the alleged victims of that police misconduct is Javier Ovando ("Ovando") who, while unarmed and in police custody, was allegedly shot several times. Ovando was then arrested and charged with several offenses, including two counts of assault on a police officer with a firearm. Ovando was tried and convicted of those offenses, among others, and sentenced to 23 years, four months in prison, principally on the basis of testimony by LAPD officers.

After Perez's revelations to prosecutors, the Los Angeles District Attorney's Office identified Ovando as one of the victims of LAPD misconduct, petitioned the state court for a writ of habeas corpus and obtained Ovando's release. Ovando, who is now a paraplegic and has allegedly suffered severe, permanent, brain damage has filed a suit for damages under 42 U.S.C. Section 1983 alleging numerous violations of his constitutional rights. The present lawsuit is a related action brought by his daughter Destiny Ovando ("Destiny") and her mother, Monique Valenzuela ("Valenzuela").

In this case, Destiny, who is two years old, has brought civil rights and negligence claims against the City of Los Angeles and various members of the LAPD¹ for the loss of association with her father. Valenzuela has brought intentional and negligent infliction of emotional distress claims against defendants arising out of the same events.

Defendants City of Los Angeles, Richard Riordan, Bernard Parks, Dennis Wuethrich, and Willie Williams ("defendants") move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all claims alleging (1) that the federal claims because Destiny's association with her father has not been permanently severed and (2) that the state law claims were not timely filed with the City pursuant to the California Government Code.

II. FACTUAL BACKGROUND

In assessing the merits of the Rule 12(b)(6) motion, the Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn therefrom. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980) (complaint must be read in light most favorable to plaintiff). Thus, the following facts are assumed to be true for purposes of assessing the present motion.

A. The LAPD Used Excessive Force on Javier Ovando

In 1996, Ovando lived an apartment building that was being used by the LAPD's anti-gang unit ("CRASH") as an "observation post." (FAC, ¶ 21). In October, Officers Rafael Perez and Nino Durden demanded entry into Ovando's apartment for no apparent reason. A friend of Ovando's who was in the apartment was told to leave. The officers searched the apartment for drugs, but found none. Nevertheless, they handcuffed Ovando and took him to another apartment. (FAC, ¶¶ 20-23).

Durden and Ovando began arguing. Although Ovando was unarmed, Durden pulled out his service weapon and shot Ovando in the chest. Seeing Durden pull his gun, Perez also pulled out his service weapon and shot Ovando in the chest. The officers then held Ovando upright and shot him in the head. After the shooting, Durden placed a semi-automatic rifle near Ovando so that it would appear that Ovando was armed when he was shot.² (FAC, ¶¶ 20-23). The shooting left Ovando with severe mental and physical injuries, including paraplegia. (FAC, ¶ 35).

B. Ovando Was Arrested and Convicted Based on the False Testimony of Perez and Durden

Ovando was charged with two counts of assault with a firearm on a police officer and one count of exhibiting a firearm in the presence of a police officer. (FAC, ¶ 19). At trial, the primary witnesses against him were Perez and Durden. Based on the officers' false testimony, Ovando was convicted and sentenced to 23 years, four months in state prison. (FAC, ¶ 19).

C. Valenzuela's "Presence" at the Shooting and the Trial

At the time of the shooting, Valenzuela was outside the apartment building. (FAC, ¶ 73). After being released, Ovando's friend came down and told her that the LAPD had entered the apartment and released him. Valenzuela heard gunshots. Shortly thereafter, Valenzuela saw Ovando being brought out on a gurney. At the time, Valenzuela was pregnant with Ovando's daughter, Destiny. (FAC, ¶ 173).

Valenzuela was also present during Ovando's arraignment, trial and sentencing, and witnessed the false evidence against Ovando. (FAC, ¶ 74).

D. Plaintiffs Did Not Learn the True Events Until the District Attorney's Office Filed a Habeas Corpus Petition to Release Ovando

In August 1998, Perez was charged with 10 felony counts involving theft of cocaine. As part of his plea negotiations, Perez admitted that, in October 1996, he and his partner shot an unarmed man and planted evidence. (FAC, ¶ 20). Based on this information, the District Attorney's Office conducted an investigation and determined that the unarmed man was Ovando. Perez's subsequent statement under oath revealed that Ovando had been framed and that Perez committed perjury. Based on this evidence, the District Attorney's Office filed a Petition for Writ of Habeas Corpus on or about September 16, 1999. (FAC, ¶¶ 20-27). Ovando's conviction was subsequently "expunged, overturned and/or invalidated" and he was released after serving two years, eleven months in prison. (FAC, ¶ 27).

E. Plaintiffs' Claims To The City of Los Angeles Are Returned

Pursuant to the California Government Code, Destiny filed her tort claim with the City Clerk for the City of Los Angeles on September 28, 1999. That claim was "returned ... without action being taken" on December 3, 1999, because the claim was not presented within one year of the accrual of the cause of action. (FAC, ¶ 14).

On November 8, 1999, Valenzuela filed her tort claim with the City Clerk for the City of Los Angeles. That claim was likewise "returned ... without action being taken" on December 3, 1999, because the claim was not presented within one year of the accrual of the cause of action.³ (FAC, ¶ 15).

F. Plaintiffs' Causes of Action

1. Plaintiff Destiny Ovando

Destiny alleges several federal causes of action for deprivation of her right of association with her father under 42 U.S.C. Sections 1983, 1985, 1986 and 1988. She also alleges a supplemental state cause of action of negligence.

2. Plaintiff Monique Valenzuela

Valenzuela alleges supplemental state causes of action for intentional and negligent infliction of emotional distress.

III. LEGAL ANALYSIS⁴

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Thus, if the complaint states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory, the complaint should not be dismissed. Haddock v. Bd. of Dental Examiners, 777 F.2d 462, 464 (9th Cir.1985). On the other hand, dismissal is proper where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989) (quoting Conley v. Gibson), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269, (1990). Viewing the First Amended Complaint in light of that test and current Ninth Circuit law, Destiny has stated at least some theories under which she can obtain relief.

A. Destiny Ovando's Federal Claims for Loss of Familial Association With Her Father

In order to state a claim under Section 1983, plaintiff must allege that (1) the conduct complained of was committed under color of state law, and (2) that the conduct deprived plaintiff of rights and liberties secured by the Constitution. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Here, there is little question that the acts by police officers were committed under color of state law. See Smith v. City of Fontana, 818 F.2d 1411, 1416 n. 5 (9th Cir.), cert. denied 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987), overruled on other grounds Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir.1999) (police officers who "were clothed with the legitimacy of the government and were purporting to act thereunder" were acting "under the color of state law") (internal quotations omitted). The FAC alleges that the officers, acting under color of authority, seized Ovando, removed him from his apartment, took him to another location within the building and shot him. The complaint is clearly sufficient as to this element.

The real question is whether, and to what extent, Destiny has a cause of action under 42 U.S.C. Section...