The Estate of Elisa Serna v. County of San Diego ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 THE ESTATE OF ELISA SERNA, et Case No. 20cv2096-LAB-MSB 11 al., ORDER GRANTING MOTION TO 12 Plaintiffs, DISMISS PORTIONS OF AMENDED COMPLAINT [Dkt. 17] 13 v. 14 COUNTY OF SAN DIEGO, et al. 15 Defendants. 16 17 18 When Elisa Serna was admitted to the Los Colinas Detention Facility 19 on November 6, 2019, she reported that she was addicted to heroin and 20 alcohol and had used those two substances and Xanax two hours before 21 booking. She died in custody five days later, after her jailers allegedly failed 22 to address her withdrawal symptoms and dehydration. 23 Five plaintiffs brought this action: Serna’s estate (the “Estate”); her 24 widower, Brandon Honeycutt; her minor child, S.H.; and her parents, Michael 25 and Paloma Serna. The First Amended Complaint (“FAC”) asserts nine 26 causes of action against nine defendants. Three of these defendants, Coast 27 Correctional Medical Group, Friederike von Lintig, and Mark O’Brien 1 state law wrongful death claim and the entirety of their § 1983 claim relying 2 on a wrongful death theory. (Dkt. 17). Because the claims at issue lack a 3 viable legal theory, that motion is GRANTED. Plaintiffs’ second cause of 4 action for wrongful death under 42 U.S.C. § 1983 is DISMISSED WITHOUT 5 PREJUDICE. The state law wrongful death claims brought by the Estate, 6 Michael Serna, and Paloma Serna are DISMISSED WITH PREJUDICE. And 7 to the extent the FAC seeks to assert a survival action for state law wrongful 8 death on behalf of any plaintiff other than the Estate, that claim is 9 DISMISSED WITH PREJUDICE. 10 DISCUSSION 11 A complaint must include “a short and plain statement of the claim 12 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). It’s not 13 enough, as Plaintiffs argue, for the complaint to provide “fair notice of the 14 substance of [a] claim.” Dkt. 19 at 1. The requirement that the pleading 15 “show[] that the pleader is entitled to relief” encompasses not only notice, but 16 a viable legal theory. See Fed. R. Civ. P. 8(a). As a result, even where a 17 pleading alleges sufficient facts and identifies a legal theory that the plaintiff 18 intends to pursue, a court may dismiss a claim under Fed. R. Civ. P. 12(b)(6) 19 where that theory isn’t cognizable. See Mendiondo v. Centinela Hosp. 20 Medical Center, 521 F.3d 1097, 1104 (9th Cir. 2008) (Rule 12(b)(6) dismissal 21 appropriate “where the complaint lacks a cognizable legal theory”). The 22 Movants take no issue with Defendants’ factual allegations, arguing only that 23 several of the FAC’s claims lack a cognizable legal theory. 24 I. The FAC Doesn’t Identify a Federal Right Supporting the 25 Second Cause of Action 26 Movants advance two arguments against Plaintiffs’ § 1983 claim 27 premised on wrongful death: first, that a right secured by state law can’t 1 support a § 1983 claim; and second, that the claim is “subsumed” by Serna’s 2 other § 1983 claims based on more specifically identified rights. 3 A plaintiff can recover under § 1983 only where that claim is supported 4 by “the violation of a right secured by the Constitution and laws of the United 5 States.” West v. Atkins, 487 U.S. 42, 48 (1988). This language limits § 1983’s 6 protection to “violation[s] of federal rights.” Golden State Transit Corp. v. City 7 of Los Angeles, 493 U.S. 103, 106 (1989) (emphasis added). Where the 8 allegations clearly suggest a federal right, but don’t specifically identify it, 9 courts can construe the claim to rely on that right. See Estate of Lopez v. 10 Torres, 105 F. Supp.3d 1148, 1160 (S.D. Cal. 2015). But the FAC doesn’t 11 clearly suggest a federal right in connection with Serna’s alleged wrongful 12 death that isn’t already covered by one of Serna’s four other, more 13 specifically pled § 1983 claims. 14 Because Plaintiffs fail to identify a federal right supporting their second 15 cause of action, that claim is DISMISSED WITHOUT PREJUDICE but with 16 leave to amend to identify a violation of a federal right distinct from those 17 supporting their other § 1983 claims. 18 II. Several Distinct Claims Within Plaintiffs’ Seventh Cause of 19 Action Lack Cognizable Theories 20 The FAC states that its seventh cause of action is a “Wrongful Death 21 & Survival Action” brought by the Estate, Honeycutt, S.H., Michael Serna, 22 and Paloma Serna. But Plaintiffs argue that this isn’t, as the title would 23 suggest, merely a wrongful death claim brought as a survival action. The 24 claim incorporates by reference “all California state law claims as basis for 25 state law wrongful death cause of action and incorporate[s] later torts by 26 reference.” (Dkt. 11 ¶ 259). On this basis, Plaintiffs appear to argue that the 27 seventh cause of action incorporates not only wrongful death based on those theories, but also those theories as standalone torts. (Dkt. 19 at 2–3). To the 1 extent that was Plaintiffs’ intent, though, the FAC doesn’t give Defendants 2 adequate notice. 3 Other claims incorporated in the seventh cause of action lack 4 cognizable legal theories. First, as Plaintiffs acknowledge, the parents of a 5 decedent can’t assert a wrongful death action where the decedent is survived 6 by a child. Cal. Code Civ. Proc. § 377.60(a). Second, a person’s estate can’t 7 assert a wrongful death action in California premised on that same person’s 8 death. A wrongful death cause of action “is vested in the decedent’s heirs,” 9 not the estate. Quiroz v. Seventh Ave. Center, 140 Cal. App. 4th 1256, 1263 10 (2006). Serna’s Estate, then, can’t assert a survival action for wrongful death. 11 Finally, where the decedent has a personal representative, only that 12 personal representative, acting on behalf of the estate, may assert a survival 13 claim. Cal. Code Civ. Proc. § 377.30. Insofar as Honeycutt or S.H. seeks to 14 assert a survival claim, then, such a claim must also be dismissed. 15 CONCLUSION 16 The Motion to Dismiss Portions of the Amended Complaint, (Dkt. 17), 17 is GRANTED. The second cause of action is DISMISSED WITHOUT 18 PREJUDICE. The wrongful death claims brought by the Estate, Michael 19 Serna, and Paloma Serna in the seventh cause of action are DISMISSED 20 WITH PREJUDICE. And to the extent that cause of action includes a survival 21 action purportedly brought on behalf of Honeycutt or S.H., such a claim is 22 DISMISSED WITH PREJUDICE. 23 Plaintiffs’ argument suggests that they intended to incorporate in the 24 seventh cause of action other tort claims brought as survival actions on 25 behalf of the Estate, but that isn’t clear from the FAC. Insofar as they did 26 intend to bring such claims, they must assert them separately from the 27 remaining wrongful death claims by amending their pleading within 14 days of the Court’s resolution of the other pending motion to dismiss in this action. 1 (Dkt. 22). If no such amendment is filed, the Movants must respond to the 2 remaining portions of the FAC no later than 28 days after the still-pending 3 motion to dismiss is resolved. 4 5 IT IS SO ORDERED. 6 DATED: September 30, 2021 7 Hon. Larry A. Burns 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27