Roseanne Aguilar v. City of South Gate et al
Filing
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ORDER DENYING DEFENDANT OFFICERS DAVID SCOTTS, ROBERT TAITS, AND SANDRA DAHLIAS MOTION TO DISMISS 39 , 40 ,[ 41] AND DENYING MOTION FOR SUMMARY JUDGMENT 56 by Judge Otis D. Wright, II: Aguilar may file a Second Amended Complaint no later than Au gust 19, 2013, to amend her Bane Act claim against all defendants and to amend her assault-and battery claim against Defendant Scott. Aguilar is not permitted leave to amend any other claim.the Court amends the case-management schedule in this matter as follows: Jury trial: 1/28/14 9:00 AM; File final trial exhibit stipulation: 1/23/14; hearing on motions in limine: 1/17/14 2:30 PM; Final Pretrial Conference: 1/6/14 2:30 PM; motions in limine, proposed voir dire questions and proposed voir dire questions and agreed to statement of case: 1/6/14; lodged Pretrial conference order and pretrial exhibit stipulation, file contentions of fact and law, exhibit and witness lists, status report regarding settlement, agreed upon set of instructions an d verdict forms, joint statement regarding disputed instructions verdicts etc:12/30/13; last day for hearing motions: 12/09/13; last date to conduct settlement conference: 11/4/13;discovery cutoff: 10/28/13; last date to amend pleadings or add parties: 6/24/13. (lc). Modified on 8/8/2013 .(lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROSEANNE AGUILAR,
v.
Case 2:12-CV-10669-ODW (PLAx)
Plaintiff,
CITY OF SOUTH GATE, EDWARD
BOLAR, MARCELO BEDETTI,
SANDRA DAHLIA, DAVID SCOTT,
ROBERT TAIT, and DOES 1-50,
inclusive,
ORDER DENYING DEFENDANT
OFFICERS DAVID SCOTT’S,
ROBERT TAIT’S, AND SANDRA
DAHLIA’S MOTION TO DISMISS
[39, 40, 41] AND DENYING MOTION
FOR SUMMARY JUDGMENT [56]
Defendants.
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I.
INTRODUCTION
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Christopher Coronel was shot to death by South Gate police officers on
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May 25, 2011. Coronel’s mother, Plaintiff Roseanne Aguilar, brought this action
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alleging wrongful death, negligence, assault and battery, and violations of 42 U.S.C.
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§ 1983 and California’s Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1.
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Defendants David Scott, Robert Tait, and Sandra Dahlia—all South Gate police
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officers who did not fire the fatal shots—move to dismiss the various claims under
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Federal Rule of Civil Procedure 12(b)(6). After considering the parties’ respective
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arguments, the Court deems the matter appropriate for decision without oral argument.
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Fed. R. Civ. P. 78; L.R. 7–15.
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GRANTS IN PART and DENIES IN PART Defendants’ Motion.
For the reasons discussed below, the Court
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FACTUAL BACKGROUND
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This case arises out of an encounter between South Gate police officers and
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Coronel, Aguilar’s son, on May 25, 2011. (FAC ¶ 9.) South Gate police came to
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Coronel’s home after he called 911 and made suicidal remarks. (Id.) Police were
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purportedly informed that Coronel was very “despondent” and “agitated” and that he
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suffered from serious mental and emotional problems. (Id.) Despite this information,
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Aguilar contends that police arrived in an aggressive and confrontational manner,
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targeting Coronel with a laser sight from a taser gun when he opened the front door
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holding a knife he had apparently used on himself. (FAC ¶¶ 9–10.) Coronel reacted
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by fleeing out the back door, and police gave chase. (FAC ¶¶ 10–11.) Though he did
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not threaten anyone, Coronel was cornered in a small courtyard behind a home down
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the street. (FAC ¶ 11.) At that time, Officer Tait attempted to hit Coronel with a taser
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but missed. (Id.) Officer Dahlia then hit Coronel with several rounds from a bean-
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bag shotgun. (Id.) According to the officers, Coronel was about 6 to 10 feet away
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when he subsequently “lunged” forward with the knife. (Id.) Two officers collided
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with each other and fell, at which point officers Bedetti and Bolar allegedly shot
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Coronel 15 times. The shots hit Coronel’s front and back, resulting in his death. (Id.)
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Following her son’s death, Aguilar asserts that South Gate police covered up
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the shooting and failed to discipline the officers involved. (FAC ¶ 12.) She alleges
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“this incident is representative of police officers who were not adequately prepared
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nor trained to deal with this situation particularly involving an acutely distressed
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person with clear mental health and or intoxication issues, including a possible threat
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of self injury or suicide.” (FAC ¶ 13.) Further, she contends that the officers’ use of
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force was unjustified, unreasonable, and excessive. (FAC ¶ 15.)
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Aguilar, as the mother and sole heir of Coronel, filed a Complaint in Los
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Angeles Superior Court against the City of South Gate on November 5, 2012. (ECF
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No. 1, Ex. A.) The City removed the case to this Court on federal-question grounds.
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(Id.) On May 10, 2013, Aguilar filed a First Amended Complaint, adding Officers
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Edward Bolar, Marcelo Bedetti, Sandra Dahlia, David Scott, and Robert Tait to the
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list of defendants. (ECF No. 28.) On May 29, 2013, Scott, Tait, and Dahlia each filed
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Motions to Dismiss under Rule 12(b)(6). (ECF Nos. 39, 40, 41.) The Court now
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decides these Motions together.
II.
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LEGAL STANDARD
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Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal
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theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint
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need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short
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and plain statement—to survive a motion to dismiss for failure to state a claim under
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Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P.
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8(a)(2). For a complaint to sufficiently state a claim, its “[f]actual allegations must be
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enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as
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the complaint gives the defendant fair notice of the claim and the grounds upon which
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the claim rests, a complaint must nevertheless “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009).
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Iqbal’s plausibility standard “asks for more than a sheer possibility that a
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defendant has acted unlawfully,” but does not go so far as to impose a “probability
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requirement.” Id. Rule 8 demands more than a complaint that is merely consistent
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with a defendant’s liability—labels and conclusions, or formulaic recitals of the
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elements of a cause of action do not suffice. Id. Instead, the complaint must allege
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sufficient underlying facts to provide fair notice and enable the defendant to defend
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itself effectively.
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determination whether a complaint satisfies the plausibility standard is a “context-
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specific task that requires the reviewing court to draw on its judicial experience and
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common sense.” Iqbal, 556 U.S. at 679.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
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The
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When considering a Rule 12(b)(6) motion, a court is generally limited to the
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pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as
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true and . . . in the light most favorable to [the plaintiff].” Lee v. City of L.A., 250 F.3d
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668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and
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unreasonable inferences need not be blindly accepted as true by the court. Sprewell v.
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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be
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dismissed only if “it appears beyond doubt that the plaintiff can prove no set of facts”
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supporting plaintiff’s claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir.
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1999).
III.
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DISCUSSION
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Aguilar asserts claims for wrongful death, negligence, assault and battery,
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violation of the Tom Bane Civil Rights Act, and violation of 42 U.S.C. § 1983 against
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all Defendants.
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A.
Wrongful Death
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Officers Scott, Tait, and Dahlia move to dismiss Aguilar’s wrongful-death
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claim on the grounds that the FAC lacks the factual specificity to establish that their
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actions proximately caused Coronel’s death. Specifically, Scott, Tait, and Dahlia
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argue that because they did not fire the shots that killed Coronel, they should not be
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held liable for wrongful death. (Scott Mot. 5; Tait Mot. 5; Dahlia Mot. 4–5.)
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Wrongful death is a statutory “cause of action for the death of a person caused
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by the wrongful act or neglect of another.” Cal. Civ. Proc. Code § 377.60. Scott,
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Tait, and Dahlia argue that they are not responsible for Coronel’s death because they
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did not use deadly force, and the force they did use was reasonable. This argument
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misses the gravamen of Aguilar’s claim. Aguilar alleges Coronel’s death was the
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result of the officers’ negligent, reckless, and wrongful actions not only during the
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actual shooting, but throughout the entire confrontation with Coronel. (FAC ¶¶ 13,
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24–25.) Nevertheless, Aguilar’s claim falls within an uncertain area of the law.
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Although police officers in California have a duty to use reasonable care in
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employing deadly force, Grudt v. City of L.A., 2 Cal.3d 575, 587–88 (1970), it’s
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unclear whether this duty also applies to tactics preceding the use of deadly force,
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particularly when conducting a welfare check on a suicidal person. In a case currently
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pending before the Ninth Circuit the Ninth Circuit recently certified the following
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question to California Supreme Court: “Whether under California negligence law,
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sheriff’s deputies owe a duty of care to a suicidal person when preparing,
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approaching, and performing a welfare check on him.” Hayes v. County of San Diego,
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658 F.3d 867, 869 (9th Cir. 2011). Upon granting the Ninth Circuit’s request, the
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California Supreme Court restated the question as follows: “Whether under California
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negligence law, liability can arise from tactical conduct and decisions employed by
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law enforcement preceding the use of deadly force.” California Courts, Appellate
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Courts Case Information, Hayes v. Cnty. of San Diego, Case No. S193997, available
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at http://www.appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_
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id=1982541&doc_no=S193997 (last visited Aug. 5, 2013). This question is currently
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pending before the California Supreme Court, which is expected to issue a decision
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soon. Id.
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The California Supreme Court’s upcoming decision will necessarily apply to
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this case. Although Officers Scott, Tait, and Dahlia did not fire the lethal bullets, they
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each participated in the tactical conduct and decisions leading up to the shooting.
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Depending on the California Supreme Court’s ruling, the officers’ pre-shooting
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conduct might form the basis of liability for Coronel’s wrongful death. The Court
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therefore deems it appropriate to allow Aguilar’s wrongful-death claim to stand for the
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time being.
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wrongful-death claim are therefore DENIED.
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B.
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Defendants Scott, Tait, and Dahlia’s Motions to Dismiss Plaintiff’s
Negligence
Officer Scott moves to dismiss Aguilar’s negligence claim on the grounds that
it is vague and conclusory. (Scott Mot. 6–7.)
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Aguilar has pled that each of the officers, including Officer Scott, did not use
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reasonable care in their response to Coronel’s distress call. (FAC ¶¶ 29–30.) In
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support, Aguilar cites the officers’ refusal to allow family members to talk to Coronel,
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their pursuit, and their decision to corner Coronel. (Id. ¶ 29.) Aguilar’s FAC supports
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the reasonable inference that Officer Scott participated in or directed these actions.
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But these actions occurred prior to the actual shooting. As discussed above, whether
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officers can be held liable for conduct preceding their use of deadly force is a question
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pending before the California Supreme Court. Therefore, for the reasons discussed
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above, the Court deems it appropriate to allow Aguilar’s negligence claim to stand for
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the time being. Defendant Scott’s Motion to Dismiss Plaintiff’s negligence claim is
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therefore DENIED.
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C.
Assault and Battery
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Officer Scott argues Aguilar’s Complaint does not plead sufficient facts to show
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Scott assaulted or battered Coronel. (Scott Mot. 8.) Specifically, Scott argues the
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Complaint fails to allege that Scott used or attempted to use any force at all. (Id. at 9.)
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Scott also argues that even if he had attempted or threatened to use force, such action
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would have been reasonable. (Id. at 8.)
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Under California law, “[a]n assault is an incipient or inchoate battery; a battery
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is a consummated assault.” People v. Colantuono, 7 Cal. 4th 206, 216 (1994). Here,
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the FAC clearly illustrates the attempted and actual uses of force against Coronel:
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Officer Tait fired his Taser, Officer Dahlia fired her beanbag shotgun, and Officers
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Bedetti and Bolar fired their sidearms. But the FAC is not clear how Officer Scott
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used or attempted to use force against Coronel.
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Nevertheless, Aguilar argues in her Opposition that Scott can be liable for
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assault and battery because his actions constituted “aiding and abetting.” (Opp’n to
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Scott’s Mot. 14.) All “who aid, abet, counsel or encourage [a principal actor or actual
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assailant] are equally liable with him to the injured party.” Turner v. Whittel, 2 Cal.
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App. 2d 585, 589 (1934). But despite the contentions in her Opposition, Aguilar’s
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FAC itself does not allege this purported “aiding and abetting” claim. The Court
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therefore DISMISSES Aguilar’s assault-and-battery claim as alleged against Scott,
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but does so without prejudice.
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D.
Tom Bane Civil Rights Act
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Officer Scott moves to dismiss Aguilar’s claim for violation of the Tom Bane
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Civil Rights Act. The Bane Act is an anti-hate-crime statute providing that “a person
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may bring a cause of action ‘in his own name and on his or her own behalf’ against
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anyone who ‘interferes by threats, intimidation or coercion, with the exercise or
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enjoyment’ of any constitutional or statutory right.” Bay Area Rapid Transit Dist. v.
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Superior Court, 38 Cal. App. 4th 141, 144 (1995) (citing Cal. Civ. Code § 52.1).
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Aguilar’s Bane Act claim alleges Defendants interfered with Coronel’s rights and
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thereby deprived Plaintiff of “love, society, comfort, companionship, affection,
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service and support of decedent in an amount to be proven at trial.” (FAC ¶ 43.)
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Scott argues, as the City did in its earlier motion to dismiss, that Aguilar’s Bane
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Act claim must necessarily fail because it does not specify how Scott used improper
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means (threats, intimidation, or coercion) to interfere with Coronel’s rights. The
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Court need not reach the merits of Scott’s argument because Aguilar’s Bane Act claim
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is already ruinously flawed.
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The court in Bay Area Rapid Transit refused to recognize derivative Bane Act
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liability where parents sued police officers who killed their son. Bay Area Rapid
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Transit, 38 Cal. App. 4th at 144. The court held “[t]he Bane Act is simply not a
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wrongful death provision. It clearly provides for a personal cause of action for the
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victim of a hate crime.” Id. As such, the Bane Act provides no derivative cause of
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action for parents of a hate-crime victim. Id.
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Some courts, however, have made distinctions between a derivative wrongful-
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death cause of action and a survival cause of action. Unlike a derivative wrongful-
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death claim, a survival claim is one that belonged to the decedent before death and
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survives by statute in the decedent’s personal representative. Medrano v. Kern Cnty.
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Sheriff’s Officer, No. 1:12-CV-00564AWIJLT, 2013 WL 433119, at *4 (E.D. Cal.,
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Feb. 1, 2013) (citations omitted) (ruling decedent’s parents’ Bane Act claim to be
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survival cause of action where it was brought on decedent’s behalf, but finding parents
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lack standing to bring the claim on their own behalf); see also Dela Torre v. City of
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Salinas, No. C-09-00626RMW, 2010 WL 3743762, at *6–7 (N.D. Cal., Sept. 17,
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2010) (Bane Act claim is a survival cause of action where asserted in decedent’s name
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and on her behalf).
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Here, Aguilar seeks damages under the Bane Act only for loss of
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companionship and support of her son. Thus, even though Aguilar alleges Defendants
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violated Coronel’s constitutional and statutory rights, she does not bring the claim in
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his name or on his behalf; instead, she seeks damages for herself. As pleaded,
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Aguilar’s claim is therefore in the nature of a wrongful-death claim, and consequently
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must be dismissed.
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GRANTED. Further, while no party—including the County—specifically raised this
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issue here or in the earlier motion to dismiss, the Court’s reasoning applies to the
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entire claim as it is alleged against all Defendants. Aguilar’s Bane Act claim is
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therefore DISMISSED WITHOUT PREJUDICE in its entirety.
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E.
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The FAC alleges that each Defendant violated Aguilar and Coronel’s Fourth, Eighth,
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and Fourteenth Amendment rights, in violation of 42 U.S.C. § 1983. (FAC ¶¶ 47–51.)
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Defendants Officers Scott and Tait move to dismiss those claims, but focus entirely on
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“unreasonable force”—words that do not even appear in the FAC. (Scott Mot. 11–13;
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Tait Mot. 5–8.) Not only has Aguilar pled sufficient facts to demonstrate Defendants
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used excessive force, Graham v. Connor, 490 U.S. 386 (1989), she has also
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established that Officers Scott and Tait were integral participants in the violation of
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Coronel’s constitutional rights. Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir.
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2004).
Scott’s Motion to Dismiss Aguilar’s Bane Act claim is
§ 1983 Liability
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To state a § 1983 claim, a plaintiff must allege (1) the violation of a rights
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secured by the Constitution and laws of the United States and (2) the person who
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committed the alleged deprivation was acting under color of state law. West v. Atkins,
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487 U.S. 42, 48 (1988). Both moving officers concede that the FAC establishes that
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they were acting under color of state law, so the Court turns to the alleged
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constitutional violation. (Scott Mot. 12, Tait Mot. 6.)
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A state actor deprives another of a constitutional right, “within the meaning of
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§1983, if he does an affirmative act, participates in another’s affirmative acts, or omits
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to perform an act which he is legally required to do that causes the deprivation of
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which complaint is made.” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d
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1175, 1183 (9th Cir. 2007) (internal quotation marks and citations omitted). Mere
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bystanders will not be found to have caused injury, but actors who were “integral
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participants” in the constitutional violation can be liable under § 1983. Hopkins v.
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Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009); see Boyd, 374 F.3d at 780.
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An officer’s action does not need to rise to the level of a constitutional violation
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to constitute integral participation.
Boyd, 374 F.3d at 780.
Instead, it requires
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“fundamental involvement” in the conduct that allegedly caused the violation. Id.
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Individual officers are fundamentally involved in the conduct of another officer when
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they “provide some affirmative physical support at the scene of the alleged violation
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and when they are aware of the plan to commit the alleged violation or have reason to
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know of such a plan, but do not object.” Monteilh v. Cnty. of L.A., 820 F. Supp. 2d
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1081, 1089 (C.D. Cal. 2011).
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Officers Scott and Tait assert that the FAC lacks the factual specificity required
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to establish that they individually participated in any constitutional violation. (Scott
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Mot. 13, Tait Mot. 8.) The FAC alleges that “the police” had weapons drawn and
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demanded Coronel drop his knife; “Defendants” targeted him with the laser sight that
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caused him to retreat to the courtyard, and then cornered and closed in around him.
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(FAC ¶¶ 10–11.) All five officers were tightly positioned, facing him. (FAC ¶ 11.)
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Officer Tait attempted to hit Coronel with a Taser and Officer Dahlia fired multiple
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rounds with a bean-bag shotgun. (Id.) The FAC does not allege that Officer Scott
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objected. (Id.) When Coronel supposedly lunged at the line of officers, Officers
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Bedetti and Bolar killed him by shooting him 15 times in the front and back. (Id.)
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Neither of the officers bringing the instant motion objected. (Id.)
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Although neither Officer Scott nor Tait fired the shots that killed Coronel, the
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FAC sufficiently alleges that both were “fundamentally involved” in the violation by
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providing affirmative physical support at the scene. Monteilh, 820 F. Supp. 2d at
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1089. First, the officers were not only armed, but had their weapons drawn. (FAC
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¶ 10.) They did not “simply remain outside,” Jones v. Williams, 297 F.3d 930, 939
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(9th Cir. 2002), but actively followed, cornered, and closed in around Coronel. (FAC
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¶¶ 10–11.); Boyd, 374 F.3d at 780 (“[I]n James ex rel. James v. Sadler, 909 F.2d 834
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(5th Cir.1990), cited with approval by Chuman, [76 F.3d 292 (9th Cir. 1996),] the
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court held that officers who provided armed backup during an unconstitutional search
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were ‘integral’ to that search, and were therefore participants rather than mere
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bystanders.”) Officer Tait even went so far as attempting to hit him with a Taser.
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(FAC ¶ 11.); see Castaneda v. Douglas Cnty. Sherriff’s Investigator Rory Planeta,
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No. 1:12-CV-00428-LJO-SKO, 2007 WL 160816, at *7 (D. Nev. Jan. 17, 2007).
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They were potentially integral participants, not simple bystanders.
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The moving officers rely heavily on the fact that they are not individually or
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specifically alleged to have “wronged” Coronel.
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Though the FAC does not always name which officer committed each specific act
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during the incident—instead often referring to all of officers as “Defendants” or the
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“police”—such specificity is not required at this stage. Sanchez v. City of Fresno, No.
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1:12-CV-00428-LJO-SKO, 2013 WL 2100560, at *7 (E.D. Cal. May, 14 2013); see
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Starr, 652 F.3d at 1217; Gallagher v. City of Winlock, Wash., 287 F. App’x 568, 577
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(9th Cir. 2008) (“Without deposing the defendants, the plaintiffs have not had a fair
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opportunity to sort out the roles of the various officers.”).
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(Tait Mot. 8, Scott Mot. 12.)
For the foregoing reasons, Officers Scott and Tait’s Motions to Dismiss the
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§1983 claim is DENIED.
IV.
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CONCLUSION
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For the reasons discussed above, the Court GRANTS Defendant Scott’s motion
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to dismiss Aguilar’s claim for assault and battery, which is dismissed with leave to
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amend as to Defendant Scott only. The Court also GRANTS Scott’s motion as to
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Aguilar’s Bane Act claim, which is dismissed with leave to amend against all
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Defendants (including the City of South Gate), notwithstanding any Defendant’s
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failure to move to dismiss that claim. The Court DENIES Defendant Scott, Tait, and
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Dahlia’s motions to dismiss on all other grounds.
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Aguilar may file a Second Amended Complaint no later than August 19, 2013,
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to amend her Bane Act claim against all defendants and to amend her assault-and-
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battery claim against Defendant Scott. Aguilar is not permitted leave to amend any
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other claim.
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In light of the Court’s ruling on these motions to dismiss and the now-altered
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state of the pleadings, Defendants’ pending motion for summary judgment (ECF
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No. 56) is hereby DENIED WITHOUT PREJUDICE. Defendants may renew their
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motion any time before the dispositive-motion cut-off date established below.
Finally, because the Court grants Aguilar leave to amend while discovery is
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ongoing, the Court amends the case-management schedule in this matter as follows:
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1
01/28/14
Trial at 9:00 a.m.
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01/23/14
File Final Trial Exhibit Stipulation
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01/17/14
Hearing on Motions in Limine at 2:30 p.m.
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Final Pretrial Conference at 2:30 p.m.
01/06/14
Motions in Limine to be Filed
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Proposed Voir Dire Questions & Agreed-to Statement of Case
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Lodge Pretrial Conference Order & Pretrial Exhibit Stipulation
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File Trial briefs
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File Contentions of Fact & Law
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12/30/13
Exhibit & Witness Lists
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File Status Report Regarding Settlement
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File Agreed Upon Set of Instructions & Verdict Forms
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File Joint Statement Regarding Disputed Instructions, Verdicts,
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etc…
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12/09/13
Last Day for Hearing Motions
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11/04/13
Last Date to Conduct Mandatory Settlement Conference
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10/28/13
Discovery Cut-Off for All Discovery
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06/24/13
Last Date to Amend Pleadings or Add Parties (Expired)
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IT IS SO ORDERED.
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August 7, 2013
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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