Soltero v. City of Bakersfield et al

Filing 36

ORDER Denying Motion For Judicial Determination Pursuant To California Code Of Civil Procedure section 382 (Doc. 35 ) And Requiring Filing And Re-Notice Of Motion Pursuant To CCP section 377.61, signed by District Judge Lawrence J. O'Neill on 12/9/2014. (Fahrney, E)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 7 CYNTHIA SOLTERO, Individually and as Successors in Interests of VINCENT MATTHEW YZAGUIRRE, DECEASED, 10 11 12 ORDER DENYING MOTION FOR JUDICIAL DETERMINATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE section 382 (DOC. 35) AND REQUIRING FILING AND RE-NOTICE OF MOTION PURSUANT TO CCP section 377.61 Plaintiff, 8 9 1:12-CV-01791-LJO-JLT v. CITY OF BAKERSFIELD, TIMOTHY BERCHTOLD, JASON FELGENHAUER, and DOES 2 through 10, inclusive, Defendants. 13 Cynthia Soltero is the birth mother of decedent Matthew Vincent Yzaguirre, who died on May 14 14, 2010, allegedly as a result of gunshot wounds inflicted by Bakersfield Police Department Officers. 15 On October 20, 2011, Ms. Soltero initiated the instant litigation in the Superior Court for the County of 16 Kern, alleging the following causes of action: 1) Violation of California Civil Code § 52.1; (2) Wrongful 17 Death Pursuant to California Code of Civil Procedure § 377.60; (3) Assault; (4) Battery; (5) Intentional 18 Infliction of Emotional Distress; (6) Negligence; and (7) Negligent Hiring, Training and Supervision. 19 See Doc. 2 at 2. On October 9, 2012, the Superior Court granted Plaintiff’s motion to file an amended 20 complaint to add causes of action under 42 U.S.C. §§ 1981, 1983, and 1985. Id. at 3. Defendants 21 removed to this Court. Doc. 1. 22 Plaintiff filed a Third Amended Complaint against the City of Bakersfield, Timothy Berchtold, 23 Jason Felgenhaurer, and Robert Yzaguirre on June 23, 2014, which is now the operative pleading in the 24 action. Doc. 23. The City of Bakersfield, Timothy Berchtold, and Jason Felgenhaurer filed their answer 25 on June 23, 2014. Doc. 24. To date, nominal defendant Robert Yzaguirre, Decedent’s biological father, 26 1 1 2 has neither filed an Answer nor made any attempt to appear in the action. On December 8, 2014, Counsel for Defendants filed a “Motion for Judicial Determination 3 Pursuant to California Code of Civil Procedure § 382,” requesting that this Court enter an order finding 4 that: (1) all the proper parties have been named in this case; (2) nominal defendant Robert Yzaguirre had 5 notice of the death of his son, Matthew Vincent Yzaguierre since at least May 18, 2010; (3) nominal 6 Defendant Robert Yzaguirre had notice of this lawsuit; (4) despite this notice and despite the efforts of 7 the parties, Robert Yzaguirre has refused to participate in this litigation; (5) Robert Yzaguirre’s claims 8 are otherwise barred by the applicable statute of limitations; (6) given Robert Yzaguirre’s failure to 9 participate in this lawsuit and the legal bar to his claims, the parties are left with no option but to settle 10 and dismiss this matter with a complete legal waiver from Mr. Yzaguirre. Doc. 35. 11 12 13 14 California Code of Civil Procedure § 382 provides: If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. 15 Cal. Code Civ. Pro. § 382 (“§ 382”). A reading of the motion, along with all papers included with the 16 filing, results in the conclusion that what is being sought is a total end to this case, foreclosing anyone 17 from ever again making a claim against anyone having to do with the death that is the subject of this 18 suit. One clear problem is that Cal. Code Civ. Pro. Section 382 does not provide for the Advisory 19 Opinion that is being sought. 20 To obtain the Order that all parties clearly seek, the parties may do one of two things: 21 1. Obtain a written, signed waiver by the natural father of the decedent who is housed at the 22 Soledad Prison; or 23 2. File and Notice (including to the father) a Motion Seeking Court Apportionment of the 24 Settlement Proceeds Among the Heirs pursuant to Cal. Code Civ. Pro. Section 377.61. (see also 25 Corder v Corder, 41 Cal. 4th 644, 660 (2007). 26 2 1 a. Concurrent with this motion should be a Motion to Set Aside the Default of the natural 2 father (the nominal defendant), so that he is a part of the Court’s decision to dispose of 3 this case completely. 4 5 6 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill December 9, 2014 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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