McMurray v. County of Sacramento et al

Filing 83

ORDER signed by Judge Garland E. Burrell, Jr on 1/30/12; Defendants have not shown that the decedent's father is an "indispensable party" under Rule 19(b); they only argue that he is a "necessary" party. (Def.'s Brief 5: 20-22.) Further, Defendants have not shown that their failure to object in their first responsive pleading to the absence of the decedent's father as a party does not constitute waiver of the issue. Therefore, Defendants' "standing" arguments on Plaintiff's wrongful death claim are disregarded.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VALETTA McMURRAY,

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)
)
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Plaintiff,

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v.

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COUNTY OF SACRAMENTO; DEPUTY
SHERIFF JAVIER BUSTAMANTE, and
DEPUTY SHERIFF L. CULP,

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Defendants.
________________________________

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2:09-cv-02245-GEB-EFB
ORDER

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An order issued on January 11, 2012, which required the

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parties to file briefs concerning Defendants’ contention, raised in

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their trial brief, that Plaintiff lacks standing to assert a Fourth

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Amendment survival claim on behalf of the decedent.
Defendants

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filed

a

“Supplemental

Trial

Brief

Regarding

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Standing” on January 17, 2012. (ECF No. 79.) In essence, Defendants

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argue Plaintiff’s Fourth Amendment survival claim should be dismissed

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because

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California law to commence a survival action as a decedent’s successor

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in interest[;]” Plaintiff cannot cure her failure to file the necessary

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affidavit because she is now time barred by the applicable statute of

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limitations and California Government Code section 945.6; and even if

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she were given the opportunity to file the necessary affidavit, she

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cannot satisfy the statutory standing requirements “because decedent’s

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father is also a beneficiary under state law but is not a party to this

Plaintiff

has

not

filed

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“the

affidavit

necessary

under

1

action.” (Def.’s Supp. Trial Brief (“Def.’s Brief”) 3:23-27, 4:2-4, 4:8-

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21, 4:24-27, 6:9-12.) Defendants further argue that Plaintiff lacks

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“standing and/or cannot maintain her [state law] wrongful death [claim]

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without decedent’s father as a party to this action.” Id. at 5:13-15.

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Plaintiff addressed the standing issue in a filing captioned

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“Plaintiff’s Reply to Defendants’ Motions in Limine Opposition/Strike

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Motion,” which was filed on January 17, 2012. (ECF No. 80.) Plaintiff

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argues, “the standing issue ha[s] been waived by defendants’ failure to

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raise it during their pretrial statements and the prior two years of the

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pendency of this lawsuit.” (Pl.’s

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(“Pl.’s Brief”) 1:18-19.) Plaintiff further argues that “defendants

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should be estopped from raising [the standing issue] at this late stage

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a few weeks before trial” “for their strategic or negligent withholding

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of this argument[.]” Id. at 1:22-23.

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Reply to Defs.’ Mots. In Limine

Defendants’ arguments are addressed in turn below.

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A.

Plaintiff’s Fourth Amendment Survival Claim

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Defendants argue “Plaintiff’s survivor claim must be dismissed

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for lack of standing” under California Code of Civil Procedure sections

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377.30 and 377.32. (Defs.’ Brief 2:19-20, 5:11.)

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Although “[Defendants] use the term ‘standing,’ they are not

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referring

to

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Instead,

they

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‘capacity to sue’ on behalf of Decedent’s estate.” Johnson v. Cal. Dept.

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of

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2009)(citation omitted); see also Estate of Burkhart v. United States,

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No.

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2008)(“The question whether [Plaintiff] has the ability to assert claims

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on [the decedent’s behalf under California’s survival statute] involves

Corr.

C

&

‘standing’
are

PJH,

the

referring

Rehab.,

07-5467

in

2009

2008

WL

WL

to

constitutional
standing

2425073,

4067429,

2

at

at

in

*4

*10

sense
terms

(E.D.

(N.D.

of
of

the

word.

Plaintiff's

Cal.

Cal.

Aug.

Aug.

7,

26,

1

the determination whether she has the capacity to bring suit as a

2

representative.”) “‘The question of a litigant’s capacity or right to

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sue

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jurisdiction

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Machinery, Inc., 206 F.3d 874, 878 n.4 (9th Cir. 2000)(quoting Summers

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v. Interstate Tractor & Equip. Co., 466 F.2d 42, 50 (9th Cir. 1972))

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“Therefore, unless the objection is properly raised, the court may

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properly adjudicate the case notwithstanding this defect.” Estate of

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Burkhart, 2008 WL 4067429, at *10 (citation omitted); see also De

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Saracho, 206 F.3d at 878 (stating, “an objection to a party’s capacity

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. . . can be analogized to an affirmative defense and treated as waived

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if not asserted by motion or responsive pleading[.]”).

or

to

be

sued

of

the

generally
district

does

not

court.’”

affect
De

the

Saracho

subject
v.

matter

Custom

Food

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In this case, Defendants did not raise Plaintiff’s capacity to

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sue on the Fourth Amendment survival claim in their Answer or in a

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pretrial motion, and “[a]ll law and motion . . . [was ordered to have

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been] completed by July 6, 2011.” (Status (Pretrial Scheduling) Order

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2:12, ECF No. 32.) Further, Defendants have not shown that this issue

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was not waived by their failure to timely raise it. For the stated

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reasons, Defendants’ “standing” arguments concerning Plaintiff’s Fourth

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Amendment survival claim are disregarded.

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B.

Plaintiff’s Wrongful Death Claim

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Defendants contend for the first time in their Supplemental

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Trial Brief Regarding Standing that “Plaintiff [also lacks] standing

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and/or cannot maintain her wrongful death [claim] without decedent’s

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father as a party[,]” arguing “California’s wrongful death statute[,]

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California

Code

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interpreted

to

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decedent’s heirs must join.” (Defs.’ Brief 5:13-19.) Defendants further

of

Civil

authorize

Procedure

only

a

section

single

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377.60[,]

action,

in

which

has
all

been
the

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argue: “[o]mitted heirs . . . are ‘necessary parties,’ and plaintiff

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heirs have a mandatory duty to join all known omitted heirs in the

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‘single action’ for wrongful death. If an heir refuses to participate in

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the suit as a plaintiff, he or she may be named as a defendant . . . so

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that all heirs are before the court in the same action.” Id. 5:20-6:1.

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Defendants’ contentions do not concern Plaintiff’s “standing”

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to assert a wrongful death claim, since Defendants have not contested

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Plaintiff’s standing under section 377.60 to bring this claim in her

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capacity as the parent of a decent without children. See Chavez v.

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Carpenter, 91 Cal. App. 4th 1433, 1439 (2001)(“The first subdivision of

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the wrongful death statute gives standing to those persons who would be

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entitled to the property of the decedent by intestate succession, but

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only if there is no surviving issue of the decedent. Under the laws of

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intestate succession, a decedent's parents become heirs where there is

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no

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challenges whether Plaintiff has the ability to maintain her wrongful

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death claim without having the decedent’s father joined as a party in

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this action.

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surviving

Rule

issue.”)

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Instead,

governs

the

the

crux

compulsory

of

Defendants’

joinder

of

argument

parties,

and

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decision on a joinder issue involves a “two-part analysis.” Washington

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v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999). “First, [the court must]

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determine whether an absent party is ‘necessary.’ If the absent party is

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necessary and cannot be joined, [the court must] then decide whether the

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absent party is ‘indispensable.’” Id. (citations omitted).

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The terms “necessary” and “indispensable” are terms
of art in Rule 19 jurisprudence: “Necessary” refers
to a party who should be “[j]oined [under Rule
19(a)] if [f]easible[]”; “Indispensable” refers to
a party whose participation is so important to the
resolution of the case that, if the joinder of the
party is not feasible, the suit must be dismissed
[under Rule 19(b).]
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Disabled Rights Action Comm. V. Las Vegas Events, Inc., 375 F.3d 861,

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867 n.5 (9th Cir. 2004)(internal citations omitted).

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“[A]lthough the absence of an [‘]indispensable party[’] may be

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raised at any time, the failure to join [‘]necessary parties[’] may be

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waived if objections are not made in the defendant’s first responsive

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pleading.” Baykeeper v. Union Pacific R.R. Co., No. C 06-02560 JSW, 2009

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WL 1517868, at *1 (N.D. Cal. June 1, 2009)(citing Citibank, N.A. v.

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Oxford Properties & Finance Ltd., 688 F.2d 1259, 1263 n.4 (9th Cir.

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1982)).

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“Section 377.60 . . . do[es] not expressly prevent more than

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one cause of action by a decedent’s heirs. Nevertheless wrongful death

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actions are considered to be joint, single and indivisible.” Ruttenberg

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v. Ruttenberg, 53 Cal. App. 4th 801, 807 (1997)(internal quotation marks

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and citations omitted). The California Supreme Court has defined “joint,

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single and indivisible,” as follows:

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In stating that an action for wrongful death is
joint, it is meant that all heirs should join or be
joined in the action and that a single verdict
should be rendered for all recoverable damages;
when it is said that the action is single, it is
meant that only one action for wrongful death may
be brought whether, in fact, it is instituted by
all or only one of the heirs, or by the personal
representative of the decedent as statutory trustee
for the heirs; and when it is said that the action
is indivisible, it is meant that there cannot be a
series of suits by heirs against the tortfeasor for
their individual damages.

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Cross v. Pacific Gas & Elec. Co., 60 Cal. 2d 690, 694 (1964). “The

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wrongful death statute is ‘a procedural statute establishing compulsory

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joinder

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Ruttenberg, 53 Cal. App. 4th at 807 (quoting Cross, 60 Cal. 2d at 692).

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and

not

a

statute

creating

Two conclusions follow from
each heir has a personal
action, and a separate
interest. Second, strict
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a

joint

cause

of

this principle. First,
and separate cause of
rather than a joint
compliance with the

action.’”

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statutory procedure is not jurisdictional in the
sense that a failure to comply with statutory
requirements requires reversal of a judgment. The
latter point applies when wrongful death plaintiffs
fail
to
join
all
heirs.
The
[court]
has
jurisdiction to try a wrongful death action even
absent joinder of one or more heirs of the
decedent.

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Id. (internal quotation marks and citations omitted).

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Applying the above principles, omitted heirs have been held to

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be

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procedural law. Ruttenberg, 53 Cal. App. 4th at 808 (“As defined by

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[California Code of Civil Procedure] section 389, a nonjoined heir is

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not an ‘indispensable party’ to a wrongful death action.”) Similarly,

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federal courts have held that omitted heirs are not per se indispensable

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parties under Rule 19(b). See A.D. v. Cal. Highway Patrol, No. C 07-5483

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SI, 2009 WL 733872, at *4-5 (N.D. Cal. Mar. 17, 2009)(stating an omitted

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heir was not an indispensable party where his claims were time barred by

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failing to timely file an administrative claim); Estate of Burkhart,

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2008 WL 4067429, at *6-8 (same).

“necessary,”

but

not

“indispensable”

parties,

under

California

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Here, Defendants have not shown that the decedent’s father is

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an “indispensable party” under Rule 19(b); they only argue that he is a

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“necessary” party. (Def.’s Brief 5:20-22.) Further, Defendants have not

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shown that their failure to object in their first responsive pleading to

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the absence of the decedent’s father as a party does not constitute

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waiver of the issue. Therefore, Defendants’ “standing” arguments on

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Plaintiff’s wrongful death claim are disregarded.

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Dated:

January 30, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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