Smith v. City of Stockton, et al

Filing 42

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 6/8/2011 ORDERING that Dfts' 35 Motion to Dismiss is GRANTED with leave to amend. Pltf may file an amended complaint within 20 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIONNE SMITH-DOWNS, as
successor and interest to
Decedent James Earl
Rivera, Jr.,

No. 2:10-cv-02495-MCE-GGH

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Plaintiff,
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v.

MEMORANDUM AND ORDER

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CITY OF STOCKTON, et al.,
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Defendants.
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----oo0oo----

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Plaintiff Dionne Smith-Downs (“Plaintiff”) seeks redress

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from Defendants San Joaquin County, the City of Stockton, and

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individually named police officers Eric Azarvant, Gregory Dunn,

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Deputy Sheriff John Nesbitt, Blair Ulring, and Sheriff Steve

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Moore (collectively, “Defendants”) regarding a fatal incident

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between Defendants and Plaintiff’s son, sixteen-year-old James

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Rivera (“Decedent”).

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Presently before the Court is Defendants’ Motion to Dismiss

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Plaintiff’s Third Amended Complaint for failure to state a claim

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upon which relief may be granted, pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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It is clear in this circuit that standing “is a threshold

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issue that precedes consideration of any claim on the merits.”

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Cotton v. City of Eureka, 2010 WL 5154945 at *3 (N.D. Cal. 2010),

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citing Moreland v. City of Las Vegas, 159 F.3d 365, 369 (9th Cir.

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1998).

Any party who seeks to “bring a survival action bears the

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burden of demonstrating that a particular state’s law authorizes

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a survival action and that the plaintiff meets that state’s

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requirements for bringing [it].”

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Moreland, 159 F.3d at 369.

California Code of Civil Procedure § 377.32 states that one

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who “seeks to commence an action or proceeding . . . as the

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decedent’s successor in interest under the article, shall execute

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and file an affidavit or a declaration under penalty of perjury”

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that confirms decedent’s personal information, the facts of their

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death, and other information confirming that the plaintiff is the

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proper successor to decedent’s interests.

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the decedent’s death certificate is required to also be attached

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to the affidavit or declaration.

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A certified copy of

Id.

For purposes of this statute, a successor in interest is

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“the beneficiary of the decedent’s estate.”

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a decedent does not leave a will, a beneficiary of the decedent’s

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estate is defined under the statute as “the sole person or all of

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the persons who succeed to a cause of action.”

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Id. § 377.11.

When

Id. § 377.10.

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In two previous orders, the Court requested appropriate

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documentation proving that Plaintiff complied with the

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requirements under California Code of Civil Procedure.

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is in receipt of both Plaintiff’s Declaration, as well as the

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declaration of decedent’s father, James E. Rivera, Sr.

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the declarations still fail to comply with California Code.

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declarant now states that they alone are the decedent’s successor

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in interest, and that “[n]o other person has a superior right to

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commence the action” in this Court.

The Court

However,
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Such cannot be the case.

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Either both Mr. Rivera and Ms. Smith-Downs are BOTH successors in

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interest as defined by section 377 and therefore both necessary

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parties to the instant suit, or one has a superior right to

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commence the action, and there is some legal explanation for the

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parties’ decision to include only one parent in the instant suit.

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Since standing continues to be a threshold matter, the Court

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cannot move forward on the case’s merits.1

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Therefore, Defendants’ Motion to Dismiss Plaintiff’s

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Complaint (ECF No. 35) is GRANTED with leave to amend.

Plaintiff

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may file an amended complaint not later than twenty (20) days

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after the date this Memorandum and Order is filed electronically.

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If no amended complaint is filed within said twenty (20)-day

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period, without further notice, Plaintiff’s claims will be

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dismissed without leave to amend.

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Because oral argument will not be of material assistance,
the Court deemed this matter suitable for decision without oral
argument. E.D. Cal. Local Rule 230 (g).
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Notwithstanding this Order, The Court declines to provide

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Plaintiff with any additional attempts to correct their

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Complaint’s defects, and will be granted no additional leave to

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amend.

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IT IS SO ORDERED.
Dated: June 8, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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