V.W. v. City of Vallejo, et al.,

Filing 24

ORDER signed by Judge Lawrence K. Karlton on 8/1/13 GRANTING the City and Nichelini's motion made in his official capacity for dismissal on the pleadings, and all claims against them are DISMISSED with prejudice. Nichelini's 13 Motion for Judgment on the pleadings made in his individual capacity is DENIED. (Manzer, C)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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12

V. W., a minor, by and
through her Guardian Ad
Litem, Tenaya Barber,
Individually and as
Successor in Interest
of Decedent MICHAEL WHITE,

NO. CIV. S-12-1629 LKK/GGH

13
Plaintiffs,
14
v.
O R D E R

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CITY OF VALLEJO, a municipal
corporation; ROBERT NICHELINI,
in his individual and official
capacity as Chief of Police;
Officers Does 1-25,
individually, jointly and
severally,

19
Defendants.
/

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21

This civil rights lawsuit is brought by the surviving minor

22

daughter of the decedent, Michael White, against the City of

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Vallejo (the “City”) and its Chief of Police, Robert Nichelini (the

24

“defendant”).1

The plaintiff, through her Guardian ad Litem,

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1

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Plaintiff also sues under state tort laws for negligence and
assault and battery.
1

1

Tanaya Barber, alleges that the City’s police officers killed the

2

decedent while they were using a taser gun during his arrest. Both

3

defendants move for judgment on the pleadings, asserting that the

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cases against them were discharged in the City’s bankruptcy.

5

For the reasons that follow, the City’s un-opposed motion for

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judgment on the pleadings will be granted.

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Robert Nichelini’s motion for judgment on the pleadings will be

8

granted to the extent the lawsuit names him in his official

9

capacity, but denied to the extent the lawsuit names him in his

10

individual (or personal) capacity.

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I.

In addition, defendant

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BACKGROUND
On May 23, 2008, the City of Vallejo filed for Chapter 9

13

bankruptcy protection.

14

(“RfJN”) Exh. 1 (ECF No. 13-2, pp.6-84).

On June 15, 2010, while

15

the

City’s

16

allegedly killed the decedent, see Complaint ¶ 16, wrongfully and

17

in violation of his and his daughter’s civil rights. No later than

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December 15, 2010, plaintiff filed tort claims pursuant to Cal.

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Gov. Code §§ 910, et seq..

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the Bankruptcy Court confirmed the City’s Plan (filed August 2,

21

2011) for the adjustment of its debts.

22

pp.86-88). According to the Plan, the City was discharged from all

bankruptcy

case

Defendants’ Request for Judicial Notice

was

pending,

the

Complaint ¶ 13.2

police

officers

On August 4, 2011,

RfJN Exh. 3 (ECF No. 13-2,

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24
25
26

2

The cited Government Code requires tort claims “relating to
a cause of action for death” to be filed “not later than six months
after the accrual of the cause of action.” Cal. Gov’t Code
§ 911.2(a).
2

1

debts and all claims against it, with exceptions not relevant here,

2

pursuant

3

“effective date” of November 1, 2011.

4

pp.90-91 (Vallejo’s “Notice of November 1, 2011 Effective Date”).

5

Plaintiff filed this lawsuit on June 18, 2012.

6

II.

to

“section

944

of

the

Bankruptcy

Code”

upon

the

RfJN Exh. 4 (ECF No. 13-2,

STANDARDS

7

A motion for judgment on the pleadings may be brought "[a]fter

8

the pleadings are closed but within such time as to not delay the

9

trial."

Fed. R. Civ. P. 12(c).

The court analyzes 12(c) motions

10

in substantially the same way as it analyzes Rule 12(b)(6) motions

11

because, “under both rules, ‘a court must determine whether the

12

facts

13

plaintiff to a legal remedy.’” Chavez v. U.S., 683 F.3d 1102, 1108

14

(9th Cir. 2012).

alleged

in

the

complaint,

taken

as

true,

entitle

the

On a motion to dismiss under Rule 12(b)(6), a court must
assess whether the complaint contain[s] sufficient
factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Mere conclusory
statements in a complaint and “formulaic recitation[s]
of the elements of a cause of action” are not
sufficient.
Thus, a court discounts conclusory
statements, which are not entitled to the presumption of
truth, before determining whether a claim is plausible.
A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged. Determining whether a complaint
states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.

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23
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Chavez, 683 F.3d at 1108-09 (citations and some internal quotations

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////

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////
3

1

omitted).3

2

III. ANALYSIS

3

A.

4

The City and defendant Nichelini, in his official capacity,

5

move for a judgment on the pleadings, arguing that any claim

6

plaintiff might have against them was discharged by the City’s

7

Chapter 9 bankruptcy and the confirmation of its Plan.

8

concedes that the bankruptcy code “renders any judgment Plaintiff

9

would get against Defendant City for the events occurring on June

10

15, 2010, void and thereby bars Plaintiff from pursuing her claims

11

against Defendant City.”

12

Judgment on the Pleadings (ECF No. 19) at p.5.

13

concession is well-taken, although some explanation is needed here.

14

The City.

1.

Plaintiff

Plaintiff’s Opposition to Motion for
Plaintiff’s

Timing of the discharge.

15

Unlike a Chapter 7 liquidation bankruptcy, in a Chapter 9

16

municipal bankruptcy, the bankruptcy code discharges all of the

17

City’s debt existing as of the date of confirmation.4

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§ 944(b)(1) (“the debtor is discharged from all debts as of the

19

////

11 U.S.C.

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21
22

3

Quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
4

23
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25
26

In Chapter 7, the debtor is discharged only from debts
existing as of the date the bankruptcy case was commenced, See 11
U.S.C. §§ 727(b) (Chapter 7 debtor is discharged from all debts
existing as of the date of the “order of relief,” which is normally
the commencement of the bankruptcy case, 11 U.S.C. §§ 301(b)
(voluntary case), 302(a) (joint case), 303(h) (involuntary case,
if uncontroverted; otherwise the order of relief is granted “after
trial”)).
4

1

time when ... the plan is confirmed”).5

2

her claim arose on June 15, 2010.

3

the City, and against defendant in his official capacity – which

4

arose

5

confirmation date – are barred. O’Loghlin v. County of Orange, 229

6

F.3d 871 (9th Cir. 2000).

7

ADA claims against a Chapter 9 municipal bankruptcy debtor: one

8

arose before commencement of the bankruptcy case; one arose after

9

commencement

after

commencement

but

before

of

Plaintiff concedes that

Accordingly the claims against

the

bankruptcy,

but

before

the

O’Loghlin addressed the status of three

discharge

(the

date

the

plan

was

10

confirmed); and one arose post-discharge (after the confirmation

11

date).

12

that

13

discharged in the bankruptcy. Id., at 877 (affirming “the district

14

court’s dismissal of O’Loghlin’s complaint insofar as it is based

15

on pre-discharge violations of the ADA by the County”).

16

claim that arose after the discharge date was permitted to go

17

forward.

The Ninth Circuit, interpreting Section 944(b)(1), held

the

claims

before

the

confirmation

date

were

Only the

Id.
2.

18

arising

Dischargeability of plaintiff’s claims.

19

Another remarkable feature of a municipal bankruptcy is that

20

discharges under Chapter 9 are not subject to the “exceptions” to

21

discharge set forth at 11 U.S.C. § 523(a).

22

prohibit individual debtors from discharging debt arising from

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“willful and malicious injury.”

24

Geigher, 523 U.S. 57, 63 (1998) (to be non-dischargeable, the

These exceptions

11 U.S.C. § 523(a); Kawaauhau v.

25
5

26

Thus, in a Chapter 9 case, the discharge date and the
confirmation date are the same.
5

1

judgment debt must be “for willful and malicious” injury).

2

Although the statute itself does not expressly state that injuries

3

(or

4

violations are non-dischargeable, many bankruptcy courts have so

5

interpreted this exception. See, e.g., Gee v. Hammond (In re Gee),

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173 B.R. 189, 193 (B.A.P. 9th Cir. 1994) (claim arising from sex

7

discrimination was non-dischargeable under Section 523(a), as the

8

underlying acts were “willful and malicious”); Avery v. Sotelo (In

9

re Sotelo), 179 B.R. 214, 218 (Bkrtcy. S.D. Cal. 1995) (claim

10

arising from sexual harassment injury is not dischargeable);

11

(Magana v. Moore Development Corp. (In re Moore), 1 B.R. 52, 54

12

(Bankr. C.D. Cal. 1979) (in a racial discrimination case involving

13

housing, the court holds that the “[d]ischarge of debts arising

14

from

15

“inconsistent with the intent of Congress,” as those laws are

16

specifically intended to eliminate the “‘badges and incidents of

17

slavery’”).

18

as

here,

willful

death),

allegedly

violations”

of

resulting

the

civil

from

rights

civil

laws

rights

would

be

Neither party has identified anything in the language of the

19

bankruptcy

laws

that

prevents

a

municipality

from

avoiding

20

liability, even for a willful and malicious violation of the civil

21

rights of one its own citizens.6

To the contrary, this somewhat

22
6

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24
25
26

Nor does the court find any mention in the legislative
history
of
the
statutory
provisions
governing
municipal
bankruptcies, or non-dischargeability, of any concern about the
apparent ability of a municipality to sweep away (or limit) its
liability, even for willful and malicious injuries it might inflict
on its own citizens. See generally, H.R. Rpt. No. 94-686 (1975),
reprinted in 1976 U.S.C.C.A.N. 539; H.R. Conf. Rpt. 94-938 (1976),
reprinted in 1976 U.S.C.C.A.N. 583; H.R. Rpt. No. 95-595 (1977),
6

1

surprising, indeed, alarming result appears to be supported by the

2

language

3

dischargeability of debts for “willful and malicious injury”

4

applies only to debts of individuals; and (2) the “willful and

5

malicious injury” non-dischargeability provisions do not apply at

6

all in a Chapter 9 bankruptcy.7

11 U.S.C. §§ 523(a) (applying

7

exceptions

“individual”

8

“section 727, 1141, 1228(a), 1228(b), or 1328(b)”); 901 (omitting

9

Section 523 from the general bankruptcy sections that apply in a

10

Chapter 9 case); accord Yamaha Motor Corp. U.S.A. v. Shadco, Inc.,

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762 F.2d 668, 670 (8th Cir. 1985) (the exemptions embodied in 11

12

U.S.C. § 523(a) apply only to individual donors, they “do not apply

13

to corporate debtors”), cited with approval, Towers v. U.S. (In re

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Pacific-Atlantic Trading Co.), 64 F.3d 1292, 1302 (9th Cir. 1995)

15

(in the context of tax claims, Ҥ 523 only applies to individual

16

and not corporate debtors”).

of

the

to

bankruptcy

discharges

laws

to

because:

(1)

the

debtors

non-

under

17

Thus, alarming as it is, as the bankruptcy statute appears to

18

be written, a municipality may erase its own liability to persons

19

whom it and its officers have willfully and maliciously deprived

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21
22
23

reprinted in 1978 U.S.C.C.A.N. 5963; S. Rpt. 95-989 (1978),
reprinted in 1978 U.S.C.C.A.N. 5787. Indeed, even the legislative
history regarding Section 523(a) itself appears to make no specific
mention of suits arising from willful and malicious civil rights
violations.
7

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25
26

Given that the exception applies only to “individuals,” it
is not all that surprising that it is entirely absent from
Chapter 9, since Chapter 9 debtors are never “individuals,” they
are, by definition, municipalities.
See 11 U.S.C. § 109(c)(1)
(“[a]n entity may be a debtor under Chapter 9 of this title if and
only if such entity ... is a municipality”).
7

1

of their civil rights – and even their lives – by filing for

2

bankruptcy.

3

bankruptcy laws over the civil rights laws (even though the civil

4

rights

5

constitution).

6

this matter, as neither side has briefed it nor identified any

7

applicable statutory, case-law or legislative history citations

8

relating to this matter.

9

conceded that her claims against the City were discharged in the

This extraordinary result would appear to exalt the

laws,

10

B.

the

bankruptcy

laws,

are

anchored

in

the

However, the court need not, and does not, resolve

To the contrary, plaintiff has simply

bankruptcy.

11

like

12

Chief of Police, Robert Nichelini.
1.

13

Nichelini

Arguments.
asserts

that

the

claims

against

him

in

his

14

individual or personal capacity should be dismissed because they

15

are, in essence, claims against the City, and were therefore

16

discharged with the City’s bankruptcy.

17

two distinct premises.

This assertion rests upon

18

First, defendant asserts that under state law, the City is

19

required to defend him “regardless of whether the case is brought

20

under § 1983 and whether they are sued in their individual or

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official capacities,” citing Cal. Gov’t Code § 995 and Williams v.

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Horvath, 16 Cal. 3d 834, 843 (1976).

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defendant argues that state law “requires the City to pay any claim

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or judgment against its employees in favor of third-party

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8

Motion at 5-6.

Second,

1

plaintiffs,” citing Cal. Gov’t Code § 825, et seq.

Motion at 6.

2

Based upon these two premises, defendant concludes that “[t]he

3

City’s statutorily-mandated payment of former Chief Nichelini’s

4

defense costs and judgments falls within the broad category of

5

‘debt’ discharged by the bankruptcy,” since it existed prior to the

6

City’s bankruptcy confirmation.

Motion at 6.8

7

Plaintiff argues that because she is suing Nichelini in his

8

individual (or personal) capacity, her lawsuit is one solely

9

against him, and is not against the City.9

In support, plaintiff

10

quotes Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) for the

11

proposition that “an award of damages against an official in his

12

personal capacity can be executed only against the official’s

13

personal assets.” Opposition at 6; see also, Community House, Inc.

14

v. City of Boise, Idaho, 623 F.3d 945, 967-68 (9th Cir. 2010)

15

(same), quoting Graham, 473 U.S. at 165-66.

16

Plaintiff also argues that Nichelini is improperly trying to

17

change the nature of the federal and state claims from being claims

18

against himself, personally, into claims against the City, citing

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8

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21
22
23
24
25
26

A “debt” is “liability on a claim.” 11 U.S.C. § 101(12).
A “claim” is a “right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured.” 11 U.S.C. § 101(5)(A).
With exceptions not applicable here (at least they not apparent
from the pleadings to date), “the debtor is discharged from all
debts as of the time when ... the plan is confirmed.” 11 U.S.C.
§ 944(b)(1).
9

To the degree plaintiff sues Nichelini “in his ... official
capacity,” those claims are dismissed for the same reason the
claims against the City are dismissed.
9

1

Demery v. Jupperman, 735 F.2d 1139, 1148-49 (9th Cir. 1994).10

2

2.

Resolution.

3

The issue presented here is whether a claim against a city

4

officer in his individual or personal capacity is discharged in the

5

city’s bankruptcy because of Cal. Gov’t Code §§ 825(a) and 995.11

6

a.

Whether the City must provide a defense.

7

It appears that Nichelini oversimplifies the law with his

8

repeated assertions that “the City is required to defend” him

9

against this lawsuit, and that “state law ... requires the City to

10

pay” any judgment against him.

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are not as automatic, iron-clad and mandatory as Nichelini asserts.

12

In fact, the City’s “requirements”

First, the defense is not automatic.

Rather, Nichelini must

13

“request” that the City provide a defense for him. Cal. Gov’t Code

14

§ 995 (the City shall provide a defense “upon request” of the

15

employee or former employee).12

Nothing in the pleadings or

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10

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19
20
21
22

Plaintiff also asserts that Nichelini is improperly trying
to clothe himself in the state’s sovereign immunity, citing Ronwin
v. Shapiro, 657 F.2d 1071, 1074 (9th Cir. 1981). However, nothing
in defendant’s papers indicates that he is asserting, or entitled
to, sovereign immunity. As defendant puts it, this case is about
“indemnity,” not “immunity.” Nevertheless, as will be discussed
below, sovereign immunity cases, including Ronwin, are useful in
determining whether a claim against a public official in his
personal capacity is essentially a claim against the employing
public entity (and thus barred by the entity’s bankruptcy
discharge).
11

23
24

As noted below, even assuming the city's indemnification or
defense obligation under the California statutes, given the city's
assertion relative to the effect of its bankruptcy, such obligation
has arguably been discharged.

25

12

26

upon request of an employee or former employee, a public

California law provides that:

10

1

Request for Judicial Notice establishes that Nichelini has made

2

this request.13

3

Second, the provision of a defense is not mandatory in all

4

cases.

5

that Nichelini did not, in fact, act within the course and scope

6

of his duties,14 that his action or inaction resulted from “actual

7

fraud,” corruption or “actual malice,” or that defending him would

8

create a conflict of interest.

9

DeGrassi v. City of Glendora

10

The City may refuse to provide a defense if it determines

Cal. Gov’t Code § 995.2(a);

207 F.3d 636, 642 (9th Cir. 2000)

(same).

11
12
13
14
15
16
17
18
19
20
21
22
23
24

entity shall provide for the defense of any civil action
or proceeding brought against him, in his official or
individual capacity or both, on account of an act or
omission in the scope of his employment as an employee
of the public entity.
Cal. Gov’t Code § 995.
13

Although no document before the court asserts that
Nichelini has requested that the City defend him, the court
apparently can presume that he has done so, perhaps from the fact
that the City is representing him in these pretrial proceedings.
See Sinclair v. Arnebergh, 224 Cal. App. 2d 595, 598 (1964)
(“Presumptions ... that requests for representation were made ...
are justified, and it is obvious that section 995 of the Government
Code makes it mandatory upon the city attorney to represent a
policeman upon request in a civil action arising out of the scope
of his employment”). However the court notes that the “defense”
contemplated in the statute is the defense to the trial, not simply
to these pretrial proceedings. See Section 825(a) (request must
be made no later than 10 days before trial). Moreover, if
defendants are correct about the effect of the bankruptcy, the
discharge would appear to wipe out the City’s duty to defend,
leaving Nichelini to provide his own defense.
14

25
26

The fact that plaintiff alleges that Nichelini acted, or
failed to act, within the course and scope of his official duties
would appear to have no bearing on the City’s own determination in
this regard.
11

1

Third, even if the City were required to provide a defense at

2

the outset of the litigation, it is free to discontinue that

3

defense if it subsequently – and unilaterally – determines that “an

4

actual and specific conflict of interest” has subsequently arisen.

5

Id., § 995.2(c).

6

of Pismo Beach, 35 Cal. App. 4th 1600 (2nd Dist. 1995).

7

This very sequence occurred in Stewart v. City

In Stewart, a city police officer was sued in a civil rights

8

complaint, and the city hired attorneys to defend him.

9

1603.

Id., at

The attorneys continued to defend the officer after he

resigned his position.

11

cooperating with plaintiffs (in exchange for getting the claims

12

against him in his personal capacity dropped), the city withdrew

13

its defense of the officer and also notified him that it would not

14

indemnify him.

Id., at 1604.

15

to defend him.

Id.

16

to sustain the city’s demurrer, concluding that “Section 995.2,

17

subdivision (c) allows the City to refuse to provide a further

18

defense

19

opponents in the federal action, Stewart has created a conflict of

20

interest between himself and the City.”

to

b.

21
22
23

Stewart

Id.

However, after the officer began

10

The officer sued to compel the city

The appellate court ordered the trial court

because,

by

cooperating

with

the

city's

Id., at 1607-08.15

Whether the City must indemnify defendant.

The indemnification of Nichelini is neither automatic nor
mandatory.

To obtain indemnification, Nichelini must, first,

24
25
26

15

Thus, although in most real world situations, a successful
suit against a police officer normally (after indemnification),
results in a hit to city’s treasury, that is not always the case.
12

1

request that the City defend him, and he must do so in writing, no

2

fewer than 10 days before trial.

3

DeGrassi, 207 F.3d at 642.

4

Cal. Gov’t Code § 825(a);16

Second, he must show “that the act or omission was within the

5

scope of employment.”

6

1183, 1196 (C.D. Cal. 2008).

7

indemnification in the event the employing public entity fails to

8

defend and indemnify him, he must prove that his actions or

9

omissions were within the course and scope of his official duties.

10

Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992, 997

11

(1995) (“a public entity is required to pay claims and defense

12

costs arising out of a civil lawsuit only where the employee proves

13

that the act or omission giving rise to an injury occurred in ‘the

14

scope of his or her employment as an employee of the public

15

entity’”).

16
17

Pelayo v. City of Downey, 570 F. Supp. 2d
Indeed, if an official sues for

Third, Nichelini must “cooperate[] in good faith in the
defense of the claim or action.”

Cal. Gov’t Code § 825(a);

18
16

19
20
21
22
23
24
25
26

That Section provides:

if an employee or former employee of a public entity
requests the public entity to defend him or her against
any claim or action against him or her for an injury
arising out of an act or omission occurring within the
scope of his or her employment as an employee of the
public entity and the request is made in writing not
less than 10 days before the day of trial, and the
employee or former employee reasonably cooperates in
good faith in the defense of the claim or action, the
public entity shall pay any judgment based thereon or
any compromise or settlement of the claim or action to
which the public entity has agreed.
Cal. Gov’t Code § 825(a).
13

1

DeGrassi, 207 F.3d at 642 (“[f]ailure to cooperate in good faith

2

with the City’s defense of the claim relieves the public entity of

3

its obligation to indemnify the employee”).

4

Finally, even if Nichelini does everything the law requires

5

of him to be eligible for indemnification, the City still will not

6

indemnify him for the punitive (or “exemplary”) damages that

7

plaintiff seeks here, except in very limited circumstances.

8

Cal. Gov’t Code § 825 (“[n]othing in this section authorizes a

9

public entity to pay that part of a claim or judgment that is for

10

punitive or exemplary damages”); Grassilli v. Barr, 142 Cal. App.

11

4th

12

indemnification for a punitive damages award “only under very

13

limited circumstances”). Specifically, the City is precluded from

14

indemnifying for punitive damages, unless the City’s governing body

15

determines that Nichelini acted within the course and scope of his

16

employment, that he acted in good faith and “in the best interests”

17

of the City, and that indemnification for such punitive damages are

18

“in the best interests” of the City.

1260,

1292

c.

19

(4th

Dist.

2006)

(Section

825

See

authorizes

Id., § 825(b).

Whether the claim against defendant is actually one
against the City.

20
21

Defendant’s premises for his argument that the claims against

22

him are, in essence, claims against the City, thus do not withstand

23

scrutiny.

24

the opposite view.

25

premises, that any judgment against him will come out of the City’s

26

treasury, this does not appear to be the case.

Plaintiff’s cases, on the other hand, tend to support
Although defendant concludes, based upon his

14

To the contrary,

1

“an award of damages against an official in his personal capacity

2

can be executed only against the official’s personal assets.”

3

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Community House,

4

Inc. v. City of Boise, Idaho, 623 F.3d 945, 967-68 (9th Cir. 2010)

5

(same).

6

The Ninth Circuit appears to confirm that a personal capacity

7

Section 1983 claim against a public official is not a claim against

8

the employing public entity. In Demery v. Kupperman, 735 F.2d 1139

9

(9th Cir. 1984), the plaintiff sued state officials in their

10

personal capacities.

11

sovereign

12

discussion of the nature of the claims and how the judgment would

13

be paid, is instructive.

immunity

The case involved the state’s assertion of
–

which

is

not

in

issue

here

–

but

its

14

The Ninth Circuit found no sovereign immunity bar to the suit

15

against the officials in their personal capacity. That is because,

16

“the state’s obligation to pay damages derives not from the nature

17

of plaintiff’s claim, but from an entirely collateral, voluntary

18

undertaking on the part of the state.”

19

Here too, the City’s obligation to pay does not derive from the

20

nature of plaintiff's claim.

21

damages for which ... the United States has made them individually

22

liable.”

23

Section 1983 lawsuit against a California state official sued in

24

his personal capacity “is not essentially one against the state:

25

California's law does not, and cannot, change the nature of the

26

federal claim.”

Id.

In

Id.

Demery, 735 F.2d at 1148.

Rather, defendant is being sued “for

Demery,

the

Ninth

Circuit

held

that

a

To the contrary, the City’s decision to
15

1

indemnify defendant (or not), is “a purely intramural arrangement”

2

between the City (with strong State intervention) and its officers.

3

Id., at 1147 (citing Ronwin v. Shapiro, 657 F.2d 1071 (9th

4

Cir. 1981), again in the context of sovereign immunity).

5

Demery and Ronwin, both cases involving sovereign immunity,

6

found that a claim against a state official was not essentially one

7

against the state for sovereign immunity purposes, even though

8

state law required the state to indemnify the official. This court

9

believes that under the same reasoning, a claim against a City

10

official is not essentially one against the City for bankruptcy

11

discharge

12

indemnify the official. This conclusion is particularly compelling

13

here, since, as discussed above, the City is not necessarily

14

required to provide a defense, or to indemnify the City official,

15

and in any event, such indemnification obligation was arguably

16

discharged by the bankruptcy, and nothing in the pleadings shows

17

that any such obligation exists.

18

purposes,

even

if

state

law

requires

the

City

to

In short, the court will not make the leap over the facts and

19

the law that defendant requests.

It will not find that a claim

20

(and lawsuit) against a City officer in his individual capacity is

21

the legal equivalent of a claim (and lawsuit) against the City,

22

when any judgment against defendant can only be executed against

23

defendant’s assets (not the City’s);17 the City is not obligated to

24
17

25
26

There is nothing in the pleadings or the Request for
Judicial Notice to establish that defendant has assigned his
indemnification claim to plaintiff. If that were the case, and if
the indemnification claim was not discharged in bankruptcy,
16

1

indemnify defendant against the judgment unless it makes several

2

specific findings; the City is not permitted to indemnify defendant

3

against punitive damages except under “very limited circumstances;”

4

and the City can unilaterally withdraw its obligation to defend and

5

indemnify.

6

Cal.) (Brennan, M.J.) (in the context of a request for a stay,

7

claims against employees of bankrupt city are not claims against

8

the bankrupt city. Rather, “the claims are against individuals who

9

may, if held liable, have a claim against the City for indemnity”),

10

adopted in full, Civ. Case No. 2:07-cv-1828 (E.D. Cal. March 30,

11

2009) (England, J.).18

12

d.

See Maddalone v. Solano County, 2009 WL 29750 (E.D.

Whether the claim was discharged.

13
14
15

plaintiff presumably could then seek indemnification against the
City, which, if plaintiff were to succeed, would come out of the
City’s treasury.
18

16
17
18
19
20
21
22
23
24
25
26

Cf. State ex rel. Dockstader v. Hamby, 162 Cal. App. 4th
480, 484 (4th Dist. 2008) (in the context of a California False
Claims Act case, “[b]ecause section 825 requires a government
agency, on timely request, to defend and indemnify a public
employee against claims arising out of an act or omission occurring
within the scope of his or her employment, a suit against the
defendants is tantamount to a suit against LAUSD [the public
entity] itself”). Despite its broad language,Dockstader involved
public officials sued only in their official capacities, where
plaintiffs sought to recover funds defendants obtained for their
public employer from the state.
There appear to be differing views within this district over
whether such claims should be stayed while the bankruptcy case is
proceeding. See Williams v. Kenney, 2008 WL 3540408 (E.D. Cal.)
(Brennan, M.J.) (in the context of a request for a stay, a suit
against officers employed by a bankrupt city is a suit against the
City since the City must defend and indemnify), adopted in full,
2008 WL 4454042 (E.D. Cal. 2008) (Karlton, J.); Smith-Downs v. City
of Stockton, 2012 WL 3202265 (E.D. Cal. 2012) (England, J.)
(staying claims against city officers since the bankrupt city would
be required to defend and indemnify the officers).
17

1

It is undisputed that the claim against defendant, in his

2

individual capacity, arose on June 10, 2013. The City’s bankruptcy

3

result in the discharge of all of its debts.

4

plaintiff’s resulting claims against the City, as well as its

5

resulting claims against defendant in his official capacity, were

6

discharged.19

7

bankruptcy court’s confirmation order indicates that defendant’s

8

individual debts are also discharged.

9

plaintiff’s claim against defendant in his individual capacity was

10

Because of this,

Nothing in the law, the City’s discharge or the

The court concludes that

therefore not discharged in the City’s bankruptcy.
Defendant

11

asks

overlook

is

15

indemnification.

16

City for indemnification, if he is found liable in this lawsuit,

17

and if the City declines to defend him or pay the judgment.21

rights

apart

from

that

14

civil

and

fact

Section 1983 liability claim that underlies it.20
a

separate

the

13

for

claim

to

“indemnification”

defendant

a

court

12

suing

is

this

the

Plaintiff here

violation,

not

for

It is the defendant who may choose to sue the

It

18
19
20
21
22
23
24
25
26

19

If defendant had a contingent claim against the City for
indemnity, arising from decedent’s death, the City might argue that
the claim was discharged in the bankruptcy. See, e.g., Boyajian
v. Orboudabi, 184 Cal. App. 4th 1020 (3rd Dist. 2010). However,
the court is not called upon to consider this matter.
20

In addition, California has a separate cause of action for
a public entity’s wrongful failure to provide a defense. Cal.
Gov’t Code § 996.4
21

A different result might obtain if defendant had assigned
his indemnity claim to plaintiff prior to the date of the City’s
discharge. Normally, this practice would allow plaintiff to sue
the City directly if it won a liability verdict against defendant,
and a judgment in that case would come out of the City’s treasury.
18

1

is

at

that

point

that

a

court

might

have

to

determine

if

2

defendant’s claim – for indemnity – was discharged in bankruptcy.

3

IV.

CONCLUSION

4

For the reasons stated above:

5

1.

The City’s motion, and Nichelini’s motion made in his

6

official capacity, for dismissal on the pleadings is GRANTED, and

7

all claims against them are DISMISSED with prejudice;

8
9

2.

Defendant Nichelini’s motion, made in his individual or

personal capacity, for judgment on the pleadings, is DENIED.

10

IT IS SO ORDERED.

11

DATED:

August 1, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
19