Kaur et al v. City of Lodi et al

Filing 30

ORDER signed by Judge Garland E. Burrell, Jr. on 8/6/2014 GRANTING IN PART and DENYING IN PART 14 Motion to Dismiss; DENYING 13 Motion to Dismiss; GRANTING the plaintiffs fourteen (14) days to file an amended complaint addressing the deficiencies in any dismissed claim. (Michel, G)

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UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

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10
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SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,

v.

15

17
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19
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ORDER GRANTING IN PART AND
DENYING IN PART THE CITY
DEFENDANTS’ MOTION TO DISMISS
AND DENYING THE OFFICER
DEFENDANTS’ MOTION TO DISMISS

Plaintiffs,

14

16

No. 2:14-cv-828-GEB-AC

CITY OF LODI; CITY OF LODI
POLICE DEPARTMENT; MARK
HELMS, in his individual
capacity as the Chief of
Police for the City of Lodi;
SCOTT BRATTON, in his
individual capacity as a City
of Lodi Police Officer; ADAM
LOCKIE, in his individual
capacity as a City of Lodi
Police Officer; and DOES 1
through 50, inclusive,

22

Defendants.

23
Defendants

24

City

of

Lodi,

City

of

Lodi

Police

25

Department, and Chief of Police Mark Helms (collectively, “the

26

City

27

(collectively, “the Officer Defendants”) move in two separate

28

motions under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

Defendants”),

and

Scott

1

Bratton

and

Adam

Lockie

1

for dismissal of certain claims in Plaintiffs’1 Complaint, and

2

dismissal

3

challenge claims alleged under 42 U.S.C. § 1983, Title II of the

4

Americans

5

Government Code sections 815.2 and 820. Plaintiffs oppose the

6

motions.

of

certain

with

parties

from

Disabilities

7

Act

the

action.

(“ADA”),

The

and

motions

California

I. LEGAL STANDARD

8

When deciding a motion to dismiss a complaint, a court

9

“inquire[s] whether the complaint’s factual allegations, together

10

with

all

11

relief.” United States ex rel. Cafasso v. Gen. Dynamics C4 Sys.,

12

637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal,

13

556 U.S. 662, 678-79 (2009)). “A claim has facial plausibility

14

when the plaintiff pleads factual content that allows the court

15

to draw the reasonable inference that the defendant is liable for

16

the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl.

17

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

18

reasonable

When

inferences,

determining

the

state

a

plausible

sufficiency

of

a

claim

claim,

for

“[w]e

19

accept factual allegations in the complaint as true and construe

20

the

21

party[;

22

conclusions . . . cast in the form of factual allegations.” Fayer

23

v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation omitted)

24

(internal

25

allegations of law and unwarranted inferences are insufficient to

pleadings

in

however,

the

light

most

favorable

this

tenet

does

not

quotation

marks

omitted).

apply

to

the

to]

.

“Therefore,

non-moving
.

.

legal

conclusory

26
1

27
28

Plaintiffs Sukhwinder Kaur (“Ms. Kaur”), Kulbinder Kaur Sohota (“Ms.
Sohota”), and Sarabjit Singh Shergill (“Mr. Shergill”) jointly allege the
sixth claim in the Complaint, and Ms. Kaur alone alleges all other claims.
Each Plaintiff is referenced as “Plaintiffs” throughout the order.

2

1

defeat a motion to dismiss.” Id. (citation omitted) (internal

2

quotation

3

(stating “[a] pleading that offers ‘labels and conclusions’ or ‘a

4

formulaic recitation of the elements of a cause of action will

5

not do’” (quoting Twombly, 550 U.S. at 555)).

marks

omitted);

6

see

also

Iqbal,

556

U.S.

at

678

II. FACTUAL BACKGROUND

7

The following allegations in the Complaint are germane

8

to

the

9

responsible for [the Lodi Police Department]’s policies related

10

to use of force and its officers’ contacts with persons suffering

11

from mental illness-related disabilities.” (Compl. ¶ 43, ECF No.

12

1.) “Chief H[elms] failed to implement and/or to maintain an

13

adequate

14

contacts with individuals suffering from mental illness-related

15

disabilit[ies] and the use of force on these individuals. Chief

16

H[elms] was either aware of the non-existence or inadequacy of a

17

policy, believing, mistakenly, that it was not necessary or was

18

deliberately indifferent to the non-existence of, or inadequacy

19

of, this type of important policy.” (Id. ¶ 44.)

20

motions.

[Lodi

“[Lodi

Police

“P[arminder
disabled

Gulf

Police

Department]

Department]

Singh
War

policy

Shergill]
veteran

who

Chief

related

H[elms]

to

[(‘Parminder’)]
suffered

is

officer

was

[from]

a[]

21

. . .

post-

22

traumatic stress disorder and depression . . . .” (Id. 2:1-2.)

23

“P[arminder] was a qualified individual with a disability under

24

Title II of [the] ADA, and was suffering from a mental illness-

25

related disability at the time of the incident giving rise to

26

this action.” (Id. ¶ 66.)

27

“[Ms. Kaur] is the mother of . . . P[arminder], and

28

possesses a liberty interest in her familial relationship with
3

1

[him].” (Id. ¶ 72.) “[Ms. Kaur] and [Parminder’s siblings] [Ms.

2

Sohota]

and

[Mr.

Shergill]

3

relationship

with

their

4

¶ 76.)

. . .

share[d]

son/brother

an

intimate

human

P[arminder] . . . .”

(Id.

5

“On the morning of January 25, 2014, P[arminder] became

6

anxious and his family members wanted him to go to the Veteran’s

7

Clinic to receive treatment.” (Id. 2:4-5.) “P[arminder]’s sister-

8

in-law[]

9

P[arminder] to the Veteran’s Clinic.” (Id. ¶ 18.) “During the

10

telephone call to 9-1-1, [she] explained that P[arminder] was

11

disabled, manifesting symptoms of mental illness, and needed to

12

be transported to the Veteran’s Clinic where he could obtain care

13

and treatment for his disability.” (Id. ¶ 19.)

called

9-1-1

to

request

assistance

in

transporting

14

“Before [the Officer Defendants] arrived, P[arminder]

15

left the [f]amily [h]ome to walk to the [p]ark.” (Id. ¶ 21.) At

16

the

17

Defendants] with the same information she had provided to the

18

dispatcher.” (Id. ¶ 23.) The Officer Defendants “told the family

19

that there was nothing they could do because P[arminder] was not

20

home

21

(Id. ¶ 24.) The Officer Defendants “told [Parminder’s sister-in-

22

law] that if they saw P[arminder] they would try to talk to him”;

23

they then “left the [f]amily [h]ome.” (Id. ¶ 25.)

home,

and

24

Parminder’s

had

not

sister-in-law

threated

violence

“provided

to

himself

[the

or

Officer

others.”

The Officer Defendants “saw P[arminder] while he was

25

walking

26

(Id. ¶ 26.) “P[arminder] walked past the officers . . . and began

27

to

28

Officer Defendants “pursued P[arminder] with their weapons drawn,

walk

through

. . .

the

toward

[p]ark

his

and

attempted

[f]amily

4

[h]ome.”

to

detain

him.”

(Id. ¶ 28.)

The

1

following closely behind him, and demanding that he stop and

2

submit to their questioning . . . .” (Id. ¶ 29.) “As [the Officer

3

Defendants] followed P[arminder] . . . , [they] repeatedly asked

4

[P]arminder questions and demanded that he stop and answer their

5

questions.”

6

emotional

7

harassing behavior . . . .” (Id. ¶ 91.)

(Id.)

“P[arminder]

distress

at

the

suffered

hands

of

[the

extreme
Officer

and

severe

Defendants’]

8

“When P[arminder] was a few house-lengths away from the

9

driveway of his [f]amily [h]ome, [the Officer Defendants] yelled

10

at

P[arminder]

11

commands

12

“P[arminder]

13

(Id. ¶ 31.)

14

P[arminder] . . . .” (Id. ¶ 32.)

by

to

‘Stop!’

turning
had
The

his

P[arminder]

around
hands

Officer

to
up

face
and

responded

to

them.”

(Id.

yelled

Defendants

“then

‘Don’t
shot

[their]
¶ 30.)
shoot!’”

and

killed

15

“Later that same day, through Chief of Police H[elms],

16

the [Lodi Police Department] issued a press statement regarding

17

the shooting and P[arminder]’s subsequent death,” which stated,

18

inter

19

[Officer Defendants] with [a] knife, and officers were forced to

20

shoot him. . . . Because of the suspect’s actions, our officers

21

had no choice and they had to shoot him.” (Id. ¶ 39.) Plaintiffs

22

allege

23

release] are false.” (Id. ¶ 40.)

alia:

that

“During

“[t]he

their

above-referenced

24
25

contact

[Parminder]

statements

charged

[in

the

the

press

III. DISCUSSION
A. The City Defendants’ Motion to Dismiss

26

1. Section 1983 Claims Against the Lodi Police

27

Department

28

The City Defendants argue: “[I]t is established that
5

1

naming

2

appropriate

3

municipality. Thus, naming both the City of Lodi and Lodi Police

4

Department serves no purpose and the [Lodi] Police Department

5

should

6

omitted), ECF No. 14.)

a

municipal

be

means

department
of

as

pleading

dismissed.”

(City

a

a

defendant

§ 1983

Defs.’

Mot.

is

action

4:10-13

not

an

against

a

(citation

7

“[T]he [p]olice [d]epartment’s capacity to be sued in

8

federal court is to be determined by the law of California.”

9

Streit

v.

Cnty.

of

L.A.,

236

F.3d

552,

565

(9th

Cir.

2001)

10

(citing Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788

11

F.2d

12

section 945 prescribes: “A public entity may . . . be sued.”

13

“Municipal

14

California law and, hence, can be sued in federal court for

15

alleged civil rights violations.” Karim-Panahi v. L.A. Police

16

Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988) (citing Shaw, 788

17

F.2d at 605). Therefore, this portion the motion is denied.

600,

604

(9th

police

Cir.

1986)).

departments

California

are

‘public

Government

entities’

Code

under

18

The City Defendants also argue for the first time in

19

their reply brief that “even if this court finds that the Lodi

20

Police Department is a su[]able entity, this court should dismiss

21

[the Lodi Police Department] because [it] [is] duplicative of the

22

City [of Lodi].” (City Defs.’ Reply 4:3-5, ECF No. 26.) However,

23

a “district court need not consider arguments raised for the

24

first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997

25

(9th Cir. 2007). Therefore, this argument is disregarded.

26
27
28

2. Excessive Force Claim
The

City

Defendants

seek

dismissal

of

Plaintiffs’

§ 1983 claim against the City of Lodi and Chief Helms, in which
6

1

Plaintiffs

allege

2

Defendants’

excessive

3

Defendants argue this claim “should be dismissed because the mere

4

issuance of a press release is insufficient conduct to constitute

5

. . . ratification.” (City Defs.’ Mot. 6:17-19 (emphasis added).)

6

The movants’ reliance on the indefinite article “a” in

7

this portion of the motion indicates that they seek an advisory

8

opinion. “[T]he federal courts established pursuant to Article

9

III of the Constitution do not render advisory opinions. For

use

Defendants
of

ratified

force.

Specifically,

12

Golden v. Zwickler, 394 U.S. 103, 108, (1969) (alteration in

13

original) (internal quotation marks omitted) (quoting United Pub.

14

Workers v. Mitchell, 330 U.S. 75, 89, (1947)).

not

abstractions,

legal

City

presented

cases,

concrete

the

11

actual

issues,

Officer

adjudication

15

constitutional

the

10

in

of

these

are

issues,

requisite.”

It
has
long
been
[that
the
federal
judiciary’s] considered practice [is] not to
decide abstract, hypothetical or contingent
questions, or to decide any constitutional
question in advance of the necessity for its
decision,
or
to
formulate
a
rule
of
constitutional law broader than is required
by the precise facts to which it is to be
applied, or to decide any constitutional
question
except
with
reference
to
the
particular facts to which it is to be
applied . . . .

16
17
18
19
20
21
22

Ala. State Fed’n of Labor, Local Union No. 103, United Bhd. of

23

Carpenters, 325 U.S. 450, 461 (1945) (citations omitted). Since

24

this portion of the motion seeks an advisory opinion on the

25

issuance of any press release, it is denied.

26

3. Inadequate Training and Supervision Claim

27
28

The
§ 1983

claim

City

Defendants

against

Chief

seek

Helms,
7

dismissal
in

which

of

Plaintiffs’

Plaintiffs

allege

1

liability for “inadequate . . . training and/or supervision of

2

[the

3

suffering

4

Defendants argue, inter alia, “The Complaint contains no facts

5

about . . . how the . . . inadequacies [in mental-illness-related

6

training

7

death.”

8

Defendants argue Plaintiffs have not alleged a causal connection

9

between the referenced inadequacies in training and supervision

10

Officer

Defendants]

from

and

mental

illness.”

supervision]

(City

Defs.’

regarding

(Compl.

factually

Mot.

contacts

¶ 57.)

resulted

8:21-24.)

In

with

in

persons
The

City

[Parminder]’s

essence,

the

City

and the shooting.

11

To

allege

the

this

13

municipal

policy

14

constitutional tort”—specifically, “that the policy [was] the

15

‘moving force behind the constitutional violation.’” Berry v.

16

Baca, 379 F.3d 764, 769 (9th Cir. 2004) (quoting Brass v. Cnty.

17

of L.A., 328 F.3d 1192, 1198 (9th Cir. 2003); Oviatt v. Pearce,

18

954 F.2d 1470, 1474 (9th Cir. 1992)).
The

following

facts

nature

from

pursuant

caused

to

claim,

must

some

“action

of

Plaintiffs

of

that

element

12

19

allege

causation

[the

Plaintiffs’

official

referenced]

Complaint

are

20

relevant to whether Plaintiffs have alleged a causal connection

21

between allegedly inadequate mental-illness-related training and

22

supervision and Parminder’s death:

23
24
25
26
27
28

When P[arminder] was a few house-lengths away
from the driveway of his [f]amily [h]ome,
[the
Officer
Defendants]
yelled
at
P[arminder] to ‘Stop!’ P[arminder] responded
to [their] commands by turning around to face
them.
. . . . P[arminder] had
yelled “Don’t shoot!”

his

hands

up

and

[The Officer Defendants] then shot and killed
8

1
2

P[arminder] . . . .
(Compl. ¶¶ 30-32.)

3
4
5
6
7
8

These allegations allege that the Officers Defendants
shot an individual who had his hands up. The allegations in the
Complaint do not contain facts from which a reasonable inference
may

be

drawn

connection

to

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

shooting,

mental

on

illness

which

this

had

claim

a

causal

is

based.

4. ADA Claim

10

12

the

Parminder’s

Therefore, this portion of the motion is granted.

9

11

that

The City Defendants seek dismissal of Plaintiffs’ claim
that

the

City

of

Lodi

and

Lodi

Police

Department

failed

to

accommodate Parminder’s disability in violation of Title II of
the ADA. Specifically, the City Defendants argue Plaintiffs have
failed to allege that Parminder was disabled within the meaning
of the ADA since “Plaintiff[s] do[] not aver any facts suggesting
that any of his major life activities [were] limited.” (City
Defs.’ Mot. 9:27-10:1.)
“[T]o
plaintiff]

must

state
show

a

prima

that

facie
person]

[a

case
is

under

the

disabled

ADA,

within

[a
the

meaning of the ADA . . . .” Nunes v. Wal-Mart Stores, Inc., 164
F.3d 1243, 1246 (9th Cir. 1999). “To adequately allege an actual
disability under the ADA, a plaintiff must allege two elements:
‘(1) . . . a physical or mental impairment; and (2) that such
impairment

substantially

limits

one

or

more

. . .

major

life

activities.’” Daubert v. City of Lindsay, No. 1:10-cv-01588-AWISKO, 2010 WL 4814408, at *2 (E.D. Cal. Nov. 19, 2010) (quoting
Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir.

28
9

1

1996)).

2

Plaintiffs’

Complaint

contains

the

following

3

allegations concerning Parminder’s impairment.

4

a[] . . . disabled Gulf War veteran who suffered [from] post-

5

traumatic stress disorder and depression . . . .” (Compl. 2:1-2.)

6

“P[arminder] was a qualified individual with a disability under

7

Title II of [the] ADA, and was suffering from a mental illness-

8

related disability at the time of the incident giving rise to

9

this action.” (Id. ¶ 66.)

10

“[Parminder] was

These conclusory allegations are insufficient under the

11

applicable

pleading

standard

to

allege

facts

from

12

reasonable inference may be drawn that Parminder suffered from a

13

disability defined in the ADA. Therefore, this portion of the

14

motion is granted.

15

a

B. The Officer Defendants’ Motion to Dismiss

16

which

1. Unreasonable Provocation Claim

17

The Officer Defendants seek dismissal of Plaintiffs’

18

§ 1983 claim, in which Plaintiffs allege the Officer Defendants

19

“unreasonably,

20

P[arminder] when they were aware that P[arminder] was suffering

21

from a mental illness, and confronted, following, and harassed

22

P[arminder], without probable cause or reasonable suspicion, as

23

P[arminder] attempted to walk to his [f]amily [h]ome from the

24

[p]ark.”

25

“ordering the decedent to stop before he reached [his] home was

26

not

27

reckless provocation.” (Officer Defs.’ Mot. 12:15-17, ECF No.

28

13.)

a

intentionally,

(Compl.

Fourth

Further,

¶ 62.)

Amendment

the

The

and/or

Officer

violation,

Officer

Defendants

much

Defendants
10

recklessly

less

argue

provoked

argue

that

intentional

the

or

circumstances

1

leading

2

reasonable suspicion that [Parminder] posed a danger to those

3

inside the home and that violent criminal activity would ensue if

4

he made it back to the home.” (Id. 12:9-12.)

5

up

to

their

“[W]here
a

encounter

an

Parminder

“gave

intentionally

confrontation,

recklessly

7

independent Fourth Amendment violation, he may be liable for his

8

[subsequent,]

9

Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002). “Police
or

an

use

of

force.”

purposes provided the officers making the stop have reasonable

12

suspicion that criminal activity may be afoot.” United States v.

13

Johnson, 581 F.3d 994, 999 (9th Cir. 2009) (internal quotation

14

marks omitted). Such a “stop must be justified at its inception

15

and

16

justified’ the initial stop.’” Hiibel v. Sixth Jud. Dist. Ct. of

17

Nev., Humboldt Cnty., 542 U.S. 177, 188 (2004) (quoting Terry v.

18

Ohio, 392 U.S. 1, 20 (1968)).

scope

to

the

brief,

an

11

in

for

deadly

is

may

related

individual

provocation

10

‘reasonably

seize

defensive

the

to

provokes

otherwise

if

or

rise

6

detain

violent

officer

with

investigatory

circumstances

which

19

Further, “law enforcement officers do not violate the

20

Fourth Amendment by merely approaching an individual ... in [a]

21

public place, [and] asking him if he is willing to answer some

22

questions, [or] by putting questions to him if the person is

23

willing to listen . . . .” Florida v. Royer, 460 U.S. 491, 497

24

(1983).

Moreover,

under

25

totally

divorced

from

26

acquisition of evidence relating to the violation of a criminal

27

statute[,]’ . . . , a police officer may have occasion to seize a

28

person . . . in order to ensure the safety of the public and/or

a

“‘community

the

caretaking

detention,

11

function[],

investigation,

or

1

the individual.” United States v. King, 990 F.2d 1552, 1560 (10th

2

Cir.

3

(1973)).

4

belief that the person poses a danger to himself or the public.”

5

Shields v. Tracy, No. 03-cv-1614-DFL-PAN, 2005 WL 1490300, at *4

6

(E.D. Cal. June 21, 2005).

1993)

7

(quoting

“[A]

Cady

community

v.

Dombrowski,

caretaking

413

stop

U.S.

requires

433,

441

reasonable

The following facts are relevant to whether Plaintiffs

8

have

alleged

9

detain Parminder in the park, they lacked “reasonable suspicion

10

that criminal activity [might] be afoot,” Johnson, 581 F.3d at

11

999, or a “reasonable belief that [Parminder] pose[d] a danger to

12

himself

13

“[Parminder] was a[] . . . disabled Gulf War veteran who suffered

14

[from]

post-traumatic

15

(Comp.

2:1-2.)

16

request assistance in transporting P[arminder] to the Veteran’s

17

Clinic.” (Id. ¶ 18.) “During the telephone call to 9-1-1, [she]

18

explained that P[arminder] was disabled, manifesting symptoms of

19

mental illness, and needed to be transported to the Veteran’s

20

Clinic . . . .” (Id. ¶ 19.) When the Officer Defendants arrived

21

at Parminder’s home, “[she] provided [the Officer Defendants] the

22

same information she had provided to the dispatcher.” (Id. ¶ 23.)

23

The Officer Defendants “told the family that there was nothing

24

they

25

threated violence to himself or others.” (Id. ¶ 24.) The Officer

26

Defendants “told [Parminder’s sister-in-law] that if they saw

27

P[arminder] they would try to talk to him.” (Id. ¶ 25.) The

28

Officer Defendants “saw P[arminder] while he was walking through

or

could

that,

the

do

when

public.”

the

Tracy,

stress

“P[arminder]’s

because

Officer

Defendants

2005

disorder

WL

and

1490300

12

was

not

at

to

*4.

depression . . . .”

sister-in-law[]

P[arminder]

attempted

called

home

and

9-1-1

had

to

not

1

the [p]ark and attempted to detain him.” (Id. ¶ 26.)

2

The Officer Defendants have not shown why, under the

3

applicable pleading standard, a reasonable inference may not be

4

drawn from pled facts that, upon encountering Parminder in the

5

park, the Officer Defendants lacked “reasonable suspicion that

6

criminal activity [might] be afoot,” Johnson, 581 F.3d at 999, or

7

a “reasonable belief that [Parminder] pose[d] a danger to himself

8

or the public.” Tracy, 2005 WL 1490300 at *4. Plaintiffs allege

9

in the Complaint that the Officer Defendants stated Parminder had

10

not threatened violence to himself or others, and a reasonable

11

inference cannot be drawn from the facts alleged that Parminder

12

threatened the Officer Defendants. Therefore, this portion of the

13

motion is denied.

14

a. Qualified Immunity

15

The Officer Defendants also argue they are entitled to

16

qualified immunity since “there are insufficient facts to show a

17

pre-shooting

18

therefore]

19

insufficient facts indicating that a reasonable officer would

20

have believed that ordering the decedent to stop was unlawful.”

21

(Officer

22

conclusory argument that they are entitled to be shielded from

23

Plaintiffs’

24

doctrine is denied since it is unsupported by facts from the

25

Complaint

26

Therefore, this portion of the motion is denied.

27
28

Fourth
[u]nder

Defs.’

Amendment
the

Mot.

liability

from

which

violation

circumstances

13:15-19.)

allegations

reasonable

The

under

even

occurred[,

presented,

Officer

the

there

and
are

Defendants’

qualified-immunity

inferences

could

be

drawn.

2. Deprivation of Association Claim
The Officer Defendants seek dismissal of Plaintiffs’
13

1

§ 1983

2

Parminder, the Officer Defendants deprived Plaintiffs of a First

3

Amendment

4

¶ 75.)

5

Amendment right to continued association with others . . . is not

6

a

7

(citation omitted) (internal quotation marks omitted).) However,

8

the Ninth Circuit has specifically recognized a parent’s “right

9

to familial association under . . . the First . . . Amendment[].”

claim,

in

right

“to

Specifically,

cognizable

v.

which

10

Lee

City

11

Therefore,

12

legal

continued
the

theory.”

this

250

portion

of

that

association”

Officer

L.A.,

allege

Defendants

(Officer

F.3d

with

the

668,

killing

him.

argue:

Defs.’

Officer

686

by

A

Mot.

(9th

(Compl.
“First

14:14-16

denied.

13

of

Plaintiffs

Cir.

Defendants’

2001).

motion

is

The Officer Defendants also argue Parminder’s siblings,

14

Plaintiffs

Ms.

Sohota

15

plaintiffs to bring this [§] 1983 [deprivation of association]

16

claim and must be dismissed.” (Officer Defs.’ Mot. 15:3-4.) The

17

Officer Defendants point to Ward v. City of San Jose, in which

18

the Ninth Circuit held that siblings do not possess a liberty

19

interest in their sibling’s companionship under the Fourteenth

20

Amendment substantive due process clause. 967 F.2d 280, 284 (9th

21

Cir. 1991). However, the Officer Defendants have not shown that

22

the principle enunciated in Ward extends to Plaintiffs’ First

23

Amendment

24

denied.

claims.

and

Therefore,

Mr.

this

Shergill,

portion

“are

of

the

not

proper

motion

is

25

In addition, the Officer Defendants argue for the first

26

time in their reply brief that “[t]he Complaint offers no factual

27

allegations that [Parminder]’s siblings or mother had any type of

28

expressive relationship with him.” (Officer Defs.’ Reply 7:16-18,
14

1

ECF

2

arguments raised for the first time in a reply brief.” Zamani,

3

491 F.3d at 997. Therefore, this argument is disregarded.

No.

25.)

However,

4

3.

5

a

Negligent

“district

court

Infliction

of

need

not

Emotional

consider

Distress

Claim

6

The Officer Defendants seek dismissal of Plaintiffs’

7

claim for negligent infliction of emotional distress (“NIED”), in

8

which Plaintiffs allege “P[arminder] suffered extreme or severe

9

emotional

distress

at

the

hands

of

[the

Officer

Defendants’]

10

harassing behavior immediately before his death.” (Compl. ¶ 91.)

11

The

12

cases that have held that a police officer and suspect share the

13

. . . type of preexisting relationship which would create a duty

14

to avoid negligent infliction of emotional distress. As such, the

15

[required] duty element . . . is missing.” (Officer Defs.’ Mot.

16

17:7-11.)

Officer

17

Defendants

argue:

“There

are

no

known

California

“[NIED] is a form of the tort of negligence, to which

18

the

elements

19

apply.” Huggins v. Longs Drug Stores Calif., Inc., 6 Cal. 4th

20

124,

21

“‘[b]ystander’

22

impacted or injured, but instead witnesse[s] someone else being

23

injured due to defendant’s negligence.” Wooden v. Raveling, 61

24

Cal. App. 4th 1035, 1037 (1998). In “‘[d]irect victim’ cases

25

. . . the plaintiff’s claim of emotional distress is not based

26

upon witnessing an injury to someone else, but rather is based

27

upon the violation of a duty owed directly to the plaintiff.” Id.

28

at 1038. Plaintiffs’ NIED claim is a “direct victim” claim since

129

of

(1993).

duty,

NIED

cases

breach

of

cases

. . .

duty,

fall

the

15

causation

into

plaintiff

and

damages

two

categories.

[is]

not

In

physically

1

it is brought on behalf of Parminder. “[A] right to recover for

2

emotional distress as a ‘direct victim’ arises from the breach of

3

a

4

defendant

5

defendant’s

6

Huggins, 6 Cal. 4th at 129.

duty

7

that
as

is
a

assumed
matter

by
of

preexisting

the
law,

defendant
or

that

relationship

or

imposed

arises

with

the

out

on

the

of

the

plaintiff.”

The policy considerations to be taken into
account in determining whether a duty is
imposed
by
law
. .
.
[include]
“the
foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff
suffered
injury,
the
closeness
of
the
connection between the defendant’s conduct
and the injury suffered, the moral blame
attached to the defendant’s conduct, the
policy of preventing future harm, the extent
of
the
burden
to
the
defendant
and
consequences to the community of imposing a
duty
to
exercise
care
with
resulting
liability for breach, and the availability,
cost, and prevalence of insurance for the
risk involved.”

8
9
10
11
12
13
14
15
16

Friedman v. Merck & Co., 107 Cal. App. 4th 545, 464-65 (2003)

17

(emphasis in original) (quoting Rowland v. Christian, 69 Cal. 2d

18

108, 113 (1968)).

19

The Officer Defendants’ conclusory argument fails to

20

address whether Plaintiffs’ factual allegations in the Complaint

21

gave rise to a duty to avoid causing Parminder “extreme and

22

severe

23

immediately before his death,” as alleged in Plaintiffs’ NEID

24

claim. (Compl. ¶ 91.) Therefore, this portion of the motion is

25

denied.

26

emotional

distress

. . .

[from]

harassing

behavior

IV. CONCLUSION

27

For the stated reasons, the City Defendants’ motion is

28

granted in part and denied in part, and the Officer Defendants’
16

1

motion is denied. However, Plaintiffs are granted fourteen (14)

2

days from the date on which this order is filed to file an

3

amended complaint addressing the deficiencies in any dismissed

4

claim.

5

Dated:

August 6, 2014

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