Eason v. Wal-Mart Corporation

Filing 52

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/18/17: The First Amended Complaint is ORDERED filed. This case should be dismissed because it is barred by the statute of limitations and by the fleeing felon rule. F&R referred to United States District Judge Kimberly J. Mueller. Objections to F&R due within twenty-one days. (Kaminski, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RAYMELL LAMAR EASON

12

No. 2:16-cv-01876 KJM GGH

Plaintiff,

13

v.

ORDER and FINDINGS AND
RECOMMENDATIONS

14

WAL MART STORES, INC.,

15

Defendant.

16
17
18

Introduction
Plaintiff filed his Complaint in the Eastern District of California against Walmart, but it

19

was quickly transferred to the Western District of Arkansas. ECF Nos. 4, 5. After an Answer

20

was filed, the case was re-transferred to this district. ECF No. 17. Walmart now moves for

21

Judgment on the Pleadings. ECF No. 38. After Judgment on the Pleadings was filed, plaintiff

22

filed an Addendum to the Complaint, and later sought to amend his complaint (ECF 45, 46). That

23

motion is adjudicated pursuant to the order section of this ruling. The requested amendment to

24

the complaint does not affect the grounds set forth in the Motion for Judgment on the Pleadings as

25

the amendment seeks to add new claims; it will be adjudicated as if the Motion to Amend were to

26

be granted.

27

Plaintiff admits in his Complaint, and his First Amended Complaint (FAC), that he

28

attempted robbery upon a guard associated with an armored money transportation service (Garda
1

1

World Security Services, [“Garda”]. The robbery attempt took place at a Walmart store in

2

Sacramento on April 17, 2012 as the guard exited Walmart when plaintiff shot the Garda

3

transport officer with a taser weapon. The armed guard, after quickly recovering from the taser

4

shot, and after having given the money bag to a Walmart security guard, gave chase to plaintiff

5

and eventually shot plaintiff in the knee, and fired further shots into plaintiff’s get-away car

6

driven by another person.1 It is not clear whether plaintiff ever got into his get-away car or

7

whether plaintiff simply fled after being shot, but he apparently did not ultimately flee in the car,

8

and was later found in a dumpster and arrested. Plaintiff is now serving federal time for the

9

robbery attempt.

10

It is not clear at all from the Complaint/FAC, how a Garda employee from an armored

11

transport company which apparently contracts with Walmart to pick up money from its store,

12

involves Walmart in plaintiff’s alleged injuries. However, the Motion for Judgment on the

13

Pleadings is not directly based on this potential problem, perhaps because such might require

14

evidence outside the pleadings. It will not be discussed here.2

15

For the reasons set forth here, Walmart’s motion is well taken on both the statute of

16

limitations and Cal. Civil Code section 3333.3.

17

Motion for Judgment on the Pleadings

18

Walmart moves for judgment based on the California statute of limitations and California

19

law precluding actions against those who are injured in the course of committing a felony, or in

20

fleeing the scene after committing the felony. The standards for such a motion are as follows:

21

Judgment on the pleadings is appropriate “when there are no issues of material
fact, and the moving party is entitled to judgment as a matter of law.” 3550
Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990). In
considering a motion for judgment on the pleadings, the court reviews the
pleadings only. The allegations of the non-moving party must be accepted as true.
See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th

22
23
24
25
1

26
27
28

Further facts are found in Exhibit A to Walmart’s Request for Judicial Notice. While the
undersigned can take judicial notice that a federal criminal complaint was issued in 2012)(signed
by the undersigned), the facts set forth in the affidavit cannot be the subject of judicial notice.
2
However, as set forth in the text, under any interpretation of the Complaint/FAC, it would
appear that Walmart’s involvement could only be on a negligence basis.
2

1

Cir. 1989); see also Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 882 (9th Cir.
2011). A motion for judgment on the pleadings is functionally identical to a
motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6); the
same legal standard applies. See Cafasso v. General Dynamics C4 Sys., Inc., 637
F.3d 1047, 1055 n.4 (9th Cir. 2011).

2
3
4
5

Delido v. Sunrise Express Inc., 2017 WL 3279018 *1 (E.D. Cal. 2017).

6

Statute of Limitations

7

As indicated previously, the robbery took place in 2012 with the complaint not filed until

8

2016.3 On the face of things, the California statute of limitations, Cal. Code Civ. P. section

9

335.1, 4 indisputably the statute that applies here, provides a two year statute of limitations for

10

wrongful acts involving assault, battery, personal injury and death. Thus, unless some type of

11

tolling exists, this federal complaint is barred by the referenced limitations statute. Plaintiff does

12

not contest the initial application of the statute, but argues only that he is entitled to equitable

13

tolling.

14

Walmart reasonably anticipated a statutory tolling of the limitations period, and briefed

15

Ca. Code Civ.Pro. section 352.1 As Walmart correctly observes, this tolling statute, dealing with

16

a two year tolling for incarcerated prisoners, only applies to causes of action that accrued during

17

the incarceration or custody. However, the issue is a bit closer than Walmart intimates, but

18

nevertheless to be decided in Walmart’s favor.

19

The sine qua non for application of the “prisoner’s tolling” statute is that plaintiff was in

20

some type of custody at the time at the time the cause of action accrued. Under any reading of

21

plaintiff’s complaint, the cause of action accrued when plaintiff was shot because he was clearly

22

aware of his injury at that time as well as of who shot him. See Jolly v. Eli Lilly, 44 Cal. 3d 1103

23

(1998)(holding that a cause of action accrues when a plaintiff reasonably becomes aware of injury

24
3

25
26
27
28

Plaintiff previously sued Garda and the guard that shot him in state court in 2013. This lawsuit
was dismissed with prejudice in 2015 for failure to prosecute. The undersigned takes judicial
notice of these facts as presented by Walmart’s Request for Judicial Notice, Exhibits D and E.
Plaintiff does not dispute them.
4
This case is in federal court based on diversity jurisdiction. No one contests the fact that
California law applies to the substance of this case, including the statute of limitations. See
Burkitt v. MetLife etc., 2014 WL 4197565 *2 (E.D. Cal. 2014).
3

1

and factual cause). Just as clearly, plaintiff was not incarcerated at the time he was shot.

2

However, the tolling will start when any type of continuous custody is exercised. Elliott v. City

3

of Union City, 25 F.3d 800, 802, 802-803 (9th Cir. 1994)5; Rentereria v. City of Maywood, 2009

4

WL 3297152 (C.D. Cal. 2009).

5

Both cases cited above involved allegations of excessive force after the initial arrest, i.e.,

6

custody. The undersigned cannot find any on point authority involving a private security officer

7

as opposed to public law enforcement, but the extended application to private security is entirely

8

reasonable. Private citizens may effect citizen’s arrests, and such custody, if it exercised at all in

9

the arrest, is every bit as much movement prohibitive as a police officer’s. As the

10

Complaint/FAC makes clear, it was the intent of the private security guard here to effectuate an

11

arrest, i.e., preclude plaintiff’s further flight by shooting him. Thus, if the shooting worked to

12

effectuate the arrest, plaintiff would have been in “continuous custody” as law enforcement was

13

soon on the scene.

14

However, such was not the case. The shot did not have its desired effect—plaintiff was

15

able to avoid custody as he escaped to a near-by dumpster in which he hid attempt to avoid

16

custody. He was not arrested until law enforcement arrived on the scene and looked for him.

17

Plaintiff was not in continuous custody at the time the cause of action arose. Statutory tolling

18

does not aid plaintiff in overcoming the tardiness of his claim.6

19

Plaintiff only alleges that it would be unfair to deprive him of a claim against Walmart

20

because of his present, incarcerated status, and/or his pro se status. However, plaintiff does not

21

even satisfy the first step for application of equitable tolling—that of acting diligently to protect

22

his rights. “The rule of equitable estoppel [tolling] includes, of course, the requirement that the

23

plaintiff exercise reasonable diligence.” Bersnonn v. Browning-Ferris Industries, 7 Cal. 4th 926,

24

936 (1994); see also Sagehorn v. Engle, 141 Cal. App. 4th 452 (2006). Walmart has filed two

25

documents as exhibits, D and E, of which the undersigned can take judicial notice. See fn.3

26

5

27
28

Elliott involved a predecessor statute to section 352.1, but that statute is substantively identical
to the present statute for analytical purposes here.
6
Cal. Govt.Code section 945.3 does not apply because by its very words the action must be an
action against a public peace officer or the entity that employs the officer.
4

1

supra. These documents demonstrate that in 2013 plaintiff sued the guard and Garda in state

2

court, but the case as later dismissed in 2015 for failure to prosecute. The point here is that there

3

was clearly no impediment which would have precluded plaintiff from naming Walmart in this

4

earlier suit. Plaintiff was clearly aware of the same facts then as he is now. The suit here is

5

simply a four year old afterthought, most probably initiated because his suit was dismissed

6

against the most probable defendants. Plaintiff has not been diligent. The action should be

7

dismissed as being barred by the statute of limitations.

8

Cal. Civil Code Section 3333.3

9

This statute, enacted to prevent felons from profiting from their misdeeds in a later lawsuit

10

when the felon was negligently injured during the commission of the felony or escape therefrom,

11

provides as follows:

12
13
14

In any action for damages based on negligence, a person may not recover any
damages if the plaintiff's injuries were in any way proximately caused by the
plaintiff's commission of any felony, or immediate flight therefrom, and the
plaintiff has been duly convicted of that felony.

15

This statute applies only to negligence causes of action, not intentional torts. Willis v. County of

16

Sacramento, 2014 WL 1027070 *5 (E.D. Cal. 2014) citing Espinosa v. Kirkland, 185 Cal. App.

17

4th 1269, 273 (2010); see also Jenkins v. County of Los Angeles, 74 Cal. App. 4th 524, 530

18

(1999). To the extent that one is reviewing the potential claim against the private security guard,

19

it is easy to find that such a claim would involve an intentional tort. The guard intended to effect

20

an arrest by intentionally firing his weapon at plaintiff.

21

However, this is not a lawsuit against the private transport guard, it is a lawsuit against the

22

entity, Walmart, which had contracted with a private armored transport company for guard

23

service. Even assuming Walmart would have any duty to plaintiff in such a situation (doubtful),

24

or was involved in any way in supervising or training Garda’s employees, any cause of action set

25

forth in the complaint against Walmart, as opposed to the guard, would have to lie in negligence

26

on a supervisorial or training basis.

27

There are no allegations in the Complaint/FAC which assert that Walmart instructed the

28
5

1

private transport guard to fire his weapon, or had any such policies requiring a private guard

2

working for a private armored truck company which required escaping felons to be shot so that

3

they could not escape. Indeed, the claim here is that plaintiff initiated the tortious events by

4

attacking the private guard. This attack had nothing significant to do with Walmart except for the

5

fortuitous fact that robbery of the armored transport company guard happened at that store as

6

opposed to another down the road. The guard had already taken custody of Walmart’s money and

7

was on his way to his armored truck.

8

The Complaint/FAC is devoid of any facts (as opposed to a conclusion such as Walmart

9

intended to cause emotional distress) that Walmart committed any intentional act which caused

10

him harm. Nor does plaintiff assert in his Opposition that he could allege such far-fetched facts

11

against Walmart. The actions should be dismissed without leave to amend based on the fleeing

12

felon rule.

13

Motion to Amend the Complaint

14

As set forth above, both the Complaint and the FAC were reviewed to see if any facts

15

alleged in either could possibly defeat the Motion for Judgment on the Pleadings either as they

16

stood, or by virtue of future amendment. No such possibility exists. Therefore, the undersigned

17

orders the Motion to Amend granted for the purposes of clarifying the record.

18

Conclusion

19

The First Amended Complaint is ORDERED filed. ECF No. 45 is resolved.

20

IT IS HEREBY RECOMMENDED that this case should be dismissed because it is barred

21

by the statute of limitations and by the fleeing felon rule. These recommendations apply to ECF

22

No. 38.

23

These findings and recommendations are submitted to the United States District Judge

24

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

25

after being served with these findings and recommendations, any party may file written

26

objections with the court and serve a copy on all parties. Such a document should be captioned

27

“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

28

shall be served and filed within fourteen days after service of the objections. The parties are
6

1

advised that failure to file objections within the specified time may waive the right to appeal the

2

District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

DATED: November 18, 2017

4
5

/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7