Velez et al v. State of California et al

Filing 21

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 2/6/2018 DENYING 17 Defendants' Motion to Dismiss: Plaintiffs have thirty days from the date this Order is signed to file the requisite affidavit in order to comply with Cal. Code Civ. Proc. § 377.32. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARRY VELEZ, et al.,

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CIV. NO. 17-960 WBS KJN

Plaintiffs,
v.
TEHAMA COUNTY SHERIFF’S
DEPARTMENT, et al.,

MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

Defendants.

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This case arises out of the death of Harry Velez

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(“Velez”).

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(collectively “plaintiffs”) filed this action on behalf of

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themselves and decedent against Sheriff Dave Hencratt, Sergeant

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Steve Hoag, Deputy Robert Bakken (“Deputy Bakken”), Deputy Dustin

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Maria (“Deputy Maria”), the State of California, the City of

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Dairyville, Tehama County, and the Tehama County Sheriff’s

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Department, alleging that Deputies Bakken and Maria used

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excessive force while arresting Velez, causing his death.

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Presently before the court is the Motion of defendants Bakken,

Velez’s mother, Maria Lazada, and son, Andre O’Hara,

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Maria, and the County of Tehama to Dismiss plaintiffs’ First

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Amended Complaint (“FAC”).

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I.

(Docket No. 17)

Factual and Procedural History

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On September 21, 2016, the Tehama County Sheriff’s

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Department responded to a 911 call made by Velez, who claimed he

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had been drugged by his girlfriend Natasha Finck (“Finck”).

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¶ 5.)

Deputy Bakken and Deputy Maria responded to the call.

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(Id.)

After speaking with Velez and Finck, Deputy Bakken

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allegedly pushed Velez to the ground and handcuffed him.

(FAC

(Id. ¶¶

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6-7.)

Plaintiffs allege that Velez then rose to his feet and was

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again tackled by Deputies Bakken and Maria, who repeatedly tased

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and punched Velez.

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purport that Velez yelled for help.

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during the incident, plaintiffs allege that Velez had no weapons,

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made no threats to the deputies, and did not resist arrest.

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¶ 13.)

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(Id. ¶ 8.)

During the attack, plaintiffs
(Id. ¶ 9.)

At all times

(Id.

Velez was transported to the hospital where he died

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from Hypoxic Encephalopathy (lack of oxygen to the brain) with

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Multisystem Organ Failure.

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autopsy, Velez was tased at least ten times.

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autopsy also reports that Velez had abrasions on his face,

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forearms, knee, toes, and wrists, and had contusions on his

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fingers, chest, and abdominal walls.

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(Id. ¶¶ 11-12.)

According to the
(Id. ¶ 8.)

The

(Id. ¶ 12.)

On October 13, 2016, plaintiffs presented California

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Tort Claims Act (“CTCA”) claims to the County of Tehama on behalf

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of themselves and the decedent regarding the September 21, 2016

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incident.

(Decl. of Sean Houghtby (“Houghtby Decl.”) ¶ 5, Ex. A

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2

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(Docket No. 17-2).)1

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Board of Directors rejected these claims.

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November 2, 2016, Tehama County drafted California Tort Claims

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Act rejection notices addressed to both plaintiff.

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rejection notice included the following language: “WARNING;

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Subject to certain expectations, you have only six (6) months

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from the date this notice was personally delivered or deposited

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in the mail to file a court action on this claim.

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Code Section 945.6.”

On November 1, 2016, the County of Tehama

(Id.)2

(Id. ¶ 6, Ex. B.)

On

Each

See Government

That same day, these rejection

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notices were placed in prepaid envelopes addressed to plaintiffs,

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and the envelopes were placed for collection and mailing with the

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United States Postal Service.

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(Id. ¶¶ 7-9.)

Plaintiffs submitted their complaint to the court on

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May 1, 2017, seeking damages for injuries to the decedent and to

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compensate the family members for mental anguish and pecuniary

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injuries.

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until May 5, 2017.

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court granted defendants’ Motion for a More Definite Statement

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and dismissed plaintiffs’ complaint with leave to amend.

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No. 11.)

The complaint was not officially filed by the Clerk
(Docket No. 1.)

On October 11, 2017, the

(Docket

On November 10, 2017, plaintiffs filed their First

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The court takes judicial notice of the CTCA claims
because judicial notice may be taken of records of state
administrative and judicial agencies, Mack v. S. Bay Beer
Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (abrogated
on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 111 (1991)), including governmental claim
submissions and responses, Clarke v. Upton, 703 F. Supp. 2d 1037,
1042 (E.D. Cal. 2010) (judicial notice of claim filings may be
considered on a Rule 12(b)(6) motion to dismiss).
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The court takes judicial notice of these rejection
notices for the same reasons explained in footnote 1.
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Amended Complaint.

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contains eight claims for relief: (1) a § 1983 claim for

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violation of plaintiffs’ Fourth Amendment rights; (2) a § 1983

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claim for violation of plaintiffs’ First Amendment rights; (3)

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assault; (4) battery; (5) false arrest/imprisonment; (6)

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intentional infliction of emotional distress; (7) negligent

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hiring, training, supervision or retention of employees; (8) and

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wrongful death.

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II.

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(Docket No. 15.)

The First Amended Complaint

Discussion
A.

State Law Claims
Defendants seek dismissal of all state law claims (i.e.

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claims three through eight), alleging that plaintiffs failed to

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comply with the timing requirements mandated by Cal. Govt. Code §

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945.6 of the California Tort Claims Act.

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requirements, all claims alleged against public entities and

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their employees must be brought within 6 months or 182 days,

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whichever is earlier, from the date the notice rejections were

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deposited in the mail.

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County of Los Angeles, 199 Cal. App. 3d 601, 604 (2d Dist. 1988).

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This six month period “is mandatory and strict compliance is

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required.”

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Cal. 2010) (citing Julian v. City of San Diego, 183 Cal. App. 3d

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169, 176 (4th Dist. 1986)).

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Under those

Cal. Govt. Code § 945.6; Gonzales v.

Clarke v. Upton, 703 F. Supp. 2d 1037, 1044 (E.D.

Tehama County sent plaintiffs their rejection notices

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on November 3, 2016.

(Houghtby Decl. ¶ 5, Ex. A.)

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from this date was May 3, 2017, and 182 days later was May 4,

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Six months

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2017.3

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until May 5, 2017, it was received and entered by the Clerk on

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May 1, 2017, days before the statute of limitations was set to

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expire on these claims.

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plaintiffs did not pay the requisite court filing fees until May

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5.

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is filed when it is placed in the actual or constructive custody

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of the clerk of the court, despite any subsequent rejection by

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the clerk of the pleading for non-compliance with a provision of

Although plaintiffs’ complaint was not filed by the Clerk

The delay was due to the fact that

However, the Ninth Circuit has determined that “a complaint

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the local rules.”

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Cir. 2001).

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in the custody of the clerk within the statutory period,” the

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“court should regard [it] as ‘filed.’”

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139, 141 (9th Cir. 1991), citing Loya v. Desert Sands Unified

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School Dist., 721 F.2d 279, 281 (9th Cir. 1983).

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court concludes that plaintiffs complied with the statute of

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limitations and will deny defendants’ Motion to Dismiss on that

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ground.

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B.

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Ordonez v. Johnson, 254 F. 3d 814, 816 (9th

Accordingly, because here the “complaint arrive[d]

Smith v. Frank, 923 F.2d

Therefore, the

Claims One through Seven
Claims one through seven are survival claims brought on

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behalf of the decedent by O’Hara, his purported successor in

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interest.

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1983 bears the burden of demonstrating that a particular state’s

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law authorizes a survival action and that the plaintiff meets the

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state’s requirements for bringing a survival action.”

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A “party seeking to bring a survival action under §

42 U.S.C.

The court will take judicial notice of these dates
because such facts are “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b).
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§ 1983; Hayes v. County of San Diego, 736 F.3d 1223, 1228 (9th

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Cir. 2013)(internal citation omitted).

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burden of alleging and proving both that California law allows

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for survival actions and also that he has satisfied California’s

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requirements for bringing this action.

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Therefore, O’Hara has the

Under California law, any person seeking to commence an

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action, or to continue a pending action, as the decedent’s

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successor in interest must execute and file an affidavit or

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declaration “that conforms with the enumerated requirements of §

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377.32(a).”

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(E.D. Cal. 2015).

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successor in interest (see FAC ¶ 4), but he has not filed the

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requisite affidavit or declarant.

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directing plaintiffs to file a second amended complaint at this

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point . . . the court orders [O’Hara] to file a declaration

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establishing that [he] has the capacity to proceed on behalf of

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[decedent].”

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2008 WL 4067429 (N.D. Cal. Aug. 26, 2008).

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Cotta v. County of Kings, 79 F. Supp. 3d 1148, 1159
Here, O’Hara brings claims as Velez’s

However, “[r]ather than

See Estate of Burkhart v. U.S., No. C. 07-5467 PJH,

IT IS THEREFORE ORDERED that defendants’ Motion to

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Dismiss (Docket No. 17) be, and the same hereby is, DENIED.

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Plaintiffs have thirty days from the date this Order is signed to

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file the requisite affidavit in order to comply with Cal. Code

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Civ. Proc. § 377.32.

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Dated:

February 6, 2018

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