Reason et al v. City of Richmond et al

Filing 44

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 6/3/2021 DENYING 40 Defendant City of Richmond's Motion to Dismiss. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC REASON, an individual;
STEPHANIE BASS, an individual;
RASHEED REASON, individually and
as Co-Successor-in-Interest to
Decedent ERIC REASON II; TYRIQUE
REASON, individually and as CoSuccessor-in-Interest to
Decedent ERIC REASON II; K.R.,
individually and as CoSuccessor-in-Interest to
Decedent ERIC REASON II, by and
through his Guardian Ad litem
LATISHA PARKER; P.R.,
individually and as CoSuccessor-in-Interest to
Decedent ERIC REASON II, by and
through his Guardian Ad Litem
LATISHA PARKER; N.M.,
individually and as CoSuccessor-in-Interest to
Decedent ERIC REASON II, by and
through his Guardian Ad Litem
NIA MILLS; E.L.R., individually
and as Co-Successor-in-Interest
to Decedent ERIC REASON II, by
and through his Guardian Ad
Litem SHAWNTAY DAVIS; I.R.V.,
individually and as CoSuccessor-in-Interest to
Decedent ERIC REASON II, by and
through his Guardian Ad Litem
JULIA VELASQUEZ;

No. 20-cv-01900-WBS-JDP

MEMORANDUM AND ORDER RE:
DEFENDANT CITY OF RICHMOND’S
MOTION TO DISMISS

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Plaintiffs,

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v.
CITY OF RICHMOND, a municipal
corporation; the ESTATE OF
VIRGIL THOMAS, individually and
in his capacity as Police
Sergeant for the CITY OF
RICHMOND,

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Defendants.

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Plaintiffs Eric Reason, Stephanie Bass, Rasheed Reason,

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Tyrique Reason, and the minor children of the decedent Eric

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Reason II (“plaintiffs”) brought this action against the City of

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Richmond (“Richmond”) and the Estate of Richmond Police Sergeant

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Virgil Thomas (“Sergeant Thomas”), seeking damages against

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Sergeant Thomas for excessive force and violation of the

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decedent’s civil rights under 42 U.S.C. § 1983, and violation of

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the plaintiff’s Fourteenth Amendment rights to a familial

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relationships under 42 U.S.C. § 1983.

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seek damages against both Sergeant Thomas and Richmond for state

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law claims of wrongful death and negligence under California Code

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of Civil Procedure 377.60 and 377.61; violation of the Tom Bane

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Civil Rights Act, Cal. Civ. Code § 52.1; and battery.

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generally Second Am. Compl. (“SAC”) (Docket No. 39.))

Plaintiffs additionally

(See

Before the court is Richmond’s Motion to Dismiss.

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(Docket No. 40.)

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I.

Factual Background

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Plaintiffs allege that on November 10, 2019, Sergeant

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Thomas and decedent Eric Reason II became embroiled in a heated
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verbal confrontation over a parking spot at a Valero gas station

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in the City of Vallejo, California.

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Reason walked back toward his van after exchanging words with

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Sergeant Thomas.

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back, Sergeant Thomas pulled a concealed gun out of his

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waistband.

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himself as a police officer and opened fire into the back of Mr.

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Reason’s body, simultaneously firing numerous rounds in the

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direction of operational gas pumps, an occupied car, and into the

(See SAC at ¶ 20.)1

(See id. at ¶ 21.)

(See id. at ¶ 22.)

Mr.

After Mr. Reason turned his

Sergeant Thomas identified

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parking lot of a busy gas station.

(See id.)

Mr. Reason began

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running for his life, screaming “Don’t let him kill me!”

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id. at ¶ 23–24.)

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vehicle, chased after Mr. Reason, and shot him in the back of the

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head from a distance of approximately 50-60 feet.

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23.)

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Thomas or anyone else prior to being shot.

(See

Sergeant Thomas came out from behind a large

(See id. at ¶

Mr. Reason never raised or pointed a weapon at Sergeant

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(See id. at ¶ 25.)

Sergeant Thomas again identified himself as a police

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officer and showed his badge to deter witnesses from attending to

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Mr. Reason.

(See id. at ¶ 26.)

Sergeant Thomas contacted police

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In plaintiffs’ initial complaint, they alleged that
Sergeant Thomas was “on administrative leave at the time of the
incident.” (See Compl. at ¶ 46.) (Docket No. 1.) It is well
established that an “amended complaint supersedes the original
complaint, the latter being treated thereafter as nonexistent.”
See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th
Cir. 2015). However, a party cannot amend pleadings to “directly
contradic[t] an earlier assertion made in the same proceeding.”
See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). The
court will therefore assume the truth of plaintiffs’ initial
allegation that Sergeant Thomas was on administrative leave at
the time of the incident, even though plaintiffs omitted this
allegation in their Second Amended Complaint.
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dispatch, identified himself as a Richmond Police Department

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Sergeant, and reported shooting Mr. Reason.

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Vallejo police officers responded to the scene and initiated the

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Solano County Officer Involved Shooting Protocol.

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29.)

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remove Sergeant Thomas from the crime scene.

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Police Officers permitted Sergeant Thomas to walk around the

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crime scene, stand inches from Mr. Reason’s head, and take photos

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of Mr. Reason’s body.

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II.

(See id. at ¶ 28.)

(See id. at ¶

However, the Vallejo police officers failed to sequester or
(See id.)

Vallejo

(See id. at ¶ 30.)

Procedural Background2

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In their initial complaint, plaintiffs asserted only a

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single cause of action against Richmond and Richmond Chief of

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Police Bisa French, which was predicated upon an alleged

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violation of Monell v. Department of Social Services of the City

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of New York, 436 U.S. 658, 694 (1978).

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Following receipt of plaintiffs’ initial complaint, the City and

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Chief French moved to dismiss the claims asserted against each of

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them.

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granted these motions and allowed plaintiffs twenty days to file

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an amended pleading.

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deadline for plaintiffs to file an amended pleading was February

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1, 2021.

(See Docket Nos. 8–9.)

(See Compl. at ¶¶ 80–94.)

On January 12, 2021, the court

(See Docket No. 21.)

In other words, the

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Richmond requests that the court take judicial notice
of Exhibit A, excerpts of the video footage from the November 10,
2019 incident underlying this action, and Exhibit B, the city’s
written rejection of plaintiffs’ claims pursuant to California
Government Code Section 913. (See Defs.’ Request for Judicial
Notice (“RJN”) at Exs. A-B.) (Docket No. 40-2.) Plaintiffs do
not oppose Richmond’s request. Accordingly, the court will take
judicial notice of Exhibits A and B.
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On February 1, 2021, plaintiffs filed their First

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Amended Complaint, which named only Sergeant Thomas as a

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defendant.

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Plaintiffs did not name Richmond as a defendant in the caption,

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the section delineating the “parties” in the case, or in the

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prayer for damages, although the FAC did state that “[t]he City

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of Richmond maintains respondeat superior liability for the

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actions of their employee, Defendant Virgil Thomas.”

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¶¶ 15, 18.)

(See First Am. Compl. (“FAC”) (Docket No. 22.))

(See FAC at

On February 1, 2021, plaintiffs’ counsel, Melissa

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Nold, emailed Richmond’s counsel, Kevin Gilbert, informing him

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that “[t]he City of Richmond will not be a named defendant, but

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they will still be obligated to defend their employee.”

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Decl. of Kevin Gilbert (“Gilbert Decl.”) in Supp. of Mot. to

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Dismiss at Ex. 1 at 3.) (Docket No. 40-1.)

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Ms. Nold on February 2, 2021 that he would not be representing

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Sergeant Thomas -- the only remaining defendant.

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Ms. Nold responded that Richmond was “contractually obligated to

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indemnify [Sergeant Thomas] since he identified himself as a

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police officer prior to the shooting, so I’m just trying to

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figure out who I need to speak to regarding the city’s defense of

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Mr. Thomas.”

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(See

Mr. Gilbert emailed

(See id. at 1.)

(See id.)

On February 2, 2021, plaintiffs filed a Second Amended

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Complaint, without leave of court, which again did not list

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Richmond as a defendant in the caption, parties section, or

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prayer for relief.

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however, that the third cause of action for wrongful death --

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negligence and the fourth cause of action for violation of the

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Tom Bane Civil Rights Act were against both Richmond and Sergeant

The Second Amended Complaint did specify,

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Thomas.

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stated in its “factual allegations” section that the City of

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Richmond was liable for Sergeant Thomas’s actions under a theory

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of respondeat superior, (see id. at ¶¶ 15, 18.), and was

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vicariously liable pursuant to California Government Code § 815.2

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for the violation of its rights by its employees and agents.

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(See id. at

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(See Docket No. 23.)

That Second Amended Complaint also

¶¶ 53, 58, 63.)

On March 1, 2021, plaintiffs filed a “Corrected Second
Amended Complaint”, again without leave of court.

(See Docket

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No. 30.)

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City of Richmond as a defendant in the caption and the parties

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section, again stated that the third and fourth causes of action

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were against Richmond and Sergeant Thomas, and also added that

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the fifth cause of action for battery was against both Richmond

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and Sergeant Thomas.

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that they had inadvertently filed the wrong version of the Second

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Amended Complaint on February 2, 2021 and did not realize it

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until March 1, 2021 when working with defendants to complete

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their joint status report.

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This “Corrected Second Amended Complaint” did list the

(See Docket No. 30.)

Plaintiffs contended

(See Docket No. 34.)

On March 16, 2021, the court issued an order striking

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both Second Amended Complaints because plaintiffs did not seek

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leave to file these pleadings and they were filed after the 20-

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day period to amend had expired.

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Plaintiffs thereafter sought leave to file a Second Amended

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Complaint which the court granted on April 13, 2021.

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No. 38.)

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Complaint on April 14, 2021.

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III. Discussion

(See Docket No. 33.)

(See Docket

Plaintiffs’ filed the operative Second Amended
(See generally SAC.)

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Federal Rule of Civil Procedure 12(b)(6) allows for

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dismissal when the plaintiff’s complaint fails to state a claim

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upon which relief can be granted.

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The inquiry before the court is whether, accepting the

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allegations in the complaint as true and drawing all reasonable

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inferences in the plaintiff’s favor, the complaint has stated “a

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claim to relief that is plausible on its face.”

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v. Twombly, 550 U.S. 544, 570 (2007).

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is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.”

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conclusions “can provide the framework of a complaint, they must

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be supported by factual allegations.”

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A.

See Fed. R. Civ. P. 12(b)(6).

Bell Atl. Corp.

“The plausibility standard

Id.

“Threadbare

Although legal

Id. at 679.

Government Claims Act

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Richmond argues that all of plaintiffs’ state law

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claims against it are untimely and barred by the California

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Government Claims Act.

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California Government Claims Act requires presentation of a claim

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as a condition precedent to maintaining any cause of action

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seeking damages against a public entity.

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905; see City of San Jose v. Superior Court, 12 Cal. 3d 447, 454

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(1974).

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failure to file a claim is fatal to the cause of action.

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(internal citations omitted).

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timely, statutory written notice denying that claim, then the

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claimants are required to commence suit on those claims no later

(See Mot. to Dismiss at 6.)

The

See Cal. Gov’t. Code §

Compliance with the claims statute is mandatory and
See id.

If the public entity provides a

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than six months from denial.

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months has been interpreted to mean six calendar months or 182

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days, whichever is later.

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199 Cal. App. 3d 601, 604 (2d Dist. 1988).

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extended if the deadline falls on a holiday, which by statute

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includes Saturdays and Sundays.

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Dist., 33 Cal. 3d 456, 460 (1983).

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See Cal. Gov’t. Code § 945.6.

Six

See Gonzalez v. Cnty. of Los Angeles,
The period is

Deleon v. Bay Area Rapid Transit

Plaintiffs were required to present a Government Claim
to Richmond prior to commencing suit against Richmond.

(See Cal

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Gov’t. Code § 905.)

Plaintiffs presented their Government Claim

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to Richmond on February 13, 2020, which was formally rejected on

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March 20, 2020.

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Plaintiffs had only six months from this date to commence

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litigation.

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filed their Complaint on September 21, 2020, the last day

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possible under the statute of limitations.

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Compl.) (Docket No. 1.)

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complaint asserted only a single claim against Richmond under

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federal law.

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added state law claims against it after September 21, 2020,

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plaintiffs’ assertion of state law claims fell outside the

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statutory time period under the Government Claims Act.3 (See Mot.

(See Request for Judicial Notice at Ex. B.)

(See Cal. Gov’t. Code § 945.6(a)(1).)

Plaintiffs

(See generally

However, Richmond points out that this

Richmond contends that because plaintiffs only

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Although Richmond argues that the Government Claim
submitted by plaintiffs only applied to their federal claim, (see
Mot. to Dismiss at 7.), the California Government Claims Act does
not apply to actions arising under the United States Constitution
or under federal law. See Martin D. Carr & Ann Taylor Schwing,
Cal. Affirmative Def. Government Claims Act -– Actions Subject to
Claim Filing Requirement, § 12.21 (2d. Ed. 2021); see also KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir.
1988) (holding that plaintiff’s pendent state law claims were
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to Dismiss at 7.)
Under Rule 8, in order to state a claim against a

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defendant, a plaintiff must provide “a short and plain statement

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of the claim showing that the pleader is entitled to relief in

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order to give the defendant fair notice of what. . . the claim is

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and the grounds upon which it rests.”

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(internal citations omitted).

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complaint may not have clearly labeled their claim for respondeat

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superior against Richmond as a separate “claim”, the complaint

Twombly, 550 U.S. at 555

While plaintiffs’ original

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explicitly states that “[t]he City of Richmond [is] being sued .

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. . under the theory of respondeat superior, for all actions

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taken by Defendant agents of the City of Richmond. . . “

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Compl. at ¶ 25.)

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liable for the conduct of Sergeant Thomas’ actions and was “being

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sued” under a theory of respondeat superior was sufficient to put

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Richmond on notice of the claim against it and the grounds for

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that claim (Thomas’ actions and the City’s relationship with him

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as his employer).

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therefore finds that plaintiffs’ initial complaint adequately

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pled a state law claim of respondeat superior against Richmond.

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(See

This allegation that the City was vicariously

See Twombly, 550 U.S. at 555.

The court

Richmond alternatively argues that even if plaintiffs’

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initial allegations of respondeat superior liability were timely,

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their state law claims against Richmond became time barred when

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plaintiffs filed the First Amended Complaint which removed

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Richmond as a defendant.

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(See Mot. to Dismiss at 7.)

Under

properly dismissed for failure to allege compliance with the
California Government Claims Act prior to commencing suit but
permitting plaintiffs’ 42 U.S.C. § 1983 claims to proceed).

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California law, “a party’s voluntary dismissal without prejudice

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does not come equipped by law with an automatic tolling or waiver

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of all relevant limitations periods; instead, such a dismissal

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includes the very real risk that an applicable statute of

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limitations will run before the party is in a position to renew

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the dismissed cause of action.”

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Hosp. Med. Ctr., 67 Cal. App. 4th 978, 984 (2d Dist. 1998.)

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claims that are voluntarily dismissed will be considered waived

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if not replead.

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(9th Cir. 2012).

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See Martell v. Antelope Valley
Any

See Lacey v. Maricopa Cnty., 693 F.3d 896, 928

Richmond’s alternative argument fails for similar

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reasons as its first argument.

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Richmond as a named defendant in their First Amended Complaint,

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they still maintained that Richmond was liable under a theory of

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respondeat superior.

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have alleged that Richmond is vicariously liable for Sergeant

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Thomas’s actions under a theory of respondeat superior in each

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iteration of their complaint.

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¶¶ 15, 18); (see Docket No. 23 at ¶¶ 15, 18, 53, 58, 63); (see

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SAC at ¶¶ 14, 15, 18, 55, 60, 66).

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leave to file a Second Amended Complaint, and they subsequently

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explicitly named Richmond as a defendant and detailed the state

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law causes of action for which they contend Richmond is

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vicariously liable.

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sufficiently given Richmond “fair notice” of what the respondeat

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superior claim against it is and “the grounds upon which it

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rests.”

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Although plaintiffs omitted

(See FAC at ¶¶ 15, 18.)

Indeed, plaintiffs

(See Compl. at ¶ 25); (see FAC at

Plaintiffs were then granted

(See generally SAC.)

Plaintiffs have

See Twombly, 550 U.S. at 555.
To say that plaintiffs’ counsel was imprecise in
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drafting the First Amended Complaint is an understatement.

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Nevertheless, plaintiffs have never voluntarily dismissed their

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respondeat superior claims against Richmond because they have

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consistently reiterated such allegations throughout the course of

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this litigation.

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No. 41.)

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would only serve to punish the plaintiffs for the sloppiness of

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their counsel, and the court declines to do so.

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court concludes that plaintiffs’ state law claims against the

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City are not barred for failure to present a claim under the

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Government Claims Act.

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B.

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(See Opp’n to Mot. to Dismiss at 11.) (Docket

To throw plaintiffs’ case out on such a technicality

Accordingly, the

Scope of Employment
Under California law, a government entity can only be

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sued in tort pursuant to an authorizing statute or enactment.

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See Van Ort v. Estate of Stanewich, 92 F.3d 831, 840 (9th Cir.

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1996).

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California Government Code § 815.2(a) provides:
A public entity is liable for injury proximately
caused by an act or omission of an employee of
the public entity within the scope of his
employment if the act or omission would, apart
from this section, have given rise to a cause of
action against that employee or his personal
representative.

See Cal. Gov. Code § 815.2(a).

“[A]n employer is vicariously

liable for his employee’s torts committed within the scope of the
employment.”

Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d

962, 967 (1986).

Courts may find vicarious liability for

unauthorized or prohibited conduct if the risk of that conduct is
one “typical of or broadly incidental to the enterprise
undertaken by the employer.”

See id. at 968. (citing Rodgers v.
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Kemper Constr. Co., 50 Cal. App.3d 608, 619 (1975) (internal

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quotations omitted)).

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extends beyond its actual or possible control of the employee to

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include risks inherent in or created by the enterprise.

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Essentially, the employer’s liability

Id.

An employer is not vicariously liable where the

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employee has substantially deviated from his duties for personal

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purposes.

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956, 960 (1970)).

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inappropriate where the misconduct does not arise from the

Id. (citing Hinman v. Westinghouse Elec. Co., 2 Cal.3d
“[V]icarious liability has been deemed

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conduct of the employer’s enterprise but instead arises out of a

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personal dispute.”

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Hosp., 12 Cal. 4th 291, 301 (1995)(internal citations omitted).

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Whether an employee has acted within the scope of employment is

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ordinarily a question of fact reserved for the jury; it becomes a

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question of law only where “the facts are undisputed and no

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conflicting inferences are possible.”

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citations omitted).

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See Lisa M. v. Henry Mayo Newhall Mem’l.

See id. at 299. (internal

Richmond contends that because plaintiffs have

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affirmatively alleged that Sergeant Thomas was engaged in a

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personal dispute over a parking space outside of his jurisdiction

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and have not alleged that Sergeant Thomas was on duty at the time

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of the shooting, they have failed to adequately allege that

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Sergeant Thomas was acting within the scope of his employment --

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a necessary element for all of plaintiffs’ claims against

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Richmond.

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(See Mot. to Dismiss at 9–13.)
Plaintiffs principally rely on Bradley v. County of San

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Joaquin, Case No. 2:17-cv-2313-KJM-AC, 2018 WL 4026996, * 1–6

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(E.D. Cal. Aug. 23, 2018), to support their contention that an
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off-duty officer can act within the scope of his employment under

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California law even when pursuing personal goals.

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off-duty San Joaquin County Sheriff’s deputy was engaged in an

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illicit transaction at his apartment complex.

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The court nevertheless found that plaintiffs successfully alleged

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that the defendant acted within his scope of employment once he

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invoked his status as a law enforcement officer, issued commands,

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shot the decedent, relied on his law enforcement status to take

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control of the scene after discharging his weapon, and

In Bradley, an

See id. at 1.4

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coordinated with San Joaquin County personnel responding to the

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scene in the aftermath of the incident.

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See id. at *6.

Accepting the allegations of the Second Amended

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Complaint as true, as in Bradley, Sergeant Thomas was off-duty

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when he pulled a concealed gun out of his waistband, identified

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himself as a police officer, and opened fire upon the decedent.

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(See SAC at ¶ 22.)

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police officer and showed his badge to deter witnesses from

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attending to Mr. Reason.”

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allege that Sergeant Thomas coordinated with the Vallejo Police

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Department by identifying himself as a Richmond Police Sergeant

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when calling the police for backup, and that the Vallejo Police

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Department subsequently initiated the Solano County Officer

Sergeant Thomas then “identified himself as a

(See id. at ¶ 26.)

Plaintiffs also

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Richmond contends that Bradley involved a plain clothes
or undercover deputy effecting an arrest in his own jurisdiction.
(See Reply in Supp. of Mot. to Dismiss at 10.) (Docket No. 42.)
To the contrary, Bradley involved an off-duty, out of uniform
sheriff’s deputy who was allegedly illegally dealing narcotics at
his apartment complex. Despite this, the Bradley court still
found that plaintiffs had adequately alleged that the defendant
sheriff’s deputy was acting within the scope of his employment.
See Bradley, 2018 WL 4026996 at * 6.
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Involved Shooting Protocol and allowed Sergeant Thomas to walk

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freely around the crime scene and take photographs of Mr. Reason.

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(See id. at ¶¶ 28–30.)

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further support an inference that Sergeant Thomas’s conduct was

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within the scope of his employment.5

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As in Bradley, these alleged facts

Richmond is correct that “[a] police officer’s

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authority is normally limited to the boundaries of the

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jurisdiction for which he is appointed” and that “[w]hen he acts

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outside his jurisdiction he is generally acting as a private

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person.”

See People v. Rogers, 241 Cal. App. 2d 384, 387–99 (2d

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Dist. 1966).

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salient here given plaintiffs’ allegation in their initial

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complaint that Sergeant Thomas was “on administrative leave at

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the time of the incident.”

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Compl. at ¶ 46.)

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persuasive authority which states that police officers on

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administrative leave or outside their jurisdiction are per se

Richmond argues that this issue is particularly

(See Mot. to Dismiss at 13); (See

However, Richmond has pointed to no binding or

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Richmond is correct that the court in Bradley stated
that, “[c]onstruing the factual allegations and all reasonable
inferences in favor of plaintiffs, the court found that
[defendant’s] drawing of a concealed firearm, identifying himself
as an officer and commanding others to “Get down” signaled that
[defendant] sought to detain or arrest someone before he fired
his firearm.” See Richmond, 2018 WL 4026996, * 6; (See Reply in
Supp. of Mot. to Dismiss at 10.) Although the present case is
distinguishable because plaintiffs do not allege that Sergeant
Thomas was attempting to arrest or detain Mr. Reason before he
fired his weapon, this fact is not determinative. The Bradley
court was primarily focused on the fact that the defendant
“invoked his status as a law enforcement officer, issued commands
. . . and relied on his status to take control of the scene after
discharging his weapon . . .” in determining whether plaintiffs
had adequately alleged that defendant was acting within the scope
of his employment. See id.
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unable to act within the scope of their employment, nor has the

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court found any.

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and all reasonable inferences in favor of plaintiffs, the court

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finds that plaintiffs have sufficiently pleaded that Sergeant

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Thomas’s conduct was within the scope of his employment.

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Therefore, construing the factual allegations

IT IS THEREFORE ORDERED that the City of Richmond’s

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motion to dismiss (Docket No. 40), be, and the same hereby is,

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DENIED.

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Dated:

June 3, 2021

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