Galindo v. City of San Francisco

• Court: District Court, N.D. California
• Decided: February 13, 2024
• Docket: 3:21-cv-08133
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DORA GALINDO, et al., Case No. 3:21-cv-08133-JSC

8 Plaintiffs, ORDER TO SHOW CAUSE RE: 9 v. STANDING FOR FOURTH AMENDMENT CLAIM - FEBURARY 10 CITY OF SAN FRANCISCO, et al., 22 HEARING 11 Defendants. Re: Dkt. No. 55

12 13 On October 10, 2020, San Francisco Police Officers shot and killed Cesar Vargas. Dora 14 Galindo, Juan Antonio Vargas, and Rocio Anel Vargas, the mother, father, and sister of 15 Vargas, sue San Francisco Police Officer Kyle Roach and Sergeant Nicholas Delgado and the City 16 and County of San Francisco (the “City”) on behalf of themselves and as successors in 17 interest to Vargas. Plaintiffs allege the Defendant Officers violated Vargas’s constitutional rights 18 under the First, Fourth, and Fourteenth Amendments and violated various state laws. Defendants 19 move for summary judgment on all claims. (Dkt. No. 55.) 20 This Court has subject matter jurisdiction because Plaintiffs assert a federal cause of 21 action: Plaintiffs’ first cause of action, brought under 42 U.S.C. § 1983, asserts Defendants 22 violated Cesar Vargas’s First, Fourth, and Fourteenth Amendment Rights. (Dkt. No. 34 ¶¶ 34-43.) 23 In their motion for summary judgment, Defendants assert Plaintiffs lack standing to bring their 24 only federal claim. (Dkt. No. 55 at 18.) Plaintiffs do not respond to this argument in their 25 opposition. (See Dkt. Nos. 57, 63.) As Plaintiffs’ Fourth Amendment standing might be able to 26 be cured, the Court addresses the Fourth Amendment standing at this time and in advance of the 27 February 22, 2024 motion hearing. DISCUSSION 1 “[T]he general rule is that only the person whose Fourth Amendment rights were violated 2 can sue to vindicate those rights.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 3 (9th Cir. 1998), as amended (Nov. 24, 1998) (citing 42 U.S.C. § 1988(a)). “In § 1983 actions, 4 however, the survivors of an individual killed as a result of an officer’s excessive use of force may 5 assert a Fourth Amendment claim on that individual’s behalf if the relevant state’s law authorizes 6 a survival action.” Id. “The party seeking to bring a survival action bears the burden of 7 demonstrating that a particular state’s law authorizes a survival action and that the plaintiff meets 8 that state’s requirements for bringing a survival action.” Id. 9 In California, “a cause of action for or against a person is not lost by reason of the person’s 10 death, but survives subject to the applicable limitations period.” Cal. Civ. Proc. Code § 377.20(a). 11 “A cause of action that survives the death of the person entitled to commence an action or 12 proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by 13 the decedent’s personal representative or, if none, by the decedent’s successor in interest.” Cal. 14 Civ. Proc. Code § 377.30; see also Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1229 (9th Cir. 15 2013) (“California’s statutory requirements for standing to bring a survival action are stated under 16 California Code of Civil Procedure § 377.30.”) The Law Revision Commission comment to 17 section 377.30 explains “[t]he distributee of the cause of action in probate is the successor in 18 interest or, if there is no distribution, the heir, devisee, trustee, or other successor has the right to 19 proceed under this article.” Cal. Civ. Proc. Code § 377.30 (citing Cal. Civ. Proc. Code § 377.11 20 (defining “successor in interest” as “the beneficiary of the decedent’s estate or other successor in 21 interest who succeeds to a cause of action”)). 22 A. Dora Galindo and Juan Antonio Vargas 23 Dora Galindo and Juan Antonio Vargas are Cesar Vargas’s parents. (Dkt. No. 34 ¶ 3.) 24 California’s interstate succession statute indicates if there is not surviving spouse or children of 25 the decedent, then a decedent’s estate passes “to the decedent’s parent or parents equally.” Cal. 26 Prob. Code § 6402(b). There is no evidence Cesar Vargas had a surviving spouse or children. So, 27 Dora Galindo and Juan Antonio Vargas may be the intestate successors of Cesar Vargas’s estate. 1 However, at this time, Dora Galindo and Juan Antonio Vargas lack standing to bring a 2 § 1983 claim because they have not complied with California law governing “successor in 3 interest” suits. According to California law, to proceed as a decedent’s “successor in interest” 4 individuals must “execute and file an affidavit or a declaration under penalty of perjury.” Cal. 5 Civ. Proc. Code § 377.32. The affidavit or declaration must include, among other things, the 6 decedent’s name, a statement “[n]o proceeding is now pending in California for administration of 7 the decedent’s estate,” a statement indicating the affiant is the decedent’s successor in interest or 8 authorized to act on behalf of the decedent’s successor in interest and “[n]o other person has a 9 superior right to commence the action or proceeding or to be substituted for the decedent in the 10 pending action or proceeding,” and a certified copy of the decedent’s death certificate. Id. 11 In the first amended complaint, Dora Galindo and Juan Antonio Vargas allege they are 12 “the Successors in Interest to decedent Cesar Antonio Vargas pursuant to California Civil Code of 13 Civil Procedure Section 377.30 et seq. [sic].” (Dkt. No. 34 ¶ 3.) Dora Galindo and Juan Antonio 14 Vargas have not provided any affidavit or declaration satisfying California Civil Procedure Code § 15 377.32’s requirements. So, Dora Galindo and Juan Antonio Vargas do not yet have standing to 16 assert a Fourth Amendment claim under § 1983. See, e.g., Kirby v. AT&T Corp., No. 21-CV-1680 17 BEN (BGS), 2022 WL 1227993, at *1 (S.D. Cal. Apr. 26, 2022) (dismissing claim with leave to 18 amend based on the plaintiffs’ failure to submit the required § 377.32 affidavit); Hayes, 736 F.3d 19 at 1229 (remanding section 1983 claim to district court because the record was silent as to whether 20 the plaintiff “filed the affidavit necessary under California law to commence a survival action as a 21 decedent’s successor in interest”). 22 B. Rocio Anel Vargas 23 Rocio Anel Vargas is Cesar Vargas’s sister. (Dkt. No. 34 ¶ 3.) California’s interstate 24 succession statute indicates if there is no surviving spouse or children of the decedent, then a 25 decedent’s estate passes “to the decedent’s parent or parents equally.” Cal. Prob. Code § 6402(b). 26 Only “[i]f there is no surviving issue or parent” does the estate pass to the siblings of the decedent. 27 Cal. Prob. Code § 6402(c). Rocio Anel Vargas has not provided any affidavit or declaration 1 she qualifies as a successor in interest for Cesar Vargas. So, based on the summary judgment 2 || record, Rocio Anel Vargas does not have standing to assert a Fourth Amendment claim under § 3 1983 at this time. 4 CONCLUSION 5 For the reasons discussed above, the Court ORDERS Plaintiffs to, on or before February 6 || 20, 2024, file an affidavit or declaration satisfying the requirements of California Civil Procedure 7 Code § 377.32. Failure to do so may result in dismissal of the Fourth Amendment claim for lack 8 || of standing. 9 IT IS SO ORDERED. 10 || Dated: February 13, 2024 11 2 fe !ACQPELINE SCOTT CORLE 13 nited States District Judge © 15 16

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