1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JENNIFER SCHMIDT, et al., Case No.: 23-cv-0899 W (DDL)
14 Plaintiffs, ORDER GRANTING DEFENDANTS’ 15 v. MOTION TO DISMISS [DOC. 10] WITH LEAVE TO AMEND 16 COUNTY OF SAN DIEGO, et al., 17 Defendants 18 19 20 Pending before the Court is Defendants’ motion to dismiss the First Amended 21 Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose. 22 The Court decides the matter on the papers submitted and without oral argument. 23 See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS the motion to 24 dismiss [Doc. 10] WITH LEAVE TO AMEND. 25 26 I. OVERVIEW 27 This lawsuit arises out of the death of Gilbert Gonzalo Gil while in the custody of 28 Defendant County of San Diego. The First Amended Complaint (“FAC”) charges the 1 County and other defendants with deliberate indifference to Mr. Gil’s serious medical 2 needs and asserts three federal causes of action for violation of 42 U.S.C. § 1983 and four 3 state-based causes of action. 4 Defendants’ motion to dismiss argues, among other things, that the federal causes 5 of action should be dismissed because Plaintiffs lack standing. The Court agrees and, 6 therefore, will grant the motion to dismiss with leave to amend. 7 8 II. LEGAL STANDARD 9 The Court must dismiss a cause of action for failure to state a claim upon which 10 relief can be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 11 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 12 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 13 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 14 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 15 motion, a court must “accept all material allegations of fact as true and construe the 16 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 17 F.3d 1246, 1249 (9th Cir. 2007). 18 A complaint must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Supreme Court has 20 interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to 21 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). 22 The allegations in the complaint must “contain sufficient factual matter, accepted as true, 23 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 24 678 (2009) (quoting Twombly, 550 U.S. at 570). 25 Well-pled allegations in the complaint are assumed true, but a court is not required 26 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 27 inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 28 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 III. DISCUSSION 2 Defendants argue Plaintiffs lack standing to pursue the federal causes of action on 3 behalf of Mr. Gil because they are not the representative or successor interest to his estate 4 under California’s survival statute, Code of Civil Procedure § 377.32. (MTD P&A [Doc. 5 10-1] 4:15–19.) Defendants further argue that because Plaintiffs are not Mr. Gils’ 6 biological relative and were not adopted by him, Plaintiffs cannot cure this defect. (Id. at 7 4:21–24.) Plaintiffs do not dispute that Mr. Gil was not their biological father and that 8 he did not adopt them. Instead, Plaintiffs contend they have standing because Mr. Gil 9 was their “natural parent” under California Probate Code § 6453. (Opp’n [Doc. 13] 10 8:23–9:9.) In support of this contention, Plaintiffs cite paragraph 14 of the FAC and 11 Plaintiff Jennifer Schmidt’s declaration attached to the FAC. (Id. at 9:20–23.) 12 Defendants’ reply argues, in essence, that neither the allegations in the FAC nor Plaintiff 13 Schmidt’s declaration contain sufficient factual information to establish Mr. Gil was 14 Plaintiffs’ “natural parent.” (Reply [Doc. 14] 2:23–3:28.) The Court agrees with 15 Defendants. 16 “The party seeking to bring a survival action bears the burden of demonstrating 17 that a particular state’s law authorizes a survival action and that the plaintiff meets that 18 state’s requirements for bringing a survival action.” Moreland v. Las Vegas Metropolitan 19 Police Dept., 159 F.3d 365, 369 (9th Cir. 1998) (citing Byrd v. Guess, 137 F.3d 1126, 20 1131 (9th Cir.1998)). Under California law, a survival action “passes to the decedent’s 21 successor in interest… and any action may be commenced by the decedent’s personal 22 representative or, if none, by the decedent’s successor in interest.” CAL. CODE. CIV. 23 PROC. § 377.30. Section 377.32(a) provides, in relevant part, that “the person who seeks 24 to commence an action or proceeding… as the decedent’s successor in interest under this 25 article, shall execute and file an affidavit or a declaration… stating,” among other things: 26 (5) Either of the following, as appropriate, with facts in support thereof: (A) “The affiant or declarant is the decedent's successor in interest (as 27 defined in Section 377.11 of the California Code of Civil Procedure) and 28 succeeds to the decedent's interest in the action or proceeding.” 1 Id. (emphasis added). 2 Here, Plaintiff Schmidt filed a declaration purporting to comply with the section 3 377.32. With regard to subsection (5)(A) above, the declaration states: 4 3. JENNIFER SCHMIDT is GILBERT GONZALO GIL’S Successor in Interest and succeeds his interest in this action pursuant to California Code 5 of Civil Procedure sections 311.01, 377.11 and Probate Code section 6402. 6 4. GILBERT GONZALO GIL was survived by two daughters, Jennifer 7 Schmidt and Lyndzy Biondo. 8 (Schmidt Decl. [Doc. 8] ¶¶ 3, 4.) The only fact asserted in Plaintiff Schmidt’s declaration 9 is that she and Plaintiff Lyndzy Biondo are Mr. Gil’s children. In the motion, however, 10 Defendants attach copies of Plaintiffs’ birth certificates, which identify their biological 11 father as Dane J. Schmidt, not Mr. Gil. (MTD P&A [Doc. 10-1] 6:8–12, Ex. A [Doc. 10- 12 2], Ex. B [Doc. 10-2].) Defendants also point out that there are no allegations, much less 13 evidence, indicating that Mr. Gil ever adopted Plaintiffs or that he was married to 14 Plaintiffs’ mother at the time of his death. (Id. at 6:8–18.) 15 Plaintiffs nevertheless argue they have standing under California Probate Code § 16 6453, which defines a “natural parent.” (Opp’n at 8:23–9:1.) Subsection (a) of that 17 section provides that “a natural parent and child relationship is established where the 18 relationship is presumed and not rebutted pursuant to the Uniform Parentage Act,” 19 commencing with Section 7600 of the Family Code. PROB. CODE § 6453(a).
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JENNIFER SCHMIDT, et al., Case No.: 23-cv-0899 W (DDL)
14 Plaintiffs, ORDER GRANTING DEFENDANTS’ 15 v. MOTION TO DISMISS [DOC. 10] WITH LEAVE TO AMEND 16 COUNTY OF SAN DIEGO, et al., 17 Defendants 18 19 20 Pending before the Court is Defendants’ motion to dismiss the First Amended 21 Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose. 22 The Court decides the matter on the papers submitted and without oral argument. 23 See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS the motion to 24 dismiss [Doc. 10] WITH LEAVE TO AMEND. 25 26 I. OVERVIEW 27 This lawsuit arises out of the death of Gilbert Gonzalo Gil while in the custody of 28 Defendant County of San Diego. The First Amended Complaint (“FAC”) charges the 1 County and other defendants with deliberate indifference to Mr. Gil’s serious medical 2 needs and asserts three federal causes of action for violation of 42 U.S.C. § 1983 and four 3 state-based causes of action. 4 Defendants’ motion to dismiss argues, among other things, that the federal causes 5 of action should be dismissed because Plaintiffs lack standing. The Court agrees and, 6 therefore, will grant the motion to dismiss with leave to amend. 7 8 II. LEGAL STANDARD 9 The Court must dismiss a cause of action for failure to state a claim upon which 10 relief can be granted. FED. R. CIV. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 11 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 12 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either 13 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 14 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 15 motion, a court must “accept all material allegations of fact as true and construe the 16 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 17 F.3d 1246, 1249 (9th Cir. 2007). 18 A complaint must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The Supreme Court has 20 interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to 21 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). 22 The allegations in the complaint must “contain sufficient factual matter, accepted as true, 23 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 24 678 (2009) (quoting Twombly, 550 U.S. at 570). 25 Well-pled allegations in the complaint are assumed true, but a court is not required 26 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 27 inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 28 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 III. DISCUSSION 2 Defendants argue Plaintiffs lack standing to pursue the federal causes of action on 3 behalf of Mr. Gil because they are not the representative or successor interest to his estate 4 under California’s survival statute, Code of Civil Procedure § 377.32. (MTD P&A [Doc. 5 10-1] 4:15–19.) Defendants further argue that because Plaintiffs are not Mr. Gils’ 6 biological relative and were not adopted by him, Plaintiffs cannot cure this defect. (Id. at 7 4:21–24.) Plaintiffs do not dispute that Mr. Gil was not their biological father and that 8 he did not adopt them. Instead, Plaintiffs contend they have standing because Mr. Gil 9 was their “natural parent” under California Probate Code § 6453. (Opp’n [Doc. 13] 10 8:23–9:9.) In support of this contention, Plaintiffs cite paragraph 14 of the FAC and 11 Plaintiff Jennifer Schmidt’s declaration attached to the FAC. (Id. at 9:20–23.) 12 Defendants’ reply argues, in essence, that neither the allegations in the FAC nor Plaintiff 13 Schmidt’s declaration contain sufficient factual information to establish Mr. Gil was 14 Plaintiffs’ “natural parent.” (Reply [Doc. 14] 2:23–3:28.) The Court agrees with 15 Defendants. 16 “The party seeking to bring a survival action bears the burden of demonstrating 17 that a particular state’s law authorizes a survival action and that the plaintiff meets that 18 state’s requirements for bringing a survival action.” Moreland v. Las Vegas Metropolitan 19 Police Dept., 159 F.3d 365, 369 (9th Cir. 1998) (citing Byrd v. Guess, 137 F.3d 1126, 20 1131 (9th Cir.1998)). Under California law, a survival action “passes to the decedent’s 21 successor in interest… and any action may be commenced by the decedent’s personal 22 representative or, if none, by the decedent’s successor in interest.” CAL. CODE. CIV. 23 PROC. § 377.30. Section 377.32(a) provides, in relevant part, that “the person who seeks 24 to commence an action or proceeding… as the decedent’s successor in interest under this 25 article, shall execute and file an affidavit or a declaration… stating,” among other things: 26 (5) Either of the following, as appropriate, with facts in support thereof: (A) “The affiant or declarant is the decedent's successor in interest (as 27 defined in Section 377.11 of the California Code of Civil Procedure) and 28 succeeds to the decedent's interest in the action or proceeding.” 1 Id. (emphasis added). 2 Here, Plaintiff Schmidt filed a declaration purporting to comply with the section 3 377.32. With regard to subsection (5)(A) above, the declaration states: 4 3. JENNIFER SCHMIDT is GILBERT GONZALO GIL’S Successor in Interest and succeeds his interest in this action pursuant to California Code 5 of Civil Procedure sections 311.01, 377.11 and Probate Code section 6402. 6 4. GILBERT GONZALO GIL was survived by two daughters, Jennifer 7 Schmidt and Lyndzy Biondo. 8 (Schmidt Decl. [Doc. 8] ¶¶ 3, 4.) The only fact asserted in Plaintiff Schmidt’s declaration 9 is that she and Plaintiff Lyndzy Biondo are Mr. Gil’s children. In the motion, however, 10 Defendants attach copies of Plaintiffs’ birth certificates, which identify their biological 11 father as Dane J. Schmidt, not Mr. Gil. (MTD P&A [Doc. 10-1] 6:8–12, Ex. A [Doc. 10- 12 2], Ex. B [Doc. 10-2].) Defendants also point out that there are no allegations, much less 13 evidence, indicating that Mr. Gil ever adopted Plaintiffs or that he was married to 14 Plaintiffs’ mother at the time of his death. (Id. at 6:8–18.) 15 Plaintiffs nevertheless argue they have standing under California Probate Code § 16 6453, which defines a “natural parent.” (Opp’n at 8:23–9:1.) Subsection (a) of that 17 section provides that “a natural parent and child relationship is established where the 18 relationship is presumed and not rebutted pursuant to the Uniform Parentage Act,” 19 commencing with Section 7600 of the Family Code. PROB. CODE § 6453(a). Under 20 Family Code § 7601(a), a “‘natural parent’ means a nonadoptive parent established under 21 this part, whether biologically related to the child or not.” Section 7611(d), entitled 22 “Presumption of Parentage,” then provides that a person is presumed a natural parent of a 23 24 25 26 1 Section 377.11 provides that the “‘decedent’s successor in interest’ means the beneficiary of the 27 decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” 28 1 child “if the presumed parent receives the child into their home and openly holds out the 2 child as their natural child.” FAM. CODE § 7611(d). 3 California cases evaluating whether a person is the presumed natural parent of a 4 child under section 7611(d) apply the following standard: “receipt of the child into the 5 home must be sufficiently unambiguous as to constitute a clear declaration regarding the 6 nature of the relationship, but it need not be for any specific duration.” Jason P. v. 7 Daniell S., 9 Cal.App.5th 1000, 1022 (2017) (quoting Charisma R. v. Kristina S. 715 8 Cal.App.4th 361, 374 (2009)). In making this determination, courts look at the parent’s 9 conduct in relation to the child. 10 In Jason P., the court held that the following conduct established the father was the 11 “natural parent” of the child: the child regularly spent time in the father’s apartment; the 12 father made arrangements to accommodate the child during visits; the father took the 13 child to the park, fed the child, played music for and read to the child; the father arranged 14 for the child to see a doctor; the child had a designated room in the father’s apartment; 15 the father went on a tour of the child’s first school; the father signed the child’s school 16 enrollment forms; and the father made a tuition payment. Id. at 1022–23. 17 In Wehsener v. Jernigan, 86 Cal.App.5th 1311 (2022), the court held the following 18 facts supported the trial court’s finding that Charles and Frances Bloodgood, the non- 19 biological parents of Judy, were her “natural parents:” after Judy was abandoned at age 20 two by her biological parents, Charles and Frances took her into their home; Judy lived in 21 the home for the duration of her childhood; when Judy was 11, they all moved to another 22 state; Judy was registered with the “Bloodgood” last name on school records; Charles and 23 Frances were listed as Judy’s parents on her marriage certificate; in Charles’ obituary, 24 Judy was listed as his daughter and her two children as his grandchildren; in Charles’ 25 will, Judy was referred to as his daughter and was to inherit all of his property; and 26 Judy’s death certificate listed Charles as her father. Id. at 1315–16. 27 In contrast to Jason P. and Wehsener, Plaintiff Schmidt’s declaration is devoid of 28 facts supporting the contention that Mr. Gil was her natural parent. Again, the only 1 factual allegation is that Plaintiffs were his daughters (Schmidt Decl. ¶ 4), which is at 2 odds with their birth certificates. Thus, for purposes of establishing standing in this case, 3 this allegation is insufficient. 4 Even if the Court were to consider the allegations in the FAC, they too are 5 insufficient to establish standing. Pertinent to this issue, the FAC alleges: 6 Mr. Gil left behind two biological twin daughters, Jennifer and Lyndze. Mr. Gil’s biological status as Jennifer and Lyndze’s father has been confirmed 7 by their mother, Mildred Hope Cleaver. Regardless of Mr. Gil’s status as 8 their biological father, since Jennifer and Lyndze were newborn babies, Mr. Gil was their father in every sense of the word and publicly held them out as 9 his biological daughters since their birth. 10 (FAC ¶ 14.) As stated above, the allegation that Mr. Gil was their biological father is 11 disputed by Plaintiffs’ birth certificates and, more importantly, is not relevant to the 12 “natural parent” determination under section 7611(d). As for the allegation that he was 13 Plaintiffs’ “father in every sense of the word and publicly held them out” as his 14 daughters, it is a conclusory statement that is not supported by any facts. Accordingly, 15 Plaintiffs have failed to establish standing to pursue the federal causes of action. 2 16
17 18 19
20 21 2 Defendants also argue the federal causes of action should be dismissed because they are entitled to qualified immunity, and the state causes of action should be dismissed for failure to state a claim. 22 Because the Court concludes that Plaintiffs lack standing, it cannot reach the other issues. See Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998) (“‘Because the question of 23 whether a particular party has standing to pursue a claim naturally precedes the question of whether that party has successfully stated a claim,’ we address this question first.”) (citing Byrd v. Guess, 137 F.3d 24 1126, 1131 (9th Cir.1998) (ruling that the failure to demonstrate Fourth Amendment standing precludes 25 claim regardless of its potential merits) and Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–96 (1998) (finding that standing challenges should be resolved prior to merits of case)). Additionally, to the 26 extent Plaintiffs lack standing to pursue the federal causes of action, the Court lacks subject matter jurisdiction over the state claims or, alternatively, would decline to exercise supplemental jurisdiction. 27 28 1 ||}IV. CONCLUSION & ORDER 2 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss 3 ||[Doc. 10] the federal causes of action WITH LEAVE TO AMEND. The Second 4 || Amended Complaint is due on or before January 10, 2024. 5 IT IS SO ORDERED. 6 || Dated: December 20, 2023 \ [pe Dor 8 Hn. 1 omas J. Whelan 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28