1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF XANDER MANN, et al., No. 1:21-cv-01098-DC-JDP 12 Plaintiffs, 13 v. ORDER DENYING CROSS DEFENDANT

ESTATE OF XANDER MANN’S MOTION

14 COUNTY OF STANISLAUS, et al., TO DISMISS CROSS CLAIMANT HECTOR

DEL ALTO’S FIRST AMENDED CROSS-

15 Defendants. CLAIM 16 (Doc. No. 122) 17 HECTOR DEL ALTO, 18 Cross Claimant, 19 v. 20 ESTATE OF XANDER MANN, 21 Cross Defendants. 22 23 This matter is before the court on Cross Defendant Estate of Xander Mann’s motion to 24 dismiss Cross Claimant Hector del Alto’s first amended crossclaim. (Doc. No. 122) The pending 25 motion was taken under submission to be decided on the papers pursuant to Local Rule 230(g). 26 (Doc. No. 123.) For the reasons explained below, the court will deny the pending motion to 27 dismiss. 28 ///// 1 BACKGROUND 2 This case arises from a traffic stop of a car in which Defendant Sheriff Deputy Gerardo 3 Zazueta fired gunshots into a car, killing the 16-year-old driver Xander Mann (“Decedent 4 Mann”), and striking 16-year-old Plaintiff and Cross Claimant Hector del Alto (“Cross 5 Claimant”). (Doc. No. 82 at 2, 4.) 6 On February 16, 2023, Plaintiffs the Estate of Xander Mann (“the Estate”), Amy 7 Pickering (the Decedent’s mother), Justin Mann (the Decedent’s father), and Cross Claimant filed 8 a consolidated unified complaint bringing claims against Defendants Zazueta, Sheriff Jeff Dirske, 9 County of Stanislaus, and the Stanislaus County Sheriff’s Department. (Doc. No. 82.)1 10 On February 23, 2023, Cross Claimant filed a crossclaim asserting two claims: negligence 11 against the Estate, and statutory liability pursuant to California Vehicle Code section 17150 12 against Defendant Does 1–2 (whom Cross Claimant describes as “the registered owners of the 13 vehicle Decedent Mann was driving on May 18, 2021”). (Doc. No. 83 at ¶¶ 6, 12, 14.) The crux 14 of the crossclaim was that “Decedent Mann negligently and/or recklessly provoked a police 15 shooting that caused injury” to him. (Id. at ¶ 12.) The Estate filed a motion to dismiss the 16 crossclaim, which the court granted with leave to amend on January 24, 2024. (Doc. Nos. 112, 17 120.) Specifically, the court concluded that Cross Claimant had “insufficiently pled that 18 [Decedent] Mann was the proximate cause of the shooting by [Defendant] Zazueta,” and thus 19 Cross Claimant failed to state a cognizable negligence claim under California law. (Doc. No. 120 20 at 5–7.) 21 On February 13, 2024, Cross Claimant filed the operative first amended crossclaim, in 22 which he brings the same two claims: a negligence claim against the Estate, and a claim for 23 recovery under California Vehicle Code section 17150 against Does 1–2. (Doc. No. 121.) 24 Therein, Cross Claimant alleges the following facts. 25 In the early morning on May 18, 2021, in Modesto, California, then-16-year-old Cross 26 Claimant and three other juveniles were passengers in a car being driven by Decedent Mann. 27 1 Plaintiff Estate of Xander Mann is the legal successor to decedent Xander Mann. (Doc. No. 121 28 at ¶ 4.) 1 (Doc. No. 121 at ¶ 7.) Sometime after 1:00 a.m., Stanislaus County Sheriff’s Department Deputy 2 Jesse Tovar (“Tovar”) effected a traffic stop of the vehicle for a minor, non-threatening traffic 3 offense. (Id. at ¶ 8.) After initially complying with Tovar’s commands, Decedent Mann then 4 drove the car away in disobedience of Tovar’s orders. (Id.) Tovar returned to his patrol car and 5 engaged in a vehicle pursuit that lasted about 20 minutes. (Id.) 6 At about 2:00 a.m., the vehicle pursuit came to an end when Decedent Mann’s vehicle 7 spun out and came to rest against a curb. (Id. at ¶ 9.) Law enforcement patrol vehicles attempted 8 to box in Decedent Mann’s vehicle by positioning patrol cars to the front and rear of his vehicle. 9 (Id.) In response, Decedent Mann drove his vehicle forward from the curb, towards a gap between 10 the patrol vehicles in the front and away from the patrol vehicles in the rear. (Id.) Decedent Mann 11 then reached for the ignition key to shut off his vehicle’s engine. (Id.) At about the same time, 12 Defendant Zazueta exited his patrol car near Decedent Mann’s vehicle and fired multiple gunshot 13 rounds into the vehicle, striking both Decedent Mann and Cross Claimant. (Id.) Cross Claimant 14 and Decedent Mann sustained serious injuries from the shooting, and Decedent Mann died from 15 his injuries a few days later. (Id.) 16 With regard to where Defendant Zazueta was positioned when he fired those rounds, 17 Cross Claimant alleges “[a]t this point the facts diverge depending on the evidence one 18 considers.” (Id.) According to Defendant Zazueta’s version of the events, “he was reasonably 19 standing in front of Decedent Mann’s vehicle when the vehicle began accelerating towards” him. 20 (Id.) In contrast, “[a]ccording to physical evidence, including ballistics and the pattern of gunshot 21 injuries,” Defendant Zazueta was positioned on the driver’s side of the vehicle when he fired the 22 rounds, which entered the vehicle through the driver’s side window. (Id.) 23 To support his negligence claim, Cross Claimant alleges that assuming the trier of fact 24 credits Defendant Zazueta’s account of the shooting, “Decedent Mann negligently and/or 25 recklessly provoked a police shooting that caused injury” to Cross Claimant because Decedent 26 Mann “disobey[ed] the police commands and caus[ed] a police pursuit and then [] accelerat[ed] 27 his vehicle towards [Defendant] Zazueta.” (Id. at ¶ 11.) 28 On February 27, 2024, the Estate filed the pending motion to dismiss Cross Claimant’s 1 negligence claim, the only claim brought against the Estate in the first amended crossclaim. (Doc. 2 No. 122.) On March 12, 2024, Cross Claimant filed an opposition to that motion. (Doc. No. 124.) 3 On March 22, 2024, the Estate filed a reply to Cross Claimant’s opposition. (Doc. No. 125.) 4 LEGAL STANDARD 5 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asks a court to 6 dismiss a plaintiff’s complaint for failure to state a claim upon which relief can be granted. 7 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim may be dismissed for lack of a 8 cognizable legal theory or the absence of sufficient facts to support a cognizable legal 9 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. 10 Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir. 1984)). 11 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 13 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see 14 also Fed. R. Civ. P. 8(a)(2) (a complaint must contain a short and plain statement of the claim 15 showing that the pleader is entitled to relief). A complaint satisfies the plausibility requirement if 16 it contains sufficient facts for the court to “draw [a] reasonable inference that the defendant is 17 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). For 18 purposes of a motion to dismiss, “[a]ll allegations of material fact are taken as true and construed 19 in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 20 337–38 (9th Cir. 1996). If a court dismisses certain claims, “[l]eave to amend should be granted 21 unless the district court ‘determines that the pleading could not possibly be cured by the 22 allegation of other facts.’” Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) 23 (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)). 24 DISCUSSION 25 In its motion, the Estate argues Cross Claimant’s negligence claim brought against the 26 Estate should be dismissed for several reasons. First, the Estate contends that Cross Claimant’s 27 amended pleadings directly contradict his earlier pleading, which the Estate argues is 28 impermissible. (Doc. No. 122-1 at 6–7.) Second, the Estate asserts Cross Claimant’s amended 1 pleading does not relate back to his earlier pleading. (Id. at 7–8.) Third, the Estate argues Cross 2 Claimant still fails to state a cognizable negligence claim because he does not sufficiently allege 3 facts to establish the requisite elements of duty and causation. (Id. at 9–13.) The court addresses 4 each argument in turn. 5 A. The First Amended Crossclaim Does Not Impermissibly Contradict the Original 6 Crossclaim 7 The Estate argues the allegations in the first amended crossclaim for negligence directly 8 contradicts the allegations in the original crossclaim. (Id. at 6–9.) In his original crossclaim, Cross 9 Claimant alleged that when Decedent Mann was driving his vehicle slowly away from the patrol 10 vehicles, Defendant Zazueta exited his patrol car and fired multiple rounds into the driver’s side 11 window of Decedent Mann’s vehicle. (Doc. No. 83 at ¶ 9.) Cross Claimant also alleged 12 “Zazueta’s claimed justification for the shooting was that Zazueta was standing in front of 13 Decedent Mann’s vehicle as it allegedly drove towards Zazueta, thus putting Zazueta in fear of 14 great bodily injury or death.” (Id. at ¶ 10.) 15 In his first amended crossclaim, Cross Claimant alleges “[a]ccording to physical evidence, 16 including ballistics and the pattern of gunshot injuries,” Defendant Zazueta was positioned on the 17 driver’s side of the vehicle when he fired rounds through the driver’s side window of the vehicle. 18 (Doc. No. 121 at ¶ 9.) Cross Claimant also provides additional allegations in the alternative. 19 Specifically, Cross Claimant alleges that according to Defendant Zazueta’s version of the events, 20 “he was reasonably standing in front of Decedent Mann’s vehicle when the vehicle began 21 accelerating towards” him, and “[p]erceiving facts that would cause a reasonable officer in 22 [Defendant] Zazueta’s position to conclude he faced a credible threat of death or seriously bodily 23 injury if he did not immediately stop Decedent Mann’s vehicle, [Defendant] Zazueta fired 24 multiple rounds at the driver Decedent Mann.” (Id.) 25 While Cross Claimant’s amended allegations diverge from his original pleading, 26 inconsistent allegations are not inherently impermissible. Rather, there is a circuit split on 27 whether a party in a successive pleading may make inconsistent or even contradictory allegations. 28 See Kanaan v. Yaqub, No. 21-cv-09591-BLF, 2022 WL 3357834, at *4 (N.D. Cal. Aug. 15, 1 2022) (noting a split in the Ninth Circuit on this topic and acknowledging the “[c]ourt cannot 2 follow both Ninth Circuit lines of cases at the same time.”); see also Cohen v. Suleminian, No. 3 21-cv-08597-SSS-AS, 2024 WL 1676845, at *2 (C.D. Cal. Mar. 18, 2024) (finding there is 4 significant intracircuit confusion on whether a successive pleading making contradictory 5 allegations is permitted). Some Ninth Circuit panels have determined “[a] party cannot amend 6 pleadings to directly contradict an earlier assertion made in the same proceeding.” Airs 7 Aromatics, LLC v. Victoria’s Secret Stores Brand Mgmt., 744 F.3d 595, 600 (9th Cir. 2014); 8 Reddy v. Litton Indus, 912 F.2d 291, 296–97 (9th Cir. 1990). However, other Ninth Circuit panels 9 have also held “there is nothing in the Federal Rules of Civil Procedure to prevent a party from 10 filing successive pleadings that make inconsistent or even contradictory allegations” and that 11 “other means of redress” are available. PAE Government Services, Inc. v. MPRI, Inc., 514 F.3d 12 856, 860 (9th Cir. 2007); see also Allen v. City of Arcata, 691 F. App’x 461, 463 (9th Cir. 2017) 13 (recognizing that “nothing in the Federal Rules of Civil Procedure prohibits inconsistent 14 pleadings.”). 15 A substantial number of district courts have “elect[ed] to follow the PAE line of cases” 16 finding them “more consistent with the Ninth Circuit’s liberal policy favoring amendment.” 17 Maude v. Barboza, No. 22-cv-03405-HSG, 2023 WL 4089340, at *2 (N.D. Cal. Jun. 20, 2023) 18 (citing Kanan, 2022 WL 3357834, at *4 (collecting cases)); see CardStarter, Ltd. V. SundaeSwap, 19 Inc., No. 22-cv-00757-RS, 2022 WL 5221497, at *3–4 (N.D. Cal. Oct. 5, 2022) (adopting PAE’s 20 holding “in the absence of clearer direction from the Ninth Circuit”); Grabowski v. Ariz. Bd. of 21 Regents, No. 19-cv-00460-TUC-SHR, 2024 WL 149756, at *4, n. 3 (D. Ariz. Jan. 12, 2024) 22 (following PAE and finding that in an abundance of caution, the court would consider and allow 23 inconsistent allegations). Having considered these decisions, the court will also elect to follow the 24 PAE line of cases. Thus, the court rejects the Estate’s argument that Cross Claimant’s negligence 25 claim should be dismissed based on Cross Claimant’s inconsistent and/or contradictory 26 allegations. 27 The court is mindful, however, that the liberal pleading policy underlying the PAE line of 28 cases is not unlimited. See Total Coverage, Inc. v. Cendant Settlement Servs. Grp., Inc., 252 F. 1 App’x 123, 126 (9th Cir. 2007) (explaining that the “liberal pleading policy has its limits,” and “a 2 pleader may assert contradictory statements of fact only when legitimately in doubt about the 3 facts in question”) (quoting Am. Int’l. Adjustment Co. v. Galvin, 86 F.3d 1455, 1461 (7th Cir. 4 1996)). Here, the court previously expressed skepticism that Cross Claimant would be able to 5 amend his crossclaim to sufficiently allege Decedent Mann proximately caused Cross Claimant’s 6 injuries because, in his opposition to the prior motion to dismiss, he “expressly disavow[ed] 7 Zazueta[’s] version of events” and contended that Defendant Zazueta was positioned on the 8 driver’s side of the vehicle, not standing in front of it. (Doc. No. 120 at 7, n. 6.) Now, Cross 9 Claimant does not disavow Defendant Zazueta’s version of events but acknowledges that “[t]he 10 facts diverge depending on the evidence one considers” and adds allegations based on the account 11 given by Defendant Zazueta. Thus, based on these additional allegations, Cross Claimant has 12 raised doubts about the facts in question, and at this stage of the litigation, he is entitled to allege 13 contradictory statements of fact. See PAE Gov’t Servs., 514 F.3d at 858 (emphasizing that “the 14 Federal Rules of Civil Procedure do not authorize a district court to adjudicate claims on the 15 merits at this early stage in the proceedings; the court may only review claims for legal 16 sufficiency”). 17 B. The First Amended Crossclaim Does Not Relate Back to His Original Crossclaim 18 The Estate next argues that even if Cross Claimant is permitted to allege contradictory 19 facts from his earlier pleading, those facts do not relate back to his earlier pleading and are barred 20 by the applicable two-year statute of limitations.2 (Doc. No. 122-1 at 7.) Specifically, the Estate 21 argues Cross Claimant’s amended pleading containing different facts was filed more than two 22 years after Decedent Mann’s alleged negligence, and “a new legal theory depending on different 23 facts” does not relate back under Rule 15(c). (Id. at 8–9) (citing Williams v. Boeing Co., 517 F.3d 24 1120, 1133 (9th Cir. 2008)). 25 Under Federal Rule of Civil Procedure 15(c)(1), “amendments made after the statute of 26

27 2 “California has a two-year statute of limitations for actions involving ‘assault, battery, or injury’ caused by the wrongful act or neglect of another.” Lockett v. City of Los Angeles, 977 F.3d 737, 28 739 (2020) (citing Cal. Code Civ. Proc. § 335.1). 1 limitations has run may ‘relate back’ to the date of the original pleading when the amended 2 pleading arises ‘out of the conduct, transaction, or occurrence set out—or attempted to be set 3 out—in the original pleading.’” Hebner v. McGrath, 543 F.3d 1133, 1137–38 (9th Cir. 2008) 4 (quoting Fed. R. Civ. P. 15(c)(1)). Here, Cross Claimant’s allegations in his first amended 5 crossclaim arise from the same occurrence as set forth in his original pleading. Cross Claimant 6 does not seek to add a new claim against the Estate but instead seeks to allege additional facts to 7 support his negligence claim. Under both federal and California law, for an amended pleading to 8 relate back to the original, the critical inquiry is whether the defendant had adequate notice of the 9 claim based on the original pleading. Asarco, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 10 (9th Cir. 2014); Pointe San Diego Residential Cmty, L.P. v. Procopio, Cory, Hargreaves & 11 Savitch, LLP, 195 Cal. App. 4th 265, 276 (2011); see Garrison v. Bd. of Dirs., 36 Cal. App. 4th 12 1670, 1679 (1995) (finding that the policy behind California’s relation back doctrine is to “put 13 defendants on notice of the need to defend against a claim in time to prepare a fair defense on the 14 merits.”). Here, the Estate had adequate notice of Cross Claimant’s negligence claim from the 15 original pleading, which was served well within the applicable statute of limitations. 16 Even if Cross Claimant’s first amended crossclaim did not arise out of the same 17 occurrence as set forth in his original pleading, the court finds Cross Claimant has sufficiently 18 alleged his amended negligence claim was tolled under California Code of Civil Procedure 19 section 352(a). Under section 352(a), the statute of limitations does not start running for a minor’s 20 claims until the minor reaches the age of majority, beginning the day after the minor’s eighteenth 21 birthday. In re Mackey, No. 23-cv-00337-JAH-MSB, 2024 WL 5188046, at *6 (S.D. Cal. Dec. 22 20, 2024) (citing Shalabi v. City of Fontana, 11 Cal.5th 842, 856 (2021)). The Estate argues 23 tolling under section 352(a) should not occur because Cross Claimant did not invoke tolling under 24 section 352(a) in his pleading. (Doc. No. 125 at 4.) However, at this stage in the case, Cross 25 Claimant need not prove that he is entitled to tolling. Rather, “[w]hen a motion to dismiss is based 26 on the running of the statute of limitations, it can be granted only if the assertions of the 27 complaint, read with the required liberality, would not permit the plaintiff to prove that the statute 28 was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1979). In his first amended 1 crossclaim, Cross Claimant alleges that on the date the incident occurred, May 18, 2021, he was 2 sixteen years old. (Doc. No. 121 at ¶ 7.) Thus, Cross Claimant has pleaded facts showing that he 3 may be entitled to tolling of his negligence claim. 4 The court next turns to the Estate’s contention Cross Claimant fails to state a cognizable 5 negligence claim. 6 C. The First Amended Crossclaim Sufficiently Alleges a Negligence Claim 7 The Estate contends Cross Claimant’s negligence claim should be dismissed because he 8 has not sufficiently alleged Decedent Mann had a legal duty toward him or that Decedent Mann’s 9 actions were the proximate cause of his injury. (Doc. No. 122-1 at 5–13.) 10 “To establish a cause of action for negligence, the plaintiff must show that the ‘defendant 11 had a duty to use due care, that [the defendant] breached that duty, and that the breach was the 12 proximate or legal cause of the resulting injury.’” Brown v. USA Taekwondo, 11 Cal. 5th 204, 213 13 (2021) (quoting Nally v. Grace Community Church, 47 Cal. 3d 278, 292 (1988)). 14 1. Duty 15 There is a “statutory presumption of duty” in California. Modisette v. Apple Inc., 30 Cal. 16 App. 5th 136, 144 (2018). Pursuant to California Civil Code section 1714(a), “[e]veryone is 17 responsible, not only for the result of his or her willful acts, but also for an injury occasioned to 18 another by his or her want of ordinary care or skill in the management of his or her . . . person, 19 except so far as the latter has, willfully or by want of ordinary care, brought the injury upon 20 himself or herself.” To determine whether a defendant owes a plaintiff a duty of care under 21 section 1714(a), courts undertake a two-step inquiry. Doe v. Uber Techs., Inc., No. 22-16562, 22 2025 WL 80365, at *4 (9th Cir. Jan. 13, 2025). First, courts determine “whether the defendant’s 23 ‘entire conduct created a risk of harm’ to the plaintiff.” Kuciemba v. Victory Woodworks, Inc., 14 24 Cal. 5th 993, 1017 (2023) (quoting Brown, 11 Cal. 5th at 215, n.6). Courts then ask whether the 25 resulting duty ought to be narrowed or excepted based upon an analysis of the factors set forth in 26 Rowland v. Christian, 69 Cal. 2d 108 (1968). Kuciemba, 14 Cal. 5th at 1021. The Rowland 27 factors include: 28 (1) the foreseeability of harm to the plaintiff; (2) the degree of 1 certainty that the plaintiff suffered harm; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; 2 (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the 3 defendant; (7) the consequences to the community of imposing a duty to exercise care with resulting potential liability for breach of 4 that duty; and (8) the availability, cost, and prevalence of insurance for the risk involved. 5 69 Cal. 2d at 113. Courts often sort the Rowland factors into two different categories based on 6 their focus, with the first three “addressing foreseeability and related concepts and the [other five] 7 addressing public policy considerations.” Kuciemba, 14 Cal. 5th at 1021–22. “[T]he Rowland 8 factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, . . . 9 the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was 10 reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more 11 generally whether the category of negligent conduct at issue is sufficiently likely to result in the 12 kind of harm experienced that liability may appropriately be imposed.’” Cabral v. Ralphs 13 Grocery Co., 51 Cal. 4th 764, 772 (2011) (citing Ballard v. Uribe, 41 Cal. 3d 564, 572–73, n. 6 14 (1986)). 15 The Estate argues Decedent Mann had no duty toward Cross Claimant under section 16 1714(a) because he had no duty to control Defendant Zazueta’s conduct. (Doc. No. 122-1 at 9.) In 17 general, when an injury to a plaintiff was caused by a third party, a defendant generally “owes no 18 duty to control the conduct of [the third party], nor to warn those endangered by such conduct.” 19 Regents of Univ. of Cal. v. Superior Ct., 4 Cal. 5th 607, 619 (2018) (quoting Davidson v. City of 20 Westminster, 32 Cal.3d 197, 203 (1982)). However, a duty can arise “based upon [a] claim that 21 [the defendant’s] affirmative conduct itself . . . placed plaintiffs in a dangerous position and 22 created a serious risk of harm to which they otherwise would not have been exposed.” Lugtu v. 23 Cal. Highway Patrol, 26 Cal. 4th 703, 717 (2001); Kuciemba, 14 Cal. 5th at 1017–18. 24 Here, Cross Claimant alleges Decedent Mann’s affirmative conduct—disobeying police 25 commands, causing a police pursuit, and accelerating his vehicle towards Defendant Zazueta— 26 created or contributed to the risk of injury that he otherwise would not have faced. (Doc. No. 121 27 at ¶ 11.) Based on Cross Claimant’s allegations, the injury he suffered from being shot by a third 28 1 party (Defendant Zazueta), would simply not have occurred but for Decedent Mann’s conduct. 2 Cf. Regents, 4 Cal. 5th at 617 (finding section 1714’s default rule of duty did not apply because 3 the university did not create or contribute to the risk of a stabbing from a third-party); Brown, 11 4 Cal. 5th at 210 (finding section 1714’s default rule of duty did not apply because a sport 5 governing body’s organization of youth sporting events in itself did not create or contribute to the 6 risk of sexual abuse from a third-party attending the event). Thus, the court finds Cross Claimant 7 sufficiently alleges that Decedent Mann’s conduct created a serious risk of harm to Cross 8 Claimant and consequently, that Decedent Mann owed a duty of care to Cross Claimant. 9 As to whether that duty should be narrowed or excepted due to compelling policy 10 considerations, the court next considers the Rowland factors. The Estate argues Cross Claimant’s 11 injury was not a foreseeable consequence of Decedent Mann’s actions under the first (the 12 foreseeability of harm to the plaintiff) and third (the closeness of the connection between the 13 defendant’s conduct and the injury suffered) Rowland factors because Defendant Zazueta was 14 informed that there were multiple teenagers in Decedent Mann’s car and “Mann’s actions did not 15 involve the use of a firearm.” (Doc. No. 122-1 at 9–10.)3 16 The court finds the Estate’s argument unpersuasive. It is foreseeable that a vehicle 17 accelerating toward a police officer could cause a police officer to fire his weapon in response. 18 See Rico v. Cnty. of San Diego, No. 09-cv-02684-BTM-WVG, 2013 WL 3149480, at *7–8 (S.D. 19 Cal. Jun. 18, 2023) (collecting cases noting that the use of a deadly force by an officer is 20 reasonable in cases where the officer was standing in the path of an oncoming vehicle). Likewise, 21 it is foreseeable that a police officer’s firing of his weapon at an oncoming vehicle would result in 22 injury. Thus, the court finds consideration of the Rowland foreseeability factors do not show that 23 Decedent Mann’s legal duty toward Cross Claimant ought to be narrowed or excepted. 24 The court next considers the Rowland factors concerning public policy. In its motion,

25 3 The Estate contends it is not necessary to analyze the second Rowland factor, the degree of certainty that the plaintiff suffered harm. (Doc. No. 122-1 at 10.) The court agrees, the second 26 Rowland factor “has been noted primarily, if not exclusively, when the only claimed injury is an 27 intangible harm such as emotional distress.” Kesner v. Superior Court, 1 Cal. 5th 1132, 1148 (2016) (citing Bily v. Arthur Young & Co., 3 Cal. 4th 370, 421 (1992)). As Cross Claimant was 28 physically injured, it is not necessary to analyze the second Rowland factor. 1 the Estate acknowledges that some moral blame (factor four) is attributable to Decedent Mann, 2 “based on his vehicular flight from the police” (Doc. No. 122-1 at 11.) The Estate then concedes 3 Rowland factors five (the policy of preventing future harm) and six (the extent of the burden to 4 the defendant) are not relevant to this action because Decedent Mann died from the shooting. (Id.) 5 As to Rowland factor eight (the availability, cost, and prevalence of insurance for the risk 6 involved), the Estate asserts it is not aware of any available insurance to protect against the harm 7 at issue in this case. (Id.) Lastly, the Estate does not address Rowland factor seven, the 8 consequences to the community of imposing a duty to exercise care with resulting potential 9 liability for breach of that duty. Having reviewed the Rowland factors concerning public policy 10 the court finds the Estate has not demonstrated in its motion that a narrowing or exception to 11 Decedent Mann’s duty of care is warranted. 12 Accordingly, at this stage of the litigation, the court finds Cross Claimant has sufficiently 13 pled Decedent Mann had a duty to use due care toward him. 14 2. Causation 15 Lastly, the Estate contends Cross Claimant’s allegations fall short of alleging Decedent 16 Mann’s actions proximately caused Cross Claimant’s injury. (Doc. No. 122-1 at 11–13.) 17 “Proximate cause ‘limits the defendant’s liability to those foreseeable consequences that the 18 defendant’s negligence was a substantial factor in producing.’” Ileto v. Glock Inc., 349 F.3d 1191, 19 1206 (9th Cir. 2003) (quoting Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1342)). 20 Whether an intervening act of a third-party amounts to a “‘superseding cause’ relieving the 21 negligent defendant of liability” depends on whether the third party’s conduct was reasonably 22 foreseeable. Ileto, 349 F.3d at 1206 (quoting Landeros v. Flood, 17 Cal. 3d 399, 411 (2003)). 23 Here, the Estate asserts Defendant Zazueta’s purported deadly force served as an 24 intervening act that broke the chain of causation. (Doc. No. 122-1 at 12–13.) As discussed above, 25 the court finds Cross Claimant’s inconsistent allegations are permissible and based on those 26 allegations of Defendant Zazueta’s position in front of Decedent Mann’s vehicle, it was 27 foreseeable that Decedent Mann’s purported acceleration of his vehicle toward Defendant 28 Zazueta could result in Cross Claimant’s injury. A reasonable jury could conclude based on Cross 1 | Claimant’s amended allegations that Decedent Mann proximately caused his injury. 2 Accordingly, the court finds Cross Claimant has sufficiently alleged a negligence claim 3 | against the Estate. 4 CONCLUSION 5 For the reasons explained above: 6 1. Cross Defendant Estate of Xander Mann’s motion to dismiss Cross Claimant 7 Hector del Alto’s first amended crossclaim (Doc. No. 122) is DENIED; and 8 2. Within twenty-one (21) days from the date of entry of this order, Cross Defendant 9 Estate of Xander Mann shall file an answer to Cross Claimant Hector del Alto’s 10 first amended crossclaim. 11 12

B IT IS SO ORDERED. □

14 | Dated: _March 31,2025 RUC Dena Coggins 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13