Mitchell v. County of San Diego

MEMORANDUM *

Barbara Jo Mitchell (Mitchell), individually and on behalf of her deceased son Keric Mitchell (Keric), appeals the district court’s dismissal on the merits of her California state law negligence and intentional tort claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Although Mitchell thereafter stipulated to the voluntary dismissal of her Third Amended Complaint, which contained only her § 1983 claim, we have jurisdiction pursuant to 28 U.S.C. § 1291 to hear an appeal challenging the prior order dismissing her state law claims with prejudice because Mitchell did not stipulate to the voluntary dismissal with the intent to settle her case. Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033 , 1038 (9th Cir.2003) (citing Concha v. London, 62 F.3d 1493, 1507 (9th Cir.1995)); Oregon Bureau of Labor and Indus. v. U.S. West. Comm., 288 F.3d 414, 417 (9th Cir.2002). For the same reason, Mitchell’s appeal is not moot. Oregon Bureau, 288 F.3d at 416-17 .

We review the district court’s dismissal under Rule 12(b)(6) de novo, and may affirm the dismissal only “ ‘only if it is clear that no relief could be granted under any set of facts that could be proved…

concurring in part and dissenting in part.

As to the paramedics and their employer the City of Vista, I would affirm. That the paramedics observed Keric Mitchell does not distinguish this case from Zepeda v. City of Los Angeles, 223 Cal.App.3d 232 , 272 Cal.Rptr. 635 (1990). Moreover, the complaint’s allegation that friends assisting Mitchell were ordered away by law enforcement is inconsistent with any claim that the paramedics increased the risk of harm to Mitchell or caused Mitchell or others to rely on their actions to Mitchell’s detriment, as is required for tort liability to attach. See id. at 235, 272 Cal.Rptr. 635 ; Rose v. County of Plumas, 152 Cal.App.3d 999, 1004-05 , 199 Cal.Rptr. 842 (1984).

I agree substantially with the majority as to the law enforcement officers. As to immunity under Cal. Health and Safety Code §§ 1799.106, 1799.107, however, I would simply hold the County to its contention that “[njeither section applies to County law enforcement officials.” I would not speculate as to whether § 1799.107 might apply to them, particularly since nothing in the record suggests that the law enforcement officers were “employee[s] or member[s] of a fire department.”…