1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CAROLINO, et al., Case No.: 3:20-cv-1535 W (DEB) 12 Plaintiffs,

ORDER GRANTING MOTION TO

13 v. DISMISS [DOC. 2] WITH LEAVE TO 14 CITY OF SAN DIEGO, et al., AMEND CERTAIN CLAIMS 15 Defendants. 16 17 Defendants City of San Diego, Jose Mendez and Brad Keyes move to dismiss and 18 strike. Plaintiffs Anthony Carolino and David Carolino have filed an opposition in which 19 they concede many of Defendants’ arguments, but seek leave to amend. 20 The Court decides the matter on the papers submitted and without oral argument. 21 See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS the motion [Doc. 22 2] WITH LEAVE TO AMEND as to certain claims. 23 24 I. BACKGROUND 25 According to the Complaint, on August 24, 2019 at about 7:50 p.m., Rose Dawson 26 called 911 seeking assistance from the Psychiatric Emergency Response Team (“PERT”). 27 28 1 (Compl. [Doc. 1-3] ¶ 8. ) Dawson reported that her newphew, Dennis Carolino (the 2 “Decedent”), was “off his medications and had thrown a brick at her.”2 (Id.) 3 Approximately 30 minutes after the call, Defendant Officers Jose Mendez and 4 Brad Keyes responded and met Dawson at the front of her house. (Compl. ¶ 9.) Dawson 5 informed them that Dennis lived with her in a shed behind the house, was mentally ill and 6 was off his medications. (Id.) The officers told Dawson that PERT had been called and 7 was on its way. (Id. ¶ 10.) Rather than wait for PERT to arrive, the officers asked 8 Dawson to show them where Dennis lived. (Id. ¶ 13.) She led them to the back of the 9 house and pointed out the small shed where he lived. (Id.) At the time, it was dark and 10 the officers used thed their flashlights to shine a light on the door of the shed. (Id.) The 11 officers also told Dawson to stand behind them. (Id.) 12 Dennis, apparently blinded by the officers’ flashlights, exited the shed while 13 carrying what the officers believed was a shovel. (Compl. ¶15.) One of the officers 14 yelled at Dennis to “drop it,” but he did not. (Id.) One of the officers then fired his taser, 15 while the other officer fired six shots from his service revolver, killing Dennis. (Id. ¶ 16.) 16 On July 2, 2020, Dennis’s brothers, Anthony Carolino and David Carolino, filed 17 this lawsuit in the San Diego Superior Court asserting eight causes of action. Defendants 18 now move to dismiss the Complaint arguing (1) Plaintiffs lack standing and (2) the 19 Complaint fails to state a claim. Plaintiffs have filed an opposition in which they concede 20 to the merits of many of Defendants’ arguments and seek leave to amend. 21 22 II. LEGAL STANDARD 23 “It is well settled that federal courts may act only in the context of a justiciable 24 case or controversy.” SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407 25

26 1 The Complaint is attached as Exhibit 1 [Doc. 1-3] to the Notice of Removal [Doc. 1]. 27 2 Generally, individuals are referred to by their last name. Because there are multiple members of the 28 1 (1972) (quoting Benton v. Maryland, 395 U.S. 784, 788 (1969)). In order to invoke the 2 jurisdiction of the federal courts, a plaintiff “must satisfy the case or controversy 3 requirement of Article III by demonstrating his standing to sue at each stage of the 4 litigation.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) 5 (citations omitted). To do so, “a plaintiff needs to provide only ‘a short and plain 6 statement of the grounds for the court’s jurisdiction.’ The plaintiff must allege facts, not 7 mere legal conclusions, in compliance with the pleading standards established by Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and 9 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).” Leite v. Crane 10 Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Harris v. Rand, 682 F.3d 846, 850–51 11 (9th Cir. 2012)). 12 Standing requires: “(1) an ‘injury in fact’ suffered by the plaintiff; (2) a causal 13 connection between the injury and the defendant’s conduct; and (3) a likelihood that the 14 injury will be ‘redressed by a favorable decision.’” Civil Rights Educ. and Enforcement 15 Center v. Hospitality Properties Trust (“CREEC”), 867 F.3d 1093, 1098 (9th Cir. 2017) 16 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “A plaintiff has 17 sustained an injury in fact only if she can establish ‘an invasion of a legally protected 18 interest which is (a) concrete and particularized; and (b) actual or imminent, not 19 conjectural or hypothetical.” Id. (citing Lujan, 504 U.S. at 560)). 20 21 III. DISCUSSION 22 A. Standing - Survival Claims 23 Defendants argue Plaintiffs lack standing to pursue survival claims on behalf of the 24 Dennis. As Defendants point out, only the personal representative of the deceased may 25 pursue such claims. (P&A [Doc. 2-1] 4:24–7:24, citing Grant v. McAuliffe, 41 Cal.2d 26 859, 864 (1953).) Under California law, a survival action passes to the decedent’s 27 successor in interest and, therefore, may be commenced by the decedent’s personal 28 representative or, if none, by the decedent’s successor in interest.” Hayes v. County of 1 San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013). “Where there is no personal 2 representative for the estate, the decedent’s ‘successor in interest’ may prosecute the 3 survival action if the person purporting to act as successor in interest satisfies the 4 requirements of California law…” Tatum v. City and County of San Francisco, 441 F.3d, 5 1090, 1093 n2 (9th Cir. 2006). “The party seeking to bring a survival action bears the 6 burden of demonstrating that a particular state’s law authorizes a survival action and that 7 the plaintiff meets that state’s requirements for bringing a survival action.” Hayes, 736 8 F.3d at 1228–29 (citation omitted). 9 Here, the Complaint fails to explain how the Plaintiffs are the Dennis’s personal 10 representatives or successors in interest. Accordingly, Plaintiffs lack standing to pursue 11 survival claims. Moreover, as Defendants also point out, the Complaint fails to allege 12 exhaustion of any administrative remedies. For this additional reason, any survival 13 claims must be dismissed. 14 In their opposition, Plaintiffs contend they did not intend to pursue survival claims 15 and, therefore, do not seek leave to amend to allege standing for such claims. (Opp’n 16 [Doc. 5] 7:1–6.) In fact, Plaintiffs seek leave to amend to clarify that they are not 17 pursuing such claims. 18 Based on the foregoing, to the extent the Complaint asserted survival claims, they 19 are DISMISSED WITHOUT LEAVE TO AMEND. Plaintiffs are granted leave to 20 amend only to clarify they are not pursuing survival claims.3 21 22 B. Standing - Wrongful Death Claims 23 Defendants argue Plaintiffs lack standing to pursue wrongful death claims. (P&A 24 8:1–18.) Under California law, a wrongful death action may be brought by the 25 26 27 3 Defendants’ Reply also points out that Plaintiffs also failed to comply with California Code of Civil Procedure § 337.32. (Reply [Doc. 7] 3:12–24.) Because Plaintiffs have denied any intent to pursue 28 1 decedent’s “heirs,” which means someone who was financially dependent on the 2 decedent or the “decedent’s surviving spouse, domestic partner, children, and issue of 3 deceased children, or, if there is no surviving issue of the decedent, the persons, including 4 the surviving spouse or domestic partner, who would be entitled to the property of the 5 decedent by intestate succession.” Cal.Civ.Proc.Code §§ 377.60(a) and (b). 6 Plaintiffs are the Dennis’s brothers. Assuming the Dennis does not have a 7 surviving spouse, domestic partner or children, Defendants argue his mother would be 8 entitled to his property by intestate succession. (P&A 7:3–21.) Accordingly, Plaintiffs 9 lack standing to pursue wrongful death claims. 10 Plaintiffs do not dispute that as currently pled, the Complaint fails to establish 11 standing. (Opp’n 7:7–19.) However, Plaintiffs seek leave to amend to clarify that 12 Dennis’s parents have died, and they are his only surviving heirs and beneficiaries. (Id.) 13 Accordingly, the Court will grant Plaintiffs leave to amend to cure the standing 14 deficiencies with respect to any wrongful death claims. 15 16 C. Standing - Dawson’s Emotional Distress Claim. 17 The Fourth cause of action is for negligent infliction of emotional distress filed on 18 behalf of Rose Dawson. There are no allegations suggesting that Plaintiffs are her 19 personal representative, nor is there any indication why Plaintiffs believe they have 20 standing to assert claims on Dawson’s behalf. 21 In their opposition, Plaintiffs seek leave to amend to add Dawson as a named 22 plaintiff. (Opp’n 8:4–14.) Plaintiffs, however, fail to address Defendants’ contention 23 that Dawson has failed to exhaust administrative remedies. Accordingly, though the 24 Court will grant Plaintiffs leave to amend, they must address all of the deficiencies 25 identified in Defendants’ motion. In other words, Plaintiffs will not be given leave to 26 amend again in order to address the failure to exhaust administrative remedies. 27 28 1 ||}IV. CONCLUSION & ORDER 2 For the foregoing reasons, the Court finds Plaintiffs lack standing and, therefore, 3 ||GRANTS Defendant’s motion [Doc. 2] as follows: 4 1. Plaintiffs’ survival claims are DISMISSED WITHOUT LEAVE TO 5 AMEND. 6 2. Plaintiffs’ wrongful death claims are DISMISSED WITH LEAVE TO 7 AMEND. 8 3. The claims for negligent infliction of emotional distress filed on behalf of 9 Rose Dawson is DISMISSED WITH LEAVE TO AMEND. 10 || Plaintiffs’ First Amended Complaint must be filed on or before March 24, 2021.

IT IS SO ORDERED.

Dated: March 10, 2021 \ 13

Hn. 7 omas J. Whelan 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28