Tuesday, September 21, 2010

Northen California Plaintiffs use 1983 Action to sue for Mother's Death

Federal Judge Ronald M. Whyte denied portions of the City of Salinas' motion for summary judgment against the estate of Maria Irma Della Torre and her children for events surrounding Irma's death on July 13, 2008.

According to court documents, on that date, Irma suffered a seizure and her family called 911.  At that point, Irma locked herself in her sister's car.  The plaintiffs allege that when the police arrived they tazered Irma and shot her three times resulting in her death.  Irma's daughter Maria and son Licea are suing under 42 U.S.C. Section 1983 and California Civil code Section 52.1 for a violation of their First Amendment right to associate with their mother.  Licea is also Irma's successor in interest, who is not pursuing unlawful seizure claims.  Instead, as the Court put it, "Oddly, [Licea] takes the position that as Irma's successor in interest, he may assert a Fourth Amendment claim based on the right to familial association."

The defendants move for judgment Maria's claims on grounds that she was in Mexico on July 13, 2008 and Section 1983 requires a "contemporaneous presence" in order to sue.  The Court disagreed, "Not only does this result seem illogical, it is contrary to Supreme Court precedent."  The 1983 claim is grounded in Lee v. City of Los Angeles (9th Cir. 2001) which held that a mother can sue after her son's death for loss of a familial relationship.  The Court expanded that holding to include a child suing for the loss of her mother.

The court went on to explain that two kinds of actions can be made after a person's death for acts related to that death: wrongful death claims cover the death itself and survival are for the suffering incurred for the time between the injury and death.  Bay Area Rapid Transit District v. Superior Court (Cal. App. 1995) held that Section 52.1 does not include a wrongful death claims.  The Court noted the case was silent as to survivor claims and that the Eastern District of California had found that a survivor claim can be made.  It allowed the survivor claim to go to trial.

The case is Della Torre v. City of Salinas No. C 09-0626 and the opinion is below the jump.

Dela Torre v. City of Salinas

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