Free Memorandum in Opposition - District Court of California - California

Case 3:08-cv-00766-SC

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AYANNA L. JENKINS-TONEY, ESQ. (SBN 224847) 225 Bush Streetl6 TH Floor CA 94104 SanFrancisco, 4 (4 Telephone: 15) 464-497 5 e: Facsimil (415) 464-497 Attorney for Plaintiff ISOLINA PICON

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UNITED STATESDISTRICT COURT NORHTERN DISTRICT OF CALIFORNIA l0
ISOLINA PICON. 1l Plaintiff, vs. No.: C-08-0766-SC ) Case ) ) OPPOSITION TO DEFENDANT'S ) MOTION TO DISMISS PURSUANT TO

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N. D. CAL. CNIL L. R. 7-2(c) & (d);
7-3 (a); AND 7-5 (a) & (b)

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Hearins: FOUCRAULT, individually and as Coroner, ) ean l\rfqren (-nrrnrrr ) Date: April 4, 2008 San Mateo County A.M. ) Time:10:00 Defendants. 1 Dept.:Courtroom

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T O T HE D E F EN D A N T S A N D T H EIR A TTOR N E Y S OF R E C OR D : motionto dismissunder to PLAINTIFF ISOLINA PICON HEREBY PRESENTS her objections defendants motion a FederalRule of Civil Procedurel2(bX6) and N. D. Cal. Civil L. R. 7-4,and requests denial of defendant's

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motion to dismiss to dismisseachcauseof action in the First AmendedComplaint,on the groundsthat defendant's doubt that the plaintiff can prove no set of facts beyonda reasonable is fatally flawed due to its failure to establish that would supporther claim and entitleher to relief underthe laws of the Stateof Californiaand the United States Constitution.

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CaseNo. 08-0766-SC P LA I NT I F FS OP POS IT IO N T O D E F EN D A N TS MOTION TO D IS MIS S

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INTRODUCTION

The first issueis whetheropposingcounsel'smotion to dismissis procedurallysufficientdue to its lack of a motion counsel's opposing by presentation a proposed orderas required N. D. Cal. Civil L. R.7-2(c). In addition, of to dismissshouldbe deniedin its entiretybasedon the lack of an Affidnit or Declarationas requiredby N. D. Cal.

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mere denials, the plaintiff is unableto desegregate defendants' Civil L. R. 7-5. Absentan affidavit or declaration of untruths,and misstatements law fiom the actual facts and the record. Examplesof opposing counsel's repeated of misstatements the applicablelaws can be found on page2 of the Motion To Dismiss("MTD"). On the MTD pg.2 commencingat line l6 opposingcounselwrites: "However, underCalifornia law, the Coronerhasno obligationto notifu or obtain consentof the next of kin in Indeed,the converseis true: The Coroner of orderto removeor retainorgansforthe purposes his investigation. - without notifoing or obtainingthe consentof the next-of-kin-to (l ) "retain only those hasthe statutoryright to or tissues the body removedat the time of the autopsyas may, in his or her opinion, be necessary advisable of inquiry into the case,or for the verification of his or her findings" and (2) "retain parts of the body... removed at as the time of the autopsyor acquiredduring a coroner'sinvestigation may, in the opinion of the coroner,be I and training". Cal. Gov. Code $$ 27491.4(a),27491.45(a)( )" for necessary advisable scientificinvestigation or

an The aforementionedquote,taken directly from the defendants'MTD at page 2, represents inaccurateand of misleadingmisstatement the applicablelaw. states: California GovernmentCode 5 27491.4(a) (a) For purposesof inquiry the coroner shall, within 24 hours or as soon as feasiblethereafter,where the the causeof deathis suddeninfant deathsyndromeand, in all other cases, coronermay, in his or her suspected take possession the body, which shall includethe authorityto exhumethe body, order it removedto of discretion, a convenientplace, and make or causeto be made a postmortemexaminationor autopsythereon, and make or cause to be made an analysis of the stomach, stomach contents, blood, organs,fluids, or tissuesof the body. The of detailedmedical findings resultingfrom an inspection the body or autopsyby an examiningphysicianshall be either reducedto writing or perrnanentlypreservedon recording discs or other similar recording media, shall with the the includeall positiveand negativefindings pertinentto establishing causeof deathin accordance of practiceand this, along with the written opinionsand conclusions the examiningphysician,shall medicolegal ..The coroner shall huve the right to retain......only be includedin the coroner'srecordof death. those tksues.--of the body...removed...at the time of the autopsy as may, in hk or her opinion, be.............necessoryor advkable to the inquiry into the case,.......orfor the verification of his or her findings. No personmay be presentduring the performanceof a coroner's autopsywithout the expressconsento added). the coroner.(Emphasis

CaseNo. 08-0766-SC PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS

Case 3:08-cv-00766-SC

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California GovernmentCode S 27491.a(a)does not expresslyallow the retention of entire orgons. What it does is expresslylimit what the Coronermay retainand it narrowly definesthat as being "r,tnlythosetissues". the limits when and underwhat circumstances expressly Additionally, CatiforniaGovernmentCode 5 27491.a@) where authorityto retain "only thosetissues"vests.The statueexpresslylimits the Coronersauthorifyto instances to "in his or her opinion, be necessary advisable the "inquiry into the case,orfor verificationof his or her or

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Jindings".

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purposeof that craftily and for the apparent MTD at page2, line 18, containslanguage Here,defendants reads the misleadingthe court, substitutes word organswhereclearly CaliforniaGovernmentCode 5 27491.4(a) " " only those tissues .

in of Numerousother misstatement law also permeate the MTD as it pertainsto CaliforniaGovernmentCode $ the 27491.as(aXl First, the MTD substitutes word "organs" wherethe statutereads"perts of the body".The ). goes on to partially quote only a liagment of the language" retoin parts of the body..." and omits the misstatement which reads: completecitation of the statute, (aXl ) The coronershall havethe right to retainpartsof the body as defined in subdivision (g) of Section 7150.1of the Health and Safety Code removedat the time of autopsyor acquiredduring a coroner's and or as investigation may in the opinion of the coroner,be necessary advisablefor scientificinvestigation institutionsin the conductof hospitals, research or training.The coronermay employ or useoutsidelaboratories, added). or the coroner'sscientificinvestigation training.(Emphasis A further review of the applicablelaw found in subdivision(g) of Section$ 7150.1of the Healthand SafetyCode providesa definition of "Part" which reads: (g) "Part" meansan organ, tissue,eye,bone,artery,blood, fluid, or other portion of a humanbody or a (Emphasis pacemaker. added).

Secondly,the MTD makesthe illusory claim that the Coroners"investigation" into the causeof deathallowed with the term and interchangeable is underCaliforniaGovernmentCode S 27491.a(a) somehowsynonymous and distinctactions, "scientific investigution ancJ training" allowed under 27491.a5(a)(l). The two are separate which do not fall under the samesectionsof the California GovernmentCode. As mentioned,further investigation andverification is pertinentto establishingthe causeof death under California GovernmentCode 5 27 491.4(a) the

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of title of which reads:"Authority to take possession body in suddeninfant deathsyndrome'Exhumation;Medical fildings; Retentionof tissues;Right to attendcoroner'sautopsy;Effect of Unifornt AnatornicalGift upon performanceof autopsy", converselyscientific investigationand training is pertinentto scientific researchunder the California GovernmentCode 5 274g1.a5(a)(l) title of which reads:"Retentionof tissuesremovedat autopsy; Combiningthe two actionswould be an or or Removalof partsfor transplant, therapeutic, scientificpurposes". erroneousapplication of state law and is outsidethe authority of the statute.A cursory reading of the titles of the tw{

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and distinct abundantlyclear. sectionsmakesthe fact that they are separate to Thirdly, and most vexing is that the introductionof the MTD completeomissionof reference or mentionof California GovernmentCode $ by which incorporates reference California GovernmentCode S 274g1.a5@)(2) and states: 27491.a5(a)(l),

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(aX2) Parts of the body retainedpursuant to paragraph (I) may be releasedby the coroner to hospitals.medicall educationalresearchinstitutions,and law enforcementagenciesfor noncoronertraining, educational,and I or of purposes, eitherupon consent the decedent other person,as specifiedin Section7I 5 I of the Healthl research effort has been made to locate and inform personslisted in subdivision (a) | and SafetyCode, or after a reasonable of Section 7t 5 t of the Health and SafetyCode of their option to consentor object to the release,and the I effort shall be deemedto have beenl A appropriatepersonconsentsor the effort has been unsuccessful. reasonable made when a searchfor the personshas been underway for at least l2 hours. The searchshall include a check of I of of records,examination personaleffects,and the questioning any personsvisiting I local police missingpersons or in the hospital, accompanyingthe decedent'sbody, or reporting the death.I the decedentbefore his or her death listed in subdivision(a) of Section in order to obtain informationthat might leadto the locationof any persons I 7I 5 I of the Health and Safety Code. I I I I the Anatomical Gift Act" in its entiretv. Could it be because languagefound in the Health And Safety Code Section I cited as the "Uniform The MTD at page2, "lntroduction", omits Health And SafetyCode Section7150-7156.5

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I) 7150.2(c)( whichreads:

to that no provisionof this sectionbe construed be in conflict with federallaw".l "lt is the intent of the Legislature found in Health And SafetyCode Section7150.1(g),which the Or could the omissionbe because language to any illusory affempts make the two makesa distinctionbetweenthe words organs and tissuestherebyeradicating

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I I of instances misstatements law are but a few of the many found in the I of identicalin meaning.The aforementioned I

MTD. defendants plaintiffraises of if that However, it is decided therequirements N. D. Cal.Civil L. R. 7-2 and7-5,be excused, MTD. in of issues opposition thedefendants thefollowingadditional
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MOTION TO DISIVIISS TO OPPOSTTION DEFENDANTS PLATNTIFFS

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Statement of lssues

FederalRule of Civil Procedurel2(bX6) allows for a motion to dismissfor failure to statea claim upon which

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"quasithat shewas denieda recognizable relief can be granted.The first issueis whethertheplaintiff s assertion the properfyright", when the Coronerof the County of San Mateo authorized retentionof the entire heartorganof a son her deceased NicholasPicon without obtainingher consentprior to his burial constitutes valid claim for which relief may be granted. the The secondissueis whetherthe Coronerof the County of San Mateo breached mandatorydutiesunder 27491.45(aXl), Code $$ 27491.4(a), Code $ S15.6by willfully violatingCaliforniaGovernment Government 7150.2(cXl)which would give riseto a valid claim 7150.1(g), and 27491.a5@)(2) Healthand SafetyCode Sections for which relief may be granted. The third issueis whetherthe actionsof the Coronerof the County of San Mateo give rise to liability under and wherea dufy hasbeenestablished a breachhasbeenclaimedgiving rise to damages. principlesof negligence deniedthe plaintiff Isolina [.astly,the issueis whetherthe Coronerof the County of San Mateo unconstitionality picon due process law when making the unilateraldecisionto retainthe entireheartorganof Nicholas Picon of

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and whetherthe actionsof the Coronerwere basedon the belief that he was acting without obtainingher consent,

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claim under section at undercolor of any statute the time of the taking, which would give rise to a constitutional Constitution. 1983of Title 42 of the United States

RULE OF LAW 'fhe claim upon which relief can be grantedis whether "test in determiningissueas to whethercomplaintstates

of allegations complaint,if proved at trial, would entitleplaintiffto somerelief'. Garcia v. Hilton Hotels rule is that "a complaintshouldnot be International,Inc.,97 F. Supp 5 (D.Puerto Rico l95l). The accepted

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beyonddoubt that the plaintiff can prove no set of facts in for dismissed failure to statea claim unlessit appears Co., 108 F.2d 302 (8'hCir. supportof her claim which would entitle relief'. Leimer v. StateMutual Li,feAssurunce 1939). "To withstandmotion to dismissfor failure to stateclaim upon which relief can be granted,all that is requiredis specificitysufficientto give fair notice of natureof action". Bennettv. Berg,685 F2d 1053(8thCir. 1982).

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A R GU ME N T

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I. D EN IAL OF QU A S I P R OP E R TY R IGH T

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child, the coronerdid not merely "take a single disposeor preventthe violation of the remainsof her deceased the California Courtscommonly usethe term "quasi property" to describe rights of next of kin to the body of Under California law the violation of the correlativeduty of othersto refrain flom disturbingthe body the deceased. remains". Newman v. with a right to disposeof a decedent's is subjectto an action for "tortuousinterference F.3d786,789-800 19th Cir. 2002).On October 25,2006 Nicholas Picon died of natural Sathyavaglswaran2ST On causes. October 26,2006 the Coroner's office of the County of San Mateo conductedan autopsyon the remains of Nicholas Picon.On October30, 2006the plaintiff had a funeralfor her son NicholasPicon in order to bury and lay to rest what shethoughtat the time were his intactremains.On November 13, 2006 the plaintiff learnedfor the first time that her son's heartwas retainedby the Coroner'soffice of the Counfy of San Mateo.The plaintiff was family. When the coroner deniedthe right to bury her son's body intactat the time chosenby the decedent's control, and removed and retainedthe entire heart organ of the decedentand deniedthe plaintiff the right to possess,

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'strand' from the 'bundle' of properfy rights: it choppedthrough the bundle, taking a slice of every strand." Loretto ManhattanCATV Corp., 458 U.S. 435 (1982).The denial of the plaintiffs right to bury her son's v. Teleprompter heartwith his body was a deprivationof the most certainway. contentionthat the plaintiff was somehownot deniedher rights to disposeo Any support given to the defendants she child, merely because was given a pieceof him with or preventthe violation of the remainsof her deceased argumentis held to and in stark contrastof the existingcaselaw. If the defendants which to bury is distinguishable personwould be be valid then this court would be supportingthe notion that any piece of the remainsof a deceased

CaseNo. 08-0766-SC PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS

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the sufficientto satisrythe quasipropertyright to determine dispositionof remains.Where would the justification o is denial of a propertyright end in California?lf the positionof the defendant upheld,Coronersof this stateand beyondwould be effectivelygiven the greenlight to retainorgansand body partsat will without providing notice to an the next of kin. The argumentwould be that by simply returningany portion of a corpse,essentially arm or a leg your "body" hasbeenprovidedfor burial. "There is no right to bury a fully intact In the MTD page2 commencingwith line 27 opposingcounselstates:

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by the body when the coronerhasremovedorgansto investigate causeof death".Yet no facts havebeenpresented the Coroneror the County of San Mateo that would supportthe argumentthat the heartorganof Nicholas Picon was have not provided any supplemental removedand retainedto further investigatehis causeof death.The defendants findings to the autopsyreport that was given to the plaintiff on November27,2006. An entirecalendaryear and a half has gone by sincethe initial determinationof the causeof deathand no retraction has been issuednor have any additional findings been provided. The defendantis affemptingto craft its argumentaround the rule of law by claims of the need to further investigatethe causeof death when in fact the causeof making vague unsubstantiated death was determinedbefore the decision was made to retain the entire heart organ of Nicholas Picon. Therefore,t right" that if provenat plaintiffhas established enoughfacts in supportof her claim of a denial of a "quasi-property trial would entitle her to somerelief.

l t. B R E AC H O F A M AN D A TOR Y D U TY GOV E R N ME N T C OD E S 815.6

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CaseNo. 08-0766-SC PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS Whether a statute"createsa mandatoryduty is a questionof law" for the courts. Creason v. Departmentof On Heolth Servicesl8 Cal.4th623,631(1998). October26,2006 the Coroner'soffice of the County of San Mateo an conducted autopsyon the remainsof Nicholas Picon.On October26,2006 the Coroner'soffice of the Counfy of defectknown as Intramuraltunnelingof San Mateo informedthe plaintiff that her son died from a congenitalheart the coronary artery. Here, the plaintiffs' allegationsof breachclearly establishthat the discretionaryauthority of the of Coronerto conducl an autopsyis a non-issue this complaint.Since,the discretionto conductan autopsyis

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argumentfor immunity from liability for operationof that and never raised,as an issuedefendants' undisputed to discretionis baffling. Here,the MandatoryBreachof Duty underGovernmentCode $ 815.6 relates the violations .a5(aXD,27491 .a5@)(2)and Health and SafetyCode Section of CaliforniaGovernmentCode $$ 2749I .4(a),27491 7l 50.I (g), 7 I 50.2(cXI ). Plaintiffshaveallegedfactssufficientto provide noticethat a breachunder Cal. Gov. Code just the tissue,(2) the cau ( .a 5 27491 (a) hasoccurredfor two reasons. I ) The coronerretainedthe entireorgannot

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or no of deathhad beenestablished, additionalinquiry into the casewas underway,no foul play was suspected even

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and the discretionto retain "tissues"not organsis limited to further inquiry or verificationonly not for mentioned, The First AmendedComplaint(as well as the original complaint)at page 17, donativeor scientificpurposes. by containsa declaration the plaintiff Isolina Picon,that shewas informed by the Coronerof the County of San son was retainedby their office to be sentto "Stanford University for Mateo that the heart of her deceased studying". The fact that the plaintiff was informedthat the entire heartnot just tissuewas retainedfor scientificinvestigatio takesthe actionsof the Coronerwell beyondthe scopeallowed underCal. Gov. Code S 27491.4(a). and or research if The allegations provenat trial would be enoughto entitle plaintiff relief.

l) a The allegationalso demonstrates breachunderCalifornia GovernmentCode $$ 27491.a5(aX & (2). Where parts of the body are retainedfor scientific researchor for the purposeof sendingthe retainedparts for study to l) Cal. Govt. Code $$ 27491.a5(a)( & (2\ requiresnotification"either upon consentof the decedent outsideagencies effort has been d or other person,as specifie in Section 7I 5 I of the Health and Sdety Code, or after a reasonable made to locate and inform personslisted in subdivision (a) of Section 7l5l of the Health and SafetyCode of their option to consentor object to the release,and the appropriatepersonconsentsor the effort has been unsuccessful". if Therefore,plaintiffs' allegations proven at trial would entitleher Cafifornia GovernmentCode 5 27491.a5(a)(2). to relief under a theory of breachof a mandatoryduty in that ( I ) the afore mentionedstatutesimpose a mandatory was intendedto protectagainstthe type of harm suffered,and (3) the breachof the statute's duty, (2) the statutes mandatoryduties was a proximate causeof the injury suffered despiteopposingcounselsattemptsto arguethat the v. is converse true . Washington County of contra Costa,38 Cal App. 4* 890, 895 ( 1995).

CaseNo. 08-0766-SC TO PLAINTIFFS OPPOSITION TO DEFENDANTS TVTOTION DISMISS

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III. N E GLIGE N C E The Coronerin his official capacityhad a duty owed to the plaintiffas next of kin. The duty beganwhen the when the remainswere returnedto This duty was breached of Coronertook possession the remainsof the decedent. and the plaintiff without the heartorgan.The knowledgethat her son's heartwas stolenby the Coronerhascaused that contradict emotionaldisffess.Here,factshave beenpresented will continueto causethe plaintiff severe

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that the Coronerand the County of San Mateo are immune ffom tort liabilify underCalifornia assertion defendants' Code $$ 820.2& 8 | 5.2(b). Government

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involvesa threestepanalysis."First, a court shouldexaminethe actual Statutoryinterpretation by to of the statute. Judges,lawyersand laypeopleall have far readieraccess the actuallaws enacted language sheddinglight on legislativeintent.More documents fragmentary Legislature than the variousand sometimes bravedthe legislativegauntlet.It is that of significantly,it is the language the statuteitself that has successfutly languagewhich has been lobbied for, lobbied against,studied,proposed,drafted,restudied,redrafted,voted on i analyzed,reanalyzed,voted on by two housesof the Legislature,sentto a committee,amended,reamended, finally signed'into law'by the more lobbying,debateand analysis, committee,and, after perhaps conference Governor. The samecare and scrutiny does not befall the committee reports,caucusanalyses,authors' history.'In which make up a statute's'legislative legislativecounseldigestsand other documents statements, give to the words of the statutetheir ordinary, everyday meaning examining the language,the courts should of unless, course,the statuteitself specificallydefinesthosewords to give them a specialmeaning.If the conffols.But if the meaningof the words then the language meaningis without ambiguity,doubt,or uncertainty, is not clear,courtsmust take the secondstep and refer to the legislativehistory. The final step--andone which should only be taken when the first two stepshave failed to reveal clear meaning--isto apply reason,practicality, to the at to and common sense the language hand. If possible, words shouldbe interpreted make them workable Halbert's Lumber, Inc. v. LuclryStores,Inc.,6 Cal.App.4th 1233,1238-1240(1992). and reasonable." Thus, plaintiffhas provided facts to support a claim of negligencethat if proven at trial would entitle her to relief. IV. UNCONSTITUTIONAL DEPRIVATION OF PROPERTY UNDER 42 U.S.C.S. 1983 $

deprivationof propertymust show (1) a At the threshold,a claim under42 U.S.C.S.$ 1983for an unconstitutional deprivation, (2) of properfy, (3) under color of statelaw. If theseelementsare met, the questionbecomeswhether processfor the deprivation. Here, the entire heart organ of the plaintiffs the stateafforded constitutionally adequate son was removed and retainedby the Coroner of the County of San Mateo which resultedin her being deceased

CaseNo. 08-0766-SC PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS

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the the deprivedof the right to determine dispositionof his remainsat burial. Since,the law recognizes quasr personthe secondprong has beensufficiently plead. propertyright of the remainsof a deceased

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arguedthat when making the unilateraldecision Further,the Coronerof the County of San Mateo hasrepeatedly to retainthe entire heartorgan of Nicholas Picon without attemptingto obtain the consentof next of kin, he did so basedon the belief that he was actingunder color of California Statelaw. Thus,the issueis whetherthe existinglaw

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The allegations the complainthasprovidedfactualclaims underwhich plaintiff providedadequate of due process.

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and there shouldbe a trial on the merits. may recoverand thereforethis complaintshouldnot be dismissed

V. CONCLUSION argumentsthat misstatethe actual language The Coroner and the County of San Mateo has repeatedlypresented The Coroner and the County of San Mateo, through their attorneys, have not met found in the applicablestatutes. to needed sustaina motion to dismisspursuant l2(bX6) of the FederalRulesof Civil Procedure. to the requirements do and misleadingcitationsof the governingstatutes not dispelthe allegations Specifically,the jumbled, inaccurate, that the instantmotion to dismissbe containedin plaintiffs' complaint.Therefore,plaintiffs respectfullyrequest deniedin its entirefvand the caseheardon the merits as the law intended.

DatedMarch I l, 2008

Submitted, Respectfully Esq. Ayanna4 Jenkins-T-oney, // ^//, /

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IsolinaPicon

By >*lL'\r,"

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