United States District Court, N.D. California
September 28, 2005.
THERESA LUCARELLI, Plaintiff,
PAUL DILLARD, LETHEL POLK, and DOES ONE THROUGH TEN, inclusive, Defendants.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO
DISMISS COMPLAINT; DENYING AS MOOT REQUEST FOR STAY; VACATING
Before the Court is the motion, filed August 9, 2005 by
defendants Paul Dillard ("Dillard") and Lethel Polk ("Polk"), to
dismiss plaintiff Theresa Lucarelli's complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has
filed opposition, to which defendants have replied. Having read
and considered the papers filed in support of and in opposition
to the motion, the Court deems the matter appropriate for
decision on the papers, VACATES the hearing scheduled for October
7, 2005, and rules as follows:
1. Defendants' request for a stay until the Court has
considered defendants' motion to disqualify plaintiff's counsel
is hereby DENIED as moot, as the Court, by separate order, has
denied defendants' motion to disqualify.
2. Defendants are not entitled to dismissal of the First and
Second Causes of Action, each alleging a claim under
42 U.S.C. § 1983 against Dillard and Polk, on the ground such claims are barred by the statute of limitations.
Because California has "multiple statutes of limitations for
personal injury actions," the applicable statute of limitations
for purposes of § 1983 is the "residual statute for personal
injury actions." See Owens v. Okure, 488 U.S. 235, 249-50 and
n. 8 (1989). The "residual statute" is § 335.1 of the California
Code of Civil Procedure, which provides a two-year statute of
limitations for a claim for "assault, battery, or injury to, or
for the death of, an individual caused by the wrongful act or
neglect of another." See McDougal v. County of Imperial,
942 F. 2d 668, 672 (9th Cir. 1991) (holding "residual statute for
personal injury actions" is statute including "catchall"
provision, i.e., provision covering injury "caused by the
wrongful act or neglect of another"). Because the earliest act on
which plaintiff bases her claims occurred less than two years
before she filed her complaint, (see Compl. ¶ 9), plaintiff's
First and Second Causes of Action are timely.
3. With respect to plaintiff's Third Cause of Action, alleging
a § 1983 claim against "supervisory doe defendants" for failure
to properly train Dillard, defendants argue such claim should be
dismissed as against them because they are not named therein.
Given that the Third Cause of Action is not alleged as against
the moving defendants, however, there is nothing for the Court to
dismiss as against the moving defendants.*fn1
4. Plaintiff's Seventh Cause of Action, alleging a violation of
the California Whistleblower Protection Act ("CWPA"), Cal. Gov't
Code §§ 8547-8547.12, is subject to dismissal, without prejudice,
because plaintiff has not alleged that she filed a complaint with
the State Personnel Board and that such entity has issued or
failed to issue findings in connection therewith. See Cal.
Gov't Code § 8547.8(c) (setting forth prerequisites to filing
claim for damages under CWPA). In light of plaintiff's
representation, in her opposition, that she has not exhausted her
administrative remedies, (see Pl.'s Opp., filed September 16, 2005, at 5:18-19), leave to amend to allege exhaustion would, at
the present time, be futile.*fn2
5. The parties agree that each remaining state law claim is
subject to the presentation requirement set forth in the
California Tort Claims Act. See Cal. Gov't Code § 910(e). Where
a plaintiff has not satisfied the presentation requirement before
commencing suit, the plaintiff's state law claims are subject to
dismissal. See Karim-Panahi v. Los Angeles Police Dep't,
839 F. 2d 621, 627 (9th Cir. 1988). Further, where a plaintiff has
presented a claim, "the factual circumstances set forth in the
written claim must correspond with the facts alleged in the
complaint," and, thus, a complaint based on facts not set forth
within the written claim is subject to dismissal. See Fall River
Joint Unified Sch. Dist. v. Superior Court,
206 Cal. App. 3d 431, 434 (1988).
a. Plaintiff's tort claim makes no reference to any conduct by
Polk. (See Lamerdin Decl., filed August 9, 2005, Ex.
A).*fn3 Consequently, plaintiff has not complied with the
presentation requirement with respect to any claim against Polk,
and such claims are subject to dismissal. See Karim-Panahi,
839 F. 2d at 627.
b. Plaintiff's tort claim alleges Dillard "has routinely and
repeatedly harassed [plaintiff] verbally and, on one occasion,
physically, and has further obstructed her career opportunities,"
and that Dillard engaged in such conduct for the "sole reason ?
that [plaintiff] asserted her legal right to report his unlawful
conduct." (See Lamerdin Decl. Ex. A ¶ 18.) Plaintiff further
represented that such conduct had not occurred "more than six
months" earlier than March 7, 2005. (See id. ¶¶ 13, 22.) In her
complaint, by contrast, plaintiff seeks relief based on an
allegation that Dillard engaged in tortious conduct on April 30,
2003 and May 1, 2003. (See Compl. ¶ 9-22.) Because plaintiff
chose to limit her tort claim to conduct occurring no earlier than six months before
March 7, 2005, she has failed to present any claim against
Dillard based on conduct occurring in 2003, and such claims are
subject to dismissal. See Fall River Joint Unified Sch. Dist.,
206 Cal. App. 3d at 434. Plaintiff's complaint, however, can be
liberally construed as alleging acts of harassment, retaliation,
and defamation by Dillard occurring within six months of March 7,
2005, (see Compl. ¶¶ 23-27), and, as a consequence, Dillard is
not entitled to dismissal of the state law claims against him in
their entirety, although such claims will be limited in scope to
conduct occurring within six months of March 7, 2005.
For the reasons stated, defendants' request for a stay is
hereby DENIED as moot, and defendants' motion to dismiss
plaintiff's complaint is hereby GRANTED in part and DENIED in
part, as follows:
1. The Seventh Cause of Action is dismissed in its entirety,
2. The Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth,
Eleventh, and Twelfth Causes of Action are dismissed, as against
Polk, without prejudice.
3. The Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth,
Eleventh, and Twelfth Causes of Action are dismissed, as against
Dillard, to the extent such claims are based on conduct occurring
more than six months before March 7, 2005.
4. In all other respects, the motion is denied.
IT IS SO ORDERED.
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