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Aaron v. Aguirre

February 2, 2007

ERICA AARON, ET AL., PLAINTIFFS,
v.
MICHAEL AGUIRRE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER RE PLAINTIFFS' COMPLIANCE WITH CALIFORNIA TORT CLAIMS ACT

On October 19, 2006, Plaintiffs, over 1600 individual police officers, filed their Second Amended Complaint ("SAC") against Defendants, alleging claims under 42 U.S.C. § 1983 and various state law claims. (Doc. No. 70.) On October 10, 2006, Defendant City of San Diego ("City") and the Individual Defendants filed a motion to dismiss, or in the alternative, to stay.*fn1 (Doc. No. 62.). Defendant Michael Aguirre filed a motion to dismiss on October 10, 2006.*fn2 (Doc. No. 65.) On November 3, 2006, Defendant San Diego Employees' Retirement System ("SDCERS") filed a motion to dismiss the SAC, or alternatively, to abate or dismiss proceedings pertaining to state pension underfunding issues. (Doc. No. 86.) Finally, Defendant KPMG, LLP ("KPMG") filed a motion to dismiss the SAC on November 3, 2006. (Doc. No. 87.)

On October 10, 2006, Defendant City and the Individual Defendants filed a joinder to Defendant Aguirre's motion to dismiss. (Doc. No. 62.) On the same date, Defendant Aguirre filed a joinder in part to Defendant City and the Individual Defendants' motion to dismiss. (Doc. No. 68.) On October 27, 2006, SDCERS filed a joinder in part to Defendant City and Individual Defendants' motion to dismiss. (Doc. No. 79.) On November 9, 2006, Defendant City and the Individual Defendants filed a joinder in part in SDCERS' motion to dismiss. (Doc. No. 90.)

The Court heard oral argument on the various motions on December 4, 2006. Christopher Nissen appeared on behalf of Plaintiffs. Peter Benzian appeared for Defendant City and the Individual Defendants. Rodney Perlman and Donald McGrath appeared for Defendant Aguirre. Matthew Mahoney appeared for Defendant SDCERS, and Martha Gooding appeared for Defendant KPMG.

On December 13, 2006, the Court granted in part and denied in part Defendant City of San Diego and the Individual Defendants' motion to dismiss; granted in part and denied in part Defendant Aguirre's motion to dismiss; granted in part and denied in part Defendant SDCERS's motion to dismiss; and granted Defendant KPMG's motion to dismiss. (Doc. No. 100.)

In its order on motions to dismiss, the Court granted the City, Individual Defendants, and Aguirre's motion to dismiss the state law claims under the California Tort Claims Act ("CTCA"), Cal. Gov't Code § 900 et seq. As discussed during oral argument, however, the Court entered a schedule for further briefing regarding Plaintiffs' compliance with the CTCA. (Doc. No. 98.) As stated in that order, because the Court has already entered its order on the motions to dismiss, the Court treats Plaintiffs' supplemental briefing as a motion for reconsideration concerning dismissal.

Plaintiffs filed their motion for reconsideration on January 5, 2007. (Doc. No. 107.) Defendant City and the Individual Defendants filed a brief in opposition on January 19, 2007. (Doc. No. 110.) Defendant Aguirre filed a notice of joinder in Defendant City and the Individual Defendants' opposition on January 19, 2007. (Doc. No. 111.) Plaintiffs filed a reply on January 26, 2007. (Doc. No. 113.) Additionally, on January 26, 2007, Plaintiffs filed a motion for determination of invalid proof of service. (Doc. No. 114.)

For the reasons that follow, the Court DENIES Defendants' motion to dismiss Plaintiffs' state law claims based on failure to comply with the California Tort Claims Act. The Court DENIES as moot Plaintiffs' motion for determination of invalid proof of service. Additionally, the Court notes that Plaintiffs have already filed a third amended complaint.

Discussion

I. Legal Standard for Motion to Dismiss

"A complaint should not be dismissed under Rule 12(b)(6) 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Id. In ruling on a Rule 12(b)(6) motion, the facts in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). The court may, however, consider the contents of documents specifically referred to and incorporated into the complaint. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).

In addition, a court ruling on a motion to dismiss may consider facts that are subject to judicial notice. A district court may take judicial notice of matters of public record, but cannot use this rule to take judicial notice of a fact that is subject to "reasonable dispute" simply because it is contained within a pleading that has been filed as a public record. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); Biagro W. Sales Inc. v. Helna Chem. Co., 160 F. Supp. 2d 1136, 1140-41 (E.D. Cal. 2001) (matters of public record include "pleadings, orders and other papers filed with the court"). Similarly, a court may take judicial notice of the existence of a court opinion, but not ...


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