The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING MOTION TO DISMISS
On October 11, 2006, Plaintiff Nahir Ramos filed a complaint alleging four claims against the defendants arising out of a hospital stay in October 2005. Defendant Tri-City Medical Center (Tri-City), the hospital, filed a motion to dismiss the entire complaint, or in the alternative, two of the individual claims. The court decides the motion on the papers submitted and without oral argument. Civ. L.R. 7.1(d(1)). Because Ramos failed to present the claim to Tri-City, a public entity, or obtain a court order excusing the failure, the court will GRANT the motion to dismiss the complaint.
Under Federal Rule 12(b)(6), the court may dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the claim's sufficiency. See N. Star Int'l. v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on a motion to dismiss, the court assumes the truth of all factual allegations and construes them in the light most favorable to the plaintiff. Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). The court may dismiss if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45--46 (1957)).
To determine the sufficiency of a claim based on state law, a federal court exercising diversity jurisdiction must apply the substantive law of that state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). In California, no one may sue a public entity without first complying with Title 1, Part 3 of the Government Code, section 900 et seq. Ordinarily, a plaintiff either timely presents the claim under section 911.2, or obtains leave to present a late claim under section 911.4. Then, the plaintiff must wait 45 days from either the presentation date or the date the board grants leave to present a late claim. Thereafter, section 945.4 allows the plaintiff to sue only if the board (i) rejects all or part of the claim, or fails to act on the claim (deemed a total rejection under section 912.4(c)); or (ii) denies leave to present a late claim, or fails to act within 45 days (deemed a denial under 911.6(c)).
If the plaintiff neither timely presents the claim, nor obtains leave to present a late claim, a court may relieve the plaintiff of the claim-presentation requirement. The plaintiff must petition the court within six months after the board denies or fails to act. If the court grants the petition, the plaintiff must file the complaint within 30 days.
Thus, to state a cause of action under California law, the plaintiff must allege compliance with Title 1, Part 3. Failure to allege compliance, or circumstances excusing compliance, subjects the complaint to a general demurrer-i.e., it fails to state facts sufficient to constitute a cause of action. State v. Superior Court, 32 Cal. 4th 1234, 1243 (2004). In other words, the claim-presentation requirement is an indispensable element of any tort claim against a public entity under California law. See id. Therefore, in federal court, a plaintiff cannot survive a 12(b)(6) motion without alleging presentation (ordinary or late) or relief (by court order).
Ramos does not allege that she validly presented the claim or obtained a court order excusing the failure. She alleges only that she transmitted a notice of intent to sue a health care provider (¶ 15), that Tri-City twice "erroneously" rejected her claim (¶¶ 15--16), and that she commenced a petition with the San Diego Superior Court to obtain an order relieving her of the claim-presentation requirement (¶ 17).
By her own admission, then, Ramos transmitted a notice-not a claim-on June 30, 2006, more than six months after the decedent's hospital stay in October 2005. Thus, she tacitly admits that she has not timely presented a claim. Contrary to her assertions, characterizing the rejection of her tardy notice as "erroneous" does not change the result because it was still tardy. Thereafter, Ramos failed to obtain leave to present a late claim, and has yet to obtain an order excusing her failure.
Consequently, Ramos has not stated a cause of action under California law. She quotes several outdated cases in an attempt to convince the court otherwise. For example, she argues that "compliance with the tort claims act is a procedural prerequisite; it neither creates, nor is an element of a cause of action for tort against a government entity," citing Bahten v. County of Merced, 59 Cal. App. 3d 101, 107 (1976). She further argues that "compliance with the tort claims prerequisites, being merely a procedural predicate to suit and not an element of a cause of action, need not be alleged in the [c]omplaint," citing Bell v. Tri-City Hospital District, 196 Cal. App. 3d 438, 444 (1987).
She is wrong. In State v. Superior Court, 32 Cal. 4th 1234, 1244 (2004), the California Supreme Court specifically disapproved of these very statements in Bahten and Bell. They are no longer good law for the point Ramos argues. Further, the cases that survived State v. Superior Court involved either a timely claim or a successful petition for leave to present a late claim (either directly from the board or by court order). See id. at 1243--44. No California case has ever permitted a tort claim against a public entity to survive a demurrer under these circumstances. Thus, Ramos's claims cannot survive a 12(b)(6) motion either. See id.
To reiterate, Ramos's pending petition in Superior Court to present a late claim does not satisfy the claim-presentation element. In Bell, for example, the plaintiffs, William and Lillian Bell, amended their complaint to add that they had successfully petitioned the court under section 946.6. Only then did the defendant demur. Tri City argued that the Bells filed their suit too soon-before the thirty-day period commencing on the date the court granted the petition for relief, as section 946.6(f) provides. Bell, 196 Cal. App. 3d at 442. To dismiss at that point would indeed have elevated form over substance, because Tri-City was on notice of the suit and failed to demur until after the Bells' complaint alleged relief from the claim-presentation requirement. As State v. Superior Court recognizes, Bell's holding is entirely consistent with the rule that a plaintiff must either present the claim (timely or late) or obtain relief under section 946.6.
Further, because all four causes of action sound in tort, the court will dismiss all counts against Tri-City in their entirety and need not address Tri-City's other two arguments. The court will not grant leave to amend the complaint because Ramos admits that the Superior Court has not granted her pending petition, and the Superior Court may never grant that petition. Thus, no amendment can ...