The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING DEFENDANT CITY OF EL CAJON'S MOTION TO DISMISS
On August 15, 2007, plaintiff Nancy Burke ("Plaintiff") filed a complaint against defendants City of El Cajon ("City"), William Robert Taylor, and Does 1-50 alleging a claim for violation of her civil rights in violation of 42 U.S.C. § 1983, as well as state claims for sexual assault and battery, false imprisonment, intentional infliction of emotional distress, violating Plaintiff's right to be free from gender violence in violation of sections 51.7 et seq. and 52 et seq. of California's Civil Code, violating Plaintiff's right to be free from sexual harassment in violation of sections 51.9 et seq. of California's Civil Code, invasion of privacy, negligence, and negligent hiring, training, supervision and retention (the "state claims"). (Doc. No. 1.) On August 31, 2007, City filed a motion to dismiss all of Plaintiff's claims for being time-barred, and to dismiss Plaintiff's state claims pursuant to Plaintiff's failure to present her claims for damages against City within six months of the accrual of her causes of action as required by California's Tort Claims Act. (Doc. No. 5.) On September 24, 2007, Plaintiff filed an opposition to City's motion to dismiss. (Doc. No. 8.) On October 1, 2007, City filed a reply brief. (Doc. No. 10.)
The Court exercises its discretion, pursuant to Civil Local Rule 7.1(d)(1), to decide this motion on the papers. For the following reasons, the Court DENIES City's motion to dismiss Plaintiff's suit, WITHOUT PREJUDICE regarding City's ability to raise similar arguments in a motion for summary judgment.
In her complaint, Plaintiff alleges that on or about February 3, 2005, William Robert Taylor, at the time an on-duty police officer employed by City, knocked on the door of her van and indicated it was against the law to inhabit a vehicle as a residence on a city street. (Compl. ¶¶ 6, 10-11.) Taylor proceeded to tell Plaintiff to lay back, pull her pants down, and masturbate. (Id. ¶ 13.) Plaintiff complied with Taylor's request. (Id.) On March 28, 2007, Taylor was convicted in San Diego County Superior Court, case number SCD 196660, on charges of sexual penetration under color of authority, sexual battery, and requesting or taking a bribe. (Id. ¶ 15.)
Plaintiff alleges that on or about May 7, 2007, she presented a claim for damages against City and Taylor, and that on May 10, 2007, City issued a denial of Plaintiff's claim. (Id. ¶ 19.) On August 15, 2007, Plaintiff filed a complaint in the instant suit. On August 31, 2007, City filed a motion to dismiss Plaintiff's claims against it.
I. Request for Judicial Notice and Incorporation by Reference Doctrine
Attached to its motion to dismiss, City submitted a request that the Court take judicial notice of Plaintiff's "Application for Leave to Present Late Claim," dated May 7, 2007,*fn1 and City's letter to Plaintiff denying her leave to present a late claim, dated May 10, 2007.
A court may consider documents in a 12(b)(6) motion whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). This doctrine extends to situations in which the plaintiff's claim depends on the contents of a document and the defendant attaches the document to its motion to dismiss, even though the plaintiff does not explicitly allege the contents of that document in the complaint. See id.
Plaintiff's complaint alleges that on or about May 7, 2007, Plaintiff presented a claim for damages against City and Officer Taylor, and that City subsequently issued a denial of Plaintiff's claim on May 10, 2007. (Compl. ¶ 19.) Plaintiff does not contest, but rather substantiates, that the documents City requests the Court take judicial notice of are the documents referenced in paragraph 19 of her complaint. Accordingly, the Court concludes that it may take judicial notice of and consider Plaintiff's "Application for Leave to Present Late Claim," dated May 7, 2007, and City's letter to Plaintiff denying her leave to present a late claim, dated May 10, 2007, in determining this motion to dismiss.
II. Defendant's Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). While a complaint does not need detailed factual allegations to survive a motion to dismiss, a plaintiff's obligation to provide the grounds of her entitlement to relief requires more than labels and conclusions, or a formulaic recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Rather, to survive a motion to dismiss pursuant to Rule 12(b)(6), ...