The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION FOR RELIEF FROM PROVISIONS OF GOVERNMENT CODE SECTION 945.4; GRANTING MOTION TO DISMISS
Plaintiff Bertrand Gines moves to be relieved from strictly complying with the administrative exhaustion requirements of Cal. Gov. Code §945.4. Defendants San Diego Metropolitan Transit System ("SDMTS"), San Diego Trolley, Inc., San Diego Transit Corporation, and Michael Vaccariello (collectively "Moving Defendants") oppose the motion and separately move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss all six state law claims for failure to exhaust available administrative remedies.*fn1 Plaintiff opposes the motion to dismiss. Defendants Heritage Security Services, a.k.a. Transit Systems Security, and Albert Moya filed an answer to the complaint, (Docket No. 9). Defendants Richard Shirley, Robert Shipley, and Abaloyan Sabas did not file a response to either of the motions pending before the court. Pursuant to Local Rule 7.1(d)(1), both motions are appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to be relieved from the exhaustion requirements of Cal. Gov. Code §945.4 and grants the motion to dismiss for failure to exhaust administrative remedies.
On December 3, 2009, Plaintiff commenced an action in the Superior Court of California County of San Diego by alleging six state law claims for assault, battery intentional and negligent infliction of emotional distress, false imprisonment and conversion; and a single federal claim for violation of the Civil Right Act, 42 U.S.C. §1983.*fn2 Defendants SDMTS, San Diego Trolley, Inc., and San Diego Transit Corporation are public entities acting as transit authorities for the City of San Diego. (Compl. ¶2). Defendant Heritage Security Systems, a.k.a. Transit Systems Security, provides security related services and is a private California-based corporation allegedly acting as an agent of the City of San Diego. Defendants Albert Moya, Michael Vaccariello, Richard Shirley, Robert Shipley, Abaloyan Sabas are security officers employed by Heritage. (Id. ¶4). Moving Defendants timely removed the action on December 22, 2009.
Plaintiff's claims arise from an incident which occurred at about 9:00 p.m. on January 31, 2009, at the 24th Street Trolley Station parking lot located in National City, California. (Compl. ¶28). Plaintiff met a female companion at the Trolley Station and, as they were walking towards his car, they were approached by four officers, including defendant Officer Vaccariello. (Id. ¶29). The officers detained Plaintiff and questioned him about "what he was doing, who he was with and where he was going." (Id. ¶30). The officers refused to tell Plaintiff why he was detained and restricted his movements. (Id. ¶31). The officers threatened Plaintiff with the use of force if he would not cooperate. After about 45 minutes Plaintiff requested that he be permitted to leave and walked towards his car. Defendant Officer Moya allegedly "placed his hand on the gun at his hip as if he were going to remove it from its holster and fire at Plaintiff." (Id. ¶33). After about an hour of detention, Plaintiff called 911 for assistance. Officer Vaccariello then yelled at Plaintiff to put the phone away and then forcibly searched him before the National City Police Department responded to the 911 call. During the search of Plaintiff, the security officers removed his wallet and took it "to a place where Plaintiff could not observe what was being done." (Id. ¶36). When the National City Police arrived, "The security officers backed away from Plaintiff and started to exit the area in which the assault took place." (Id. ¶38). The National City Police determined that there was no basis to detain Plaintiff. Plaintiff then asked for the return of his wallet. The security officers returned the wallet and Plaintiff noticed that the officers had removed $40 and a VISA credit card from the wallet. (Id. ¶40). Before Plaintiff left the scene, Plaintiff was issued a Notice to Appear violation for loitering and failure to comply with a lawful order. (Id. ¶41).
Shortly thereafter, on February 2, 2009 Plaintiff went to the offices of SDMTS to file a claim. He was provided with a personnel complaint form, filled out the form, and was informed by a clerk that "his claim was taken care of." (Id. ¶42).*fn3 Plaintiff called SDMTS on at least eight separate occasions to check on the status of his complaint. Plaintiff never received a response to his complaint. (Id. 45; Exh. A).
On March 25, 2009, Plaintiff appeared at the arraignment on the Notice to Appear where a trial date of July 22, 2009 was set. (Id. ¶46). On July 22, 2009 Plaintiff appeared at the trial but "none of the security guards appeared. The charges were dismissed." (Id. ¶47). Plaintiff alleges that he believed "that his claim would be addressed at the trial on July 22, but there was no proceeding in which he was able to ask about the status of the claim" (Id. ¶48). "On September 4, 2009 Plaintiff resubmitted his claim" for damages [apparently, then initially represented by counsel]. (Id. ¶49; Exh. B)*fn4. On September 18, 2009, SDMTS denied the claim as untimely. (Id. Exh C). Plaintiff then submitted a request for leave to present a late claim. On October 14, 2009, the request to submit a late claim was denied. (Id. ¶50).
Plaintiff now moves to be relieved from the claims presentment requirement of Government Code ¶945.4 and Defendants move to dismiss all state law claims for failure to comply with the claims presentment requirements of the Government Claims Act.
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949.
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Exhaustion of Administrative Remedies
The parties dispute whether Plaintiff substantially complied with the exhaustion requirements of Government Claims Act §810 et seq. and, if not, whether Plaintiff should be ...