ORDER FOR SUPPLEMENTAL BRIEFING
Currently pending before this Court is Defendants Leticia Castaneda, Erica Soto, and Ron Castaneda's motion to dismiss. On September 6, 2011, the Court held a hearing with respect to this motion. The Court concludes that supplemental briefing is necessary relating to the following issues.
1. State Created Danger Claim
In the fourth cause of action, Plaintiffs bring a state created danger claim under 42 U.S.C. § 1983. Defendants contend that they are not liable because Defendants did not create any new danger to C.M.R. Reply at 2:21. Defendants state that Plaintiffs' Complaint suggests that Defendant Rogers had at least partial custody of C.M.R. prior to Rogers being awarded primary physical custody on May 12, 2009. Id. at 2:22-24; Complaint at ¶¶ 18, 38, 41, 42, 99, 117. Therefore, Defendants argue that any alleged actions or inactions by the Defendants did not expose C.M.R. to any danger to which she was not already exposed. See Deshaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189 (1989) (concluding that there was no state created danger when the state temporarily removed minor child from father and then returned child to father because the state placed the child in no worse position than had the state not acted at all).
At the hearing, Defendants cited again to paragraph 18 of the Complaint, which suggests that Defendant Rogers had at least partial custody of C.M.R. as of July 2008. In response, Plaintiffs represented to the Court that Plaintiff Fox and Defendant Rogers had shared custody of C.M.R. prior to May 12, 2009, but were unable to point to a specific allegation in the Complaint where this is alleged.
Plaintiffs are ordered to address whether the custody situation of C.M.R. prior to May 12, 2009 is clearly articulated in the Complaint. In addition, Plaintiffs are ordered to address whether their state created danger claim is barred under Deshaney if Rogers already had shared custody of C.M.R. when Rogers was granted primary physical custody on May 12, 2009?
2. Compliance with the Government Claims Act
Defendants move to dismiss all of Plaintiffs' state law claims for failure to comply with the Government Claims Act ("GCA").
Before suing a public entity or its employees, a plaintiff must present a timely written claim for damages to the public entity under the GCA. See Cal. Gov't Code § 911.2. Such a claim must be presented to the governmental entity no later than six months after the cause of action accrues. Id. Presentation of a written claim, and action on or rejection of the claim, are conditions precedent to suit, and thus is an element of the plaintiff's cause of action. State v. Superior Court of Kings County, 32 Cal.4th 1234, 1245 (2004); K.J. v. Arcadia Unified Sch. Dist., 172 Cal. App. 4th 1229, 1238 (2009).
The public entity must approve or reject a timely claim within 45 days and provide written notice to the claimant. See Cal. Gov't Code §§ 912.4, 912.6, 913. If a timely claim is rejected in whole or in part, the claimant may file suit within six months after the date notice is personally delivered or deposited in the mail. Id. at §§ 945.4, 945.6(a)(1). If the rejection is not properly noticed in accordance with section 913 however, the action may be filed in court within two years from the accrual of the cause of action. Id. at §§ 945.6(a)(2).
If the entity determines that the claim was filed late, it must return the claim within 45 days from the date it was filed, along with a notice that the claimant may apply for leave to present a late claim. Id. at §§ 911.3 and 911.4. In responding to an application for leave to present a late claim, the entity must grant or deny leave within 45 days and provide notice. Id. at §§ 911.6, 911.8. If an application for leave to file a late claim is rejected by the public entity, the claimant must first obtain a court order for relief from the requirements of the claims act before filing a suit. Id. at § 946.6. A petition for such an order must be filed with the court within six months after the application is denied or deemed denied. Id. at §§ 946.6(b), 911.6.
Where compliance with the GCA is required, the plaintiff has the burden of pleading and proving compliance. Mangold v. California Pub. Utils Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). In this case, Plaintiffs allege in their Complaint that they have "complied with the Government Tort Claims statutes of California, having had the most recent claim denied on October 27, 2010." Complaint at ¶ 3. Defendants argue that Plaintiffs cannot proceed with their state law claims because Plaintiffs never petitioned for relief to file a late claim under the GCA. Reply at 6:8-11.
On September 17, 2010, Plaintiffs submitted a tort claim to the Clerk of the Board of Supervisors of Tulare County. On September 21, 2010, the claim was returned as untimely because the claim was not presented within six months of the accrual of the cause of action. Plaintiffs submitted another tort claim on October 14, 2010, which was substantially the same as the September 17, 2010 tort claim. The second tort claim was returned as untimely on October 27, 2010. Both the September 21 and October 24, 2010 notices expressly stated that no action was taken with respect to Plaintiffs' claims and explained that Plaintiffs only recourse was to apply for leave to present a late claim. Instead of filing a petition for leave to present a late claim, Plaintiffs commenced the present action on March 24, 2011.
In their opposition, Plaintiffs contend that they filed a timely claim. Opposition at 34:19.
A claimant who disputes the determination of untimeliness must raise that issue by filing suit rather than filing an application for leave to present a late claim. Toscano v. Cnty. of Los Angeles, 92 Cal. App. 3d 775, 782-83 (1979). Where a public entity erroneously returns a timely claim as untimely, the entity's action will be construed as a rejection of the claim. Rason v. Santa Barbara Housing Auth., 201 Cal. App. 3d 817, 830 (1988). Thus, if the trial court finds that the tort claim shows facts on its face which, if true, would make the claim timely, the entity's ...