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Burgess v. Raya

United States District Court, E.D. California

April 2, 2014

DWAYNE L. BURGESS, Plaintiff,
v.
RAYA, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS MOTION TO DISMISS PLAINTIFF'S STATE COURT CLAIMS AND REQUESTED DECLARATORY RELIEF (Doc. 35)

JENNIFER L. THURSTON, Magistrate Judge.

I. FINDINGS

A. Procedural History

Plaintiff, Dwayne L. Burgess, is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding on his claims against Defendants Raya, Garcia, Polanco, and Fernandez for battery under California law and excessive force in violation of the Eight Amendment and against Defendants Raya and Polanco under the additional claims of conspiracy and retaliation in violation of the First Amendment as stated in the Third Amended Complaint. (Docs. 27, 29, 32.)

Pending before the Court is the motion filed by Defendants to dismiss Plaintiff's claims under California law based on his failure to comply with the California Tort Claims Act ("CTCA") and to dismiss Plaintiff's request for declaratory relief. (Doc. 35.)

B. California Tort Claims Act ("CTCA")

1. Standards

Defendants move under Federal Rule of Civil Procedure 12(b) to dismiss Plaintiff's claims under California State Law due to his lack of compliance with the CTCA. In resolving unenumerated Rule 12(b) motions, the Court may look beyond the pleadings and decide disputed issues of fact. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).

Under the CTCA, set forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity unless the plaintiff first presented the claim to the California Victim Compensation and Government Claims Board ("VCGCB" or "Board"), and the Board acted on the claim, or the time for doing so expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this requirement is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) (citations omitted). Compliance with this "claim presentation requirement" constitutes an element of a cause of action for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004).

In state courts, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). Federal courts likewise must require compliance with the CTCA for pendant state law claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with the claim presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).

To be timely, a claim must be presented to the VCGCB "not later than six months after the accrual of the cause of action." Cal. Govt.Code § 911.2. Should a claimant miss this deadline, the claimant may file a written application for leave to file a late claim, within a year after the accrual of the cause of action. Id., § 911.4. If the Board denies the application, the notice of denial must include a warning to the claimant that no court action may be brought on the claim unless the claimant first files a petition with the appropriate court requesting relief from the claim presentation requirement and obtains a court order granting such relief. Id., § 911.8. Failure to obtain such relief bars any suit on the claim. Further, an individual who files a claim pursuant to the CTCA is charged with knowledge of the applicable statute of limitations. See Hunter v. Los Angeles County, 262 Cal.App.2d 820, 822, 69 Cal.Rptr. 288 (1968) ("once a claimant has filed his claim, he demonstrates familiarity with the statutory procedures governing his grievance and can reasonably be charged with knowledge of the time limitations that are part of that procedure").

2. Discussion

Plaintiff is proceeding against Defendants Raya, Garcia, Polanco, and Fernandez on a battery claim under California tort law regarding an incident that occurred on October 27, 2008. ( See Doc. 27, 3AC, 3:9-20; Doc. 29, Screen F&R, 6:6-27.) This battery claim is subject to the CTCA, with which Plaintiff alleged compliance sufficient to pass screening. ( Id., at 5:21-6:5.) Defendants argue that Plaintiff failed to comply with the CTCA prior to filing this action so as to subject his battery claim to dismissal. (Doc. 35, Ds' MTD, 5:4-7:17; Doc. 44, Ds' Reply, 1:25-3:4.)[1]

While Plaintiff may have attempted to comply with the CTCA, he has failed to show that he presented his claim and it was acted on, or rejected, by the VCGCB before he initiated this action. Munoz, 33 Cal.App.4th at 1776. Plaintiff initiated this action on December 22, 2009 when he filed suit in California Superior Court.[2] (Doc. 1, Remov. Not., Ex. A.) Plaintiff did not submit evidence reflecting the date that he submitted a claim form to the VCGCB.[3] Defendants, however, submitted copies of a VCGCB claim form and affidavit for waiver of the filing fee, both of which reflect February 28, 2010 as the date of Plaintiff's signature and receipt by ...


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