United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 15
J. DAVILA UNITED STATES DISTRICT JUDGE
bring claims for wrongful death and elder abuse resulting
from the death of their father while he was receiving care
from the Veterans Administration (“VA”) hospital
in Palo Alto, California. The government moves to dismiss the
majority of Plaintiffs' claims under Fed.R.Civ.P.
12(b)(1) and 12(b)(6). The government's motion will be
granted in part and denied in part.
was admitted to the Palo Alto VA in February 2016 for
revascularization surgery. Compl. ¶ 23, Dkt. No. 1.
After his surgery, Ross suffered a heart attack and cardiac
arrest, and his doctors prescribed the maximum dose of blood
thinners to prevent another heart attack and to treat his
blood clots. Id. His file noted that he was at
“high risk for falls.” Id.
April 28, 2016, Ross was left in a chair, unattended and
unrestrained, for approximately 40 minutes. Id.
¶ 28. During that time, Ross fell from his chair and hit
his head. Id. ¶ 24. He died from his injuries
on May 5, 2016. Id. ¶ 21. His death certificate
states that the cause of death was “a closed head
injury” caused by a “fall, unwitnessed.”
Jr., Nicole, and Neville are Ross's biological children.
On July 27, 2016, Doug Jr. filed an administrative tort claim
with the VA. Id. Ex. 1. The VA denied the claim on
March 8, 2017, because it concluded that “there was no
negligent or wrongful act on the part of an employee of the
Department of Veterans Affairs acting within the scope of
employment that caused compensable harm.” Id.
Nicole and Neville did not file administrative claims.
action, Plaintiffs assert claims against the government under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 1402(b), 2401(b), and 2671-80.
Id. ¶ 5. Doug Jr., Nicole, and Neville each
bring claims for wrongful death in their individual
capacities as Ross's heirs. Id. ¶¶
8-10, 36-42. Doug Jr. also brings a claim for elder abuse
under California Welfare and Institutions Code § 15610
on Ross's behalf. Id. ¶¶ 8, 30-35.
government now moves to dismiss all claims-with the exception
of Doug Jr.'s wrongful death claim-under Fed.R.Civ.P.
12(b)(1) and 12(b)(6). Def.'s Mot. to Dismiss
(“MTD”), Dkt. No. 15.
under Fed.R.Civ.P. 12(b)(1) is appropriate if the complaint
fails to allege facts sufficient to establish subject-matter
jurisdiction. Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The Court “is
not restricted to the face of the pleadings, but may review
any evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). The nonmoving party bears the
burden of establishing jurisdiction. Chandler v. State
Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal
sufficiency of claims alleged in the complaint. Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995). Dismissal “is proper only where there is no
cognizable legal theory or an absence of sufficient facts
alleged to support a cognizable legal theory.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
The complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.' ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).