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M.B. v. United States

United States District Court, S.D. California

November 25, 2019

M.B., by and through his Guardian ad Litem, COURTNEY BILOKONSKY, Plaintiff,
UNITED STATES OF AMERICA et al., Defendants.


          Hon. Cathy Ann Bencivengo, United States District Judge.

         This matter is before the Court on a motion to dismiss filed by Defendant San Diego Unified School District (“SDUSD”). [Doc. No. 16.] On November 7, 2019, the Court granted SDUSD's motion to dismiss with prejudice based on a lack of opposition and on its merits. [Doc. No. 18.] On November 8, 2019, Plaintiff's counsel filed an affidavit explaining the circumstances for failing to file an opposition on time and the opposition itself. [Doc. Nos. 19, 20.] Subsequently, in light of Plaintiff's affidavit and opposition, the Court withdrew its Order granting SDUSD's motion to dismiss and instructed SDUSD to file its reply. [Doc. No. 21.] For the reasons set forth below, SDUSD's motion to dismiss is granted with leave to amend.

         I. BACKGROUND [1]

         The Second Amended Complaint (“SAC”) alleges that Plaintiff, a six-year-old, encountered ongoing bullying and harassment in the bathroom and gym from older students while at Miller Elementary School and Murphy Canyon Youth Center. [Doc. No. 9 at ¶ 10.[2] Plaintiff visited the school nurse thirteen times in roughly two months and reported the bullying to various supervising adults that were around during the incidents. [Id.] Plaintiff's mother learned that the nurse never reported the bullying and the vice principal denied any possibility of bullying. [Id. at ¶ 11.] No attempts to investigate or prevent future attacks have been made. [Id. at ¶ 16.] As a result of these incidents, Plaintiff suffered physical injuries and requires psychiatric therapy. [Id. at ¶ 17.] The SAC asserts two causes of action for violation of California Civil Code § 1714(a) and for general negligence against Defendants United States of America, Murphy Canyon Youth Center, Navy Region Southwest Child and Youth Programs, and Miller Elementary School.


         To survive a motion to dismiss under Rule 12(b)(6), “a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678; see also Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (“Conclusory allegations of law are insufficient to defeat a motion to dismiss”). Nor is the Court “required to accept as true allegations that contradict exhibits attached to the Complaint or . . . allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

         Generally, when dismissing a complaint for failure to state a claim, the court should deny opportunity to amend only if amendment would be futile. See Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988) (dismissal without leave to amend is appropriate if amendment “could not possibly cure the deficiency”), amended, 856 F.2d 111 (9th Cir. 1988).


         Defendant SDUSD contends: (1) Plaintiff removed SDUSD from the case caption and fails to assert specific factual allegations against SDUSD; (2) Miller Elementary School is not a proper defendant; (3) Plaintiff fails to plead compliance with California's Tort Claims Act; and (4) Plaintiff fails to state a cognizable claim against SDUSD. The Court addresses each of Defendant's arguments in turn.

         A. Specific Factual Allegations as to SDUSD

         SDUSD contends that while Plaintiff's amended summons makes clear that Plaintiff intended the SAC to assert claims against SDUSD and Miller Elementary School separately and individually, Plaintiff effectively dismissed SDUSD by removing SDUSD from the case caption and failing to include any allegations against SDUSD throughout the SAC. Furthermore, SDUSD posits that this removal was purposeful because in Plaintiff's prior pleadings Plaintiff named SDUSD and Miller Elementary School as separate defendants. SDUSD is correct that Plaintiff effectively dismissed SDUSD from the case by removing it from the case caption and removing all allegations against it.

         In response, however, Plaintiff contends the removal of SDUSD was an inadvertent mistake, further supported by the fact that allegations against SDUSD were present in both the state court and first amended complaint. SDUSD's acknowledgment that the amended summons was served on SDUSD addressed to “Miller Elementary School and the San Diego Unified School District” appears to support a reasonable inference that Plaintiff did intend to have SDUSD remain as a named defendant in this case. However unintentional they may have been, Plaintiff's counsel's actions, or inactions, in this case are extremely disturbing to the Court and bordering on ethical violations to his client. That being said, while the Court is not sympathetic to the reasoning behind Plaintiff's counsel's mistake of removing SDUSD from the case caption and throughout the SAC itself, in the furtherance of justice towards this minor Plaintiff, the Court will allow Plaintiff leave to amend to correct this mistake. Accordingly, SDUSD's motion to dismiss for effectively dismissing SDUSD is GRANTED with leave to amend.

         B. Miller Elementary School as a Named Defendant

         As the Court explained in its previous Order, Defendant Miller Elementary School is neither a “government entity” nor a “business entity licensed to do business” as Plaintiff contends. Miller Elementary School is a school within the SDUSD but it is not a proper party to a lawsuit itself as it is not a public entity as defined by California Government Code sections 811.2 and 900.4. Plaintiff's erroneous attempt to label Defendant Miller Elementary School as “part of the San Diego Unified School District” is improper. Any cause of action in relation to Miller Elementary School would need to be alleged against SDUSD. Plaintiff now concedes that Defendant Miller Elementary School is not a proper party, but contends it is evident that Plaintiff is also asserting these allegations against SDUSD. As previously stated, SDUSD was effectively dismissed ...

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