United States District Court, S.D. California
M.B., by and through his Guardian ad Litem, COURTNEY BILOKONSKY, Plaintiff,
UNITED STATES OF AMERICA et al., Defendants.
ORDER GRANTING DEFENDANT SAN DIEGO UNIFIED SCHOOL
DISTRICT'S MOTION TO DISMISS PLAINTIFF'S SECOND
AMENDED COMPLAINT WITH LEAVE TO AMEND [DOC. NO. 16]
Cathy Ann Bencivengo, United States District Judge.
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
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. 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.
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).
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).
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.
Specific Factual Allegations as to 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.
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
Miller Elementary School as a Named Defendant
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 ...