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Harris v. County of San Diego

United States District Court, S.D. California

December 5, 2019

FLORENCE HARRIS, et al., Plaintiffs,


          Honorable Barry Ted Moskowitz United States District Judge.

         Pending before the Court are Defendants' motions to dismiss (ECF Nos. 31, 32, 33) and Plaintiffs' request for reconsideration (ECF No. 44). For the reasons discussed below, the Court GRANTS Defendants' motions to dismiss and DENIES Plaintiffs' request for reconsideration. The Court further ORDERS Plaintiffs' attorney to file a declaration regarding the alternative guardian ad litem and ORDERS Plaintiffs to show cause why Defendant Natasha Hall should not be dismissed for failure to serve her.

         I. BACKGROUND

         Florence Harris (“Harris”) is the mother of JQ.H and JZ.H, who were born in or around October 2002. (SAC, ¶¶ 3-5.) This lawsuit arises from events in May 2011, when it was reported that “a bruise on Plaintiff JQ.H's hip was inflicted by his mother.” (Id. at ¶ 19.) The second amended complaint (“SAC”) states that “a highly invasive medical examination” was performed on JQ.H. (Id. at ¶ 20.) Several hearings were held in state court. (Id. at ¶¶ 20-21.) JQ.H and JZ.H were subsequently “removed from the care, custody, and control of their Mother.” (Id. at ¶ 17.) The children remained out of Harris's custody from May 2011 until July 2019 when she regained custody. (Id. at ¶¶ 17, 21-22; ECF No. 34, Exh. A, ¶ 27.)

         On May 11, 2018, Harris, JQ.H, and JZ.H filed suit against the County of San Diego (“County”), San Diego Health and Human Services Agency, Polinsky Children's Center Auxiliary, Rady Children's Hospital San Diego (“RCHSD”), Dr. Wendy Wright, and Natasha Hall.[1] (ECF No. 1.) The County filed a motion to dismiss the complaint, which RCHSD and Wright joined. (ECF Nos. 6, 7, 9.) This Court granted the motion and granted Plaintiffs leave to amend. (ECF No. 21.)

         Plaintiffs filed a first amended complaint (ECF No. 22) and then a SAC shortly thereafter (ECF No. 27 (“SAC”)). The SAC asserts violation of federal and state civil rights statutes. The County, Wright, and RCHSD each filed a motion to dismiss the SAC. (ECF Nos. 31, 32, 33.) The County requests judicial notice of Plaintiffs' failure to submit claims to the County's Claims Division. (ECF No. 33-2 (“County MTD”), Exh. A.) Only Plaintiffs JQ.H and JZ.H responded in opposition to Defendants motions to dismiss. (ECF Nos. 34, 35, 36.) They submitted a proposed third amended complaint as an exhibit to each opposition brief. (Id.)

         Harris petitioned to be appointed guardian ad litem for JQ.H and JZ.H, who are still minors. The Court denied her petition. (ECF No. 43.) Plaintiffs moved for reconsideration of the order on the basis that JQ.H and JZ.H had been returned to Harris's custody. (ECF No. 44.) The Court held oral argument on all of these issues on December 2, 2019.


         In support of its motion to dismiss, the County submitted a declaration by Brent Barnes, Claims and Investigation Supervisor for the Claims and Investigation Division for the County. (County MTD, Exh. A.) The County asks the Court to take judicial notice of the statements contained therein - that Plaintiffs never submitted a government tort claim against the County.

         A court may take judicial notice of facts “not subject to reasonable dispute.” Fed.R.Evid. 201(b). Facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably questioned” are not subject to reasonable dispute. Id. 201(b)(2). The County has submitted a sworn declaration by “the custodian of the claims records for the County of San Diego.” (County MTD, Exh. A.) “Whether or not a Tort Claim has been presented to a public entity is subject to judicial notice.” Elliot v. Amador Cty. Sch. Dist., 2012 WL 5013288, at *7 (E.D. Cal. 2012); see also, e.g., Kenney v. City of San Diego, 2014 WL 325157, at *7 n.5 (S.D. Cal. 2014) (holding the same). Accordingly, the Court GRANTS the County's request to judicially notice Plaintiffs' failure to present any claims against the County.

         Additionally, the Court sua sponte takes judicial notice of Exhibits A-D of the County's opposition to Plaintiffs' motion for reconsideration. (ECF No. 52.) These exhibits (hereinafter “Exhibits A-D”) are court documents in the Plaintiffs' juvenile dependency case and are appropriate for judicial notice because they are directly related to the instant case. U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).


         Under Federal Rule of Civil Procedure 8, each pleading must include a “short and plain statement of the claim.” Fed.R.Civ.P. 8(a)(2). “Each allegation must be simple, concise, and direct.” Id. 8(d)(1). A district court may dismiss a complaint for failure to comply with Rule 8 where it fails to provide the defendant fair notice of the wrongs allegedly committed. See Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose, ” “confusing, ” “distracting, ambiguous, and unintelligible, ” “highly repetitious, ” and comprised of “incomprehensible rambling”).

         A Rule 12(b)(6) motion to dismiss should be granted only where a plaintiff's complaint lacks a “cognizable legal theory” or sufficient facts to support a legal claim. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in the plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal is appropriate only where “the complaint fails to state a claim to relief that is plausible on its face.” Curry v. Yelp Inc., 875 F.3d 1219, 1224-25 (9th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).



         A. Statute of Limitations

         As a threshold matter, the Court addresses Defendants' contention that Plaintiffs claims are time-barred. “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when the running of the statute is apparent on the face of the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (internal citation and quotation marks omitted).

         A cause of action accrues “when the plaintiffs know or have reason to know of the injury that is the basis of their action.” RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002) (citation omitted). Here, Plaintiffs sue for injuries stemming from JQ.H's May 2011 medical examination and Harris's subsequent loss of custody over JQ.H and JZ.H. (SAC, ¶¶ 17, 20-22.) At the latest, Plaintiffs' causes of action accrued at the July 2011 “disposition/jurisdictional hearing” when “the court asserted jurisdiction over Minor Plaintiffs.” (Id. at ¶ 22.) Plaintiffs initiated this lawsuit on May 11, 2018, nearly seven years after the causes of action accrued. The applicable statutes of limitations, described below, have all long expired.

         But with respect to JQ.H and JZ.H, California tolls the limitations period on causes of action belonging to minors until they are eighteen years old. Cal. Code. Civ. P. § 352(a); Cal. Fam. Code § 6502. This state law extends to federal claims. Bd. of Regents v. Tomanio, 446 U.S. 478, 485 (1980); 42 U.S.C. 1988(a). The statutes of limitations outlined below have all run with respect to Harris's claims. The minor plaintiffs' claims, with the exception of their state law claims against the County, are timely due to California's tolling statute. All state law claims against the County are barred for failure to comply with Cal. Gov. Code § 911.2.

         1. Federal ...

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