United States District Court, S.D. California
ORDER GRANTING DEFENDANT COUNTY'S REQUEST FOR
JUDICIAL NOTICE; GRANTING DEFENDANTS' MOTIONS TO DISMISS;
DENYING PLAINTIFFS' REQUEST FOR RECONSIDERATION; AND
ORDERING PLAINTIFFS TO SHOW CAUSE [ECF NOS. 31, 32, 33,
Honorable Barry Ted Moskowitz United States District Judge.
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.
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.)
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. (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.)
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.)
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.
REQUEST FOR JUDICIAL NOTICE
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.
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.
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.
MOTION TO DISMISS: LEGAL STANDARD
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”).
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)).
MOTION TO DISMISS:
Statute of Limitations
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).
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.
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.