Sergio A. Chavira, Jr., et al v. El Rancho Unified School District, et al

Filing 48

MINUTES OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' THIRD AMENDED COMPLAINT (filed February 23, 2016, dkt. 35 ) held before Judge Christina A. Snyder: In accordance with the foregoing, the motion to dismiss filed by defendants ERUSD and Superintendent Galindo is granted in part and denied in part. Specifically, plaintiffs' state law claims for "general negligence," "violation of mandatory statutory duties," and violation of the Unruh Civil Rights Act, are hereby DISMISSED WITH PREJUDICE as to defendants ERUSD and Superintendent Galindo. To the extend defendants seek to dismiss plaintiffs' Section 1983 claim against defendant Galindo in his individual capacity, defendants' motion is DENIED. IT IS SO ORDERED. Court Reporter: Laura Elias. (clee)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-07147-CAS(ASx)

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Present: The Honorable

Date

‘O’

April 4, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Steven Beltran

Brianne Gardner

Proceedings:

I.

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ THIRD
AMENDED COMPLAINT (filed February 23, 2016, dkt. 35)

INTRODUCTION

On June 9, 2015, plaintiffs Sergio Chavira (through his guardian ad litem Rosa
Chavira), Jonathan Rivera (through his guardian ad litem Maria G. Rivera), and Salvador
Francia (through his guardian ad litem Salvador Fancia) (collectively, “plaintiffs”) filed
the instant action in the Los Angeles County Superior Court against the El Rancho
Unified School District (“ERUSD” or “the school district”), ERUSD Superintendent
Martin Galindo (“Galindo” or “Superintendent Galindo”), and Does 1-50, inclusive. Dkt.
1 (Notice of Removal), Ex. A (Compl.). On September 10, 2015, defendants removed
this action to federal court on the basis of federal question jurisdiction.1 Id. at ¶ 2.
1

Plaintiffs’ original complaint asserted the following seven claims: claim one for
“general negligence,” pursuant to Cal. Gov’t Code §§ 815.2, 820, against ERUSD and
Does 1-50; (2) claim two for “breach of duty owing by reason of special relationship with
plaintiffs,” against ERUSD and Does 1-50; claim three for “violation of mandatory
statutory duties,” against ERUSD and Does 1-50; claim four for violation of the Unruh
Civil Rights Act, Cal .Civ. Code § 51, et seq., against defendants ERUSD and Does 1-50;
claim five for violation of 42 U.S.C. § 1983, against ERUSD, Superintendent Galindo,
and Does 1-50; claim six for violation of the Americans with Disabilities Act, pursuant to
42 U.S.C. § 12101, et seq., against ERUSD and Does 1-50; and claim seven for violation
of section 504 of the Rehabilitation Act, pursuant to 29 U.S.C. § 794, against ERUSD
and Does 1-50.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

In an order dated November 9, 2015, the Court dismissed without prejudice
plaintiffs’ claims for “breach of duty owing by special relationship,” “violation of
mandatory duty,” violation of 42 U.S.C. § 1983, and all claims against defendant
Galindo. See Dkt. 20 (November Order).2 In addition, the Court struck without prejudice
the portion of plaintiffs’ complaint seeking damages under the Unruh Act for “each day”
of defendants’ alleged violations. See id. In dismissing portions of plaintiffs’ complaint,
the Court also granted plaintiffs leave to file a first amended complaint, which plaintiffs
then filed on November 23, 2015. Dkt. 21. The parties later stipulated to allowing
plaintiffs to file a second amended complaint, which plaintiffs filed on December 28,
2015. Dkt. 25.
On February 8, 2016, plaintiffs filed the operative third amended complaint
(“TAC”), again pursuant to a joint stipulation of the parties. See Dkts. 27-28. Plaintiffs’
third amended complaint asserts the following claims: claim 1 for “general negligence,”
pursuant to Cal. Gov’t Code §§ 815.2 and 820, against defendants ERUSD,
Superintendent Galindo individually, Norbert Genis individually, and all members of the
2012, 2013, and 2014 ERUSD Board of Education individually; claim 2 for “violation of
mandatory statutory duties,” against ERUSD only; claim 3 for violation of the Unruh
Civil Rights Act, Cal .Civ. Code § 51, et seq., against defendants ERUSD,
Superintendent Galindo individually, Norbert Genis individually, and all members of the
2012, 2013, and 2014 ERUSD Board of Education individually; claim 4 for violation of
42 U.S.C. § 1983, against Superintendent Galindo individually, Norbert Genis
individually, and all members of the 2012, 2013, and 2014 ERUSD Board of Education
individually; claim 5 for violation of the Americans with Disabilities Act, pursuant to 42
U.S.C. § 12101, et seq., against ERUSD only; and claim 6 for violation of section 504 of
the Rehabilitation Act, pursuant to 29 U.S.C. § 794, against ERUSD only. See generally
TAC.
On February 23, 2016, defendants ERUSD and Superintendent Galindo
(collectively, “defendants,” for purposes of this order) filed the instant motion to dismiss

2

See Chavira v. El Rancho Unified Sch. Dist., No. 2:15-CV-07147-CAS-AS, 2015
WL 6957990 (C.D. Cal. Nov. 9, 2015).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

plaintiffs’ TAC pursuant to Federal Rule of Civil Procedure 12(b)(6).3 Dkt. 35
(“Motion”). On March 1, 2016, plaintiffs filed an opposition to defendants’ 12(b)(6)
motion. Dkt. 39 (“Opp’n”). On March 21, 2016, defendants filed a reply. Dkt. 45
(“Reply”). Having carefully considered the parties’ arguments, the Court finds and
concludes as follows.
II.

BACKGROUND

Plaintiffs Sergio Chavira, Jonathan Rivera, and Salvador Francia allege that they
are disabled persons who attended Special Education Special Day Classes (“SDC”) at El
Rancho High School (“ERHS”) between approximately 2011 through the end of the 2014
school year. TAC at ¶¶ 16-17, 19-20, 23-24. While at ERHS, which is within ERUSD,
plaintiffs allege that they were qualified to receive “a free appropriate public education . .
. that emphasizes special education and related services to meet [their] unique needs and
to prepare [them] for employment and independent living” pursuant to the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et. seq. See id. at ¶¶ 16, 19,
23. During the relevant time period, plaintiffs allege that they attended ERHS’s extended
school year program (“ESY”) on a full-time basis, as detailed in their Individual
Education Plans (“IEP”), which provided that plaintiffs would attend physical education
classes. Id. at ¶¶ 17, 20, 24.
Plaintiffs allege that “[a]t the beginning of the summer of 2012,” their parents were
informed that ERUSD “would not allow its special education students to use the ERHS
swimming pool for the entire 2012 summer due to [a] lack of resources to pay for
insurance, but that [ERUSD’s] non-disabled students on the ERHS swim team, water
polo team, and summer swim classes could [continue to] use the pool.” Id. at ¶ 26.
Plaintiffs further allege that on June 21, 2012, Chavira’s father emailed a complaint to

3

The instant motion to dismiss is bought only on behalf of defendants ERUSD and
Galindo, and seeks only to dismiss plaintiffs’ state law claims and section 1983 claim as
to these defendants. Indeed, plaintiffs have not filed a proof of service for Norbert Genis
or the individual members of the ERUSD Board, all of whom were first named as
defendants in this action in plaintiffs’ operative third amended complaint. See Motion at
1.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

ERUSD regarding its plan to deny Chavira and all other ERUSD special education
students access to the school’s pool for the entire summer. Id. at ¶ 27. ERUSD’S
employee, Samuel Genis, allegedly emailed a response stating that the decision “was not
a site decision but a district one,” and forwarded the email to ERUSD’s Director of
Student Services. Id.
Plaintiffs further allege that sometime after June 21, 2013, Lucila Saccone, the
mother of one of plaintiffs’ SDC classmates at ERHS, filed a formal complaint regarding
the closure with the United States Department of Education’s Office for Civil Rights
(“OCR”), which then investigated the complaint until about July 9, 2014. Id. at ¶¶ 31-32.
On or about July 9, 2014, OCR mailed the results of its investigation to Saccone. Id. ¶ at
33. According to the complaint in the instant suit, the results of the OCR’s investigation
include the following observations:
Based on the available information, OCR determined that the
District made the decision to eliminate the use of the swimming
pool by the SDC class during the ESY because of [a] perceived
increased risk related to their disability status. This perceived
risk was not individually assessed.
OCR finds that the District was not fully in compliance with
Section 504 [of the Rehabilitation Act] and Title II [of the
Americans with Disabilities Act] when it suspended pool use by
the SDC class in summer 2012, 2013 [sic] and did not permit
use of the pool by SDC students until midway through summer
2014.
OCR discussed its findings with the District in February 2014
and sent the District a draft agreement that would resolve the
issues raised in the case. Despite many attempts, the District
did not respond in any way to OCR until June 2014, and at that
time, the District expressed a willingness to try to resolve
OCR’s concerns and sign and implement the Resolution
Agreement.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Id. at ¶ 33.
Plaintiffs further allege that “ERUSD took no action to resolve these issues” and
instead, beginning in the Fall of 2014, “instructed ERHS to close the swimming pool to
all use, without ERUSD having reviewed any of its special education students’ IEPs.” Id.
at ¶ 50. Plaintiffs do not allege that they have submitted claims to the district, pursuant to
the California Government Tort Claims Act. Rather, the operative complaint alleges that
on February 11, 2015, Chavira “timely presented his Application for Permission to
Permit [a] Late Claim to ERUSD for his injuries suffered,” but “[o]n March 4, 2015,
ERUSD notified Chavira that it was returning his Application without any action having
been taken on it because it was allegedly not presented within one year of the accrual of
the cause of action.” Id. at ¶ 43. The complaint further states that on June 1, 2015,
plaintiffs Rivera and Francia “timely presented” to ERUSD their own Applications for
Permission to Permit a Late Claim for their injuries suffered. Id. at ¶¶ 44-45. Defendant
EHUSD is not alleged to have taken any action in response to Rivera and Francia’s
applications.4
III.

LEGAL STANDARD
A.

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Polic Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

4

A public entity has 45 days to act on a late claim application, or it is deemed
denied. Cal. Gov’t Code § 911.6(c).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.

DISCUSSION

In the instant 12(b)(6) motion, defendants ERUSD and Superintendent Galindo
seek to dismiss (1) plaintiffs’ first, second, and third claims for “general negligence,”
“breach of mandatory duty,” and violations of the Unruh Act (collectively, “the state law
claims”); (2) plaintiffs’ Section 1983 claim asserted against Galindo only; and (3)
plaintiffs’ request for daily damages under the Unruh Act.5
1.

Plaintiffs’ State Law Claims and Failure to Comply with the California
Government Tort Claims Act

As part of the California Government Tort Claims Act (the “Act”), “Government
Code section 900 et seq. establishes certain conditions precedent to the filing of a lawsuit
against a public entity,” like defendant EHUSD.6 State v. Superior Court (Bodde), 32
Cal. 4th 1234, 1237 (2004). Specifically, under the Act, plaintiffs “must timely file a
claim for money or damages with the public entity” before filing a suit like the instant
action. Id. (citing Cal. Gov’t Code § 911.2). “Claims for personal injury and property
damage must be presented within six months after accrual.” City of Stockton v. Superior
Court, 42 Cal. 4th 730, 738 (2007) (citing Cal. Gov’t Code § 911.2). Generally speaking,
a claim accrues at “the time ‘when, under the substantive law, the wrongful act is done,’
or the wrongful result occurs, and the consequent ‘liability arises.’” Norgart v. Upjohn
5

In light of the Court’s dismissal with prejudice of the state law claims, the Court
need not reach the merits of defendants’ argument regarding the need to strike portions of
plaintiffs’ prayer for relief regarding damages under the Unruh Act.
6

Under the Act, parties claiming to have been damaged by the acts of a school
district must satisfy a claims presentment requirement before filing civil lawsuits. See
Gov’t Code §§ 900.4 (school districts are “local public entities” under California’s
Government Tort Claims Act), 910 (describing required contents of government tort
claims).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Co., 21 Cal. 4th 383, 397 (1999) (citation omitted). In other words, the statute of
limitations begins to run “when the cause of action is complete with all of its elements.”
Id. (citation omitted).
Based on the allegations in the operative third amended complaint, plaintiffs’ state
law claims here accrued “[a]t the beginning of the summer of 2012,” when plaintiffs were
allegedly deprived of access to the pool and their “parents were informed that ERUSD
would not allow its special education students to use the ERHS swimming pool for the
entire 2012 summer due to lack of resources to pay for insurance . . . .” TAC at ¶ 26; see
also id. at ¶¶ 27, 31. According to the operative complaint, plaintiffs did not, as required
by the Act, timely present claims within six months of accrual. In such circumstances, “a
written application may be made to the public entity for leave to present that claim;”
however, this written application for leave to present a late claim must itself be made
“within a reasonable time not to exceed one year after the accrual of the cause of action.”
Cal. Gov’t Code § 911.4(a)-(b) (emphasis added). Here, plaintiffs allege that Chavira
submitted an “Application for Permission to Permit [a] Late Claim” on February 11,
2015, which the school district denied as untimely on March 4, 2015. TAC at ¶ 43.
Thereafter, Rivera and Francia submitted their own “Applications for Permission to
Permit [a] Late Claim” on June 1, 2015, each of which appears to have been effectively
denied on July 16, 2015. Id. at ¶¶ 44-45; see Cal. Gov’t Code §911.6(c) (noting a public
entity has 45 days to act on a late claim application, or it is deemed denied).
Accordingly, plaintiffs’ applications for leave to file late claims were untimely.
One who, like plaintiffs here, presents neither (1) a timely claim for money or
damages to the public entity, nor (2) a timely application for leave to present a late claim
within one year of the accrual date, is effectively barred from filing a lawsuit against that
entity. See Bodde, 32 Cal. 4th at 1239; City of Los Angeles v. Superior Court, 14 Cal.
App. 4th 621, 627 (1993) (The “failure to timely comply with the Government Code
requirements concerning claims bars a subsequent suit.”) (citations omitted). In such
circumstances––i.e., where plaintiff has not submitted a claim to the public entity and
“[t]he public entity denies an application for leave to file a late claim”––the claimant’s
only recourse is to “obtain a court order for relief from the requirements of the claims act
before filing suit.” City of Los Angeles, 14 Cal. App. 4th at 627 (emphasis added).
Specifically, pursuant to California Government Code section 946.6, “[a] petition for
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

such an order must be filed with the [superior] court within six months after the
application is denied or deemed denied.” Rason v. Santa Barbara City Housing
Authority, 201 Cal.App.3d 817, 823 (1988) (citing Cal. Gov’t Code §§ 946.6(b), 911.6)
(emphasis added). Here, plaintiffs do not allege that they petitioned the superior court,
under California Government Code section 946.6, for an order relieving them from the
requirements of the California Government Tort Claims Act before filing the instant suit
in July 2015. Nor have plaintiffs ever attempted to petition this Court for any such
relief.7 Indeed, plaintiffs appear to have filed the instant suit in the Los Angeles Superior
Court on June 9, 2015, over a month before the district denied two of plaintiffs’
“Applications for Permission to Permit [a] Late Claim.” TAC at ¶¶ 44-45. “Complaints
that do not allege facts demonstrating either that a claim was timely presented or that
compliance with the claims statute is excused are subject to a general demurrer for not
stating facts sufficient to constitute a cause of action.”8 Shirk v. Vista Unified Sch. Dist.,
42 Cal. 4th 201, 209, 164 P.3d 630, 634 (2007).
7

Even if they had, any such effort would be improper. “[S]ince 2002, the language
of § 946.6(a) has become more specific. The ‘proper court’ for obtaining relief is no
longer [simply] ‘a court,’ rather it is now ‘a superior court.’” Hill v. City of Clovis, No.
1:11-CV-1391 AWI SMS, 2012 WL 787609, at *12 (E.D. Cal. Mar. 9, 2012). 12 (citing
Cal. Gov’t Code § 946.6(a)); see also id. (noting that “[s]ince § 946.6(a) was amended to
identify a specific court, and that court is the state superior court, this Court will follow
the majority position [among courts considering whether federal courts can grant relief
under section 946.6] and conclude that only state superior courts have been given the
authority to grant relief pursuant to § 946.6(a)).
8

Plaintiffs allege in the operative complaint that ERUSD is “equitably estopped”
from arguing that plaintiffs failed timely to present claims because the school district was
aware of plaintiffs’ grievances. See TAC ¶¶ 49-51. This argument lacks merit. “The
purpose of the claims statutes is not to prevent surprise, but ‘to provide the public entity
sufficient information to enable it to adequately investigate claims and to settle them, if
appropriate, without the expense of litigation. It is well-settled that claims statutes must
be satisfied even in face of the public entity’s actual knowledge of the circumstances
surrounding the claim.’ ” City of Stockton, 42 Cal. 4th at 738 (internal citations omitted)
(emphasis added); DiCampli–Mintz v. County of Santa Clara, 55 Cal.4th 983, 991 (2012)
(same).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

Furthermore, it appears that dismissal with prejudice is appropriate, as any effort to
petition the superior court at the present time would be futile for at least two reasons.
First, the petition under Section 946.6 would be untimely. A petition pursuant to Section
946.6 “shall be filed within six months after the application to the board is denied.” Cal.
Gov’t Code § 946.6. Here, well over six months have elapsed since the school district
denied plaintiffs’ untimely applications for leave to present late claims in March 2015
and July 2015, respectively. Accordingly, any such petition to the superior court would
be untimely and would accordingly be subject to dismissal. See City of San Diego v.
Superior Court, 244 Cal. App. 4th 1, 11 (2015) (“Because [plaintiff] filed her section
946.6 petition for relief with the trial court more than six months after [the] City denied
her application for leave to file a late claim, it was untimely filed and should have been
dismissed by the court. The court erred by granting her section 946.6 petition.”); City of
Los Angeles, 14 Cal. App. 4th at 626 (“[P]laintiffs were required to file their petition
pursuant to section 946.6 within six months of July 17, 1991, and they failed to do so.
Plaintiffs’ action for . . . [personal] damages is therefore barred.”)
Second, even though “a plaintiff may petition the court [pursuant to Section 946.6]
for an order relieving plaintiff from the claims presentation requirement,” the court “lacks
jurisdiction to grant [such] relief if the application [to file a late claim was, as in the
instant case,] filed more than one year after the cause of action accrued.” Rubenstein v.
Doe No. 1, –— Cal.Rptr.3d –—, No. D066722, 2016 WL 1109288, at *2 (Cal. Ct. App.
Mar. 22, 2016) (citing Cal. Gov’t Code, §§ 911.4(b), 946.6). Therefore, even if plaintiffs
were to return to the superior court seeking relief from the requirements of the California
Government Tort Claims Act, the superior court would lack jurisdiction under Section
946.6 to hear any such petition. Id. Plaintiffs’ state law claims accrued in 2012, when
defendant ERUSD first allegedly denied them access to the swimming pool. TAC at ¶
26. Yet plaintiffs did not file their requests to file a late claim for nearly two years, in
March and June 2015, respectively. Accordingly, a superior court would “lack[]
jurisdiction to grant relief [under section 946.6 because] . . . the application [to file a late

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UNITED STATES DISTRICT COURT
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Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

claim would be untimely, as it was] filed more than one year after the cause of action
accrued.”9 Rubenstein, –— Cal.Rptr.3d –—, 2016 WL 1109288, at *2.
Therefore, because plaintiffs have failed to comply with the requirements of the
California Government Tort Claims Act before filing the instant suit, and because it
appears from the facts alleged in the third amended complaint that any remedial efforts
would be futile, the Court DISMISSES WITH PREJUDICE plaintiffs’ state law claims
for “general negligence,” for “violation of mandatory statutory duties,” and for violation

9

On March 23, 2016, plaintiffs filed an ex parte application for leave to file a surreply in response to defendants’ reply, as well as a request for judicial notice of their
untimely applications for permission to file late claims with ERUSD. Dkt. 46-5 (“SurReply”). Defendants filed an opposition to plaintiffs’ ex parte request. Dkt. 47.
Plaintiffs’ ex parte request is hereby GRANTED; however, consideration of plaintiffs’
sur-reply does not inform a different result here. Specifically, plaintiffs argue in their
sur-reply that they have “substantially complied” with the California Government Tort
Claims Act’s presentment requirements, and therefore should not be barred for failure to
file a claim before initiating the instant suit. Plaintiffs similarly argued at the hearing on
the instant motion that they have substantially complied with the Act and therefore
should not be barred from proceeding on their state law claims. However, the argument
that plaintiffs present in their sur-reply, and that they presented at oral argument, is
unavailing. Specifically, plaintiffs cite authority holding that minor errors or omissions
within a timely claim may be forgiven, under the doctrine of “substantial compliance.”
C.f. Stockett v. Ass'n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441,
446 (2004) (“[A] claim need not contain the detail and specificity required of a pleading,
but need only ‘fairly describe what [the] entity is alleged to have done.’ ”) (citation
omitted). Any such authority is inapposite here, where plaintiffs have failed to submit
any claim at all, timely or otherwise. Notably, “filing a request for permission to file a
late claim does not constitute the actual filing of a claim.” Hill, 2012 WL 787609, at *12.
In any event, plaintiffs’ application for leave to file a late claim was also untimely, as
stated supra.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

of the Unruh Civil Rights Act, against defendants ERUSD and Superintendent Galindo in
his personal capacity.10
2.

Plaintiffs’ Claim Against Galindo in his Individual Capacity for
Violation of 42 U.S.C. Section 1983

Defendants argue that plaintiffs’ Section 1983 claim against Galindo in his
individual capacity must be dismissed because “school districts and their agents cannot
be held liable under 42 U.S.C. Section 1983” pursuant to the Ninth Circuit’s decision in
Belanger v. Madera Unified School District. Motion at 10 (citing Belanger v. Madera
Unif. Sch. Dist., 963 F.2d 248, 254-55 (9th Cir. 1992)). In Belanger, the Ninth Circuit
held that California school districts are entitled to Eleventh Amendment immunity and
thus immune from suit under Section 1983. Id. at 254. Specifically, the Court found that
the California school district at issue in the case “[was] an agent of the state that performs

10

While the third amended complaint asserts state law claims against
Superintendent Galindo in his personal and individual capacity, the Court notes that
failure to comply with the California Government Tort Claims Act bars plaintiffs’ state
law claims as to both ERUSD and Galindo in his personal capacity. “The purpose of the
claim procedure is said to be to give the public entity an opportunity for early
investigation and thus to settle just claims before suit, to defend unjust claims, and to
correct conditions or practices which gave rise to the claim.” Briggs v. Lawrence, 230
Cal. App. 3d 605, 612-13 (Ct. App. 1991) (citations omitted). Under California
Government Code section 950.2, “a cause of action against a public employee or former
public employee [such as defendant Galindo here] for injury resulting from an act or
omission in the scope of his employment as a public employee is barred if an action
against the employing public entity [i.e., defendant EHUSD] for such injury is [or would
be] barred” due to failure to comply with the Tort Claims Act. Cal. Gov’t Code § 950.2;
see also Lawrence, 230 Cal. App. 3d at 612-13 (because an employee of a public entity
who is sued for an act or omission within the scope of his or her employment is entitled
to indemnification by the public-entity employer, the Act includes “a requirement that . . .
one who sues a public employee on the basis of acts or omissions in the scope of the
defendant's employment have filed a claim against the public-entity employer pursuant to
the procedure for claims against public entities.”) (citations omitted).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

state governmental functions and [because] a judgment would be satisfied out of state
funds,” California school districts are accordingly “immune to suit under the Eleventh
Amendment.” Id. In recent years, “not only has every federal district in California cited
Belanger and held that school districts are entitled to Eleventh Amendment immunity, but
the Ninth Circuit also has continued to rely on Belanger for the proposition that ‘a school
district cannot be sued for damages under § 1983.’” Sato v. Orange Cnty. Dep’t of Educ.,
No. SACV 15-00311, 2015 WL 4078195, at *5 (C.D. Cal. July 6, 2015) (collecting
cases) (quoting C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1247 (9th Cir.
2015)). In light of this authority, the Court previously dismissed plaintiffs’ Section 1983
claim against defendant ERUSD without prejudice. See November Order.
In the operative third amendment complaint, however, plaintiffs no longer assert a
Section 1983 claim against ERUSD. Rather, plaintiffs now assert a claim against
defendant Galindo, ERUSD’s Superintendent, in his “individual capacity,” pursuant to
the Supreme Court’s decision in Hafer v. Melo, 502 U.S. 21, 25 (1991). See TAC at ¶¶
13, 100, 116, 122. In Hafer, the Court differentiated between personal and official
capacity suits in the context of federal claims under section 1983. See Hafer, 502 U.S. at
26. The Court stated,
Personal-capacity suits . . . seek to impose individual liability
upon a government officer for actions taken under color of state
law. Thus, “[o]n the merits, to establish personal liability in a §
1983 action, it is enough to show that the official, acting under
color of state law, caused the deprivation of a federal right.”
While the plaintiff in a personal-capacity suit need not establish
a connection to governmental “policy or custom,” officials sued
in their personal capacities, unlike those sued in their official
capacities, may assert personal immunity defenses such as
objectively reasonable reliance on existing law.
Id. at 25 (citations omitted). Here, because the TAC makes clear that Galindo is being
sued in his individual and personal capacity, the Court DENIES defendants’ motion to
dismiss plaintiffs’ Section 1983 claim against Galindo under Belanger. See Romano v.
Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (“[Complaint alleged that] while acting under
color of state law, the defendants deprived [plaintiff] of a protected property interest in
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Page 13 of 14

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-07147-CAS(ASx)

April 4, 2016

Title

CHAVIRA, ET AL. V. EL RANCHO UNIFIED SCHOOL DISTRICT,
ET AL.

violation of due process. They need to allege nothing more to avoid the Eleventh
Amendment’s shield.”); Ashker v. California Dep't of Corr., 112 F.3d 392, 395 (9th Cir.
1997) (“The Hafer analysis may be applied to Ashker’s state law claims . . . Applying this
analysis, we conclude [that defendants] were sued in their personal capacities.”).
V.

CONCLUSION

In accordance with the foregoing, the motion to dismiss filed by defendants
ERUSD and Superintendent Galindo is granted in part and denied in part. Specifically,
plaintiffs’ state law claims for “general negligence,” “violation of mandatory statutory
duties,” and violation of the Unruh Civil Rights Act, are hereby DISMISSED WITH
PREJUDICE as to defendants ERUSD and Superintendent Galindo.11 To the extent
defendants seek to dismiss plaintiffs’ Section 1983 claim against defendant Galindo in his
individual capacity, defendants’ motion is DENIED.12
IT IS SO ORDERED.
00
Initials of Preparer

:

08

CMJ

11

As stated supra at n.3, the instant motion to dismiss is brought only on behalf of
defendants ERUSD and Superintendent Galindo. Plaintiffs have not filed a proof of
service for the additional defendants first named in the operative third amended. See
Motion at 1. Accordingly, the Court dismisses plaintiffs’ state law claims as to ERUSD
and Galindo only.
12

The operative third amended complaint does not assert a Section 1983 claim
against ERUSD.
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