Mistriel v. Kern County, et al

Filing 75

ORDER signed by Chief Judge Anthony W. Ishii on 2/6/2012 granting 63 Motion to Dismiss filed by Defendant, Catholic Charities of the Diocese of Fresno. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT GLEN MISTRIEL,

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Plaintiff,
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v.
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COUNTY OF KERN et al.,
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Defendants.
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____________________________________)

1:03-cv-06922-AWI-SKO
ORDER RE: MOTION TO
DISMISS THIRD AMENDED
COMPLAINT
(Doc. 63)

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I. INTRODUCTION
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Defendant Catholic Charities of the Diocese of Fresno has filed a motion to dismiss the third
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amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons discussed
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below, the motion shall be granted without leave to amend.
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II. FACTS AND PROCEDURAL BACKGROUND
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On October 12, 2010, plaintiff Robert Glen Mistriel (“Plaintiff”), an inmate, filed his third amended
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complaint for civil rights violations pursuant to 42 U.S.C. § 1983 against defendants County of Kern,
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Kern County District Attorney’s Office, District Attorney Ed Jagels, District Attorney Al Leddy,
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Estate of Al Leddy, Assistant District Attorney Steven Tauzer, Kern County Personnel Board, Kern

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County Personnel Board Director Edwin Buck, Estate of Edwin Buck, Kern County Probation

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Department, Kern County Probation Department Director Glen T. Brown, Kern County Probation

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Department Probation Officer Sally E. Rockholt, the City of Bakersfield, Bakersfield Police

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Department, Bakersfield Police Chief Bob Patterson, Bakersfield Police Commissioner Glen Fitts,

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Estate of Glen Fitts, California State Senator Don Rogers, Campaign Manager to Don Rogers Stan

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Harper, San Felipe Boys Home, the Bakersfield Californian Newspaper, Alfred ‘Ted’ Fritts, Estate

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of Alfred ‘Ted’ Fritts, Virginia Ginger Moorhouse, Donald H. Fritts, Hurbert ‘Eli’ Elias, Eli’s Clock

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Emporium, Tommy Tarver, Estate of Tommy Tarver, Child Protective Services and Does 1 through

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75, inclusive. On March 10, 2011, the Magistrate Judge, having screened the third amended

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complaint, issued findings and recommendations recommending, among other things, that the Court

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find Plaintiff stated a cognizable claim against defendant San Felipe Boys Home. On June 6, 2011,

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the Court issued an order adopting the Magistrate Judge’s findings and recommendations in full.

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On September 20, 2011, defendant Catholic Charities of the Diocese of Fresno (“Defendant,”

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erroneously sued as San Felipe Boys Home), filed its motion to dismiss the third amended complaint

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(TAC) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not file an opposition.

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III. LEGAL STANDARD

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). Where the plaintiff fails to allege “enough facts to state

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a claim to relief that is plausible on its face,” the complaint may be dismissed for failure to allege

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facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed. R. Civ. P. 12(b)(6). “A

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claim has facial plausibility,” and thus survives a motion to dismiss, “when the pleaded factual

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content allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868

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(2009). On a Rule 12(b)(6) motion to dismiss, the court accepts all material facts alleged in the

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complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN,

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393 F.3d 1068, 1072 (9th Cir. 2005). However, the court is not required to accept conclusory

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allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject

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to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v.

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National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “Dismissal with prejudice and without

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leave to amend is not appropriate unless it is clear . . . the complaint could not be saved by

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amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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IV. DISCUSSION

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As a threshold matter, Defendant contends the TAC is barred by the applicable statute of limitations.

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In his various complaints, Plaintiff alleges he was sexually abused by some of the individual

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defendants from 1977 to 1981, during the ages of 13 to 17. The gravamen of Plaintiff’s claim

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against Defendant is that Defendant endangered his health and safety in a deliberately indifferent

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manner, thereby violating his constitutional rights, when it allowed the individual defendants to

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remove him from Defendant’s care and custody, despite the fact Plaintiff had informed Defendant

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of the abuse. The statute of limitations applicable to an action for damages suffered as a result of

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childhood sexual abuse may be found in California Code of Civil Procedure § 340.1.

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Section 340.1 provides in pertinent part that “[a]n action for liability against any person or

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entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or

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entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff,”

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as here, must be commenced within the later of (1) “eight years of the date the plaintiff attains the

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age of majority” or (2) “three years of the date the plaintiff discovers or reasonably should have

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discovered that psychological injury or illness occurring after the age of majority was caused by the

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sexual abuse.” Cal. Code Civ. Proc., § 340.1, subd. (a). The statute further provides such actions

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may not be commenced once a plaintiff has reached his or her 26th birthday unless the defendant

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“knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an

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employee, volunteer, representative or agent, and failed to take reasonable steps, and to implement

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reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person.” Cal.

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Code Civ. Proc., § 340.1, subds. (b)(1), (2). Lastly, the statute contains a provision stating such

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actions that were barred solely because the statute of limitations had already run were revived for

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a one-year period ending December 31, 2003. Cal. Code Civ. Proc., § 340.1, subd. (c).

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Plaintiff filed his original complaint on December 24, 2003, within the one-year revival

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period. Therefore, the complaint appears to have been timely, even though it would otherwise have

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been untimely absent the revival period, given Plaintiff was older than 26 at the time of the filing and

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had not alleged facts to indicate that his discovery of any post-majority injury attributable to the

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alleged abuse was somehow delayed.1 Defendant does not dispute the lawsuit was commenced

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during the revival period, but contends Plaintiff’s claim against it is nonetheless time barred because

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the first pleading in which Defendant was expressly named as a defendant – the second amended

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complaint (SAC) – was filed after the revival period had ended, but did not relate back to the filing

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of the original complaint, which was not asserted against Defendant or even any Does.

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To relate back to a timely filed complaint, and thus avoid the statute of limitations bar, an

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amended complaint “must (1) rest on the same general set of facts, (2) involve the same injury, and

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(3) refer to the same instrumentality, as the original one.” Norgart v. Upjohn Co., 21 Cal.4th 383,

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408-409, 87 Cal.Rptr.2d 453, 981 P.2d 79 (1999) (emphasis original); accord, Davaloo v. State

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Farm Ins. Co., 135 Cal.App.4th 409, 415, 37 Cal.Rptr.3d 528 (2005). “The general rule is that an

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amended complaint that adds a new defendant does not relate back to the date of filing the original

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complaint and the statute of limitations is applied as of the date the amended complaint is filed, not

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Section 340.1 was last amended in 2002. See Cal. Code Civ. Proc., § 340.1, as amended
by Stats. 2002, ch. 149 (S.B.1779), § 1. Because Plaintiff’s action was commenced in 2003, the
action is governed by the statute of limitations as it currently appears.

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the date the original complaint is filed.” Woo v. Superior Court, 75 Cal.App.4th 169, 176, 89

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Cal.Rptr.2d 20 (1999). “A recognized exception to the general rule is the substitution . . . of a new

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defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of

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action was stated in the original complaint.” Id. at 176. An amended complaint is not time barred

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under those circumstances if it “relates back to a timely original complaint.” Barrington v. A.H.

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Robins Co., 39 Cal.3d 146, 150, 216 Cal.Rptr. 405, 702 P.3d 563 (1985).

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San Felipe Boys Home, by which Defendant was erroneously sued, was not named as a

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defendant until the filing of the SAC on May 23, 2005, nearly a year and a half after the revival

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period had expired. Therefore, Plaintiff’s claim against Defendant was untimely unless (1)

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Defendant was being substituted for a fictitious Doe defendant named in the original complaint and

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(2) the SAC related back to the original complaint. Defendant clearly could not have been

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substituted into the action as a Doe defendant because no Doe defendants were ever named in the

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original complaint. Even if it had been, the relation back doctrine would have been inapplicable

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because San Felipe Boys Home was not alleged to have committed any misconduct in the original

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complaint. In the original complaint, Plaintiff alleged only that he was placed in San Felipe Boys

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Home; the allegations that San Felipe Boys Home was aware of Plaintiff’s abuse but nonetheless

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allowed various defendants to remove him from its care and supervision did not appear until the

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SAC. Therefore, Plaintiff’s claim against Defendant did not relate back to the original complaint

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and was timed barred. In light of this conclusion, the Court need not consider Defendant’s

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alternative argument the claim is barred for failure to file a certificate of merit within the applicable

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limitations period as required by California Code of Civil Procedure § 340.1(h).

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V. DISPOSITION

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Based on the foregoing, Defendant’s motion to dismiss the third amended complaint against it is

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granted without leave to amend.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 6, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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