Thomas v. Robles et al

Filing 89

ORDER Setting Telephonc Hearing for Wednesday, December 7, 2011 at 8:00 A.M., signed by Magistrate Judge Barbara A. McAuliffe on 12/2/11. Trial Confirmation Hearing set for 12/7/2011 at 08:00 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY D. THOMAS,

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CASE NO. 1:09-cv-00443-LJO-BAM PC

Plaintiff,

ORDER SETTING TELEPHONIC HEARING
FOR WEDNESDAY, DECEMBER 7, 2011 AT
8:00 A.M.

v.
HECTOR ROBLES, et al.,
Defendants.
/

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Plaintiff Larry D. Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is confirmed for trial
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on December 13, 2011, at 8:30 a.m. before the Honorable Lawrence J. O’Neill. In preparing this
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action for trial the Court has reviewed Plaintiff’s complaint and it appears that Plaintiff failed to file
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this action within the time lines established by the California State Tort Claim Act.
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The Tort Claims Act requires that a tort claim against a public entity or its employees be
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presented to the California Victim Compensation and Government Claims Board, formerly known
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as the State Board of Control, no more than six months after the cause of action accrues. Cal. Gov’t
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Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2010). Presentation of a written claim, and
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action on or rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings
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County (Bodde), 32 Cal.4th 1234, 1240 (2004); Shirk v. Vista Unified School District, 42 Cal.4th
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201, 209 (2007). Compliance with the Tort Claims Act is an element of the cause of action, Bodde,
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32 Cal.4th at 1240, is required, and “failure to file a claim is fatal to a cause of action.” Hacienda
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La Puente Unified School Dist. Of Los Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992); City

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of San Jose v. Superior Court, 12 Cal.3d 447, 454 (1974).

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Pursuant to California Government Code Section 945.6(a)(2) an action must be commenced

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within six months of the date of the written notice is personally delivered or deposited in the mail.

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Plaintiff’s notice is dated August 29, 2008, and his complaint in this action was not filed until March

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10, 2009. Accordingly, it appears to the Court that Plaintiff has failed to comply with the

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requirements of the Tort Claim Act and which is fatal to his state law claims. Accordingly, a

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telephonic trial confirmation hearing shall be held on Wednesday, December 7, 2011, at 8:00 a.m.

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in Courtroom 4 before the Honorable Lawrence O’Neill.

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Based on the foregoing it is HEREBY ORDERED that:

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1.

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This matter is set for telephonic hearing before the Honorable Lawrence J. O’Neill
on December 7, 2011, at 8:00 a.m. in Courtroom 4 (LJO); and

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Counsel for Defendants is required to arrange for the participation of Plaintiff in the

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telephonic trial confirmation hearing and to initiate the telephonic hearing at (559)

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499-5680.

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IT IS SO ORDERED.
Dated:
cm411

December 2, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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