D.L. v. Vassilev et al
ORDER VACATING Hearing and ORDER GRANTING Defendant's 42 Motion to Dismiss signed by District Judge Anthony W. Ishii on 11/14/2017. Kaweah Delta Healthcare District terminated. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
D.L., a minor by and through his guardian
ad litem Kari Ann Junio,
CASE NO. 1:14-CV-0824 AWI BAM
ORDER VACATING HEARING AND
ORDER ON DEFENDANT’S MOTION
MARGARET VASSILEV, M.D., et al.,
(Doc. No. 42)
On October 16, 2017, Defendant Kaweah Delta Healthcare District (“KDHD”) filed a
motion to dismiss. See Doc. No. 42. Hearing on the motion is set for November 27, 2017. In the
motion, KDHD argues that it is a governmental entity and, in order for Plaintiff to pursue the state
law claims alleged against it, Plaintiff was required to follow the California Government Claims
Act by submitting a notice of claim. KDHD alleges that because only a government claim was
filed against the County of Tulare and not with KDHD, Plaintiff cannot comply with the
Government Claims Act. Because compliance with the Government Claims Act is an element of
Plaintiff’s state law claims, and Plaintiff can no longer comply with the Government Claims Act,
the claims against KDHD should be dismissed without leave to amend.
On November 8, 2017, Plaintiff filed a notice of non-opposition.
KDHD is correct that compliance with the Government Claims Act is an element of state
law claims against a California governmental entity. See Young v. City of Visalia, 687 F.Supp.2d
1141, 1152 (E.D. Cal. 2009); DiCampli-Mintz v. County of Santa Clara, 55 Cal.4th 983, 990
(2012). The failure to comply with the Government Claims Act is fatal to state law claims against
a governmental entity. See Hacienda La Puente Unified Sch. Dist. v. Honig, 976 F.2d 487, 494
(9th Cir. 1992); Young, 687 F.Supp.2d at 1152; City of San Jose v. Superior Ct., 12 Cal.3d 447,
455 (1974). Given Plaintiff’s express non-opposition to the motion to dismiss, Plaintiff is
essentially acknowledging this law and agreeing with KDHD that he did not comply and cannot
cure the defect. In light of the non-opposition, the Court will vacate the hearing and grant
KDHD’s motion to dismiss. See Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477
(9th Cir.1995); Hacienda La Puente, 976 F.2d at 494; Karim–Panahi v. Los Angeles Police Dep't,
839 F.2d 621, 627 (9th Cir. 1988); Young, 687 F.Supp.2d at 1152; DiCampli-Mintz, 55 Cal.4th at
990; City of San Jose, 12 Cal.3d at 455.
Accordingly, IT IS HEREBY ORDERED that:
The November 27, 2017 hearing date on Defendant’s motion to dismiss is VACATED;
Defendant’s motion to dismiss (Doc. No. 42) is GRANTED and the claims against
Defendant Kaweah Delta Healthcare District are dismissed without leave to amend; and
The Clerk shall terminate Kaweah Delta Healthcare District from this case.
IT IS SO ORDERED.
Dated: November 14, 2017
SENIOR DISTRICT JUDGE
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