D.L. v. Vassilev et al

Filing 51

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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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D.L., a minor by and through his guardian
ad litem Kari Ann Junio,
Plaintiff

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v.

CASE NO. 1:14-CV-0824 AWI BAM
ORDER VACATING HEARING AND
ORDER ON DEFENDANT’S MOTION
TO DISMISS

MARGARET VASSILEV, M.D., et al.,
(Doc. No. 42)
Defendant

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On October 16, 2017, Defendant Kaweah Delta Healthcare District (“KDHD”) filed a

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motion to dismiss. See Doc. No. 42. Hearing on the motion is set for November 27, 2017. In the
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motion, KDHD argues that it is a governmental entity and, in order for Plaintiff to pursue the state
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law claims alleged against it, Plaintiff was required to follow the California Government Claims
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Act by submitting a notice of claim. KDHD alleges that because only a government claim was
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filed against the County of Tulare and not with KDHD, Plaintiff cannot comply with the
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Government Claims Act. Because compliance with the Government Claims Act is an element of
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Plaintiff’s state law claims, and Plaintiff can no longer comply with the Government Claims Act,

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the claims against KDHD should be dismissed without leave to amend.
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On November 8, 2017, Plaintiff filed a notice of non-opposition.
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KDHD is correct that compliance with the Government Claims Act is an element of state
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law claims against a California governmental entity. See Young v. City of Visalia, 687 F.Supp.2d
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1141, 1152 (E.D. Cal. 2009); DiCampli-Mintz v. County of Santa Clara, 55 Cal.4th 983, 990

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(2012). The failure to comply with the Government Claims Act is fatal to state law claims against

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a governmental entity. See Hacienda La Puente Unified Sch. Dist. v. Honig, 976 F.2d 487, 494

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(9th Cir. 1992); Young, 687 F.Supp.2d at 1152; City of San Jose v. Superior Ct., 12 Cal.3d 447,

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455 (1974). Given Plaintiff’s express non-opposition to the motion to dismiss, Plaintiff is

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essentially acknowledging this law and agreeing with KDHD that he did not comply and cannot

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cure the defect. In light of the non-opposition, the Court will vacate the hearing and grant

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KDHD’s motion to dismiss. See Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477

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(9th Cir.1995); Hacienda La Puente, 976 F.2d at 494; Karim–Panahi v. Los Angeles Police Dep't,

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839 F.2d 621, 627 (9th Cir. 1988); Young, 687 F.Supp.2d at 1152; DiCampli-Mintz, 55 Cal.4th at

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990; City of San Jose, 12 Cal.3d at 455.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The November 27, 2017 hearing date on Defendant’s motion to dismiss is VACATED;

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2.

Defendant’s motion to dismiss (Doc. No. 42) is GRANTED and the claims against

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Defendant Kaweah Delta Healthcare District are dismissed without leave to amend; and
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The Clerk shall terminate Kaweah Delta Healthcare District from this case.

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IT IS SO ORDERED.
Dated: November 14, 2017
SENIOR DISTRICT JUDGE

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