Smithee et al v. California Correctional Institution et al

Filing 22

ORDER DENYING AS UNRIPE 21 Stipulation to File a Second Amended Complaint, signed by Magistrate Judge Jennifer L. Thurston on 5/10/2019. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA SMITHEE, “E.M.”, a minor, by and
through her guardian ad litem, JENNIFER
MONTES,

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Plaintiffs,
vs.

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CALIFORNIA CORRECTIONAL
INSTITUTION, et al.,
Defendants.

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Case No. 1:19-cv-0004 LJO JLT
ORDER DENYING AS UNRIPE
STIPULATION TO FILE A SECOND
AMENDED COMPLAINT
(Doc. 21)

The parties have stipulated to allow the plaintiff to file a second amended complaint. (Doc. 21)

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The second amended complaint will add claims that are based upon state law. Id. Before she can do

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this, she must receive a response to the government claim filed pursuant to California Government Code

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§§ 910., et seq.

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The Court notes that the events that give rise to the complaint—the decedent’s death—occurred

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on February 2, 2018. (Doc. 19 at 7) Generally, government claims for personal injury must be

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submitted within six months of the accrual of the tort. Cal. Gov. Code § 911.2. Under Cal. Gov. Code §

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911.4, a request for leave to submit a late claim must be presented within one year of the accrual of the

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event. The stipulation does not indicate when the plaintiff submitted her petition for leave to submit a

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late claim1 other than to state it was “just presented.” Id. at 2. This seems to indicate plaintiff submitted

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the claim more than a year after the February 2, 2018 events. If the Board denies the request to submit

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the late claim, the plaintiff must petition the Superior Court to be relieved from the necessity of

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compliance with the claims-presentation procedure. Cal. Gov. Code § 946.6. For this relief to be

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granted, “a petitioner must show more than his or her failure to discover a fact until too late; the

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petitioner must establish that in the use of reasonable diligence he or she failed to discover it.” Munoz

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v. State of California, 33 Cal.App.4th 1767, 1784 (1995).

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Though the Court has few details related to the claim or why the plaintiff did not submit it before
now. However, it appears unlikely that a determination of the claim’s merits will made any time soon

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and there is substantial reason to think that the plaintiff will not be permitted to proceed on state law

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claims. Thus, any request to file a second amended complaint is unripe. The plaintiff may re-submit the

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stipulation if she satisfies the requirements for the Government Code or a court excuses her from doing

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so. Thus, the stipulation is DENIED as UNRIPE.

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IT IS SO ORDERED.
Dated:

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May 10, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Indeed, the stipulation does not assert that a petition for leave to submit a late claim was presented at all. Rather, it
indicates only that the plaintiff submitted a “claim pursuant to California Govt. Code § 910, et seq.” (Doc. 21 at 2)

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