Jensen v. United States of America et al

Filing 17

ORDER signed by Judge John A. Mendez on 10/3/2012 ORDERING that the 11 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows: The motion to dismiss Plaintiff's first and second causes of action is GRANTED, due to Plaintiff 9;s failure to plead compliance with the CTCA with the requisite factual specificity. Plaintiff is granted leave to amend. The motion to dismiss Plaintiff's first cause of action, Negligence, is GRANTED, due to Plaintiff's failure to plea d a statutory basis for liability. Plaintiff is granted leave to amend. The motion to dismiss is DENIED on all other grounds. Plaintiff shall file his Amended Complaint no later than twenty (20) days from the date of this Order. Defendant's responsive pleading shall be filed no later than twenty (20) days after being served with the Amended Complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PETER JENSEN, as Successor
Trustee for the 2008 Brett G.
Jensen Family Trust,

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Plaintiff,

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v.
UNITED STATES OF AMERICA;
TEHAMA-COLUSA CANAL
AUTHORITY, and DOES 1 through
10, inclusive,

No.

2:12-CV-01418-JAM-EFB

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
TEHAMA-COLUSA CANAL AUTHORITY’S
MOTION TO DISMISS

Defendant.

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This matter comes before the Court on Defendant Tehama-

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Colusa Canal Authority’s (“Defendant” or “TCAA”) Motion to

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Dismiss (Doc. #11) Plaintiff Peter Jensen’s (“Plaintiff” or

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“Jensen”) Complaint (Doc. #1)(“Comp.”) for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule

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of Civil Procedure 12(b)(6).

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Plaintiff opposes the motion (Doc.

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#13).1

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granted in part and denied in part.

For the reasons set forth below, Defendant’s motion is

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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This case arises out of damage to Plaintiff’s real property

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allegedly caused by Defendant’s negligence “in the construction,

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operation, maintenance, improvement and repair of the Tehama-

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Colusa Canal [“The Canal”] . . . .”

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Plaintiff owns property in Corning, California, “along Jewett

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Creek at the crossing of the Tehama-Colusa Canal . . .,” which

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is used for agricultural purposes, such as the production of

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almonds.

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some point during a project to operate, maintain, or improve The

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Canal, Defendant “unreasonably alter[ed] . . . the water flow of

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Jewett Creek onto Plaintiff’s property . . ., [causing]

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continuing erosion damage.”

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Plaintiff has incurred approximately $500,000 in damages, which

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includes the “costs of necessary remedial repairs.”

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12.

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Id. at ¶ 1.

Comp. at ¶¶ 1, 7, 10-11.

According to Plaintiff’s Complaint, at

Id. at ¶¶ 10-11.

To date,

Id. at ¶

Both named defendants in this case are government entities,

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and Plaintiff alleges he has complied with the statutory pre-

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lawsuit presentation of claim requirements under the Federal and

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California Tort Claims Acts.

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Comp. at ¶¶ 2, 4-5, 7.

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled for August 8, 2012.
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On March 30, 2012, Plaintiff filed the pending action for

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damages and declaratory relief in the Northern District.

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#1.

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by Judge White, upon adopting a stipulation between the parties

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on May 24, 2012.

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the pending Motion to Dismiss, challenging Plaintiff’s entire

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Complaint.

The case was subsequently ordered transferred to this Court

Doc. #7.

II.
A.

OPINION

Legal Standard

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On June 15, 2012, Defendant filed

Doc. #11.

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Doc.

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Motion to Dismiss

A party may move to dismiss an action for failure to state

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a claim upon which relief can be granted pursuant to Federal

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Rule of Civil Procedure 12(b)(6).

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dismiss, the court must accept the allegations in the complaint

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as true and draw all reasonable inferences in favor of the

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plaintiff.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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are mere “legal conclusions,” however, are not entitled to the

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assumption of truth.

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(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

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(2007)).

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plead “enough facts to state a claim to relief that is plausible

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on its face.”

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appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

Assertions that

Ashcroft v. Iqbal, 556 U.S. 662, 678

To survive a motion to dismiss, a plaintiff needs to

Twombly, 550 U.S. at 570.

Dismissal is

Balistreri v.

Upon granting a motion to dismiss for failure to state a
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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure section

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15(a).

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not appropriate unless it is clear . . . that the complaint

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could not be saved by amendment.”

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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“Dismissal with prejudice and without leave to amend is

Eminence Capital, L.L.C. v.

Additionally, the Court may “consider a motion to dismiss

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accompanied by affidavits as a motion for summary judgment”

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under Rule 12(b)(6), but if it does so, the “parties shall be

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permitted to present all material pertinent to the motion.”

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Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)

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(citing FED. R. CIV. P. 12(b)(6), 56).

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2.

California Tort Claims Act

Actions brought against public entities and their officials

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are governed by the California Tort Claims Act (“CTCA”), see CAL.

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GOV’T CODE § 810, et seq., and “[t]he timeliness of such actions is

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governed by the specific statute of limitations set forth in the

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Government Code, not the statute of limitations applicable to

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private defendants.”

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26 Cal. Rptr. 3d 445, 448 (Cal.Ct.App. 2005) (citations

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omitted).

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County of Los Angeles v. Superior Court,

The CTCA requires an injured party to present his or her

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claim to the public entity prior to initiating litigation

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against it.

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against a public entity relating to any cause of action, other

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than one “for death or for injury to [a] person or to personal

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property or growing crops,” must be presented to that entity

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prior to initiating litigation and “not later than one year

CAL. GOV’T CODE § 954.4. Under the CTCA, a claim

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after the accrual of the cause of action.”

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§§ 911.2(a), 945.6.

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CAL. GOV’T CODE

Once a claim is timely filed, the public entity has forty-

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five (45) days to accept or reject the claim.

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A party then has six months to initiate litigation against the

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entity following written notice of rejection of his or her

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claim.

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to act within [45 days], the claim shall be deemed to have been

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rejected . . .,” on the last day the entity was required to act.

Id. at § 945.6(a)(1).

Id. at § 912.4.

If the entity “fails or refuses

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Id. at § 912.4.

If no written notice is given to the party of

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the entity’s rejection of the claim, the party must file an

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action with the court “within two years from the accrual of the

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cause of action.”

Id. at § 945.6(b).

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B.

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Before turning to the pending motion, the Court will

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address the affidavits and exhibits included with Plaintiff’s

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Opposition and Defendant’s Reply.

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the evidence submitted by the parties, see Huynh v. Chase

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Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (citations

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omitted), it declines to do so here.

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issues before it on the moving papers alone, and therefore, it

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does not need to convert Defendant’s Motion to Dismiss to a

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Motion for Summary Judgment.

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Defendant’s Motion to Dismiss

While the Court may consider

The Court may decide the

See id.

Defendant moves to dismiss Plaintiff’s Complaint on several
grounds, see Doc. #11, as discussed below.
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Presentation of the CTCA Claim to Defendant

Defendant first argues that Plaintiff’s Complaint must be
dismissed because Plaintiff failed to present his tort claim to
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Defendant before filing this suit, as required by the CTCA.

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Doc. #11 at pg. 2-3 (citing CAL. GOV’T CODE § 911.2).

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As discussed above, the CTCA requires an injured party to

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present his or her claim to the public entity prior to

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initiating litigation against it.

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paragraph 7 of his Complaint, Plaintiff alleges he satisfied

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this requirement.

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provides nothing more than a bare legal conclusion.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

CAL. GOV’T CODE § 945.6(b).

In

However, as currently pled, Plaintiff
See, e.g.,

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Plaintiff simply pleads: “Plaintiff has complied with the

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requirements of [the CTCA].”

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argues there was no presentation, the Court finds instead that

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Plaintiff’s pleading is deficient due to lack of factual

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specificity, and on that basis, cannot withstand Defendant’s

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Motion to Dismiss.

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Plaintiff provides important details about the steps he took to

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comply with the CTCA’s pre-filing requirements in his

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Opposition; however, none of the facts that would substantiate

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Plaintiff’s allegation that he satisfied the CTCA’s claim

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presentment process are included in his Complaint.

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#13 with Doc. #1.

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facts that exist showing he satisfied the CTCA’s requirements

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regarding presentation of a tort claim, in granting Defendant’s

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Motion to Dismiss, the Court will allow Plaintiff leave to amend

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his Complaint.

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316 F.3d 1048, 1052 (9th Cir. 2003).

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Comp. at ¶ 7.

While Defendant

See, e.g., Iqbal, 556 U.S. at 678.

Compare Doc.

Since Plaintiff has argued that there are

See Eminence Capital, L.L.C. v. Aspeon, Inc.,

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2.

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Remaining Grounds for Dismissal

Defendant next argues that Plaintiff failed to present a

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claim or file this action within the CTCA’s statute of

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limitations.

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Plaintiff, Defendant argues Plaintiff’s claim accrued on March

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31, 2010, yet Plaintiff did not file a claim with the other

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named defendant until May 23, 2011, more than a year later.

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Plaintiff correctly argues that he has alleged the harm is

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continuing and that the delayed discovery rule applies in this

Doc. #11 at pg. 3-4.

Citing a report prepared for

Id.

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case; therefore, the statute of limitations does not bar his

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claim.

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Unified School District, 172 Cal.App.4th 1229 (2009).

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importantly, Plaintiff correctly argues that it is likely

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Defendant waived any argument regarding an untimely presentation

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of Plaintiff’s claim under the CTCA.

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For these reasons, Defendant’s Motion to Dismiss based on the

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statute of limitations is denied.

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Doc. #13 at pg. 11-12; see also, e.g., K.J. v. Arcadia
More

Doc. #13 at pg. 11-13.

Next, Defendant argues that Plaintiff’s Negligence claim

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must be dismissed because it lacks the requisite factual

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specificity; namely, a statutory basis for relief.

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pg. 5-6.

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Protection Authority, 31 Cal. 4th 1175 (2003).

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Opposition, Plaintiff discusses the statutory basis for his

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claim, signaling to this Court that allowing leave to amend is

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appropriate.

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F.3d 1048, 1052 (9th Cir. 2003).

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The Court agrees.

Doc. #11 at

See Eastburn v. Regional Fire
In his

See Eminence Capital, L.L.C. v. Aspeon, Inc., 316

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Finally, in its reply, Defendant presents arguments that

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were not included in the Motion to Dismiss as to why Plaintiff’s

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Complaint should be dismissed.

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This is improper, see, e.g., Association of Irritated Residents

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v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D. Cal.

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2006), and these arguments will be disregarded.

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the Court denies Defendant’s Motion to Dismiss on any other

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grounds.

Compare Doc. #11 with Doc. #14.

Accordingly,

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III. ORDER

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For the reasons set forth above, Defendants’ motion to

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dismiss is GRANTED in part and DENIED in part, as follows:
1.

The motion to dismiss Plaintiff’s first and second

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causes of action is GRANTED, due to Plaintiff’s failure to plead

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compliance with the CTCA with the requisite factual specificity.

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Plaintiff is granted leave to amend.

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2.

The motion to dismiss Plaintiff’s first cause of

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action, Negligence, is GRANTED, due to Plaintiff’s failure to

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plead a statutory basis for liability.

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leave to amend.

Plaintiff is granted

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3.

The motion to dismiss is DENIED on all other grounds.

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4.

Plaintiff shall file his Amended Complaint no later

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than twenty (20) days from the date of this Order.

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responsive pleading shall be filed no later than twenty (20)

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days after being served with the Amended Complaint.

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IT IS SO ORDERED.

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Dated: October 3, 2012

Defendant’s

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____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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