L.S. et.al. et al v. County of Santa Cruz et al

Filing 14

UNOPPOSED MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE. Signed by Judge Paul S. Grewal on September 29, 2015, re 13 . (psglc1S, COURT STAFF) (Filed on 9/29/2015)

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page1 of 6

1
2
3
4
5
6
7
8
9
10
11
12

Jonathan Che Gettleman, SBN 243560
Elizabeth Caballero, SBN 240249
CABALLERO & GETTLEMAN, LAW OFFICE INC.
223 River Street, Suite D
Santa Cruz, California 95060
TELEPHONE: [phone]
FACSIMILE: 831-515-5228
EMAIL: [e-mail]
[e-mail]
Eric John Nelson, SBN 282020
LAW OFFICE OF ERIC JOHN NELSON
223 River Street, Suite D
Santa Cruz, California 95060
TELEPHONE: [phone]
FACSIMILE: 831-515-5185
EMAIL: [e-mail]
Diane K. Vaillancourt, SBN 181348
LAW OFFICE OF DIANE K. VAILLANCOURT
849 Almar Avenue, Suite C403
Santa Cruz, CA 95060
TELEPHONE: [phone]
EMAIL: [e-mail]

13
Attorneys for Plaintiffs.

14

UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16
17
18
19
20
21
22

L.S, a minor, by and through her Guardian
ad Litum, Herbert SMITH, successor in
interest; W.S, a minor, by and through his
Guardian ad Litum, Herbert Smith.
Plaintiffs,
vs.
COUNTY OF SANTA CRUZ;
CALIFORNIA FORENSIC MEDICAL
GROUP, INC.; DOES 1-25,

Case No. 15-cv-03032-PSG
UNOPPOSED MOTION FOR RELIEF FROM
CASE MANAGEMENT SCHEDULE:
REQUESTING 49-DAY EXTENSION OF
INITIAL CASE MANAGEMENT
CONFERENCE AND ADR DEADLINES (CIV.
L.R. 16-2(d))—SECOND REQUEST
PROPOSED ORDER

23
24
25
26
27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

Defendants.
MOTION
Pursuant to Civ. L. R. 16-2(2), Plaintiffs, by and through their attorneys Jonathan Che
Gettleman, Eric John Nelson, Elizabeth Caballero and Diane K. Vaillancourt, hereby move for relief
1.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page2 of 6

1
2

from the Case Management Schedule (Doc. 10, Aug. 27, 2015) consisting of a 49-day extension of
the Initial Case Management Conference and ADR Deadlines.

3
POINTS AND AUTHORITIES
4
I.

Good Cause Exists to Extend the Case Management Schedule

5
Good cause exists to extend the Case Management Schedule deadlines: Since Plaintiffs’
6
7
8
9
10

prior request, lead counsel Jonathan Gettleman has resumed his law practice following a two-month
trip out of the country and is prepared to litigate. However, an impediment to meeting the amended
case schedule has emerged such that another extension is needed. Plaintiffs now have pending in a
California superior court a Petition for Relief from the Tort Claims Act (“TCA”) that was hoped to

11

be resolved on June 30, 2015.1 The hearing on that petition has been continued three times for

12

reasons outside Plaintiffs’ control. Most recently, it was set for hearing on September 18, 2015.

13

However, for personal reasons, the judge was unavailable and the matter was reset for October 9,

14

2015.

15

Resolution of the state petition is important because, should the state court grant the relief

16

Plaintiffs seek, this would likely foreclose a dispute with the County Defendants over Plaintiffs’

17

compliance with the TCA. The state court judge has stated an inclination to grant Plaintiffs’ petition.

18

The state court’s grant or denial of the petition will strongly impact the parties’ meet and confer over

19

discovery and scheduling matters as well as expectations for ADR proceedings because it will set

20

parameters over what is legitimately in dispute in this case.

21

II.

The Anticipated State Court Ruling Will Further Resolution of TCA Compliance Issue

22

Plaintiffs properly filed their Petition for Relief from California’s TCA in state court while

23

initiating their Complaint for Damages in federal court. This lawsuit includes causes of action for

24
25

civil rights violations and also causes of action for state torts. The different claims have, obviously,
different statutes of limitation and different procedural requirements. Plaintiffs’ initial Complaint

26
27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

1

Amanda Sloan et al. v. County of Santa Cruz, California, Case No. CISCV 181792,
Superior Court of California, County of Santa Cruz (filed June 1, 2015).
2.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page3 of 6

1
2

was filed in this Court on June 30, 2015—within two years of the alleged injury—to ensure no
possible dispute over statute of limitations for civil rights violations. Setting forth the state claims,

3
however, has been complicated by California’s stringent TCA procedures.
4
Plaintiffs are of the understanding that they have complied with the TCA process under
5
circumstances where (1) the claimants are minors (entitling them to relief from California’s six6
7
8
9
10

months deadline for initiating a claim); and (2) the accrual date is several months after the injury
(May 21, 2014 versus July 17, 2013). A favorable ruling from the state court promises to set the
matter of TCA compliance to rest. This issue would not need to be litigated in the federal court
proceeding.
Plaintiffs’ counsel are of the firm understanding that they were correct to proceed with their

11
12

petition in the state court.2 They are also of the firm understanding that they were correct to file their

13

First Amended Complaint, including their state causes of action, in this federal district court.

14

California case law strongly encourages this dual approach. “[W]e perceive no bar to a claimant

15

simultaneously seeking relief under section 946.6 [TCA relief] and filing a complaint alleging

16

compliance with the claims statute. . . .” Ngo v. County of L.A., 207 Cal. App. 3d 946, 952 (1989).

17

“The claimant is therefore not forced to make the agonizing choice between two exclusive

18

remedies.” Rason v. Santa Barbara City Hous. Auth., 201 Cal. App. 3d 817 (1988).

19

III.

20
21
22

The Requested Extension Will Allow Resolution of the State Petition and Facilitate
Case Management
Should the state court decide the Petition for Relief in Plaintiffs’ favor, that ruling should end

any dispute over the question of TCA compliance. By granting plaintiffs’ relief, the state court is

23
24
25
26
27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

2

The federal court lacks jurisdiction to address Plaintiffs’ petition for relief from state TCA
procedural requirements. See Cal. Gov. Code § 946.6(a) (“The proper court for filing the petition
[for relief] is a superior court that would be a proper court for the trial of an action on the cause of
action to which the claim relates.”) (emphasis added); see also, Hernandez v. McClanahan, 996 F.
Supp. 975, 978 (N.D. Cal. 1998) (“It is a fundamental tenet of federalism that waivers of sovereign
immunity must come from the particular governments that will be subject to the resulting liability.”);
Luers v. Smith, 941 F. Supp. 105, 108 (C.D. Cal. 1996). Not being “a superior court,” a federal
district court lacks jurisdiction to hear such a petition. It is a matter reserved for the state courts. See
Hill v. City of Clovis, Case No. 1:11-cv-1391 (E.D. Cal., Mar. 9, 2012).
3.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page4 of 6

1
2

literally excusing plaintiffs’ compliance with the TCA’s six-month filing limitation.3 The entire
TCA statute of limitations thus becomes a non-issue. The defendant’s ability to demonstrate

3
noncompliance with the TCA six-month statute of limitations is meaningless where noncompliance
4
with that provision has been already been acknowledged and may well be excused in the Superior
5
Court. That process will set the stage for litigation on the merits of Plaintiffs’ state claims in this
6
7
8
9
10

Court. Since no other federal statute of limitations dispute seems likely, the state court’s ruling will
greatly impact the scope of anticipated discovery. For should that court grant Plaintiffs the relief they
seek, the ruling will eliminate the need for Defendants to inquire into threshold matters having
nothing to do with this case’s merits.

11

On the other hand, should the state court reject Plaintiffs’ petition, that rejection will open up

12

questions of fact concerning claim accrual and other considerations having to do with TCA

13

compliance as opposed to the case’s merit. Thus resolution of Plaintiffs’ state Petition for Relief will

14

greatly impact the parties’ relative assessments of the scope of this litigation. It will impact their

15

plans for discovery and case management.

16

In addition, resolution of the state Petition will impact the parties’ respective assessments of

17

prospects for ADR resolution. Should the state court grant the relief Plaintiffs seek, the chances of

18

their prevailing on the state claims will be enhanced because Plaintiffs will have to prove only

19

negligence. Either way, giving time to eliminate this one major unknown at the outset will conserve

20

the parties’ resources by allowing a better blueprint for the litigation. It will also promote judicial

21

economy by facilitating case management.

22

IV.

23
24
25

Conclusion and Request
For these reasons, plaintiffs respectfully ask the Court to order a 49-day extension of all dates

listed in the current Case Management Statement. A 49-day extension would allow the state court to
resolve Plaintiffs’ pending petition. It would give the parties sufficient opportunity to prepare for and

26
27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

3

It does not affect the federal claims because Plaintiffs filed their Complaint well within two
years of the injury and so well within the limitations period
4.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page5 of 6

1
2

appear at the initial meet and confer following service of the Summons and Complaint and meet the
other concurrently extended deadlines. The initial meet and confer is currently set to take place on

3
October 6, 2015, some days before Plaintiffs plan to serve the Summons and Complaint, given that
4
the hearing on Plaintiffs’ petition is now set for October 9, 2015. Obviously, the initial meet and
5
confer cannot proceed absent Defendants’ participation.
6
7
8
9
10

This request is made in good faith and is not for purposes of delay. All factual
representations made herein are supported by the attached Declaration of Jonathan Che Gettleman.
This motion is unopposed as defendants have yet to be served with the Summons and
Complaint4 and so have not made an appearance.

11
12

Dated: September 28, 2015

13
14
15
16

/s/ Diane K. Vaillancourt
Diane K. Vaillancourt
LAW OFFICE OF DIANE K. VAILLANCOURT
Jonathan Che Gettleman
Elizabeth Caballero
CABALLERO & GETTLEMAN, INC.
Eric John Nelson
LAW OFFICES OF ERIC JOHN NELSON
Attorneys for Plaintiffs

17
18
19
20
21
22
23
24
25
26
27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

4

The Complaint in this case was filed June 30, 2015. The deadline for service of the
Summons and Complaint is 120-days, i.e., October 28, 2015. Plaintiffs now anticipate serving the
Summons and Complaint in early October upon or soon after the state hearing of October 9, 2015.
5.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG

Case5:15-cv-03032-PSG Document13 Filed09/28/15 Page6 of 6

1
GOOD CAUSE HAVING BEEN SHOWN, IT IS SO ORDERED:
2
3
4

The Order Setting Initial Case Management Conference and ADR Deadlines is hereby
amended as follows:

5
AMENDED CASE SCHEDULE – ADR MULTI-OPTION PROGRAM

6
Date

Event

6/30/2015

Complaint Filed

11/24/2015

*Last day to:
• meet and confer re: initial disclosures, early
settlement, ADR process selection, and discovery plan

FRCivP 26(f) & ADR
L.R.3-5

• file ADR Certification signed by Parties and Counsel
(form available at http://www.cand.uscourts.gov)

Civil L.R . 16-8(b) &
ADR L.R. 3-5(b)

14

• file either Stipulation to ADR Process or Notice of
Need for ADR Phone Conference
http://www.adr.cand.uscourts.gov

Civil L.R . 16-8(c) &
ADR L.R. 3-5(b)

15

(form available at http://www.cand.uscourts.gov)

7
8
9
10
11

Governing Rule

12
13

16

12/8/2015

17
18

21
22
23

FRCivP 26(a) (1) Civil
L.R . 16-9

(also available at http://www.cand.uscourts.gov)

19
20

Last day to file Rule 26(f) Report, complete initial
disclosures or state objection in Rule 26(f) Report and
file Case Management Statement per Standing Order re
Contents of Joint Case Management Statement

12/15/2015

INITIAL CASE MANAGEMENT CONFERENCE
(CMC) at 10:00 AM in:

Civil L.R . 16-10

Courtroom 5, 4th Floor
Robert F. Peckham Federal Building
280 South 1st Street
San Jose, CA 95113

24
25
26

September 29, 2015
Dated: _____________________

__________________________________________
THE HONORABLE PAUL SINGH GREWAL
UNITED STATES MAGISTRATE JUDGE

27
28
LAW OFFICES
223 RIVER STREET
SUITE D
SANTA CRUZ, CA
95060

1.
MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE: PROPOSED ORDER
Case No. 15-cv-03032-PSG