Wimer v. San Diego Metropolitan Transit System et al

Filing 17

ORDER Granting 4 San Diego Metropolitan Transit System's Motion to Dismiss Wimer's Sixth and Ninth Causes of Action Against It and Alamillo's 13 Motion to Dismiss Wimer's Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action Against Her. Because the complaint doesnt allege CGCA compliance, the motions to dismiss (Docket nos. 4 and 13) are granted with leave to amend. If Wimer thinks he can successfully amend his complaint, he must seek leave by ex parte motion no later than January 11, 2016. If he files such a motion, MTS and Alamillo shall have until January 25, 2016 to oppose it. No reply should be filed unless leave is obtained in advance. Signed by Judge Larry Alan Burns on 12/21/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EMMANUEL WIMER,

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CASE NO. 15cv413-LAB (KSC)
Plaintiff,

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ORDER GRANTING SAN DIEGO
METROPOLITAN TRANSIT SYSTEM’S
MOTION TO DISMISS WIMER’S SIXTH
AND NINTH CAUSES OF ACTION
AGAINST IT (DOCKET NO. 4) AND
ALAMILLO’S MOTION TO DISMISS
WIMER’S FIFTH, SIXTH, SEVENTH,
EIGHTH, AND NINTH CAUSES OF
ACTION AGAINST HER (DOCKET NO.
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vs.

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SAN DIEGO METROPOLITAN TRANSIT
SYSTEM et al.,
Defendants.

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This case arises out of an alleged altercation between Juan A. Delgado, Patricia

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Alamillo, and Emmanuel Wimer. Wimer alleges that Delgado and Alamillo are transit

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officers with the San Diego Metropolitan Transit System (MTS) and Universal Protection

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Service G.P. (UPS), and that they were acting within the scope of their employment with

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MTS and UPS at the time of the incident. Wimer sued Delgado, Alamillo, MTS, UPS, and

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the City of San Diego. MTS has moved to dismiss Wimer’s sixth and ninth causes of action

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under the California Government Claims Act (CGCA) for failure to file a government claim.

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(Docket no. 4.) Alamillo has moved to dismiss Wimer’s fifth, sixth, seventh, eighth, and ninth

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causes of action for the same reason. (Docket no. 13.)

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15cv413

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I.

Discussion

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A.

Legal Standard

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A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency

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of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court must accept

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all factual allegations as true and construe them in the light most favorable to Wimer. Cedars

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Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).

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To defeat the motions to dismiss, Wimer’s factual allegations need not be detailed, but they

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must be sufficient to “raise a right to relief above the speculative level . . . .” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007).

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B.

CGCA Compliance

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Under the CGCA, before suing a public entity or public employee for money or

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damages, a plaintiff must first file a claim with the public entity. See State of CA v. Super.

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Ct. (Bodde), 32 Cal. 4th 1234, 1240–44 (2004); see also Karim-Panahi v. Los Angeles Police

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Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Compliance with the CGCA is an element of a

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cause of action against a public entity or a public employee acting in the scope of

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employment. Alcay v. City of Visalia, 2013 WL 3244812, at *6 (E.D. Cal. June 26, 2013).

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A plaintiff’s complaint “must allege facts demonstrating or excusing compliance with the

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claim presentation requirement.” Id. at 1243. Wimer doesn’t oppose MTS’ motion. In his

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opposition to Alamillo’s motion, Wimer contends that Alamillo isn’t an MTS employee. But

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this contradicts his complaint, where he alleged that Alamillo was employed by both MTS

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and UPS. (Docket no. 1 at ¶ 9.) “[T]he Court’s analysis focuses on the actual allegations of

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the . . . [c]omplaint.” In re Apple iPhone Antitrust Litig., 2013 WL 4425720, at *12 (N.D. Cal.

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Aug. 15, 2013). Thus, because the complaint doesn’t allege CGCA compliance, the motions

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to dismiss (Docket nos. 4 and 13) are GRANTED WITH LEAVE TO AMEND.

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15cv413

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If Wimer thinks he can successfully amend his complaint, he must seek leave by ex

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parte motion no later than January 11, 2016. His proposed amended complaint must be

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attached as an exhibit to the motion. If he files such a motion, MTS and Alamillo shall have

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until January 25, 2016 to oppose it. No reply should be filed unless leave is obtained in

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advance.

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IT IS SO ORDERED.
DATED: December 21, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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15cv413