Asencio v. City of San Diego et al

Filing 19

ORDER Granting Defendant's Motion to Dismiss the FAC 15 ; Denying Plaintiff's Motion for Leave to File a Second Amended Complaint 18 ; and Denying Defendant's Motion to Dismiss the Complaint as Moot 10 . Signed by Judge Thomas J. Whelan on 3/11/2025. (exs)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ELEONOR ASENCIO,

Case No.: 24-CV-2074 W (DDL)
Plaintiff,

12
13

v.

14

CITY OF SAN DIEGO et al.,

15

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS THE FAC
[DOC. 15]; DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT
[DOC. 18]; AND DENYING
DEFENDANT’S MOTION TO
DISMISS THE COMPLAINT AS
MOOT [DOC. 10]

Defendants.

16
17
18
19
20
21
22
23

The United States (“Defendant”) has moved to dismiss Eleonor Asencio’s

24

(“Plaintiff”) First Amended Complaint (“FAC”). (Mtn. [Doc. 15].) Plaintiff opposes.

25

(Opp’n [Doc. 16].) The Court decides the matter on the papers submitted and without

26

oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below,

27

the Court GRANTS the motion to dismiss the FAC [Doc. 15] WITHOUT LEAVE TO

28
1
24-CV-2074 W (DDL)

1

AMEND; DENIES Plaintiff’s motion to file a Second Amended Complaint [Doc. 18];

2

and DENIES Defendant’s motion to dismiss the Complaint as MOOT [Doc. 10].

3
4

I.

BACKGROUND

5

This lawsuit arises out of an alleged slip and fall at or near 4509 Camino De La

6

Plaza, San Ysidro, California 92174. 1 (FAC at 4, ¶ 22.) Plaintiff brought suit against the

7

City of San Diego, the County of San Diego, the State of California, the United States of

8

America, and DOES 1–100 alleging they failed to exercise ordinary and reasonable care

9

by failing to manage, inspect, maintain, or repair the sidewalk at the Incident Area,

10

resulting in Plaintiff’s injury. (Id. at ¶ 23.)

11

The FAC asserts four causes of action against the defendants: (1) California Gov.

12

Code § 835 (against the City, County, State, and Does 1–50); (2) Cal. Gov. Code § 815.2

13

(against the City, County, State, and DOES 51–75); (3) Premises liability (against the

14

United States and DOES 76–100); and (4) Negligence (against the United States and

15

DOES 76–100). (FAC at 5–13.) The United States has moved to dismiss the claims

16

against the federal defendants, arguing that Plaintiff lacks standing because the United

17

States does not own the land mentioned in the FAC, so the injury is not fairly traceable to

18

the Defendant. (Mtn. at 3.)

19

Plaintiff does not dispute in her Opposition that, as currently pled, she lacks

20

standing. However, Plaintiff asserts that she was mistaken about the original address—

21

and after leave to amend to correct the address in the FAC—she will have standing.

22

(Opp’n at 5:16–20.) Defendant argues that leave to amend is futile because, even if she

23

were permitted to change the address, this Court would not have jurisdiction because

24
25
26
27
28

1

The FAC claims the slip and fall occurred at 4509 Camino De La Plaza, San Ysidro, California 92174.
(FAC at 4, ¶ 22.) However, Plaintiff’s Opposition to the Motion to Dismiss the FAC asserts that after
further investigation, Plaintiff discovered the slip and fall actually occurred at 727 East San Ysidro
Boulevard, San Diego 92173. (Opp’n at 5:16–20.) Because only the first address was pled in the FAC,
the Court will not consider the second address for purposes of Defendant’s Motion to Dismiss the FAC.
2
24-CV-2074 W (DDL)

1

Plaintiff has not exhausted her administrative remedies. (Reply [Doc. 17] at 3:1–6.)

2

Each argument will be discussed in turn.

3
4

II.

LEGAL STANDARD

5

Federal courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah

6

Servs., Inc., 545 U.S. 546, 552 (2005). Limited jurisdiction means that federal courts can

7

only adjudicate cases that both the Constitution and Congress authorize them to

8

adjudicate, such as those involving diversity of citizenship, a federal question, or where

9

the United States is a party. Id. See also Ex parte Bollman, 8 U.S. 75, 94 (1807) (“To

10

enable the court to decide on such question, the power to determine it must be given by

11

written law.”). Federal courts are presumptively without jurisdiction over civil actions,

12

and the burden of establishing the contrary rests upon the party asserting jurisdiction.

13

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

14

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek

15

to dismiss a complaint for lack of subject matter jurisdiction. Because subject matter

16

jurisdiction involves the authority of the court to decide the case, the court cannot reach

17

the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel

18

Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). Additionally, lack of

19

subject matter jurisdiction may be raised either by the parties or sua sponte by the court.

20

See Washam v. Rabine, No. 3:12CV2433-GPC-BLM, 2013 WL 1849233, at *1 (S.D.

21

Cal. May 1, 2013).

22

When considering a Rule 12(b)(1) motion to dismiss, the district court is free to

23

hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving

24

factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th

25

Cir. 1983). In such circumstances, “[n]o presumptive truthfulness attaches to [a]

26

plaintiff’s allegations, and the existence of disputed facts will not preclude the trial court

27

from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Thornhill

28
3
24-CV-2074 W (DDL)

1

Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir.

2

1979).

3

The Article III standing doctrine is one limitation on a federal court’s subject

4

matter jurisdiction. See La Asociacon de Trabajadores de Lake Forest v. City of Lake

5

Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). If a plaintiff fails to satisfy the standing

6

requirements, the case must be dismissed. See Foster v. Carson, 347 F.3d 742, 745–46,

7

749 (9th Cir. 2003). The party invoking federal jurisdiction bears the burden of

8

establishing that the standing requirements of Article III are satisfied. Spokeo, Inc. v.

9

Robins, 578 U.S. 330, 338 (2016).

10

“[T]he ‘irreducible constitutional minimum’ of standing consists of three

11

elements.” Spokeo, 578 U.S. at 338 (quoting Lujan v. Defenders of Wildlife, 504 U.S.

12

555, 560 (1992)). In order “to satisfy Article III’s standing requirements, a plaintiff must

13

show (1) they have suffered an ‘injury in fact’ that is (a) concrete and particularized and

14

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to

15

the challenged action of the defendant; and (3) it is likely, as opposed to merely

16

speculative, that the injury will be redressed by a favorable decision.” Friends of the

17

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing

18

Lujan, 504 U.S. at 560–61).

19
20

III.

DISCUSSION

21

A. Motion to Dismiss the FAC

22

In their Motion to Dismiss the FAC, Defendant argues that the United States does

23

not own the land where Plaintiff’s alleged injury occurred. (Mtn. at 3.) Therefore,

24

Plaintiff lacks standing because any dangerous condition on the property or any injury

25

she suffered is not “fairly traceable” to Defendant. (Id. at 4:8–12.) “An injury is ‘fairly

26

traceable’ where there is a casual connection between the injury and the defendant’s

27

challenged conduct.” Wit v. United Behavioral Health, 79 F.4th 1068, 1083 (9th Cir.

28

2023) (citing Lujan, 504 U.S. at 560).
4
24-CV-2074 W (DDL)

1

To support their argument, Defendant asks for judicial notice,2 citing a Google

2

Maps internet search showing that “the United States is not a listed occupant of the 4509

3

Camino De La Plaza location.” (Mtn. Jud. Notice [Doc. 15-2] at 2:1–2.)

4

Plaintiff does not dispute that Defendant does not own the land alleged in the FAC,

5

but instead asserts that after additional investigation, she found that the injury actually

6

occurred at 727 East San Ysidro Boulevard. In her Opposition, Plaintiff states that she

7

will file a motion for leave to file a SAC and requests the Court either deny the current

8

Motion to Dismiss the FAC as moot or stay a ruling on the motion until the Court decides

9

her motion for leave to file a SAC. (Opp’n at 6:16–23.)

10

Plaintiff has failed to oppose Defendant’s argument that she lacks standing.

11

Specifically, Plaintiff has failed to show that her injury—as alleged in the FAC—is fairly

12

traceable to the Defendant, so the Motion to Dismiss the FAC will be granted.

13
14

B. Leave to Amend

15

Federal Rule of Civil Rule 15(a)(2) directs that “[t]he court should freely give

16

leave [to amend a pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In

17

exercising its discretion” whether to allow a party to amend, the Court “must be guided

18

by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on

19

the pleadings or technicalities.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th

20

Cir. 1987).

21

Thus, while leave to amend is not guaranteed, it “should be granted with extreme

22

liberality.” Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). Considering the

23

liberality espoused by the Federal Rules, the Court should not deny a motion to amend

24

“unless amendment would cause prejudice to the opposing party, is sought in bad faith, is

25
26
27
28

2

Under Federal Rule of Evidence 201, the court may—on its own or by request—take judicial notice of
facts not subject to reasonable dispute because they are either generally known in the trial court’s
territorial or can be accurately and readily determined from a source that cannot be reasonably
questioned.
5
24-CV-2074 W (DDL)

1

futile, or creates undue delay.” Yakama Indian Nation v. State of Wash. Dep’t of

2

Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999); see also Foman v. Davis, 371 U.S. 178,

3

182 (1962).

4

Defendant argues that leave to amend would be futile because Plaintiff has failed

5

to demonstrate she has exhausted her administrative remedies. Without a waiver of

6

sovereign immunity, federal courts lack subject matter jurisdiction over cases against the

7

United States. United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that

8

the United States may not be sued without its consent and that the existence of consent is

9

a prerequisite for jurisdiction.”). Although the Federal Tort Claims Act (“FTCA”)

10

contains a limited waiver of sovereign immunity, it only does so to the extent that the

11

plaintiff first exhausts their administrative remedies. McNeil v. United States, 508 U.S.

12

106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they

13

have exhausted their administrative remedies.”); D.L. by & through Junio v. Vassilev,

14

858 F.3d 1242, 1245 (9th Cir. 2017) (emphasis added) (“In general, the FTCA’s

15

exhaustion requirement demands that a plaintiff exhaust his administrative remedies

16

before he files an FTCA claim in federal court.”); Sheehan v. United States, No.

17

08CV1658-IEG (POR), 2009 WL 1269989, at *2 (S.D. Cal. May 7, 2009) (stating that a

18

claimant’s exhaustion of administrative remedies is a prerequisite to a district court’s

19

jurisdiction).

20

Plaintiff will not be given leave to amend because it would be futile. Although

21

Plaintiff states her injury occurred at 727 East San Ysidro, rather than 4509 Camino De

22

La Plaza, she has not satisfied her burden of showing that an administrative claim was

23

exhausted under the FTCA. In her Opposition, Plaintiff points out that on “June [sic] 21,

24

2025, Ms. Asencio mailed an Amended Claim for damages to the GSA, Border Patrol,

25

and the Department of Homeland Security.” (Opp’n at 6:8–12.) Nevertheless, the

26

Supreme Court has been clear that a lawsuit filed before exhausting administrative

27

remedies under the FTCA is premature and should be dismissed. McNeil, 508 U.S. at

28

113. Further, courts in this Circuit have explicitly stated that “permit[ting] the premature
6
24-CV-2074 W (DDL)

1

filing of an FTCA action to be cured by the filing of an amended complaint upon denial

2

of the administrative would be inconsistent with both McNeil and the rationale behind the

3

jurisdictional prerequisite mandated by the FTCA . . . .” Sparrow v. U.S. Postal Serv.,

4

825 F. Supp. 252, 254 (E.D. Cal. 1993).

5

Accordingly, leave to amend would be futile. Although Plaintiff states she has

6

amended her administrative claim, she initiated this lawsuit before filing her

7

administrative claim for her alleged injury at 727 East San Ysidro. Because the claims

8

have not been exhausted, they are premature—a jurisdictional defect that cannot be cured

9

by amendment. Therefore, this Court lacks jurisdiction, Plaintiff’s claims must be

10

dismissed, and her motion to amend must be denied as futile.

11
12

IV.

CONCLUSION

13

Plaintiff has failed to show her injury is “fairly traceable” to Defendant, so she has

14

failed to satisfy the jurisdictional standing requirements. Therefore, the Court GRANTS

15

Defendant’s Motion to Dismiss the FAC and ORDERS the case dismissed [Doc. 15].

16

Because jurisdictional defects in the FAC cannot be cured by amendment, the case will

17

be dismissed WITHOUT LEAVE TO AMEND, and Plaintiff’s motion to file a SAC

18

[Doc. 18] will DENIED. Finally, because the FAC superseded the original Complaint,

19

Defendant’s Motion to Dismiss the Complaint is DENIED as MOOT [Doc. 10].

20
21

IT IS SO ORDERED.

22

Dated: March 11, 2025

23
24
25
26
27
28
7
24-CV-2074 W (DDL)