1 2 3 4 5 6 7 10 11 LARISSA ARAUJO (SURVIVAL Case No.: 20-cv-01800-AJB-RBM ACTION), et al., 12 ORDER GRANTING CROSS- Plaintiffs, v. IMPERIAL’S MOTION TO DISMISS 14 COACHELLA VALLEY WATER 15 DISTRICT; THE COUNTY OF (Doc. No. 69) 16 IMPERIAL; JOSUE GONZALEZ; and DOES 1 TO 25, inclusive, 17 Defendants. 18 COACHELLA VALLEY WATER 20 Cross-Complainant, 21 v. 22 ANDRE DOS-SANTOS DE-SA, an 23 individual; COUNTY OF IMPERIAL, a Public Entity; and DOES 1-10, inclusive, 24
25 Cross-Defendants. 26 27 Before the Court is Cross-Defendant County of Imperial’s (“County”) motion to 28 dismiss the cross-claim brought by Cross-Complainant Coachella Valley Water District 1 (“CVWD”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 69.) 2 Specifically, the County seeks to dismiss Counts I and III of CVWD’s cross-claim 3 against the County as untimely under California Government Code § 900, et seq. 4 (“Government Claims Act”). (Id.) CVWD opposed the motion. (Doc. No. 78.) The 5 County replied. (Doc. No. 79). For the reasons set forth in detail below, the Court 6 GRANTS the County’s motion to dismiss. 8 This action arises out of a tragic accident that occurred in unincorporated Imperial 9 County. (Complaint, Doc. No. 1.) On or about October 2, 2019, Andre Dos-Santos De-Sa 10 was driving a Hyundai Elantra when he, along with three passengers, were involved in a 11 two-car, broadside collision with a truck driven by Josue Gonzalez, an employee of 12 CVWD. (Id. ¶¶ 11–13.) The Complaint alleges that on or about October 2, 2019, 13 Defendant Gonzalez was driving a van within the course and scope of his employment 14 with CVWD. (Id. ¶ 13.) Plaintiffs allege Defendant Gonzalez recklessly sped into an 15 uncontrolled intersection, with no stop signs, in which decedents were passengers in a 16 vehicle which had already established the right-of-way. (Id. ¶¶ 20, 27.) The two vehicles 17 collided at the uncontrolled intersection, resulting in the fatal accident. (Id. ¶ 20.) The 18 automobile accident resulted in the death of two decedents, Larissa Araujo and Andressa 19 Dos Santos. (Id. ¶¶ 23–24.) Plaintiffs Jose Carlos De Araujo, Helenilza Maria Oliveira 20 De Araujo, Renato Alves Dos Santos, and Maria Tereza De Carvalho (collectively, 21 “Plaintiffs”) are the parents of the decedents. (Id. ¶¶ 7–8.) All Plaintiffs are residents of 22 Brazil. (Id.) 23 The surviving claims against Defendants Gonzalez, the County of Imperial, and 24 CVWD are: (1) wrongful death, (2) battery (survival action), and (3) negligence (survival 25 action). (Doc. No. 29.) On March 11, 2021, CVWD filed a cross-claim against the 26 County and Andre Dos Santos De-Sa, the driver of the Hyundai. Relevant to this order is 27 the cross-claim brought against the County. CVWD’s First Amended Cross-Complaint 28 (“FACC”) brings separate and distinct causes of action against the County for indemnity 1 and contribution. (Doc. No. 61.) Subsequently, the County filed the instant motion to 2 dismiss the indemnity and contribution claims for failure to state a claim. (Doc. No. 69.) 3 This order follows. 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 6 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may 7 dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or 8 (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta 9 Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a 10 complaint will survive a motion to dismiss if it contains “enough facts to state a claim to 11 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 In making this determination, a court reviews the contents of the complaint, accepting all 13 factual allegations as true and drawing all reasonable inferences in favor of the 14 nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 15 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need 16 not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is 17 also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not 18 alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 19 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a 20 court should assume their veracity and then determine whether they plausibly give rise to 21 an entitlement to relief.” Iqbal, 556 U.S. at 664. “In sum, for a complaint to survive a 22 motion to dismiss, the non-conclusory factual content, and reasonable inferences from 23 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 24 v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) (quotations and citation omitted). 26 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is 27 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 28 territorial jurisdiction; or (2) can be accurately and readily determined from sources 1 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 2 The County first requests the Court take judicial notice of the claim presented by 3 CVWD to the County and the rejection of the claim. (See generally Doc. No. 69-2.) The 4 Court GRANTS the County’s request. See Elliott v. Amador Cnty. Unified Sch. Dist., No. 5 12-cv-117-MCE-DAD, 2012 WL 5013288, at *7 (E.D. Cal. Oct. 17, 2012) (“Whether or 6 not a Tort Claim has been presented to a public entity is subject to judicial notice.”); 7 Navarro v. City of Alameda, No. 14-cv-1954-JD, 2014 WL 4744184, at *2 (N.D. Cal. 8 Sept. 22, 2014) (the court may take judicial notice of California government-claim 9 documents); see also Davis v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2018 WL 10 1806101, at *6 (S.D. Cal. Apr. 17, 2018) (taking judicial notice of claim and rejection). 11 Next, the County requests the Court take judicial notice of the California Judicial 12 Council’s Emergency Rules re: COVID-19. (See generally Doc. No. 69-2.) It is a public 13 record relevant to the County’s motion, and thus, the Court GRANTS the County’s 14 request for judicial notice. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 15 746 n.6 (9th Cir. 2006) (holding a court “may take judicial notice of court filings and 16 other matters of public record”). 17 Lastly, the County requests the Court take judicial notice of Imperial County Code, 18 Chapter 4.04, and CVWD District Code, Section 2.10.010. (See generally Doc. 19 No. 79-1.) Because these codes can be accurately determined from other reliable sources, 20 the Court GRANTS the County’s request for judicial notice. See Wood v. City of San 21 Diego, No. 03cv1910-MMA (POR), 2010 WL 2382335, at *5 (S.D. Cal. June 10, 2010) 22 (taking judicial notice of sections of the San Diego Municipal Code relevant to the 23 proceedings). 25 In its motion, the County argues CVWD’s cross-claim fails because it does not 26 comply with the Government Claims Act. (Doc. No.
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1 2 3 4 5 6 7 10 11 LARISSA ARAUJO (SURVIVAL Case No.: 20-cv-01800-AJB-RBM ACTION), et al., 12 ORDER GRANTING CROSS- Plaintiffs, v. IMPERIAL’S MOTION TO DISMISS 14 COACHELLA VALLEY WATER 15 DISTRICT; THE COUNTY OF (Doc. No. 69) 16 IMPERIAL; JOSUE GONZALEZ; and DOES 1 TO 25, inclusive, 17 Defendants. 18 COACHELLA VALLEY WATER 20 Cross-Complainant, 21 v. 22 ANDRE DOS-SANTOS DE-SA, an 23 individual; COUNTY OF IMPERIAL, a Public Entity; and DOES 1-10, inclusive, 24
25 Cross-Defendants. 26 27 Before the Court is Cross-Defendant County of Imperial’s (“County”) motion to 28 dismiss the cross-claim brought by Cross-Complainant Coachella Valley Water District 1 (“CVWD”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 69.) 2 Specifically, the County seeks to dismiss Counts I and III of CVWD’s cross-claim 3 against the County as untimely under California Government Code § 900, et seq. 4 (“Government Claims Act”). (Id.) CVWD opposed the motion. (Doc. No. 78.) The 5 County replied. (Doc. No. 79). For the reasons set forth in detail below, the Court 6 GRANTS the County’s motion to dismiss. 8 This action arises out of a tragic accident that occurred in unincorporated Imperial 9 County. (Complaint, Doc. No. 1.) On or about October 2, 2019, Andre Dos-Santos De-Sa 10 was driving a Hyundai Elantra when he, along with three passengers, were involved in a 11 two-car, broadside collision with a truck driven by Josue Gonzalez, an employee of 12 CVWD. (Id. ¶¶ 11–13.) The Complaint alleges that on or about October 2, 2019, 13 Defendant Gonzalez was driving a van within the course and scope of his employment 14 with CVWD. (Id. ¶ 13.) Plaintiffs allege Defendant Gonzalez recklessly sped into an 15 uncontrolled intersection, with no stop signs, in which decedents were passengers in a 16 vehicle which had already established the right-of-way. (Id. ¶¶ 20, 27.) The two vehicles 17 collided at the uncontrolled intersection, resulting in the fatal accident. (Id. ¶ 20.) The 18 automobile accident resulted in the death of two decedents, Larissa Araujo and Andressa 19 Dos Santos. (Id. ¶¶ 23–24.) Plaintiffs Jose Carlos De Araujo, Helenilza Maria Oliveira 20 De Araujo, Renato Alves Dos Santos, and Maria Tereza De Carvalho (collectively, 21 “Plaintiffs”) are the parents of the decedents. (Id. ¶¶ 7–8.) All Plaintiffs are residents of 22 Brazil. (Id.) 23 The surviving claims against Defendants Gonzalez, the County of Imperial, and 24 CVWD are: (1) wrongful death, (2) battery (survival action), and (3) negligence (survival 25 action). (Doc. No. 29.) On March 11, 2021, CVWD filed a cross-claim against the 26 County and Andre Dos Santos De-Sa, the driver of the Hyundai. Relevant to this order is 27 the cross-claim brought against the County. CVWD’s First Amended Cross-Complaint 28 (“FACC”) brings separate and distinct causes of action against the County for indemnity 1 and contribution. (Doc. No. 61.) Subsequently, the County filed the instant motion to 2 dismiss the indemnity and contribution claims for failure to state a claim. (Doc. No. 69.) 3 This order follows. 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 6 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may 7 dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or 8 (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta 9 Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a 10 complaint will survive a motion to dismiss if it contains “enough facts to state a claim to 11 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 In making this determination, a court reviews the contents of the complaint, accepting all 13 factual allegations as true and drawing all reasonable inferences in favor of the 14 nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 15 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need 16 not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is 17 also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not 18 alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 19 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a 20 court should assume their veracity and then determine whether they plausibly give rise to 21 an entitlement to relief.” Iqbal, 556 U.S. at 664. “In sum, for a complaint to survive a 22 motion to dismiss, the non-conclusory factual content, and reasonable inferences from 23 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 24 v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) (quotations and citation omitted). 26 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is 27 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 28 territorial jurisdiction; or (2) can be accurately and readily determined from sources 1 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 2 The County first requests the Court take judicial notice of the claim presented by 3 CVWD to the County and the rejection of the claim. (See generally Doc. No. 69-2.) The 4 Court GRANTS the County’s request. See Elliott v. Amador Cnty. Unified Sch. Dist., No. 5 12-cv-117-MCE-DAD, 2012 WL 5013288, at *7 (E.D. Cal. Oct. 17, 2012) (“Whether or 6 not a Tort Claim has been presented to a public entity is subject to judicial notice.”); 7 Navarro v. City of Alameda, No. 14-cv-1954-JD, 2014 WL 4744184, at *2 (N.D. Cal. 8 Sept. 22, 2014) (the court may take judicial notice of California government-claim 9 documents); see also Davis v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2018 WL 10 1806101, at *6 (S.D. Cal. Apr. 17, 2018) (taking judicial notice of claim and rejection). 11 Next, the County requests the Court take judicial notice of the California Judicial 12 Council’s Emergency Rules re: COVID-19. (See generally Doc. No. 69-2.) It is a public 13 record relevant to the County’s motion, and thus, the Court GRANTS the County’s 14 request for judicial notice. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 15 746 n.6 (9th Cir. 2006) (holding a court “may take judicial notice of court filings and 16 other matters of public record”). 17 Lastly, the County requests the Court take judicial notice of Imperial County Code, 18 Chapter 4.04, and CVWD District Code, Section 2.10.010. (See generally Doc. 19 No. 79-1.) Because these codes can be accurately determined from other reliable sources, 20 the Court GRANTS the County’s request for judicial notice. See Wood v. City of San 21 Diego, No. 03cv1910-MMA (POR), 2010 WL 2382335, at *5 (S.D. Cal. June 10, 2010) 22 (taking judicial notice of sections of the San Diego Municipal Code relevant to the 23 proceedings). 25 In its motion, the County argues CVWD’s cross-claim fails because it does not 26 comply with the Government Claims Act. (Doc. No. 69-1 at 2.) CVWD counters that it 27 “is statutorily excepted from the claim presentation requirement under California 28 Government Code Section 905(i)[.]” (Doc. No. 78 at 4) (emphasis in original). 1 Specifically, CVWD argues it is exempt from the claims presentation requirement since it 2 qualifies as a “local public entity” under Government Code 905(i). (Id.) The County 3 responds that under Government Code § 935, it has adopted ordinances requiring all 4 claimants, including public entities, to present government claims to the County prior to 5 filing suit against it for money or damages. (Doc. No. 79 at 2.) As such, the County 6 asserts, CVWD’s cross-claim is subject to Government Code § 945.6’s six-month statute 7 of limitations. (Id.) 8 “Under the [Government Claims A]ct, . . . no suit for ‘money or damages’ may be 9 brought against a public entity until a written claim therefor has been presented to the 10 public entity and either has been acted upon or is deemed to have been rejected.” All. Fin. 11 v. City & Cnty. of S.F., 64 Cal. App. 4th 635, 641 (1998) (citing Cal. Gov’t Code 12 § 945.4). “Compliance with the [Government Claims Act] is mandatory; and failure to 13 file a claim is fatal to the cause of action.” Hacienda La Puente Unified Sch. Dist. of L.A. 14 v. Honig, 976 F.2d 487, 495 (9th Cir. 1992) (internal quotation marks and citation 15 omitted). Therefore, “[a] plaintiff suing . . . a local public entity must allege facts 16 demonstrating either compliance with the claim presentation requirement or an excuse for 17 noncompliance as an essential element of the cause of action.” Ovando v. Cnty. of L.A., 18 159 Cal. App. 4th 42, 65 (2008). Under California Government Code § 905(i), “[c]laims 19 by [a] . . . local public entity” are exempt from the claims presentation requirement of the 20 Government Claims Act. However, California Government Code § 935 states that 21 “[c]laims against a local public entity for money or damages which are excepted by 22 Section 905 from [the Act’s claim-presentation requirement], and which are not governed 23 by any other statutes or regulations expressly relating thereto, shall be governed by the 24 procedure prescribed in any charter, ordinance, or regulation adopted by the local public 25 entity.” Cal. Gov’t Code § 935(a). 26 The County asserts CVWD’s cross-claim for indemnity and contribution is time 27 barred because the cross-claim was filed thirty-six days late under the Government 28 Claims Act. (Doc. No. 69-1 at 4); see Cal. Gov’t Code § 945.6(a)(1). CVWD counters 1 that it is a “local public entity” and thus exempt from both the pre-filing claim 2 presentation requirement and the statute of limitations under § 905(i). (Doc. No. 78 at 5.) 3 However, CVWD fails to address whether it is required to comply with Imperial 4 County’s Code pursuant to Government Code § 935. (See generally Doc. No. 78.) 5 Here, the County has adopted its own “charter, ordinance, or regulation” under 6 Government Code § 935. (See Doc. No. 79 at 3.) Section 4.04.010 of Imperial County’s 7 Code states: 8 Pursuant to Section 935 of the Government Code, all claims against the county of Imperial for money or damages which are excepted by Section 9 905 of the Government Code from the provisions of Division 3.6 of the 10 Government Code (Section 810 et. seq.), and which are not governed by any other statutes or regulations expressly relating thereto, shall be governed by 11 the procedures prescribed in this chapter. 12 (Doc. No. 79-1 at 4.) As such, CVWD’s cross-claim is governed by the Imperial County 13 Code. Imperial County Code § 4.04.020 requires that a signed written claim be presented 14 to the County of Imperial and must include the information required by Government 15 Code § 910. (Id.) Moreover, § 4.04.040 states: 16 A claim relating to a cause of action for death, or for injury to a person . . . 17 shall be presented not later than six months after the accrual of the cause of 18 action. . . . The presentation and action on claims provided herein shall be a prerequisite to suit thereon, and such suit shall be subject to the provisions of 19 Section 945.4 and 945.6 of the Government Code. 20 (Id.) 21 CVWD complied with Imperial County Code § 4.04.020 by presenting a claim to 22 the County on March 12, 2020, to which the County served its notice of rejection on 23 July 10, 2020. (Doc. No. 78 at 4–5.) CVWD thus had until February 3, 2021, to timely 24 serve its cross-claim.1 (Doc. No. 69-1 at 4; Doc. No. 79 at 2.) However, CVWD filed its 25 26
27 1 The last day for CVWD to timely have filed its cross-claim would have been January 11, 2021. (Doc. 28 1 || cross-claim on March 11, 2021. (See Doc. No. 34.) CVWD failed to comply with the six- 2 ||month statute of limitation as set forth in Imperial County Code § 4.04.040 and 3 ||Government Code § 945.6, which requires claims to be brought “not later than six 4 ||months after the date such notice [of rejection of claim] is personally delivered or 5 ||deposited in the mail.” Cal. Gov’t Code § 945.6(a)(1). As such, the Court finds that 6 || dismissal is appropriate. CONCLUSION 8 Accordingly, the Court DISMISSES Counts I and HI of CVWD’s First Amended 9 || Cross-Complaint as to the County with leave to amend. (Doc. No. 69.) 10 1] IT IS SO ORDERED. !2 Dated: December 17, 2021 © Jer : 13 Hon, Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26
5g Emergency Rule 9(b), all six-month statutes of limitations were tolled from April 6, 2020, until October 1, 2020. (Id.; Doc. No. 69-2 at 25.)