Pardo v. The County of San Diego

• Court: District Court, S.D. California
• Decided: August 20, 2024
• Docket: 3:24-cv-01062
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 FRANCISCO S. PARDO, M.D.; Case No.: 24-CV-1062 JLS (SBC) RICARDO JOAQUIN; FRANCISCO 11 PARDO; MARIA-AMELIA PARDO; and ORDER GRANTING DEFENDANT’S 12 VICTOR PARDO, MOTION TO DISMISS PURSUANT TO CIVIL LOCAL RULE 7.1(f)(3)(c) 13 Plaintiffs,

14 v. (ECF No. 4) 15 THE COUNTY OF SAN DIEGO; REINA LOPEZ, THOMAS RUFF; LONNIE 16 LAU; KIM GIARDIA; DHHS 17 DIRECTOR; NICK MACCHIONE; and DOES 1-50, 18 Defendants. 19 20 Presently before the Court are Defendant County of San Diego’s (“County”) Motion 21 to Dismiss Plaintiffs’ Complaint (“Mot.,” ECF No. 4) and Defendant’s Memorandum of 22 Points and Authorities in support thereof (“Mem.,” ECF No. 4-1).1 Plaintiffs have not 23 opposed the Motion despite the requirements of Civil Local Rule 7.1(e)(2). For the reasons 24 that follow, the Court GRANTS the County’s Motion pursuant to Civil Local Rule 25 7.1(f)(3)(c). 26 27 28 1 Defendant also filed a Request for Judicial Notice, see ECF No. 4-2, but given the Court’s resolution 1 BACKGROUND 2 Plaintiffs Francisco S. Pardo, M.D.; Ricardo Joaquin; Francisco Pardo; Maria- 3 Amelia Pardo; and Victor Pardo brought this action on June 20, 2024. Their Complaint 4 (“Compl.,” ECF No. 1) alleges Defendants2 violated a host of state laws when they 5 investigated alleged abuse by two parents against their triplet children.3 See Compl. ¶ 2. 6 In particular, Plaintiffs claim County employees improperly attempted to execute a 7 Protective Custody Warrant at the Pardo home on May 12, 2022, and subsequently pursued 8 removal of the triplets from their home through juvenile detention hearings and other 9 means “in bad faith” and in a “grossly negligent” manner. Id. Plaintiffs assert these actions 10 violate, inter alia, the Unruh Civil Rights Act, multiple provisions of the California 11 Welfare & Institutions Code, and multiple provisions of the California Government Code. 12 See generally Compl. 13 The County filed the instant Motion on July 19, 2024. In the Motion, the County 14 raised several grounds for dismissing the Complaint, including that the Court does not have 15 subject matter jurisdiction, see Mem. at 4–7, and that the Complaint failed to state claims 16 for which relief could be granted, see id. at 7–10. 17 The Motion was originally noticed for a hearing on August 22, 2024. Accordingly, 18 per Civil Local Rule 7.1(e)(2), Plaintiffs were required to respond to the Motion on or 19 before August 8, 2024. They failed to do so. See Docket. Plaintiffs’ silence has since 20 continued, though the Court noted their noncompliance when taking the Motion under 21 submission. See ECF No. 6. 22 / / / 23 / / / 24

25 2 In addition to the County, the Complaint lists as defendants Reina Lopez, Thomas Ruff, Lonnie Lau, 26 Kim Giardina, Nick Macchione, and Does 1–50. For purposes of this Order, references to “Defendant” shall refer to the County. 27

28 3 Though Plaintiffs make passing reference to 42 U.S.C. § 1983 in the Complaint, see, e.g., Compl. ¶ 1, 1 DISCUSSION 2 The Ninth Circuit has held that, pursuant to a local rule, a district court may properly 3 grant a motion to dismiss for failure to respond to a motion. See Ghazali v. Moran, 4 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to file timely 5 opposition papers where plaintiff had notice of the motion and ample time to respond). 6 Here, a local rule authorizes the Court to grant the Motion. Civil Local Rule 7.1(f)(3)(c) 7 provides: “If an opposing party fails to file [an opposition] in the manner required by Civil 8 Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other 9 request for ruling by the court.” 10 In determining whether to dismiss an action on these grounds, the Court must weigh 11 several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 12 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 13 policy favoring disposition of cases of [sic] their merits; and (5) the availability of less 14 drastic sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 15 1423 (9th Cir. 1986)). The first and fourth factors cut in opposite directions. See Yourish 16 v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious 17 resolution of litigation always favors dismissal.”); Hernandez v. City of El Monte, 18 138 F.3d 393, 401 (9th Cir. 1998) (stating the fourth factor weighs against dismissal). The 19 Court therefore considers the substance of factors two, three, and five. 20 Here, the second factor weighs in favor of dismissal. The Court must manage its 21 docket to ensure the efficient provision of justice. Plaintiffs had notice of the Motion yet 22 failed to file a timely opposition. Further, Plaintiffs have not provided any excuse for said 23 failure. The Court cannot continue waiting for Plaintiffs to take action, and a case cannot 24 move forward when the plaintiffs fail to defend their case. Plaintiffs’ noncompliance is all 25 the more notable because they have legal representation. Cf. Jacobsen v. Filler, 26 790 F.2d 1362, 1364–65 (holding that even a pro se litigant is not entitled to a warning of 27 the consequences of failing to file an opposition). 28 The third factor, which considers the prejudice to a defendant resulting from a 1 plaintiff’s inaction, also favors dismissal. See Malone v. U.S.P.S., 833 F.2d 128, 131 2 (9th Cir. 1987). Under this factor, “the risk of prejudice . . . is related to [Plaintiffs’] reason 3 for defaulting in failing to timely” file his opposition. Yourish, 191 F.3d at 991. Where, 4 as here, a plaintiff fails to provide any excuse for his conduct or contact the Court regarding 5 said failure, this factor weighs in favor of dismissal. See, e.g., Enders v. Countrywide 6 Home Loans, Inc., No. C 09-3213SBA, 2009 WL 4018512, at *2 (N.D. Cal. 7 Nov. 16, 2009). 8 As to the fifth factor, where the plaintiff does not oppose dismissal, it is “unnecessary 9 for the Court to consider less drastic alternatives.” Rodriguez v. Nationstar Mortg. LLC, 10 No. 2:16–CV–5962–ODW(SK), 2016 WL 4581402, at *1 (C.D. Cal. Sept. 1, 2016). Still, 11 the Court did employ the less drastic alternative of giving notice to the Parties that no 12 opposition had been filed. As noted above, the Court filed an Order vacating the hearing 13 on the Motion and taking the matter under submission. See ECF No. 6. In that Order, the 14 Court noted that no opposition had been filed, even though Civil Local Rule 7.1(e)(2) 15 required Plaintiffs to respond. See id. Still, Plaintiffs remained silent. This factor therefore 16 weighs in favor of dismissal as well. 17 CONCLUSION 18 Finding that the Ghazali factors weigh in favor of granting the unopposed Motion, 19 the Court GRANTS Defendant’s Motion to Dismiss (ECF No. 4) pursuant to Civil Local 20 Rule 7.1(f)(3)(c). Although Defendant requests that the Court dismiss the Complaint with 21 prejudice, Mem. at 1, the Court finds dismissal with prejudice premature. Accordingly, 22 the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint (ECF No. 1). 23 Plaintiffs MAY FILE an amended complaint curing the deficiencies identified in 24 Defendant’s Motion within fourteen (14) days of the date on which this Order is 25 electronically docketed. Should Plaintiffs fail to file an amended pleading in accordance 26 with this Order, the Court will enter a final order dismissing this civil action based on 27 Plaintiffs’ failure to prosecute in compliance with a court order requiring amendment. See 28 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 1 the opportunity to fix his complaint, a district court may convert the dismissal of the 2 || complaint into dismissal of the entire action.’’). 3 IT IS SO ORDERED. 4 ||Dated: August 20, 2024 tt 5 ja Janis L. Sammartino ‘ United States District Judge

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