Petker v. United States

• Court: District Court, E.D. California
• Decided: July 8, 2025
• Docket: 2:23-cv-00317
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LILA JESSIKA PETKER; SEDONA No. 2:23-cv-00317-JAM-CKD PETKER, 12 Plaintiff, 13 ORDER GRANTING DEFENDANT’S v. MOTION TO DISMISS CLAIMS FOR 14 DAMAGES IN EXCESS OF THE UNITED STATES OF AMERICA, STATUTORY LIMIT 15 DANY E. FELIX, and DOES 1 to 100, inclusive, 16 Defendant. 17 18 Before the Court is the United States’s (“Defendant” or 19 “Government”) motion dismiss claims for damages in excess of the 20 statutory limit. See Mot., ECF No. 29. Plaintiffs Lila Jessika 21 Petker (“Jessika”) and Sedona Petker (“Sedona”) (collectively, 22 “Plaintiffs”) opposed. See Opp’n, ECF No. 31. The United States 23 replied. See Reply, ECF No. 32. The United States moves to 24 limit the damages Plaintiffs may recover under Rule 12(b)(1) for 25 lack of jurisdiction over claims exceeding the sum certain of 26 $25,000, or alternatively, for judgment that limits the damages 27 to the sum certain under Fed. R. Civ. P. 56. As discussed below, 28 the Court finds that it lacks jurisdiction over claims above 1 $25,000 and thus grants this Motion without reaching Defendant’s 2 Rule 56 arguments.1 3 I. FACTUAL BACKGROUND 4 Plaintiffs Jessika and Sedona Petker bring two causes of 5 action under the Federal Tort Claims Act (“FTCA”), asserting that 6 the Government is liable for injuries Plaintiffs sustained during 7 a car accident with a United States Department of Veterans 8 Affairs (“USVA”) vehicle. 9 Plaintiffs allege that on February 11, 2020, they were 10 traveling on Interstate 80 near Fairfield, California in stop and 11 go traffic when they were struck from behind by a vehicle driven 12 by Defendant Dany E. Felix (“USVA vehicle”). See Compl., ECF No. 13 1, at ¶¶ 10, 11. Plaintiffs assert that at the time of the 14 accident, Defendant Felix was employed by the USVA and was acting 15 in the course and scope of his employment. Compl. at ¶¶ 7, 12. 16 At the scene, Defendant Felix apologized and explained that his 17 foot had slipped off the brake, causing the USVA vehicle to 18 collide with Plaintiffs’ vehicle. Compl. at ¶ 13. 19 On January 21, 2022, Plaintiffs filed administrative tort 20 claims with the USVA. Compl. at ¶ 9. Jessika’s claim was denied 21 on August 30, 2022 and Sedona’s claim was denied on September 12, 22 2022. Id. Plaintiffs subsequently filed this action alleging 23 that as a result of the “negligence, negligent entrustment, 24 carelessness, and/or wrongdoings” of the Government and Defendant 25 Felix, Plaintiffs were injured and required treatment totaling 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for June 3, 2025. 1 $1,444.000 for Jessika and $1,466.00 for Sedona as of February 2 21, 2023. Compl. at ¶ 18. Plaintiffs seek further unspecified 3 damages related to past and future medical expenses as well as 4 ancillary expenses, incidental and/or consequential damages, and 5 compensatory damages. Compl. at ¶¶ 18-20. 6 In response to interrogatories by the United States dated 7 January 19, 2024, Plaintiff Jessika Petker states that she now 8 seeks damages of approximately $73,282.06 and Plaintiff Sedona 9 Petker states that she seeks damages of approximately $9,134.03. 10 See Mot. at 4; Lodge Decl., ECF No. 29-4, Ex. 5 and 6. The 11 United States contacted Plaintiffs’ counsel to meet and confer 12 regarding the “sum certain” limitation of Plaintiffs’ damages 13 under 28 U.S.C § 2675(b), but a stipulation was not reached. See 14 Lodge Decl. at ¶ 5. The United States therefore filed its Motion 15 herein pursuant to 28 U.S.C. § 2675(b) to limit Plaintiffs’ 16 damages. 17 II. OPINION 18 A. Legal Standard 19 Plaintiffs’ opposition incorrectly argues that the 20 Government’s motion is procedurally defective. See Opp’n at 8. 21 To the contrary, a 12(b)(1) motion challenging jurisdiction can 22 be filed at any time. See Fed. R. Civ. P. 12(h)(3). In a facial 23 attack under Rule 12(b)(1), the challenger asserts that the 24 allegations contained in the complaint are insufficient on the 25 face to invoke federal jurisdiction. Safe Air for Everyone v. 26 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Federal courts are 27 courts of limited jurisdiction and may hear a case only if 28 authorized to do so by the Constitution and statute. Kokkonen v. 1 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 2 In bringing an action in federal court, the plaintiff bears 3 the burden of establishing that the court has subject matter 4 jurisdiction to hear the action. Kokkonen, 511 U.S. at 377. 5 Accordingly, a court presumes lack of subject matter jurisdiction 6 until the plaintiff proves otherwise. Stock West, Inc. v. 7 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Where 8 a jurisdictional issue is separable from the merits of a case, in 9 making a threshold inquiry for deciding a factual jurisdictional 10 attack, courts may weigh the evidence presented regarding 11 jurisdiction and resolve factual disputes to evaluate for itself 12 whether they have the authority to hear the case. See Roberts v. 13 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). “In resolving a 14 factual attack on jurisdiction, the district court may review 15 evidence beyond the complaint without converting the motion to 16 dismiss into a motion for summary judgment.” Safe Air for 17 Everyone, 373 F.3d at 1039. 18 B. Judicial Notice 19 In their opposing papers, Plaintiffs request that the Court 20 take judicial notice of a true and correct copy of a printout of 21 Jessika Petker’s Massage Therapist License listing from the State 22 of Florida Department of Health website, Exhibit 1, which reflects 23 April 22, 2022 as the date of renewal for her license. See ECF 24 No. 31-5. Under Federal Rule of Evidence § 201(b), the Court may 25 take judicial notice of government websites. See Tinoco v. San 26 Diego Gas & Elec. Co., 327 F.R.D. 651, 657 (S.D. Cal. 2018). The 27 Government does not oppose this request for judicial notice, and 28 as such, the Court grants Plaintiffs’ request for judicial notice 1 of Exhibit 1. 2 C. Analysis 3 1. Claims Under the Federal Tort Claims Act 4 Under the Federal Tort Claims Act, any party asserting a 5 claim for money damages arising out of the negligent or wrongful 6 act of a government employee must first file a claim with the 7 administrative agency at issue. 28 U.S.C. § 2675(a). This 8 requirement is jurisdictional and must be strictly adhered to, 9 cannot be waived, and is strictly construed. Brady v. United 10 States, 211 F.3d 499, 502 (9th Cir. 2000); Cadwalder v. United 11 States, 45 F.3d 297, 300 (9th Cir. 1995). A party may amend 12 their administrative claim up until the agency issues a final 13 denial or upon the exercise of the claimant's option to sue after 14 the expiration of the agency's six-month consideration period. 15 28 C.F.R. § 14.2. The injured party may file suit after the 16 claim is denied or after the time has expired without any action 17 taken by the agency. 28 U.S.C. § 2675(a). 18 Most relevant to this case, for any lawsuit filed, the FTCA 19 precludes recovery in excess of the amount of the claim presented 20 to the federal agency. 28 U.S.C. § 2675(b). As the Government 21 correctly argues, the amount presented to the federal agency must 22 be in the form of a “sum certain.” 28 C.F.R. § 14.2(a); Mot. at 23 6. The sum certain requirement “demands more than mere general 24 notice to the government of the approximate amount of a claim”; 25 rather, “a specific dollar amount is necessary.” Caidin v. 26 United States, 564 F.2d 284, 287 (9th Cir. 1977) (citations 27 omitted). The purpose of the “sum certain” limitation in Section 28 2675 “is to ensure that federal agencies charged with making an 1 initial attempt to settle tort claims against the United States 2 are given full notice of the government's potential liability.” 3 Low v. United States, 795 F.2d 466, 471 (5th Cir. 1986). 4 If treatment is ongoing, the plaintiffs must “assume the 5 worse-case scenario” when he or she files the claim. Salcedo- 6 Albanez v. United States, 149 F. Supp. 2d 1240, 1245 (S.D. Cal. 7 2001) (citing Reilly v. United States, 863 F.2d 149, 173 (1st 8 Cir. 1988)). “As between prospective defendant and prospective 9 plaintiff, the latter is in by far the better position to 10 determine the worst-case scenario or, if uncertain, to paint the 11 picture as bleakly as reason permits and conscience allows.” Id. 12 “If a plaintiff misjudges, as to matters known or easily 13 deducible when her claim is filed, it seems more equitable for 14 her to bear the burden of miscalculation than to impose it on the 15 sovereign.” Id. 16 There are two exceptions to the sum certain requirement: 17 “where the increased amount is based upon newly discovered 18 evidence not reasonably discoverable at the time of presenting 19 the claim to the federal agency, or upon allegation and proof of 20 intervening facts, relating to the amount of the claim.” 28 21 U.S.C. § 2675(b). “Plaintiffs bear the burden of proving that 22 they are entitled to damages in excess of their administrative 23 claim.” Salcedo-Albanez, 149 F. Supp. 2d at 1243 (quoting Spivey 24 v. United States, 912 F.2d 80, 85 (4th Cir. 1990)). 25 “[W]hether the plaintiff is seeking an increase under the 26 rubric of ‘newly discovered evidence’ or ‘intervening facts,’ one 27 of the key issues is foreseeability. If the condition was 28 reasonably foreseeable at the time the claim was filed, an 1 increase will not be allowed.” Id. (quoting Lowry v. United 2 States, 958 F. Supp. 704, 711 (D. Mass. 1997)). Additionally, 3 “[d]iligence by the plaintiff is expected, and ‘information which 4 could have been discovered through the exercise of reasonable 5 diligence does not qualify as newly discovered evidence or 6 intervening facts for purposes of the exception[s] contained in 7 section 2675(b).’” Ramone v. U.S. Postal Serv., 2019 WL 3080820 8 at *5 (E.D. Cal. 2019) (quoting Hogan v. United States, 86 F.3d 9 1162 at *2 (9th Cir. 1996)). 10 2. Sum-Certain Amount 11 The Government asserts that two years after the accident, on 12 January 24, 2022, Plaintiffs each submitted a SF-95 13 administrative claim to the USVA pursuant to 28 U.S.C. § 2675(b). 14 See Decl. of Hector Santiago, ECF No. 29-3, Ex. 1 and 2. 15 Plaintiffs Jessika and Sedona Petker each claimed damages of 16 $25,000. Id. Thus, the Government argues that the sum-certain 17 amount in Plaintiffs’ administrative claims for personal injuries 18 is the $25,000 asserted in each claim. It follows that 19 Plaintiffs’ potential recovery in this case is limited to that 20 amount unless one of the statutory exceptions applies. 28 U.S.C. 21 § 2675(b). Plaintiffs do not oppose the Government’s argument 22 that the “sum certain” for each of their tort claims is $25,000 23 and instead argue that damages in excess of the sum certain are 24 justified because they were not reasonably discoverable. See 25 Opp’n at 4-8. 26 3. Section 2675(b) Exceptions 27 To determine whether a claimant meets either the “newly 28 discovered evidence” or the “intervening facts” exception under 1 Section 2675(b), courts in this circuit apply an objective 2 standard and must consider whether a claimant's injuries were 3 “reasonably foreseeable at the time the original claim was 4 filed.” See Richardson v. United States, 841 F.2d 993, 999 (9th 5 Cir. 1988). 6 Plaintiffs do not address the two exceptions to Section 7 2675(b) individually, rather, they broadly argue that there were 8 facts not reasonably discoverable at the time they filed their 9 administrative claims. See Opp’n at 4. In their motion and 10 reply, the Government maintains that Plaintiffs cannot show that 11 any aspect of their injuries was unusual or unforeseeable at the 12 time they filed their administrative claims because all of 13 Plaintiffs’ alleged injuries were known to Plaintiffs before the 14 filing of their claims with the agency. See Mot. at 8; Reply at 15 2-4. Based on the medical records, declarations, depositions, 16 and other evidence presented, the Court agrees with the 17 Government. 18 Plaintiffs do not dispute that their injuries were known at 19 the time they filed their administrative claims but assert that 20 these known injuries worsened in unexpected ways. See Opp’n at 21 5. Their logic is that even though Jessika and Sedona Petker 22 were both generally improving at the time of their administrative 23 filing, this improvement is actually why they could not have 24 reasonably predicted their symptoms worsening. See Opp’n at 4-5. 25 Plaintiffs contend that an unforeseen worsening of a known injury 26 may constitute "newly discovered evidence" or "intervening 27 facts." See Zurba v. U.S. (7th Cir. 2003) 318 F.3d 736, 739. “A 28 known injury can worsen in ways not reasonably discoverable by 1 the claimant and his or her treating physician, and . . . such 2 ‘newly discovered evidence’ or ‘intervening facts,’ if 3 convincingly proved, can warrant § 2675(b) relief.” Roemen v. 4 United States, 2024 WL 4372197 at *4 (D.S.D. 2024). 5 However, the cases Plaintiffs cite are not analogous to the 6 instant circumstances. In Zurba, the Plaintiff sought to recover 7 additional damages for emotional injuries that were unknown, 8 “separate,” and “distinct” from the physical injuries she had 9 included in her original administrative claim. Similarly, in 10 Roemen, the district court found that the Plaintiff had been 11 diagnosed with a new condition that developed after the incident 12 and surgeries following his administrative claim. These cases 13 require Plaintiffs to show unforeseen and unknown injuries that 14 are “materially different” in kind to qualify for the newly 15 discovered evidence or intervening facts exceptions. Zurba, 318 16 F.3d at 741. Here, Plaintiffs do not allege that they sustained 17 any new previously unknown diagnoses or injuries that materially 18 differed after the filing of their administrative claims. 19 a. Jessika Petker 20 Jessika Petker seeks to recover economic and non-economic 21 damages due to loss of earning power and contends that she could 22 not have reasonably discovered her inability to work until she 23 attempted to resume her job in mid-2022. See Decl. of Jessika 24 Petker at ¶ 16, ECF No. 31-2. Plaintiffs assert that when 25 Jessika attempted to return to work, she found herself physically 26 unable to do the job of a massage therapist due to pain in her 27 neck that she had not discovered. See Opp’n at 4-5; Decl. of 28 Jessika Petker at ¶¶ 16-17. However, the evidence presented does 1 not support Jessika’s conclusions that her conditions were not 2 reasonably foreseeable. Jessika’s medical records reveal that 3 she had known and pre-existing neck and back pain from a prior 4 car accident in 2020 that she feared could worsen. See Decl. of 5 COH, ECF No. 31-6, Ex. E at p. 17 (hereinafter “Ex. E”). 6 Following the previous accident, Jessika “reduced [her] work 7 duties to eliminate deep tissue massages and other tasks that 8 [she] could not perform.” Decl. of Jessika Petker at ¶¶ 10-12. 9 Moreover, Plaintiffs assert that Jessika Petker informed 10 Defendant Felix of her concern that her injuries could develop as 11 being severe due to pre-existing conditions. See Opp’n at 3; 12 Decl. of Jessika Petker, ¶ 8. Therefore, the evidence 13 demonstrates that Jessika had an ongoing work impairment, knew 14 she could experience heightened symptoms, and that she had sought 15 treatment for these concerns before she filed her administrative 16 claim. See Reply at 3; Decl. of COH, ECF No. 31-6, Ex. A. 17 Because the facts indicate that Jessika was aware of 18 potential neck and back pain that could lead to work reductions 19 prior to the filing of her administrative claims in January 2022, 20 she has not demonstrated that previously undiscoverable damages 21 exist. “When existing medical evidence and advice put the 22 claimant on fair notice to guard against the worst-case scenario 23 in preparing the administrative claim, an attempt to increase the 24 amount of the claim during litigation should be rejected.” 25 Ramone, 2019 WL 3080820 at *6 (internal citations omitted). 26 Given that Jessika had experienced similar physical symptoms 27 before and that she anticipated that the USVA Vehicle collision 28 could exacerbate her prior pain, it cannot be said that her 1 injuries and the damages in excess of the sum-certain amount were 2 not reasonably foreseeable. 3 b. Sedona Petker 4 Sedona Petker’s interrogatory responses do not indicate that 5 she currently seeks damages beyond the sum-certain amount of 6 $25,000. See Mot. at 4. To the extent that Sedona later seeks 7 to establish damages beyond the $25,000 sum-certain amount, she 8 has not shown that she qualifies for an exception under Section 9 2675(b). Like Jessika, Sedona also experienced improvements and 10 had “plateaued in pain” at the time of her 2022 administrative 11 claim. See Opp’n at 6. However, Plaintiffs assert that while 12 Sedona’s “existing disc bulge in her back was minor,” her 13 condition worsened and “she required further undiscoverable care 14 in late 2022 and onward.” Id.; Decl. of Sedona Petker at ¶ 14, 15 ECF No. 31-3. 16 Plaintiffs present a new diagnosis to support their argument 17 that Sedona’s condition was unforeseeable. The opposition 18 purports that Plaintiffs’ expert Dr. Rao opined that as of 19 December 24, 2024, the true cause of Sedona’s pain is a possible 20 facet condition, which was not previously diagnosed. See Opp’n 21 at 6. However, a careful examination of Dr. Rao’s opinion in Ex. 22 E, reveals a statement from him that Sedona’s pain management 23 specialist Dr. Rumery noted on May 13, 2020 that “treatment for 24 facet joint originating pain may be considered.” Ex. E. at p. 25 26. This May 13, 2020 diagnosis precedes the filing of Sedona’s 26 January 2022 administrative filing. 27 While Plaintiffs attempt to use Dr. Rao’s opinions to 28 establish that a materially different diagnosis arose after 1 Sedona filed her administrative claim, the same documents reveal 2 that Sedona’s possible facet condition was posited and previously 3 discoverable because Dr. Rumery noted so on May 13, 2020. Thus, 4 Plaintiffs’ own expert defeats their argument that Sedona could 5 not have reasonably known about her current condition or could 6 not have reasonably foreseen the damages that would follow. 7 Sedona’s medical records indicate that she had notice of other 8 diagnoses prior to the submission of her claim forms and that the 9 related expenses could have been projected. 10 As the Government points out, this case stems from a 11 relatively minor accident where no air bag deployed, no ambulance 12 was called, and no police report was filed. See Reply at 4. The 13 photograph of Plaintiffs’ vehicle shows only superficial damage. 14 See Mot. at 2. Based on the submissions before the Court, 15 Plaintiffs Jessika and Sedona Petker have not offered convincing 16 proof that their injuries were unknown or worsened in ways that 17 were not reasonably discoverable, nor have they shown that they 18 were prevented from submitting a worst-case estimate of their 19 damages. See Salcedo-Albanez, 149 F. Supp. 2d at 1244-45. 20 Accordingly, the Court finds that Plaintiffs have not met their 21 burden of proving that they are entitled to damages in excess of 22 their administrative claims.2 23 /// 24 /// 25

26 2 Plaintiffs devote a substantial portion of their opposition to construing Defendant’s motion as a Rule 56 motion for summary 27 judgment. See Opp’n at 9-15. This standard is not applicable to the resolution of a Rule 12(b)(1) motion and the Court does not 28 reach this issue to resolve the pending motion. 1 4. Leave to Amend 2 In a final attempt to bypass Section 2675’s statutory 3 requirements, Plaintiffs request leave to amend their complaint 4 to “more specifically plead the damages and their bases as to 5 those damages provided in disclosure and discovery.” See Opp’n 6 at 18. However, as discussed above, the crux of this motion is 7 not a pleading issue or fact issue as Plaintiffs suggest, rather, 8 it is one of jurisdiction. 9 As the Government advances in their Reply at 8, any 10 amendments would be futile because Plaintiffs’ new and higher 11 damage claims would be the type of “made for litigation” 12 arguments that the sum certain requirement is designed to 13 prohibit. See Blair v. I.R.S, 304 F.3d 861, 865 (9th Cir. 2002) 14 (the administrative claim must be sufficient to put the 15 Government “on fair notice” of a claim, Goodman, 298 F.3d at 16 1057, so that the agency can “begin its own investigation,”); 17 Guyton v. U.S. Postal Serv., 2024 WL 5341329 *2 (C.D. Cal. 2024). 18 Plaintiffs do not specify what other unanticipated evidence they 19 could set forth beyond what they have already attached in their 20 papers that would allow them to sidestep the sum-certain amount 21 claimed in their administrative proceedings. 22 Moreover, under Rule 15 of the Federal Rules of Civil 23 Procedure, leave to amend is only “freely granted” where the 24 opposing party will not be prejudiced. In this case, the 25 Government would be substantially prejudiced by allowing 26 amendment to Plaintiffs’ complaint because of the jurisdictional 27 concerns as well as the costs and delay inherent in protracted 28 litigation. In the FTCA context, the point of administrative eI INR OS OIE IEEE RII OEE

1 exhaustion is to give the government “full notice” of their 2 potential liability. Low v. United States, 795 F.2d 466, 471 3 (5th Cir. 1986); see also Caidin, 564 F.2d at 287 (“[s]lince the 4 || purpose of the administrative claim is to facilitate settlement 5 of these disputes, a specific dollar amount is necessary to allow 6 realistic assessment of the settlement value of a case”); Ramone, 7 | 2019 WL 3080820 at *4. 8 Ultimately, the statutory scheme of liability undergirding 9 Section 2675 dictates that Plaintiffs, not the United States, 10 bear the burden of miscalculation. See Salcedo-Albanez, 149 F. 11 Supp. 20d 1240 at 1245 ("[t]he Court presumes that Plaintiff 12 secured thorough and well-informed medical and legal advice 13 regarding the extent of her injuries prior to submitting her 14 administrative tort claim - Plaintiff does not contend 15 otherwise."). Plaintiffs have failed to carry their burden of 16 | proof to show that the Court has jurisdiction over claims that 17 exceed the sum-certain amount. Any claims above the amounts 18 filed in their administrative proceedings are dismissed with 19 | prejudice for lack of jurisdiction. 20 TII. ORDER 21 The Government’s motion to limit damages to the sum-certain 22 amount (ECF No. 29-3, Ex. 1 and 2) is GRANTED. Jessika Petker 23 and Sedona Petker’s damages shall be limited to $25,000 each. 24 IT IS SO ORDERED. 25 | Dated: July 7, 2025 26 opens JOHN A. MENDEZ 28 SENIOR UNITED*STATES DISTRICT JUDGE 14