Opinion
No. C 01-04731 CRB
March 12, 2003
MEMORANDUM AND ORDER
This lawsuit arises out of plaintiff David Eiduson's performance of computer-related services at his son's public school. Now before the Court is the motion for judgment on the pleadings and motion for summary judgment of defendant San Rafael School Distiict. After carefully considering the papers filed by the parties, and having held a hearing, the motions are GRANTED.
BACKGROUND
A. Plaintiffs' Allegations
Plaintiff David Eiduson ("Eiduson") has a child, David H. Eiduson, who attended Laurel Dell School in the San Rafael School District ("the District"). Eiduson and his wife, plaintiff Lois Dahl ("Dahl"), volunteered extensively at the school and were "regular fixtures" there. Eiduson also performed computer-related services for the school. The school paid him for some of these services and he performed other services as a "favor."
On August 29, 2000, Eiduson submitted his final invoice for work performed. The next day the school's principal accused him of sexually harassing some of the school's teachers. Eiduson denied the accusations. He contends that on September 1, 2000, the District's Head of Human Resources banned him from the school grounds, even to pick up his son. A September 6, 2000 letter from the District to Eiduson. attached to plaintiffs' original complaint, states that Eiduson may "engage in conduct appropriate for a parent," such as attending parent/teacher conferences and "Back to School" nights, but that his volunteer services are no longer needed.
According to plaintiffs, on September 5, 2000, two school employees filed a police report falsely accusing Eiduson of brandishing a knife at school.
Eiduson and his wife have since removed their son from the District.
B. Procedural History
Eiduson and Dahl originally filed this action in pro per in state court. They purported to bring the lawsuit on their own behalf as well as on behalf of their minor son, and as a class action on behalf of all persons treated unfairly by the District. Plaintiffs named the District as the only defendant. They filed a First Amended Complaint on November 2, 2001 which defendant removed to federal court.
In August 2002 attorney Richard Paris appeared on behalf of plaintiffs. Three months later the Court signed an order substituting Eiduson and Dahl in pro per for Paris. At a case management conference on December 6, 2002, the Court refused to allow Paris to withdraw as counsel for the minor son as his parents — non-attorneys — cannot represent their son. The Court subsequently granted plaintiffs' in pro per motion to file a Second Amended Complaint
The Second Amended Complaint added numerous individual defendants and makes a variety of claims: negligence (First Cause of Action); negligent employment/training/hiring (Second Cause of Action); negligent infliction of emotional distress (Third Cause of Action); racial discrimination, breach of contract, conspiracy, violation of the Americans with Disabilities Act ("ADA"), violation of civil rights, violation of Safe Schools Act, right to learn in a safe and secure environment (Fourth Cause of Action); and defamation, harassment and tortious employment, retention and discharge (Fifth Cause of Action). The gravamen of plaintiffs' complaint is that defendants falsely accused Eiduson of sexual harassment and improperly barred him from the school causing he and his family to suffer emotional, financial and physical damages. He also appears to contend the District failed to pay him for work performed.
The District subsequently moved for judgment on the pleadings and for summary judgment as to the First Amended Complaint. Defendant was not served with the Court's order permitting the filing of the Second Amended Complaint and thus was not aware that it had been filed until plaintiffs served their oppositions to the motions. Those motions are currently pending before the Court.
Plaintiffs argue that the Court should deny the motions since they are directed to the superceded First Amended Complaint. They also complain that the motion was not scheduled; that is, that at the December 6 case management conference the District did not say it was filing the motion. Finally, they seek to vacate the motions pending a March 21 settlement conference before Magistrate Judge Chen.
As the claims of the Second Amended Complaint do not differ materially from those of the First Amended Complaint (other than the addition of several individual defendants), the Court will treat the District's motions as if directed to the Second Amended Complaint.
DISCUSSION
I. Motion for Summary Judgment
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'"Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
The District moves for summary judgment as to plaintiffs' state law claims on the ground that they are untimely. When a plaintiff makes a claim against a California public entity, such as a school district, the claim is subject to the time limits set forth in the California Tort Claims Act ("the Act"). See Cal. Gov. Code, § 900 et seq.; see also Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) ("The Act requires that notice of a claim be given to a public entity before an action can be brought against it"). Under the Act, a claim for personal injury must be presented within six months of the accrual of the cause of action. Id. § 911.2. All other claims must be presented within one year of the accrual of the cause of action. Id. A lawsuit on the claim must be filed within six months of the government entity's rejection of the claim. Id. § 945.6. The limitations period in section 945.6 must be strictly construed. See Cole v. City of Los Angeles, 177 Cal.App.3d 1, 5 (1986).
The undisputed evidence demonstrates that plaintiff Eiduson submitted a letter of complaint to the District on September 20, 2000. The letter demanded payment for Eiduson' s services rendered to the District and referred to the sexual harassment allegations against him and the harm they had caused his family. The District denied Eiduson's complaint by letter dated October 31, 2000. The District's letter specifically warned Eiduson that he had only six months from the date the letter was sent to file a lawsuit on his claim. It is undisputed that Eiduson received the letter on November 2, 2000. Nonetheless, this lawsuit was not filed until September 4, 2001 — more than six months after the District denied Eiduson's claim.
Eiduson responds that he made another written claim in July 2001 and submits as evidence of that claim a "Notice of insufficiency" from the District dated August 20, 2001. The Notice states that the District received Eiduson's letter of July 31, 2001 but that it "failed to comply substantially with certain Government Code Sections." See Gov't Code § 910 (setting forth the requirements to make a claim). The letter then listed the various deficiencies, including failing to provide a "general description of the occurrence, giving rise to the claim," and warmed Eiduson that "[d]ue to certain time requirements for filing claims, these deficiencies should be corrected immediately." Eiduson has not alleged that he responded to the Notice of Insufficiency; instead; he contends that this letter shows that his claim was still open.
Government Code sections 910.8 and 911 place a burden on governmental agencies that receive a deficient claim notice to give the claimant "Written notice of its insufficiency, stating with particularity the defects or omissions therein." Gov't Code § 910.8. "Any defense as to the sufficiency of the claim based upon a defect or omission in the claim as presented is waived by failure to give notice of insufficiency with respect to such defect or omission." Id. § 911; See also Phillips v. Desert Hospital Dist, 49 Cal.3d 699, 705 (1989) ("If the public entity determines a "claim as presented' fails to comply substantially with sections 910 and 910.2, and is therefore defective, the public entity may either give written notice of [the claim's] insufficiency, stating with particularity the defects or omissions therein' within 20 days, or waive any defense 'as to the sufficiency of the claim based upon a defect or omission in the claim as presented.'"). The District gave Eiduson the required notice within 20 days.
Eiduson has failed to produce evidence sufficient to create a genuine dispute as to whether he properly presented his claims to the District. First, all claims for personal injury must be presented to the public entity within six months. Gov't Code § 911.2. Assuming Eiduson made a personal injury claim in July 2001 — after the October 2000 denial of his September 2000 claim — such a claim would have been untimely as it would have been made more than six months after the accrual of his cause of action.
Second, although a July 31, 2001 claim to the District would have been timely with respect to a breach of contract claim arising after July 31, 2000, it is undisputed that Eiduson's July 31 letter did not satisfy the requirements for a claim as set forth in Government Code section 910. Eiduson has not produced the July 31, 2000 letter; instead, he has produced the August 2001 letter to the District notifying him that his July 31 letters insufficient. In other words, the undisputed evidence shows that the only proper claim Eiduson made to the District was the September 2000 claim.
In sum, all of plaintiffs' state law claims for damages against the District are barred by their failure to comply with the Act. The undisputed evidence demonstrates that Eiduson made some claim in September 2000 which was denied in October 2000. Plaintiffs had six months from October 2000 to file a claim for damages against the District. They did not initiate this lawsuit until ten months later. Summary judgment in favor of the District on all state law claims is therefore required. See Evans v. City of Santa Rosa, 2000 WL 365054 (N.D. Cal. 2000) (dismissing state law claims for failure to file claims within the time limits set forth in section 945.6).
II. Motion for Judgment On The Pleadings
The District also moves for judgment on the pleadings on plaintiffs' federal constitutional claims. The District contends, among other things, that the claims are untimely and that they are entitled to Eleventh Amendment immunity.
In Belanger v. Madera Unified School Dist, 963 F.2d 248 (9th Cir. 1992), the court held that a California school district is a state agency for purposes of Eleventh Amendment immunity. The District, however, removed this action to federal court. Thus, there is an issue as to whether the District waived its immunity. In Lapides v. Board of Regents, 535 U.S. 61, 122 S.Ct. 1640 (2002), the Supreme Court held that, at least for the purposes of state law claims, a state waives its immunity to suit in a federal court when it removes a case from state court. The Court limited its holding, however, to the context of state-law claims "in respect to which the State has explicitly waived immunity from state-court proceedings." Id. at 1643. The Court specifically did not address the scope of waiver by removal where a cognizable federal claim has been brought. Id.; see also Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 917 (9th Cir. 2003) (discussingLapides and declining to rule as to whether removal also waives Eleventh Amendment immunity with respect to federal claims). The reason the Supreme Court did not reach the waiver issue in the context of removal of federal claims is that it disposed of the plaintiff's federal section 1983 claim on a different ground: namely, that a "state" is not a "person" against whom a section 1983 claim for money damages might be asserted. Id. at 1643 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989)). While it is difficult to determine the basis for plaintiffs' constitutional claims, the constitutional claims — whatever they are — must be characterized as claims brought pursuant to 42 U.S.C. § 1983. See Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding that a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983). Thus, plaintiffs' constitutional claims against the District — a state agency — fail because the District is not a "person" which can be sued pursuant to section 1983.
III. ADA Claim
Plaintiffs' complaint also makes reference to the Americans With Disabilities Act ("ADA"). "A plaintiff must file a timely charge of discrimination with the EEOC [Equal Employment Opportunity Commission] as a prerequisite to maintaining an ADA action." Santa Maria v. Pacific Bell, 202 F.3d 1170 (9th Cir. 2000). As plaintiffs' complaints do not allege that they filed a disabilities complaint with the EEOC or the California Department of Fair Employment and Housing, their ADA claim must be dismissed for failure to exhaust administrative remedies.
CONCLUSION
For the foregoing reasons the Court rules as follows:
1. The District's motion for summary judgment of plaintiffs' state law claims for money damages is GRANTED on the ground that the claims are untimely and/or plaintiffs failed to present the claims to the District as required by the California Tort Claims Act.
2. The District's motion for judgment on the pleadings with respect to plaintiffs' constitutional claims for money damages against the District is GRANTED on the ground the District as a state agency is not "person" within the meaning of 42 U.S.C. § 1983.
3. To the extent plaintiffs purport to make a claim under the ADA, such claim is DISMISSED for failure to exhaust administrative remedies.
4. Plaintiffs' Eiduson and Dahl must serve the remaining individual defendants with the Second Amended Complaint in accordance with Federal Rule of Civil Procedure 4(m). As the Second Amended Complaint was filed by Eiduson and Dahl in pro per, it could not and did not amend the claims of their minor son. Accordingly, all of the claims by the minor son, that is, his claims against the District, have been dismissed from this lawsuit. The only claims remaining are those pending by plaintiffs Eiduson and Dahl against the individual defendants.