Adam Trotter v. ExxonMobil Corp. et al

NOTICE OF MOTION AND MOTION for Judgment on the Pleadings

C.D. Cal.December 19, 2017

00138850.DOC NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 PATRICK Q. SULLIVAN (#179922) City Attorney DELLA D. THOMPSON-BELL (#224846) Deputy City Attorney 3031 Torrance Blvd. Torrance, CA 90503-5059 Telephone: (310) 618-5810 Fax: (310) 618-5813 Attorney for Defendant: CITY OF TORRANCE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ADAM TROTTER, Plaintiff, vs. EXXONMOBIL CORP., EXXONMOBIL OIL CORP., EXXONMOBIL REFINING AND SUPPLY COMPANY, INCLUDING UNKNOWN AND UNIDENTIFIED “DOE” AGENTS, OPERATORS, AND SUBSIDIARIES AT THE TORRANCE REFINERY; CITY OF TORRANCE, CALIFORNIA, INCLUDING ITS UNKNOWN AND UNIDENTIFIED “DOE” OFFICIALS AND AGENTS; STATE OF CALIFORNIA, SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, INCLUDING ITS UNKNOWN AND UNIDENTIFIED “DOE” OFFICIALS AND AGENTS; PBF ENERGY CORP.; Defendant(s) CASE NO. CV17 2279 PSG (JCx) Hon. Philip S. Gutierrez Courtroom 6A – First Street Hon. Jacqueline Chooljian, Magistrate Judge Courtroom 20 – Spring Street NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed R. Civ. Proc. 12(c)] [Filed concurrently with Request for Judicial Notice; Declaration of Della Thompson-Bell; [Proposed] Judgment; and [Proposed] Order] Date: February 12, 2018 Time: 1:30 p.m. Ct. Room: 6A First Amended Complaint filed: February 14, 2017 Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 1 of 9 Page ID #:1217 00138850.DOC NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 TO THE HONORABLE COURT AND TO PLAINTIFF IN PRO SE: PLEASE TAKE NOTICE THAT on February 12, 2018 at 1:30 p.m. in Courtroom 6A of the above-entitled Court located at 350 West 1st Street, Los Angeles, California, 90012, Defendant, CITY OF TORRANCE (“City”), will move this Court for judgment on the pleadings as to Plaintiff’s First, Second, Sixth, Seventh, Eighth, and Ninth causes of actions, all of Plaintiff’s state law claims, because Plaintiff failed to comply with the requirements of the California Tort Claims Act and as to Plaintiff’s fifth cause of action because Plaintiff has not plead that any alleged constitutional violation was the result of a City policy. This motion is made and based on this Notice of Motion, the Memorandum of Points and Authorities, the pleadings and records on file with this court, and any evidence of which the Court may take judicial notice prior to or at the hearing of this matter or at the hearing of this motion. This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on November 22, 2017. (Declaration of Della Thompson-Bell, ¶ 7.) Dated: December 12, 2017 PATRICK Q. SULLIVAN, City Attorney By: /s/ Della Thompson-Bell Deputy City Attorney Attorney for Defendant City of Torrance Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 2 of 9 Page ID #:1218 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant filed his First Amended Complaint (“FAC”) on April 18, 2017. Defendants ExxonMobile and City of Torrance timely filed an answer. Defendants South Air Quality Management District (“SCAQMD”) and PB Energy, Inc. (“PBE”) timely filed motions to dismiss. This Court granted those motions on September 29, 2017. Defendant City of Torrance (“City”) moves this Court for judgment on the pleadings based on the same reasons this Court granted SCAQMD’s motion to dismiss - Plaintiff’s First, Second, Sixth, Seventh, Eighth, and Ninth causes of actions, all of Plaintiff’s state law claims, failed because Plaintiff failed to comply with the requirements of the California Tort Claims Act and Plaintiff’s Fifth cause of action failed because Plaintiff failed to allege that any alleged constitutional violation was the result of a City policy or procedure. II. ARGUMENT THIS COURT SHOULD GRANT DEFENDANT CITY OF TORRANCE’S MOTION FOR JUDGMENT ON THE PLEADINGS BECAUSE ALL OF PLAINTIFF’S CLAIM AGAINST THE CITY OF TORRANCE FAIL AS A MATTER OF LAW. “After the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings.” (Fed. R. Civ. Proc. 12(c).) Courts apply the same standards applicable to a Rule 12 (b)(6) motion to dismiss as in deciding a Rule 12(c) motion for judgment on the pleadings. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc. (9th Cir. 2011) 637 F.3d 1047, 1047, fn. 4 “Rule 12(c) is the ‘functionally identical’ to Rule 12(b)(6)”; Erickson v. Boston Scientific Corp. (CD CA 2011) 846 F. Supp.2d 1085, 1089; Ross v. U.S. Bank Nat’l Ass’n (ND CA 2008) 542 F.Supp. 2d 1014, 1023. Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 3 of 9 Page ID #:1219 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 A motion to dismiss under Rule 12(b)(6) is proper where there is either a “lack of cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 902 F.2d 696, 699 (9th Cir. 1990); Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 (9th Cir. 1997). The United States Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. 2d. 2d 868 (2009) (hereinafter “Iqbal”), established a two-prong approach to determine plausibility in pleadings. First, a claim may not be supported by “mere conclusory statements,” but must include “sufficient factual matter . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929). A plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed- me accusation.” Id. at 678. Second, only a “plausible claim for relief survives a motion to dismiss.” Id. at 679. In other words, facts alleged that do nothing more than imply misconduct on behalf of the defendant will not survive the plausibility test. Id. at 678. Finally, “Courts will not assume that plaintiffs ‘can prove facts which they have not alleged, or that the defendants have violated . . . laws in ways that have not been alleged.’” Solis v. City of Fresno, 2012 U.S. Dist. LEXIS 33548, at *2 (quoting Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Furthermore, on a motion to dismiss under Rule 12, the court may consider public records, such as court records, that judicial notice can be taken of without converting the motion to a motion for summary judgment. See Botelho v. U.S. Bank, N.A., 692 F. Supp. 2d 1174, 1177 (N.D. Cal. 2010)(“Facts subject to judicial notice may be considered in deciding a Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 4 of 9 Page ID #:1220 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 motion to dismiss.”); see also Fed. R. Evid. 201(b) The court may judicially notice a fact that is not subject to reasonable dispute because it . . . (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.) Here, when this Court granted SQAMD and PBE’s motions to dismiss, this Court stated that “Plaintiff may file a Second Amended Complaint (“SAC”) consistent with this order by October 30, 2017. Failure to file a SAC by this date will result in the dismissal of all claims with prejudice.” (Doc. 73, p. 11.) Plaintiff has failed to file a second amended complaint and as such, the pleadings in this case are closed. A. Plaintiff’s State Law Claims Fail Because Plaintiff Failed To Comply With The California Tort Claims Act. When filing a lawsuit against a public entity, such as the City of Torrance, a plaintiff must follow the requirement of the California Tort Claims Act. The California Tort Claims Act is found in the California Government Code sections 900 et seq. Prior to bringing any lawsuit for damages, a potential plaintiff must first timely present a claim to the public entity and that claim must be rejected by that public entity. Cal. Gov’t Code §§ 905, 911.2, 945.4. As this Court pointed out in its order in this matter granting SCAQMD’s motion to dismiss: “[a] claim relating to a cause of action for injury to a person must be presented within six months of the accrual of the cause of action.” Id. Cal. Gov’t Code § 922.2. If the public entity returns a claim as untimely and gives notice pursuant to § 911.3, the claimant may apply to the entity for leave to present a late claim. Id. §§ 911.3, 911.4(a). A written application for leave to present a late claim must be presented to the public Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 5 of 9 Page ID #:1221 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 entity no more than one year after the accrual of the cause of action. Id. §911.4 (b).” (Doc. 73, p. 4.) Just as with SCAQMD, Plaintiff’s FAC is devoid of any facts regarding presentation of a claim to the City. Plaintiff fails to allege that he either complied with or was excused from following the provisions of the Tort Claims Act regarding presentation of a claim. Based on his failure alone, Plaintiff’s state law claims against the City fail and this Court should grant City’s motion. Moreover, Plaintiff did not allege nor can he contend that he complied with the Tort Claims Act because Plaintiff failed to file a timely claim. Plaintiff attempted to file his claim pursuant to the Tort Claims Act for the first time on February 16, 2016. (RJN, 1.) However, attached to Plaintiff’s claim form was a letter stating that he was “filing late” because he was “an indigent student and have been unable to obtain legal counsel for this matter.” (RJN, 1.) Further, Plaintiff’s claim form did not contain a date of injury (RJN, 1.) On March 29, 2016, Plaintiff refiled his original claim form, adding the date of injury as February 18, 2015. (RJN, 2.) Plaintiff alleges that he was injured on February 18, 2015. (Doc. 34, ¶¶ 40-46.) Claims relating to bodily injury must be filed within 6 months of the injury. (Cal. Govt. Code § 911.2) Thus, Plaintiff was required to file his claim by August 15, 2015. Plaintiff didn’t even attempt to file his undated claim with the City until February 16, 2016. (RJN, 1.) Even if Plaintiff had provided his date of injury at that time, his claim still would have been late. Plaintiff further only stated that he was “filing late” because he was “an indigent student and have be unable to obtain legal counsel for this matter.” (RJN, 1.) Plaintiff subsequently filed his claim again with the City on March 29, 2016. (RJN, 2.) Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 6 of 9 Page ID #:1222 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Furthermore, Plaintiff could never prevail on an application to present a late claim. The City would be required to grant an application to present a late claim for only the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Claimant’s minority status during the entire claim presentation; (3) Claimant’s mental or physical incapacity during the entire claim presentation period; and (4) Claimant’s death during the claim presentation period. (Cal Gov’t Code § 911.6.) Plaintiff’s explanation for his filing of his claim late as due to him being “an indigent student and [his inability] to obtain legal counsel for this matter” does not fall into any of these categories. As such, even if Plaintiff’s FAC addressed his failure to comply with the Tort Claims Act (which it does not), Plaintiff’s claim would remain barred as a matter of law. Therefore, this Court should grant City’s motion for judgment on the pleadings as to Plaintiff’s First, Second, Sixth, Seventh, Eighth, and Ninth causes of action, all of Plaintiff’s state law claims, because Plaintiff failed to comply with the requirements of the California Tort Claims Act. B. Plaintiff’s Fifth Cause Of Action Fails As Plaintiff Cannot Demonstrate That Any Alleged Constitutional Deprivation Was The Result Of The Policies And Practices Of The City Of Torrance. Next, Plaintiff contends that the City violated his civil rights by participating in some unnamed conspiracy with other named Defendants. (Doc. 34, ¶¶ 98-121.) However, before Plaintiff can get to a “conspiracy” allegation, he must first demonstrate that the City caused a violation of his rights. Title 42 United States Code section 1983 provides that “every person,” who under color of law, causes the deprivation of “any rights, privileges or immunities secured by the Constitution and laws,” is liable for damages. 42 U.S.C. § 1983. “Section 1983 suits against local governments Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 7 of 9 Page ID #:1223 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability. Instead, plaintiffs must establish that ‘the local government had a deliberate policy, custom or practice that was the moving force behind the constitutional violation they suffered.” AE v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)(citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)); see also Monell v. Dep’t of Soc.Servs., 436 U.S. 658 691, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978). Moreover, when a municipality is alleged to have inflicted injury on a plaintiff pursuant to section 1983, the municipality can be held liable for its “deliberate inaction known as ‘deliberate indifference.’” (Doc. 73 p. 6, citing Mortimer v. Baca, 594 F.3d 714, 716 (9th Cir. 2010). Further, as this court pointed out, a “plaintiff alleging a § 1983 claim based on a policy of deliberate indifference must establish: ‘(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy was the moving force behind the constitutional violation.” Id. Here, Plaintiff never alleges that the City of Torrance had in place a policy, custom, or practice that contributed to any alleged constitutional violation. The closest Plaintiff gets to such an allegations is that the “City of Torrance’s actions in the matter seem to be pursuant to official municipal policy which caused a Constitutional tort.” (Doc. 34, ¶ 102, emphasis added.) This falls well short of sufficient allegations to support his entire fifth cause of action. Without a sufficiently supported allegation pointing to a specific policy, Plaintiff’s Monell claim fails as a matter of law. As such, this Court should grant City’s motion for judgment on the pleadings as to Plaintiff’s fifth cause of action. Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 8 of 9 Page ID #:1224 [00138850.DOC] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS, OR IN THE ALTERNATIVE, PARTIAL JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 III. CONCLUSION Because Plaintiff failed comply with the California Tort Claims Act all of his state law claims fails as a matter of law. Further, Plaintiff’s Monell claims fails as a matter of law because Plaintiff failed to allege that the City of Torrance had a policy, practice or custom that contributed to an alleged constitutional violation. Based on all of the foregoing, this Court should grant Defendant City of Torrance’s motion for judgment on the pleadings. Dated: December 12, 2017 PATRICK Q. SULLIVAN, City Attorney By: /s/ Della Thompson-Bell Deputy City Attorney Attorney for Defendant City of Torrance Case 2:17-cv-02279-PSG-JC Document 80 Filed 12/19/17 Page 9 of 9 Page ID #:1225