Opinion
NO. CV 17-6556-JFW(AGR)
02-13-2019
CARL VAN BRADLEY, Plaintiff, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on file, the Report and Recommendation of the United States Magistrate Judge ("Report") and the Objections. Further, the Court has engaged in a de novo review of those portions of the Report to which parties have objected. The Court accepts the findings and recommendation of the Magistrate Judge.
The Report recommends that the Court grant the motion to dismiss the federal civil rights claims with leave to amend. The Report concluded that the federal civil rights claims were untimely, explained California law regarding tolling of the statute of limitations, and recommended that leave to amend be granted to give Plaintiff the opportunity to attempt to plead additional facts.
Defendants object that Plaintiff will not be able to plead around the statute of limitations for purposes of his federal civil rights claims. While that may ultimately turn out to be true, Defendants do not specifically address the factual showing in Plaintiff's supplemental papers (Dkt. Nos. 35-36). The supplemental papers may be considered for purposes of deciding whether to grant leave to amend. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003). Defendants' remaining objections are without merit.
Plaintiff objects to the Report's recommendation that his state law claims be dismissed with prejudice for failure to file the certificates of merit with the complaint as required by Cal. Civ. Proc. Code § 340.1(h)(1)-(2) orwithin 60 days afterthe complaint under § 340.1(h)(3). Because Plaintiff cannot cure this defect, dismissal with prejudice is appropriate. Jackson v. Doe, 192 Cal. App. 4th 742, 752-53 (2011) ("A demurrer may be sustained without leave to amend where the plaintiff fails to file the certificates of merit in accordance with section 340.1, subdivision (h) before the statute of limitations expires or within 60 days of filing the complaint."). Plaintiff's remaining objections are without merit.
IT IS ORDERED that Defendants' motion to dismiss the complaint is granted with leave to file a First Amended Complaint consistent with the Magistrate Judge's recommendations. The Clerk is DIRECTED to provide Plaintiff with a blank pro se civil rights complaint form.
If Plaintiff chooses to file a First Amended Complaint, it must be filed within 30 days after entry of this Order, it must bear the docket number assigned to this case, be labeled "First Amended Complaint," and be complete in and of itself without reference to the original complaint, attachment, pleading or other documents.
Plaintiff is advised that if he fails to file a timely and corrected First Amended Complaint within 30 days after the entry of this order, this action may be dismissed. DATED: February 13, 2019
/s/_________
JOHN F. WALTER
United States District Judge