# Bilokonsky v. San Diego Unified School District > District Court, S.D. California · November 7, 2019 URL: https://www.frixlaw.com/law-library/cases/10079932 ## Case - **Court:** District Court, S.D. California - **Decided:** November 7, 2019 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079932 ## Opinion text 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MADDEN BILOKONSKY, by and Case No.: 19-CV-1054-CAB-AHG through his Guardian ad Litem, 13 COURTNEY BILOKONSKY, ORDER GRANTING DEFENDANT 14 SAN DIEGO UNIFIED SCHOOL Plaintiff, DISTRICT’S UNOPPOSED MOTION 15 v. TO DISMISS PLAINTIFF’S SECOND 16 AMENDED COMPLAINT UNITED STATES OF AMERICA et al., 17 Defendants. [Doc. No. 16] 18 19 20 This matter is before the Court on a motion to dismiss filed by Defendant San Diego 21 Unified School District (“SDUSD”). [Doc. No. 16.] The motion was filed on October 11, 22 2019 and set a hearing date (for briefing purposes only) of November 15, 2019. Civil Local 23 Rule 7.1.e.2 requires a party opposing a motion to file an opposition or statement of non- 24 opposition no later than fourteen calendar days before the noticed hearing. Thus, based on 25 the hearing date of November 15, 2019, Plaintiff’s opposition to the motion to dismiss was 26 due on November 1, 2019. No opposition has been filed. Under the local rules, Plaintiff’s 27 failure to oppose “may constitute a consent to the granting of [the] motion.” See S.D. Cal. 28 CivLR 7.1.f.3.c. 1 District courts have broad discretion to enact and apply local rules, including 2 dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d 3 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule 4 by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before 5 dismissing an action for failure to comply with local rules, the district court “weigh[s] 6 several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 7 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 8 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 9 sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 10 (9th Cir. 1986)). Plaintiff is represented by counsel and has previously filed oppositions 11 in this case. Accordingly, the Court assumes the lack of opposition to SDUSD’s motion to 12 dismiss is intentional and constitutes Plaintiff’s consent to the granting of the motion. 13 Here, while the Ghazali factors support granting the motion based on the lack of 14 opposition alone, upon review of the motion and Plaintiff’s Second Amended Complaint 15 (“SAC”), the Court finds that Plaintiff fails to state a claim against Defendants San Diego 16 Unified School District and Miller Elementary School and that no argument in opposition 17 could possibly persuade the Court otherwise. 18 First, Plaintiff effectively dismissed SDUSD by not only removing SDUSD from the 19 case caption, but also by failing to plead any facts or allegations against SDUSD in the 20 SAC after amending his complaint twice. [See Doc. No. 9.] Second, Plaintiff’s allegations 21 against SDUSD or Miller Elementary School are subject to the California Tort Claims Act. 22 Plaintiff has failed to plead compliance with the California Tort Claims Act which requires 23 that prior to filing a lawsuit for money or damages against a public entity, a plaintiff must 24 present a Claim to the public entity for its review. 25 Under California Government Code section 945.4, “no suit for money or damages 26 may be brought against a public entity on a cause of action . . . until a written claim therefor 27 has been presented to the public entity and has been acted upon by the board, or has been 28 deemed to have been rejected by the board.” Once a claim has been filed with the public 1 entity, the period within which the claimant may initiate a lawsuit depends on the public 2 entity’s mode of response. If written notice is provided to the claimant, then the claimant 3 has six months from the date of personal delivery or mail deposit of the notice to file a 4 lawsuit. Cal. Gov. Code § 945.6(a)(1). If no written notice is provided, the claimant has 5 two years from accrual of the cause of action to initiate a case. Id. § 945.6(a)(2). The 6 public entity must act upon a claim within 45 days or the claim will be deemed rejected by 7 operation of law. Id. § 912.4; see also Gay-Straight All. Network v. Visalia Unified Sch. 8 Dist., 262 F. Supp. 2d 1088, 1107 (E.D. Cal. 2001) (“When a public entity receives a 9 document which contains the information required by section 910 and . . . section 910.2, 10 the public entity has been presented with a ‘claim’ under the act, and must act within 45 11 days or the claim is deemed to have been denied (§ 912.4).”). 12 If a claimant does not initiate a lawsuit within the applicable time limitation, then 13 the claimant is barred from filing a lawsuit as to any cause of action subject to the Act. Id. 14 § 950.2; see also Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470, 1477 (9th 15 Cir. 1995) (citing Snipes v. City of Bakersfield, 145 Cal. App. 3d 861 (5th Dist. Ct. App. 16 1983)) (“The California Tort Claims Act requires, as a condition precedent to suit against 17 a public entity, the timely presentation of a written claim and the rejection of the claim in 18 whole or in part.”). Consequently, it appears any cause of action against SDUSD is time- 19 barred as it has been more than two years since accrual of Plaintiff’s cause of action. 20 Third, Defendant Miller Elementary School is neither a “government entity” nor a 21 “business entity licensed to do business” as Plaintiff contends. Miller Elementary School 22 is a school within the SDUSD but it is not a proper party to a lawsuit itself as it is not a 23 public entity as defined by California Government Code §§ 811.2, 900.4. Plaintiff’s 24 erroneous attempt to label Defendant Miller Elementary School as “part of the San Diego 25 Unified School District” is improper. Any cause of action would need to be alleged against 26 SDUSD which is time-barred as indicated above. 27 Finally, Plaintiff fails to state a claim against Defendant SDUSD or Defendant Miller 28 Elementary School in the SAC. While Plaintiff’s first cause of action for violation of 1 || California Civil Code § 1714(a) includes allegations against Defendant Miller Elementary 2 School, as stated above it is not a proper party to a lawsuit itself. Plaintiff's second cause 3 ||of action for general negligence states it is alleged as to all Defendants but only alleges 4 as to Defendant United States. 5 Accordingly, the motion to dismiss is GRANTED based on the lack of opposition 6 on its merits for the reasons set forth above, and the complaint is DISMISSED with 7 ||prejudice as to Defendant San Diego Unified School District and Defendant Miller 8 ||Elementary School. 9 It is SO ORDERED. 10 ||Dated: November 7, 2019 11 é / 2 12 3 Hon. Cathy Ann Bencivengo United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079932. Public record. Not legal advice.