C.H. v. United States
| Decision Date | 23 March 2021 |
| Docket Number | No. 1:19-cv-00435-DAD-EPG,1:19-cv-00435-DAD-EPG |
| Citation | 528 F.Supp.3d 1125 |
| Parties | C.H., et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of California |
Daniel R. Baradat, Baradat & Paboojian, Inc., Fresno, CA, for Plaintiffs.
Joseph Frueh, United States Attorney's Office, Sacramento, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
This matter came before the court on defendant United States of America's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 15.) A hearing on the motion was held on November 19, 2019.1 Attorney Kevin Kalajian appeared telephonically on behalf of plaintiffs Noe Hurtado, Karla Monserrat Diaz Hernandez, C.H., and F.H. Assistant United States Attorney Joseph Frueh appeared telephonically on behalf of the government. Having reviewed the parties’ briefing and heard oral argument, and for the reasons set forth below, the court will grant defendant's motion to dismiss.
Plaintiffs’ complaint alleges the following. Plaintiffs are citizens and residents of Mexico. (Doc. No. 1 ("Compl.") at ¶ 6.) Plaintiffs Hurtado and Hernandez are the parents of C.H. and F.H. (Id. at ¶ 7.) On September 3, 2017, the family vacationed in the United States, visiting Yosemite National Park ("Yosemite"). (Id. at ¶¶ 7, 9.) At all times, Yosemite was owned, operated, managed and to be maintained by defendant United States of America through the National Park Service ("NPS"). (Id. at ¶ 10.)
While attempting to exit the park via California State Route 120, plaintiffs had to stop their car on Big Oak Flat Road because a tree branch had blocked the road. (Id. at ¶ 11.) Plaintiff Hurtado exited the vehicle to move the branch. (Id. ) As he was returning to the vehicle, plaintiff Hurtado witnessed a tree (the "Subject Tree") fall onto the vehicle in which the rest of the plaintiffs had remained. (Id. ) Plaintiffs Hernandez, C.H., and F.H. were all injured as a result. (Id. ) While awaiting emergency response, plaintiff Hurtado and bystanders removed C.H. from the vehicle, but plaintiffs Hernandez and F.H. remained trapped inside and could not be removed without moving the vehicle from under the tree. (Id. at ¶ 12.) Once bystanders moved the tree and plaintiff Hernandez was removed from the vehicle, one bystander gave her rescue breath. (Id. ) F.H. remained pinned in the vehicle. (Id. ) Eventually, plaintiff Hernandez and F.H. were airlifted to the hospital for treatment. (Id. )
Plaintiffs allege that as a direct, legal, and proximate result of the government's acts and omissions, plaintiffs Hernandez, C.H., and F.H. suffered significant economic and non-economic damages, including but not limited to ongoing medical expenses, physical pain and suffering, emotional distress, disability, and lost wages. (Id. at ¶ 14.) Plaintiff Hurtado suffered emotional distress; economic and non-economic damages; and loss of support, services, love, companionship, affection, society, and other elements of consortium. (Id. ) Plaintiffs believe and allege that the Subject Tree was one of a group of many trees left "standing dead" in that area of the National Park, and that immediately following this failure of the Subject Tree, NPS employees removed numerous nearby trees that they had determined to be hazardous. (Id. at ¶ 16.) According to plaintiffs, the government, through NPS, negligently maintained the park premises and the Subject Tree. (Id. at ¶ 22.)
On April 4, 2019, plaintiffs filed this complaint alleging one cause of action: negligence for premises liability pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). (Compl.) On October 1, 2019, the government filed the present motion to dismiss for lack of subject matter jurisdiction. (Doc. No. 15.) On October 22, 2019, plaintiffs filed their opposition, and on November 7, 2019, the government replied thereto. (Doc. Nos. 17, 19.)
A party may move to dismiss a case for a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Because of this, "[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted).
Challenges to jurisdiction may be either facial or factual in nature. San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior , 905 F. Supp. 2d 1158, 1167 (E.D. Cal. 2012). A facial attack to jurisdiction "accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.’ " Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) ). On the other hand, a factual attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings." Id. In a factual challenge, the court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988).
The government moves to dismiss plaintiffs’ complaint in its entirety, arguing that plaintiffs’ claim falls within the discretionary function exception to the FTCA.2 "As a sovereign, the United States is immune from suit unless it waives such immunity." Chadd v. United States , 794 F.3d 1104, 1108 (9th Cir. 2015) (citing FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ). The waiver of sovereign immunity is a prerequisite to federal court jurisdiction. Tobar v. United States , 639 F.3d 1191, 1195 (9th Cir. 2011) ; see also United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment. Terbush v. United States , 516 F.3d 1125, 1128 (9th Cir. 2008) ; see also United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Pursuant to the FTCA, the United States can thus be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) ; Chadd , 794 F.3d at 1109.
The FTCA, however, provides various exceptions to this broad waiver of sovereign immunity. One such carve-out is the discretionary function exception, which provides immunity from suit for "[a]ny claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The exception is designed to "prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Chadd , 794 F.3d at 1108 (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines ), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) ). "The government bears the burden of proving that the discretionary function exception applies." Myers v. United States , 652 F.3d 1021, 1028 (9th Cir. 2011).
In Berkovitz v. United States , 486 U.S. 531, 536–37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Supreme Court established a two-step test for determining the applicability of the discretionary function exception. Under that test, this court must first consider whether the challenged conduct is "discretionary in nature," that is, whether the actions "involve an ‘element of judgment or choice.’ " Terbush , 516 F.3d at 1129 (quoting United States v. Gaubert , 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ); see also Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954 (). The discretionary function exception will not apply if "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because "there can be no element of discretion when an employee has no rightful option but to adhere to the directive." Terbush , 516 F.3d at 1129 ; see also Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954. If the Berkovitz test is satisfied at step one, the analysis proceeds to the second step, at which the court must determine whether the discretion left to the government "is of the kind that the discretionary function exception was designed to shield," that is, discretion rooted in "considerations of public policy." Bailey v. United States , 623 F.3d 855, 860 (9th Cir. 2010) ; see also Myers , 652 F.3d at 1028. Ultimately, if the challenged act or omission satisfies the two steps of the Berkovitz test, the government is immune from suit based on that act or omission, and federal courts lack subject matter jurisdiction over the action. Bailey , 623 F.3d at 860. This immunity exists even if the act or omission in question constituted an abuse of discretion or was the wrong choice under the circumstances. See 28 U.S.C. § 2680(a) ; Terbush , 516 F.3d at 1129 ()
As discussed below, applying the two-part test set out in Berkovitz , the court must conclude that the discretionary function exception precludes plaintiffs’ claim for alleged negligent premises maintenance against the United States.
The government argues that plaintiffs’...
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