MEMORANDUM DECISION AND GRANTING IN PART AND DENYING IN PART PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE (Doc. 101) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS SIXTH AMENDED COMPLAINT (Doc. 102); DENYING DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE (Doc. 104); GRANTING IN PART AND DENYING IN PART PLAINTIFF’S COUNTER-MOTION FOR LEAVE TO FILE SEVENTH AMENDED COMPLAINT (Doc. 108); AND GRANTING PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE (Doc. 110)

Plaintiff Stanley Bradford Clarke, again proceeding in pro per, filed a Sixth Amended Complaint pursuant to the Memorandum Decision filed on May 26, 2009, 2009 WL 1460815 (May 26 Memorandum Decision; Doc. 92).

Before the Court is Defendants’ motion to dismiss and Plaintiffs counter-motion for leave to file a Seventh Amended Complaint. Defendants move to dismiss the state law causes of action for failure to allege compliance with the California Tort Claims Act and to dismiss the federal civil rights causes of action on the ground that Plaintiff cannot complain of alleged failures to present exculpatory evidence at the September 16, 2005 hearing or of the alleged misrepresentation of facts at that hearing. Plaintiffs counter-motion to amend seeks to amend to allege compliance with the California Government Tort Claims Act.

A. BACKGROUND.

Plaintiff, proceeding in pro per, commenced this action in the Madera County Superior Court on September 20, 2006. On June 21, 2007, Defendants removed Plaintiffs Third Amended Complaint from the Madera County Superior Court on the basis of federal question on the ground that the Third Amended Complaint alleges at least one cause of action arises under 42 U.S.C. §§ 1981 and 1983.

By Memorandum Decision and Order filed on October 3, 2007, 2007 WL 2875143 (Doc. 18), Defendants’ motion to dismiss was denied in part and granted in part with leave to amend.

On November 19, 2007, Plaintiff filed a Fourth Amended Complaint. By Memorandum Decision and Order filed on May 29, 2008, Defendants’ motion to dismiss the Fourth Amended Complaint was granted in part with leave to amend, granted in part without leave to amend, denied in part, and deferred in part for limited discovery on the issues of absolute and quali fied immunity from liability under 42 U.S.C. § 1983 .

Plaintiff, then represented by counsel, filed a Fifth Amended Complaint on June 6, 2008. Defendants moved to dismiss and Plaintiff moved for leave to amend to allege timely compliance with the requirements of the California Tort Claims Act. By Memorandum Decision and Order filed on May 26, 2009, Defendants’ motion to dismiss the Fifth Amended Complaint was granted in part with prejudice and denied in part and Plaintiffs motion for leave to file a Sixth Amended Complaint was granted.

B. GOVERNING STANDARDS.

1. Motion to Dismiss.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890 , 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Heto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). “A district court should grant a motion to dismiss if plaintiffs have not pled ‘enough facts to state a claim to relief that is plausible on its face.’ ” Williams ex rel. Tabiu v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir.2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007). “ ‘Factual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic, id. at 555, 127 S.Ct. 1955 . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556 , 127 S.Ct. 1955 . The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully, Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557 , 127 S.Ct. 1955 . In Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), the Supreme Court explained:

Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998).

2. Motion to Amend.

Rule 15(a), Federal Rules of Civil Procedure, provides that “leave [to amend] shall be freely given when justice so requires.” “The purpose of pleading is ‘to facilitate a proper decision on the merits’ ... and not erect formal and burdensome impediments to the litigation process. Unless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint.” Howey v. United States, 481 F.2d 1187, 1190 (1973). However, “[t]his strong policy toward permitting the amendment of pleadings ... must be tempered with considerations of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ Foman v. Davis, 371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962).” Schlacter-Jones v. General Telephone of California, 936 F.2d 435, 443 (9th Cir.1991). “These factors, however, are not of equal weight in that delay, by itself, is insufficient to justify denial of leave to amend.” DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir.1987); see also Jones v. Bates, 127 F.3d 839 , 847 n. 8 (9th Cir.1997). “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight ... Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). “The party opposing leave to amend bears the burden of showing prejudice.” Serpa v. SBC Telecommunications, Inc., 318 F.Supp.2d 865, 870 (N.D.Cal.2004).

C. CALIFORNIA GOVERNMENT TORT CLAIMS ACT.

Defendants move to dismiss the Third Cause of Action for intentional infliction of emotional distress and the Fourth Cause of Action for negligent infliction of emotional distress on the ground that Plaintiff did not timely comply with the claim requirements of the California Tort Claims Act.

The day after the Sixth Amended Complaint was filed, on July 28, 2009 (Doc. 101), Plaintiff filed a Request for Judicial Notice in which he requests the Court take judicial notice of his claim for damages filed with the County of Madera on March 13, 2006 (“First Tort Claim”). The claim states that Plaintiffs injury or damage occurred on September 15, 2005 at 3:00 p.m. at the Department of Social Services in Madera. The claim states that the injury or damaged occurred:

The claim names the County employees involved as “SANDRA UPTON, AMPARO WILLIAMS, FERN MILLS, SUSAN AR-TEAGA, BILL SMITH, RON NISSILA.” Plaintiff requests the Court take judicial notice of Madera County’s rejection of his claim dated March 15, 2006. The rejection states: “DATE OF MAILING: 03/15/06.” On October 9, 2009, (Doc. 110), Plaintiff filed a second Request for Judicial Notice. Plaintiff requests the Court take judicial notice of his claim for damages filed with the County of Madera on September 10, 2006 (“Second Tort Claim”). The claim states that the injury was “malicious prosecution” and that it occurred in April 2006. The claim names the County employees involved as “Sandra Upton, Ron Nissila, Miranda Neal, Erik Beauchamp.” The action or inaction of the County employees who caused the injury is stated: “Failure to disclose exculpatory evidence, Fraud, Perjury.” Plaintiff requests the Court take judicial notice of the County’s rejection of this claim dated September 20, 2006. The rejection states: “DATE OF MAILING: 09/20/06.”

Pursuant to Rule 201, Federal Rules of Evidence, The Court takes judicial notice of the filing date and content of the First Tort Claim and its rejection by the County, and of the filing date and content of the Second Tort Claim, and its rejection. These documents are matters of public record and set forth facts “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

Plaintiff also requests the court take judicial notice of the 2005 Madera County Grand Jury Final Report on Child Welfare Services Part 1, attached as Exhibit C to Doc. 101. Plaintiffs request for judicial notice of this Final Report is denied, except for the fact that the Final Report was issued.

Also on October 9, 2008, Plaintiff filed a counter-motion for leave to file a Seventh Amended Complaint, his declaration in support of this motion, and a Request for Judicial Notice. Plaintiff seeks leave to amend to add “paragraph 53 on page 16 under the common allegations of the complaint:”

Defendants argue that dismissal of the state law causes of action and denial of leave to amend should be ordered as to Plaintiffs First Tort Claim, which was denied on March 15, 2006. Plaintiffs Complaint was filed on September 20, 2006.

Essentially, Defendants contend that amendment to allege compliance with the California Tort Claims Act with regard to the First Claim will be futile. Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. Saul v. United, States, 928 F.2d 829, 843 (9th Cir.1991). Leave to amend may be denied based upon futility alone. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). A claim is considered futile and leave to amend shall not be given if there is no set of facts that can be proved under the amendment that would constitute a valid claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). However, denial on this ground is rare and courts generally defer consideration of challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended pleading is filed. Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D.Cal.2003), citing Schwaner, California Practice Guide: Federal Civil Procedure Before Trial at 8:422 (The Rutter Group, 2002).

California Government Code § 945.6(a)(1) provides that, if the public entity gives written notice of the rejection of a tort claim in accordance with Government Code § 913, suit against the public entity must be brought no later than six months after the date the notice of rejection is personally delivered or deposited in the mail. Here, Madera County’s rejection of Plaintiffs March 15, 2006 claim complied with the requirements of Section 913 and was mailed to Plaintiff on March 15, 2006. The County’s rejection of the March 15, 2006 claim specifically advised Plaintiff that “you have only six months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim.” Plaintiffs Complaint was not filed until September 20, 2006, five days after the expiration of the six month period.

Plaintiff acknowledges that he did not file the Complaint within six months of the rejection of his March 15, 2006 tort claim. Plaintiff submits his declaration in which he avers:

Plaintiff argues that Defendants “do not consider or acknowledge the fact that Plaintiff was under tremendous duress, severe emotional distress, suffering physical ailment, anxiety, and fear of retaliation from defendants ... that intimidated Plaintiff from pursuing any claims while defendants were requesting the termination of Plaintiffs parental rights, and supporting a petition to remove all custody and visitation from Plaintiff and his minor child.” Plaintiff asserts that the emotional and physical distress alleged in his declaration “caused an incapacity and inability during the time period of the claims re quirements such that plaintiff Clarke would be excused from California Government Tort Claims requirements pursuant to the California Government Code section 946.6(c)(3).”

Plaintiff cites no authority that his alleged aggrieved mental state excuses his failure to timely file the Complaint and the Court can find none. The six month period set forth in Section 945.6(a)(1) is mandatory and strict compliance is required. Julian v. City of San Diego, 183 Cal.App.3d 169, 176 , 229 Cal.Rptr. 664 (1986); 1 California Government Tort Liability Practice, § 8.14 (4th Ed.). California Government Code § 946.6 does not apply to Plaintiff. Section 946.6 provides:

California Government Code § 911.4 provides in relevant part:

Here, Plaintiff makes no showing that he has complied with either Sections 911.4 or 946.6. He makes no showing that he petitioned the County of Madera for permission to file a late claim.

To the extent that Plaintiff seeks leave to amend to allege timely compliance with the requirements of the California Tort Claims Act relative to Plaintiffs alleged injuries occurring on September 15, 2005, the date of the claimed injury in Plaintiffs First Tort Claim, Defendants argue that leave to amend should be denied and that the Third and Fourth Causes of Action be dismissed with prejudice to the extent these causes of action are based on the events of September 15, 2005 or before. Defendants argue that Plaintiff cannot rely on the Second Tort Claim to support these claims because the Second Tort Claim refers to “malicious prosecution” in “April of 2006” and does not name Amparo Williams as a tortfeasor.

Plaintiff refers to accrual of a cause of action. Plaintiff cites California Government Code § 901:

Plaintiff cites Mosesian v. County of Fresno, 28 Cal.App.3d 493, 500 , 104 Cal.Rptr. 655 (1972): “A cause of action normally accrues when under the substantive law the wrongful act is done and the liability or obligation arises, that is, when the action may be brought.” Plaintiff then refers to the delayed discovery doctrine, citing Norgart v. Upjohn Co., 21 Cal.4th 383, 397-398 , 87 Cal.Rptr.2d 453 , 981 P.2d 79 (1999):

See also Gutierrez v. Mofid, 39 Cal.3d 892, 897-898 , 218 Cal.Rptr. 313 , 705 P.2d 886 (1985):

See also Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 802 , 27 Cal.Rptr.3d 661 , 110 P.3d 914 (2005);

See also McCready v. American Honda Motor Co., Inc., 2006 WL 1708303 at *4 (E.D.Cal. June 19, 2006):

Plaintiff asserts:

As Defendants reply, Plaintiffs reliance on the delayed discovery rule is misplaced:

Defendants also note that the Sixth Amended Complaint does not allege facts supporting invocation of the delayed discovery rule.

To the extent the Sixth Amended Complaint alleges state law claims based on alleged misconduct occurring on September 15-16, 2005 and before, leave to amend is DENIED and the Third and Fourth Causes of Action are DISMISSED because of Plaintiffs failure to timely comply with the California Government Tort Claims Act. The allegations of the Sixth Amended Complaint make clear that Plaintiff knew of the alleged wrongs and identities of the wrongdoers on September 15 and 16, 2005. He filed a timely tort claim with regard to these alleged wrongs, but then failed to timely file this lawsuit.

As to Plaintiffs assertion that “[t]he County of Madera rejected Plaintiffs second tort claim but failed to contest the timeliness or insufficiency, thereby waiving any objections now,” Plaintiff cites no supporting authority. California Government Code § 910.8 provides:

California Government Code § 911 provides:

Here, Defendants do not assert that Plaintiffs Second Tort Claim did not comply with the requirements of Sections 910 or 910.2; rather, they assert that the Second Tort Claim refers only to an alleged malicious prosecution of Plaintiff in April 2006 and does not name Defendant Williams. Therefore, Defendants argue, the Second Tort Claim is limited to an alleged malicious prosecution in April 2006 and to the named tortfeasors in the Second Tort Claim. Plaintiff can only proceed on the Third and Fourth Causes of Action with regard to the alleged misconduct in connection with the hearing in April 2006.

D. FAILURE TO STATE A CLAIM RE SEPTEMBER 16, 2005 HEARING.

Defendants move to dismiss the Sixth Amended Complaint for failure to state a claim upon which relief can be granted:

In so moving, Defendants request the Court take judicial notice of the following documents:

Based on these exhibits, Defendants request the Court take judicial notice of the following facts:

Plaintiff does not object to Defendants’ Request for Judicial Notice. However, case authority establishes that Defendants’ Request for Judicial Notice must be denied. In Taylor v. Charter Medical Corp., 162 F.3d 827 (5th Cir.1998), the Fifth Circuit held that the District Court did not err in refusing to take judicial notice of the Milonas courts’ determination that Old Provo Canyon was a state actor:

The Ninth Circuit appears to follow this line of cases. In Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.), cert. denied, 540 U.S. 810 , 124 S.Ct. 50 , 157 L.Ed.2d 23 (2003), the Ninth Circuit reversed a grant of summary judgment, stating in dicta:

Although Wyatt never formally objected to judicial notice of the Toyebo findings, he did state in his objections to the magistrate judge’s report:

315 F.3d at 1113-1114 .

Here, Defendants’ Request for Judicial Notice seeks to have the Court accept the findings and rulings of the Madera County Superior Court at hearings before it on September 16, 2005 and October 11, 2005. This cannot be done under governing law. While the documents submitted in Defendants’ Request for Judicial Notice strongly undermine Plaintiffs allegations concerning the events at the September 16, 2005 hearing, the viability of Plaintiffs claims relative to that hearing cannot be resolved by the requested judicial notice in the context of a motion to dismiss.

Further, while the Sixth Amended Complaint focuses primarily upon the events of September 15-16, 2005, those events are not the only basis for the allegations against Defendants in this action. The motion to dismiss on this ground is DENIED.

E. EIGHTH CAUSE OF ACTION.

Although Defendants do not move to dismiss the Eighth Cause of Action, to the extent it alleges a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-7, the Eighth Cause of Action does not state a claim for relief. Title VI provides:

As explained in Epileptic Foundation v. City and County of Maui, 300 F.Supp.2d 1003, 1011 (D.Hawai'i 2003):

There is no allegation in the Sixth Amended Complaint that either the Department of Social Services or the County of Madera is receiving federal financial assistance or that Plaintiff is an intended beneficiary of the federally-funded program. At the hearing, Plaintiff referred to Paragraphs 51-52 of the Sixth Amended Complaint:

These allegations do not allege the elements of a violation of Title VI.

The Eighth Cause of Action is defective to the extent it is based on the First Amendment. Plaintiff cannot bring a claim directly under the First Amendment because Congress has created an alternative remedy. Carlson v. Green, 446 U.S. 14, 20 , 100 S.Ct. 1468 , 64 L.Ed.2d 15 (1980)

Moreover, the May 26 Memorandum Decision granted Plaintiff leave to file a Sixth Amended Complaint to name his son Ambroise as a plaintiff and to include him in the allegations against Defendants and to include an allegation of compliance with the California Tort Claims Act. By Order filed under seal, the Court denied Plaintiffs application for appointment of himself as guardian ad litem for his minor son, thereby negating the naming of his son as a plaintiff in this action. (Doc. 91). The Eighth Cause of Action is entirely new and leave to amend to allege it was neither requested nor granted. The Eighth Cause of Action is DISMISSED.

CONCLUSION

For the reasons stated:

1. Defendants’ request for judicial notice is DENIED;

2. Plaintiffs requests for judicial notice are GRANTED IN PART AND DENIED IN PART;

3. Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART. The Third and Fourth Causes of Action are dismissed to the extent they are based on alleged actions or omissions occurring before April 2006 and are dismissed as to Defendant Umparo Williams. The Eighth Cause of Action is dismissed for failure to state a claim upon which relief can be granted.

4. Plaintiffs motion to amend is GRANTED IN PART AND DENIED IN PART;

5. Within thirty (30) days of service of this Memorandum Decision and Order, Plaintiff shall file a Seventh Amended Complaint alleging compliance with the California Government Tort Claims Act as to the tort claim filed on September 10, 2006 and denied on September 20, 2006. No other amendments are authorized.

IT IS SO ORDERED.

. Because of this, it is unnecessary to address whether the federal district courts have jurisdiction under Section 946.6. See Harvey v. City of Fresno, 2009 WL 3157524 at *9 (E.D.Cal. Sept. 28, 2009), noting a spit of authority among the district courts in California whether federal district courts have jurisdiction under Section 946.6. . Defendants' Request for Judicial Notice filed on August 10, 2009 (Doc. 104), incorrectly refers to the Reporter's Transcript of the hearing on September 16, 2005 as Exhibit A to the Declaration of Ryan Libke.