Ivan Rubtsov et al v. Los Angeles County Department of Children and Family Services et al, No. 2:2014cv01839 - Document 25 (C.D. Cal. 2014)
Court Description: ORDER GRANTING DEFENDANTS MOTION TO DISMISS PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT 20 . Any amended complaint must be filed on or before November 21, 2014 by Judge Dean D. Pregerson. (lc) .Modified on 11/5/2014 (lc).
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Ivan Rubtsov et al v. Los Angeles County Department of Children and Family Services et al Doc. 25 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 IVAN RUBTSOV, ANA TZUBERY, and V.R., a minor, by and through her Guardian Ad Litem, Nick Rubtsov, 13 Plaintiffs, 14 v. 15 16 17 18 LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, MICHAEL WATROBSKI, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-01839 DDP (JCx) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT [DKT. NO. 20] 19 20 Presently before the Court is Defendants’ motion to dismiss 21 portions of Plaintiffs’ First Amended Complaint (“FAC”) (the 22 “Motion”). (Docket No. 20.) For the reasons stated in this Order, 23 the Motion is GRANTED. 24 I. Background 25 Plaintiffs Ivan Rubtsov (“Rubtsov”), Ana Tzubery (“Tzubery”), 26 and V.R. (“V.R.”) (collectively, “Plaintiffs”) bring this action 27 against the Los Angeles County Department of Children and Family 28 Services (the “County”), County employee Michael Watrobski Dockets.Justia.com 1 (“Watrobski”), and Does 1-10, alleging violations of law resulting 2 from the inclusion of Plaintiffs’ personal information in statewide 3 databases for child abuse allegations. 4 Rubtsov has been married to Tzubery since 2013. (FAC ¶ 22.) 5 V.R., a 14 year old, is the biological daughter of Rubtsov and 6 resides with Rubtsov and Tzubery. (Id. ¶¶ 20-21.) Rubtsov was 7 previously married to V.R.’s biological mother, Ulyana Rubtsova 8 (“Ulyana”), but they are now divorced and Rubtsov was given legal 9 and physical custody of V.R. in 2011; Ulyana has custody of their 10 11 other two children. (Id. ¶ 21.) Plaintiffs allege that in 2008, Rubtsov made allegations to 12 the County against Ulyana for physical abuse and neglect of their 13 three children. (Id. ¶¶ 23, 26.) Shortly thereafter, Ulyana made 14 allegations against Rubtsov. (Id. ¶ 23.) A total of 11 referrals 15 resulted, all of which were ultimately closed as either “unfounded” 16 or “inconclusive.” (Id.) Plaintiffs allege, however, that after the 17 referrals were closed, Watrobski and Ian Rosen (“Rosen”), a social 18 worker, changed the dispositions to “conclusive” or “founded” 19 without Plaintiffs’ prior knowledge or consent. (Id.) 20 In 2012, Rubtsov and Tzubery applied to Penny Lane Foster 21 Family Agency (the “Agency”) “to be foster parents, possibly adopt, 22 and/or obtain guardianship of children” and were approved. (Id. ¶ 23 34.) In May 2013, an infant child was placed in their home by the 24 Agency. (Id.) However, after three days, the Agency informed 25 Plaintiffs that all three of them were included in the Child Abuse 26 Central Index (“CACI”) and that the Agency had been ordered by the 27 County to remove the child from their care. (Id. ¶¶ 34, 36.) 28 Plaintiffs allege that the Agency notified Rubtsov that Rosen and 2 1 Watrobski “might have suddenly substantiated a [2009] referral for 2 an allegation of severe child abuse or neglect against him.” (Id. ¶ 3 26.) Further, Plaintiffs were informed by the Agency that their 4 personal information might be in many other databases, including 5 CWS/CMS. (Id. ¶ 35.) Plaintiffs were told that “unless and until 6 these matters were cleared, no children could be placed in their 7 home, they were not approved to adopt and/or obtain guardianship of 8 children.” (Id. ¶ 36.) Plaintiffs confirmed their inclusion in 9 multiple statewide databases on July 2, 2013. (Id. ¶¶ 31-33.) 10 Plaintiffs allege that the 2009 “substantiated” referral was 11 created by Watrobski and Rosen to assist Ulyana in obtaining 12 custody of all three of her children in future family law 13 proceedings. (Id. ¶¶ 27-28.) Plaintiffs allege that they were never 14 contacted or notified regarding the referral, which was for “severe 15 emotional abuse substantiated,” and that Watrobski and Rosen simply 16 closed the file as “substantiated” without any contact with or 17 investigation of Plaintiffs. (Id. ¶¶ 27, 29.) Plaintiffs allege 18 that all allegations made against them have since been determined 19 to be false. (Id. ¶ 29.) 20 In May 2013, Rubtsov requested information related to all 21 referrals and demanded an appeal of Plaintiffs’ inclusion in CACI 22 and all other state databases. (Id. ¶ 38.) Rubtsov requested an 23 administrative hearing and filed a request for disclosure of the 24 documents regarding the referrals pursuant to Welfare and 25 Institutions Code § 827. (Id. ¶¶ 39-40.) He was told in June 2013 26 that a hearing was denied because he was not in the CACI database. 27 (Id. ¶ 41.) However, in August 2013, the County notified Rubtsov 28 that only he could have a hearing, that Tzubery and V.R. were not 3 1 entitled to hearings, and that he would have to waive his due 2 process rights. (Id. ¶ 42.) Plaintiffs allege that Watrobski 3 indicated that Plaintiff would not have access to internal records 4 and strongly suggested that it would be harmful to Rubtsov if he 5 hired a lawyer but that, if he “would behave right,” Watrobski 6 might be lenient and clear Rubtsov’s name. (Id.) Further, 7 Plaintiffs allege that Defendants never told them exactly which 8 other databases their information was contained in. (Id. ¶ 43.) 9 Plaintiffs claim that Defendants “failed to provide them with an 10 opportunity to offer live testimony, call witnesses or examine 11 those witnesses whose statements were considered by Defendants when 12 they placed their personal information in the ... databases.” (Id.) 13 Defendants told Rubtsov that there was no appeal mechanism or right 14 to removal for inclusion in databases other than CACI. (Id. ¶¶ 44- 15 45.) V.R. was told by Defendants that there was no appeal mechanism 16 or right to a hearing for a minor’s removal from the databases. 17 (Id. ¶ 45.) 18 Plaintiffs assert three causes of action arising out of these 19 facts, each of which Plaintiffs bring against all Defendants: (1) 20 42 U.S.C. § 1983 constitutional violations (due process and right 21 to privacy) for unlawful policies, customs, and habits; (2) civil 22 conspiracy; and (3) intentional infliction of emotional distress 23 (“IIED”). (Id. ¶¶ 56-71.) The Court previously granted in part and 24 denied in part Defendants’ motion to dismiss Plaintiffs’ original 25 complaint. (Docket No. 18.) Defendants now seek dismissal of the 26 FAC under Rule 12(b)(6). (Docket No. 20.) 27 /// 28 /// 4 1 2 II. Legal Standard A complaint will survive a motion to dismiss when it contains 3 “sufficient factual matter, accepted as true, to state a claim to 4 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 570 (2007)). When considering a Rule 12(b)(6) motion, a court must 7 “accept as true all allegations of material fact and must construe 8 those facts in the light most favorable to the plaintiff.” Resnick 9 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint 10 need not include “detailed factual allegations,” it must offer 11 “more than an unadorned, the-defendant-unlawfully-harmed-me 12 accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or 13 allegations that are no more than a statement of a legal conclusion 14 “are not entitled to the assumption of truth.” Id. at 679. In other 15 words, a pleading that merely offers “labels and conclusions,” a 16 “formulaic recitation of the elements,” or “naked assertions” will 17 not be sufficient to state a claim upon which relief can be 18 granted. Id. at 678 (citations and internal quotation marks 19 omitted). 20 “When there are well-pleaded factual allegations, a court 21 should assume their veracity and then determine whether they 22 plausibly give rise to an entitlement of relief.” Id. at 679. 23 Plaintiffs must allege “plausible grounds to infer” that their 24 claims rise “above the speculative level.” Twombly, 550 U.S. at 25 555. “Determining whether a complaint states a plausible claim for 26 relief” is a “context-specific task that requires the reviewing 27 court to draw on its judicial experience and common sense.” Iqbal, 28 556 U.S. at 679. 5 1 2 III. Discussion1 Defendants do not challenge the sufficiency of the first cause 3 of action, Plaintiffs’ § 1983 claim, against the County, as the 4 Court previously found that cause of action to be sufficiently 5 pleaded in the original complaint. (See Docket No. 18.) Therefore, 6 that cause of action remains operative as filed. Defendants 7 challenge the remaining causes of action against the County and all 8 three causes of action against Watrobski. (See Docket No. 20, p.7.) 9 10 A. First Cause of Action Against Watrobski Plaintiffs’ original complaint was dismissed as to Defendant 11 Watrobski due to insufficient specificity in Plaintiffs’ 12 allegations regarding Watrobski’s role as an employee of the County 13 and extremely limited factual allegations regarding Watrobski’s 14 actions. (See Docket No. 18, pp.7-8.) In the FAC, Plaintiffs 15 provide substantially more detail on both Watrobski’s role and his 16 actions. Plaintiffs allege that Watrobski is “the CHIEF GRIEVANCE 17 REVIEW OFFICER” for the Office of Appeals Management Division of 18 the DCFS. (FAC ¶ 9.) Plaintiffs allege that Watrobski reviews all 19 requests for inclusion in CACI, or that they are reviewed at his 20 direction. (Id.) Plaintiffs allege that Watrobski is the individual 21 who told Plaintiffs that there is no appeal for their inclusion in 22 CWS/CMS. (Id. ¶¶ 11, 44, 45.) Further, Plaintiffs allege that 23 Watrobski is the “final decision maker” for inclusion in or removal 24 from the CACI database, as well as for who is entitled to a hearing 25 26 27 28 1 The Court notes that Plaintiffs complain that Defendants did not provide sufficient notice, under Local Rule 7-3, before filing the Motion. Defendants are admonished that strict compliance with the Local Rules shall be expected in the future. However, the Court does not deny the Motion on the basis of this failure. 6 1 to challenge their inclusion in the databases. (Id.) Plaintiffs 2 also allege that Watrobski, along with another DCFS employee Rosen, 3 changed a 2009 referral from unfounded to “conclusive or founded” 4 in 2013 without informing Plaintiffs that he was doing so or 5 contacting them at all. (Id. ¶¶ 23, 26, 29.) Finally, Plaintiffs 6 allege that Watrobski strongly suggested that if Rubtsov hired a 7 lawyer to challenge his inclusion in CACI, things would become 8 complicated, but that if Rubtsov would “behave right,” Watrobski 9 would be “lenient.” (Id. ¶ 42.) 10 As to Plaintiffs’ first cause of action, it is insufficiently 11 alleged against Watrobski individually. Though Plaintiffs now 12 include substantial facts in the FAC regarding Watrobski’s actions, 13 it is not at all clear what theory of liability they are asserting 14 against Watrobski individually in the first cause of action, which 15 is captioned “42 U.S.C. § 1983 Constitutional Violation - Unlawful 16 Policies, Customs and Habits By Plaintiffs Against All Defendants,” 17 with the alleged constitutional violations being due process and 18 right to privacy. (Id. ¶¶ 56-57.) A claim for unconstitutional 19 custom or policy is a municipal liability claim, which may be 20 asserted against the County only. Naming Watrobski in his official 21 capacity, as the “final decision maker” for the County regarding 22 the appeals process at issue, is functionally equivalent to 23 Plaintiffs suing the County and is therefore redundant. Kentucky v. 24 Graham, 473 U.S. 159, 165 (1985); Hartmann v. California Dep’t of 25 Corrs. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013). 26 To the extent that Plaintiffs wish to assert this cause of 27 action against Watrobski in his individual capacity, Plaintiffs do 28 not clarify in their first cause of action which acts performed by 7 1 Watrobski form the basis for any individual liability for the 2 identified constitutional violations, rather than actions that 3 would support Plaintiffs’ municipal liability claim. Because the 4 first cause of action uses the language of “custom” and “policy” 5 repeatedly and makes no specific mention of Defendant Watrobski, it 6 appears that Plaintiffs do not intend to sue Watrobski in his 7 individual capacity as to this cause of action. Therefore, the 8 Court GRANTS the Motion as to Plaintiffs’ first cause of action 9 against Watrobski WITHOUT PREJUDICE. Should Plaintiffs seek to sue 10 Watrobski individually for constitutional violations, Plaintiffs 11 must amend accordingly. 12 B. Second Cause of Action: Civil Conspiracy 13 Plaintiffs’ civil conspiracy claim is insufficiently pled. To 14 establish liability for a civil conspiracy claim, a plaintiff must 15 plead facts supporting the existence of “an agreement or meeting of 16 the minds to violate constitutional rights.” Mendocino Envtl. Ctr. 17 v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999) (internal 18 quotations and citations omitted). It is still unclear from the FAC 19 who, besides Defendant Watrobski, was allegedly part of the 20 conspiracy. Plaintiff’s allegations involve specific acts allegedly 21 committed by Watrobski, but no other identified defendant is 22 alleged to have performed any acts in furtherance of a “conspiracy” 23 to violate Plaintiffs’ rights; indeed, the only identified 24 defendants in this action are Watrobski and the County. Therefore, 25 Plaintiffs’ civil conspiracy claim is DISMISSED WITHOUT PREJUDICE. 26 Upon amendment, Plaintiffs should clarify who allegedly 27 participated in a conspiracy and what that conspiracy allegedly 28 agreed to do that violated Plaintiffs’ rights. 8 1 C. Third Cause of Action: IIED 2 Plaintiffs’ claim for intentional infliction of emotional 3 distress (“IIED”) is insufficiently pleaded. The tort of IIED 4 requires “(1) extreme and outrageous conduct by the defendant with 5 the intention of causing, or reckless disregard of the probability 6 of causing, emotional distress; (2) the plaintiff’s suffering 7 severe or extreme emotional distress; and (3) actual and proximate 8 causation of the emotional distress by the defendant’s outrageous 9 conduct.” Davidson v. City of Westminster, 32 Cal.3d 197, 209 10 (1982). The conduct “must be so extreme as to exceed all bounds of 11 that usually tolerated in a civilized society.” Id. 12 Plaintiffs have not pleaded facts, nor provided any analogous 13 cases in their arguments, that establish that the conduct 14 complained of here is sufficiently extreme or outrageous to support 15 an IIED claim against either the County or Watrobski. Plaintiff’s 16 sole argument in opposition to the Motion is to complain that 17 Defendants did not challenge the sufficiency of the IIED claim in 18 their motion to dismiss the original complaint. However, contrary 19 to Plaintiffs’ contention, Defendants may challenge the sufficiency 20 of this cause of action in the currently operative First Amended 21 Complaint. Therefore, the Court would GRANT the Motion as to this 22 cause of action WITHOUT PREJUDICE. 23 24 25 26 /// 27 /// 28 /// 9 1 2 3 IV. Conclusion For the foregoing reasons, the Motion is GRANTED. Any amended complaint must be filed on or before November 21, 2014.2 4 5 IT IS SO ORDERED. 6 7 8 Dated: November 5, 2014 DEAN D. PREGERSON United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Alternatively, Plaintiffs indicated in their opposition that they may simply seek to move forward with those causes of action that are sufficiently pleaded in the First Amended Complaint. Plaintiffs’ first cause of action against the County is sufficiently alleged and therefore remains operative. Should Plaintiffs decide not to amend their complaint, the action will still move forward as to that cause of action. 10
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