Anderson, Sr. et al v. District Attorney Office et al, No. 3:2011cv00572 - Document 34 (S.D. Cal. 2011)
Court Description: AMENDED ORDER granting in part/denying in part Defendants Judge Staven, Sherry Erickson, Judge Huegenor, Judge Bashant, Judge Campos' 20 MOTION to Dismiss FAC With Prejudice. Granting in part/denying in part Defendants Nick Macchione, NIck Mac chione, Elizabeth Edwards, Candice Cohen, Caitlin Rae, District Attorney Office, Kathy O'Connell, John J Sansone, Jill Linberg, Tonya Sloan, Bonnie Dumanis, Connie Sekerak Austin, Shelly Paule, Carol Snyder, John E Phillips, Deborah Zanders, San Diego Health and Human Services Agency, Jane Simone, Connie Cain, Candi Mayes, Brooke Guilds' 21 MOTION to Dismiss Plaintiffs' Amended Complaint. Specifically, the Court: 1.) dismisses w/ prejudice Dfts Judge Bashant, Judge Campos, Judge Huegenor and Judge Staven; 2.) dismisses w/ prejudice causes of action 1,2,3 and 5; 3.) dismisses w/ prejudice cause of action 6; 4.) dismisses w/ prejudice causes of action 7,8,9,14,15,16,17,18,19 and 20; 5.) dismisses w/ prejudice causes of action 4,5,6,7,8,9,12, and 13 against Candice Cohen, Candi Mayes, Caitlin Rae, John Sansone and John Philips; 6.) dismisses w/ prejudice causes of action 12 and 13 against Sherry Erickson; and 7.) dismisses w/o prejudice causes of action 10,11,12,13, and 14. Court dismisses without prejudice the remaining Defendants. Signed by Judge Irma E. Gonzalez on 12/1/2011. (All non-registered users served via U.S. Mail Service) (jah). Modified on 12/2/2011 - Case not closed per Chambers (jah).
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Anderson, Sr. et al v. District Attorney Office et al Doc. 34 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 PERCY ANDERSON, SR., and SIERRA ANDERSON, CASE NO. 11-CV-0572 - IEG (MDD) AMENDED ORDER:1 11 Plaintiffs, 12 (1) GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS’ MOTION TO DISMISS vs. 13 14 [Doc. No. 21] 15 16 (2) GRANTING IN PART AND DENYING IN PART SUPERIOR COURT DEFENDANTS’ MOTION TO DISMISS DISTRICT ATTORNEY OFFICE, et al., Defendants. 17 18 [Doc. No. 20] 19 20 21 Presently before the Court is a motion to dismiss Plaintiffs’ first amended complaint (“FAC”) filed by the County Defendants2 and a motion to dismiss the FAC filed by the Superior 22 23 24 1 25 26 On November 28, 2011, the County Defendants submitted a notice of correction stating that they had erroneously represented to the Court that Defendant Connie Cain was a court appointed attorney when she is actually employed by the County of San Diego as a protective services worker. [Doc. No. 33.] Accordingly, the Court issues this Amended Order to reflect Defendant Connie Cain’s correct employment. 27 2 28 The Superior Court Defendants are Judge Bashant, Judge Campos, Sherry Erickson, Judge Huegenor, and Judge Staven. -1- Dockets.Justia.com 1 Court Defendants.3 [Doc. Nos. 20, 21.] For the reasons below, the Court GRANTS IN PART 2 and DENIES IN PART the County Defendants’ motion to dismiss and GRANTS IN PART and 3 DENIES IN PART the Superior Court Defendants’ motion to dismiss. 4 5 6 BACKGROUND I. Facts This action arises out of the removal of Plaintiffs’ child N. by county officials and the 7 related juvenile dependency proceedings. The following allegations are taken from the complaint. 8 Plaintiffs gave birth to their daughter N. in August 2008 and shortly thereafter sent her away to 9 live with relatives in Virginia. [FAC ¶ 43.] At the time, Plaintiffs were going through custody 10 proceedings related to their other children. [Id. ¶ 46-47.] On September 23, 2008, a petition was 11 filed in state juvenile court claiming that Plaintiffs’ child was at risk of suffering sexual and 12 physical abuse. [Id. ¶ 52.] The county officials attempted to locate N., but had difficulty doing so 13 due to her living in Virginia. [Id. ¶¶ 75, 79-80.] In January 2009, Judge Campos, one of the 14 judges presiding over the dependency proceedings, issued an order requesting to physically see 15 Plaintiffs’ child N. to check on her status and medical condition. [Id. ¶ 80.] 16 On February 4, 2009, Plaintiff Percy Anderson was stopped by El Cajon police officers and 17 told that he was being stopped for the possible kidnapping of his daughter N. [FAC ¶ 81.] 18 Plaintiffs state that they were then taken to the Health and Human Service Agency office for 19 questioning by district attorneys from the child abduction unit, specifically, Jill Lindberg, Kathy 20 O’Connell, and Carol Snyder. [Id. ¶¶ 82-84.] Plaintiffs were told that they were only being 21 detained and not arrested, but they were also told that they could not leave and that were not 22 entitled to an attorney. [Id. ¶ 83.] Plaintiffs were interrogated for an hour without an attorney, and 23 at some point, the attorneys searched their property. [Id. ¶¶ 85, 89.] Eventually, Plaintiffs were 24 handcuffed and placed under arrest for kidnapping without being given their Miranda rights. [Id. ¶ 25 26 27 28 3 The County Defendants are Connie Sekerak Austin, Connie Cain, Candice Cohen, District Attorney Office, Bonnie Dumanis, Elizabeth Edwards, Brooke Guilds, Jill Linberg, Nick Macchione, Candi Mayes, Kathy O’Connell, Shelly Paule, John E Phillips, Caitlin Rae, San Diego Health and Human Services Agency, John J Sansone, Jane Simone, Tonya Sloan, Carol Snyder, and Deborah Zanders. -2- 1 86, 89.] 2 Plaintiffs state that their daughter N. was detained by county officials on February 4, 2009, 3 and a petition was filed on her on March 19, 2009. [FAC ¶ 105.] Plaintiffs also state that in May 4 2009, their daughter was taken for a medical examination without Plaintiffs’ consent, 5 authorization, or permission. [Id. ¶ 107.] Plaintiffs further allege that at various time during the 6 dependency proceedings related to N., they were subjected to bias, racial discrimination, false 7 reports, perjury, false transcripts, ex parte hearings without notice, and conspiracies against them. 8 [See id. at 2-30.] 9 II. 10 Procedural History On January 11, 2011, Plaintiffs filed a complaint in state court against the Defendants 11 alleging various claims related to the juvenile dependency proceedings and their detention and 12 arrest by the district attorneys from the child abduction unit. [Doc. No. 1-3, Compl.] On March 13 22, 2011, Defendants removed the action to this Court on the basis of federal question jurisdiction. 14 [Doc. No. 1, Notice of Removal.] On July 28, 2011, the Court dismissed Plaintiffs’ original 15 complaint for failure to comply with the pleading requirements of Rule 8 and gave Plaintiffs leave 16 to file an amended complaint. [Doc. No. 13.] 17 On August 30, 2011, Plaintiffs filed an 111-page first amended complaint against 18 Defendants alleging 20 causes of action for: (1) assault; (2) battery; (3) false imprisonment; (4) 19 unlawful seizure in violation of the Fourth Amendment; (5) violation of their rights under the Fifth 20 Amendment; (6) violation of their equal protection and due process rights under the Fourteenth 21 Amendment; (7) unreasonable search in violation of the Fourth Amendment; (8) violation of their 22 right to privacy; (9) violation of their rights under the Sixth Amendment; (10) civil conspiracy 23 under 42 U.S.C. § 1985; (11) negligence in preventing a conspiracy under 42 U.S.C. § 1986; (12- 24 13) Municipal civil rights liability under Monell; (14) violation of California Civil Code sections 25 43, 49, 51, and 52.1; (15) defamation; (16) violation of the Unruh Civil Right Act; (17) intentional 26 infliction of emotional distress; (18) negligent infliction of emotional distress; (19) violation of 27 their due process rights under the Fifth Amendment; and (20) injunctive relief. [Doc. No. 18, 28 FAC.] -3- 1 III. 2 Related Cases This case is related to two other case before this Court, Anderson v. City of Lemon Grove, 3 10-cv-689 (S.D. Cal., filed Apr. 1, 2010) and Anderson v. County of San Diego, 10-cv-705 (S.D. 4 Cal., filed Apr. 2, 2010). Those two cases involve the physical removal of Plaintiffs’ other 5 children by county officials. See Anderson, 10-cv-689 [Doc. No. 41]; Anderson, 10-cv-705 [Doc. 6 No. 55]. 7 8 9 DISCUSSION I. Legal Standards for a Motion to Dismiss A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests 10 the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6); Navarro v. 11 Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the 12 complaint as true, and must construe them and draw all reasonable inferences from them in favor 13 of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 14 To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, 15 rather, it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 17 pleads factual content that allows the court to draw the reasonable inference that the defendant is 18 liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) 19 (citing Twombly, 550 U.S. at 556). 20 However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 21 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 22 action will not do.” Twombly, 550 U.S. at 555 (citation omitted). A court need not accept “legal 23 conclusions” as true. Ashcroft v. Iqbal, 129 S. Ct. at 1949. 24 In addition, factual allegations asserted by pro se plaintiffs, “however inartfully pleaded,” 25 are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 26 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, 27 the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See 28 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). -4- 1 Nevertheless, and in spite of the deference the court is bound to pay to any factual 2 allegations made, it is not proper for the court to assume that “the [plaintiff] can prove facts which 3 [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 4 Carpenters, 459 U.S. 519, 526 (1983). Nor must the court “accept as true allegations that 5 contradict matters properly subject to judicial notice or by exhibit” or those which are “merely 6 conclusory,” require “unwarranted deductions” or “unreasonable inferences.” Sprewell v. Golden 7 State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 8 F.3d 1187 (9th Cir.2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court 9 need not accept as true unreasonable inferences or conclusions of law cast in the form of factual 10 allegations). 11 II. Affirmative Defenses to the FAC 12 A. 13 The Superior Court Defendants argue that the FAC should be dismissed on abstention Abstention 14 grounds. [Doc. No. 20-1 at 10.] It is well settled that federal courts should abstain from 15 adjudicating domestic relations cases. See Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983) 16 (per curiam). Even if the case raises constitutional issues, abstention is proper if the case, at its 17 core, is a domestic relations or child custody dispute. See Coats v. Woods, 819 F.2d 236, 237 (9th 18 Cir. 1987); see, e.g., H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (explaining that a civil 19 rights action alleging that a state court violated plaintiff’s due process rights in a custody 20 proceeding “is precisely the type of case suited to Younger abstention”). 21 Because Plaintiffs seek to challenge the removal of their child N. and the related state court 22 juvenile dependency proceedings, abstention would appear to bar many of their claims. See id. at 23 613; Peterson, 708 F.2d at 466. However, abstention generally only applies to actions for 24 injunctive and declaratory relief. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 718-19 25 (1996). A court may not dismiss an action for damages on abstention grounds. See id. at 721. 26 Plaintiffs seek both injunctive relief and damages in the FAC. [FAC at 111.] Therefore, 27 abstention can only bar Plaintiffs’ claims for injunctive relief related to the dependency 28 proceedings. See Quackenbush, 517 U.S. at 718-19. Accordingly, the Court DISMISSES WITH -5- 1 PREJUDICE Plaintiffs’ claims for injunctive relief related to the state court dependency 2 proceedings on the grounds of abstention. 3 B. 4 The Defendants argue that the FAC should be dismissed because to Court lacks jurisdiction 5 to review state court judgments under the Rooker-Feldman doctrine. [Doc. No. 20-1 at 9-10; Doc. 6 No. 21-1 at 7-8.] “The Rooker-Feldman doctrine recognizes that federal district courts generally 7 lack subject matter jurisdiction to review state court judgments.” Fontana Empire Ctr., LLC v. 8 City of Fontana, 307 F.3d 987, 992 (2002). Under this doctrine, a federal district court does not 9 have jurisdiction to hear a direct or de facto appeal from a final state court judgment. See Noel v. 10 Hall, 341 F.3d 1148, 1154, 1158 (9th Cir. 2003). The doctrine applies in cases “brought by state 11 court losers complaining of injuries caused by state court judgments rendered before the district 12 court proceedings commenced and inviting district court review and rejection of those judgments.” 13 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). 14 Rooker-Feldman Doctrine Defendants have not pointed to any state court judgment that was ever entered by the state 15 court that Plaintiffs are purportedly attempting to challenge in this action. Defendants only 16 mention orders that were issued by the juvenile dependency court. [Doc. No. 21-1 at 7; Doc. No. 17 20-1 at 10.] The Rooker-Feldman doctrine does not apply to orders; it only applies to final state 18 court judgments. See R.R. St. & Co. v. Transp. Ins. Co., 2011 U.S. App. LEXIS 18298, at *13-14 19 (9th Cir. Sept. 2, 2011); Vacation Vill., Inc. v. Clark Cnty, 497 F.3d 902, 911 (9th Cir. 2007). 20 Moreover, Defendants admitted at the hearing that Plaintiffs’ dependency proceedings are 21 ongoing. Therefore, it is clear that the proceedings have not reached final judgment, and the 22 Rooker-Feldman doctrine does not apply. See Exxon, 544 U.S. at 284. 23 C. 24 Defendants argue that the FAC should be dismissed because it is subject to claim Claim Preclusion 25 preclusion (res judicata). [Doc. No. 20-1 at 7-8; Doc. No. 21-1 at 5-6.] Claim preclusion and 26 issue preclusion are governed by state law. 28 U.S.C. § 1738; Marrese v. Am. Academy of 27 Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Ayers v. City of Richmond, 895 F.2d 1267, 28 1270 (9th Cir. 1990). Claim preclusion bars a second lawsuit between the same parties on the -6- 1 same cause of action. People v. Barragan, 32 Cal. 4th 235, 252 (2004). 2 In their motions to dismiss, Defendants do not identify which of the present Defendants 3 were also parties to the first action. See Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 4 (2002) (explaining claim preclusion applies to actions “between the same parties”). Nor do the 5 Defendants identify which, if any, of Plaintiffs’ claims could have been asserted in the prior action 6 in juvenile court. See Hulsey v. Koehler, 218 Cal. App. 3d 1150, 1157 (1990) (explaining that 7 claim preclusion applies to “every matter which was urged, and every matter which might have 8 been urged”). Accordingly, Defendants have not established their claim preclusion defense. 9 10 D. Issue Preclusion Defendants also argue that the FAC should be dismissed on the grounds of issue 11 preclusion. [Doc. No. 20-1 at 7-8; Doc. No. 21-1 at 5-6.] Issue preclusion, or collateral estoppel, 12 precludes the relitigation of issues that were actually tried and litigated in prior proceedings. 13 Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). The doctrine applies if these requirements 14 are met: “(1) the issue to be precluded must be identical to that decided in the prior proceeding, (2) 15 the issue must have been actually litigated at that time, (3) the issue must have been necessarily 16 decided, (4) the decision in the prior proceeding must be final and on the merits, and (5) the party 17 against whom preclusion is sought must be in privity with the party to the former proceeding.” 18 People v. Garcia, 39 Cal. 4th 1070, 1077 (2006). 19 Defendants do not state what issues raised by Plaintiffs they seek to be dismissed on 20 preclusion grounds. Defendants also do not cite to the state court proceedings and show that the 21 issues in this action were previously litigated and decided by the state juvenile court. See id. (“(2) 22 the issue must have been actually litigated at that time, [and] (3) the issue must have been 23 necessarily decided”). Accordingly, Defendants have not established their issue preclusion 24 defense. 25 E. 26 The Defendants argue that the FAC should be dismissed because the claims are barred by Heck v. Humprey 27 Heck v. Humphrey, 512 U.S. 477 (1994). [Doc. No. 20-1 at 11-12; Doc. No. 21-1 at 15-17.] In 28 Heck v. Humphrey, the Supreme Court held that -7- 1 3 when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. 4 512 U.S. at 487. Although Heck involved a criminal judgment, Defendants cite to case law where 5 the principle was applied to civil commitment proceedings. [Doc. No. 20-1 at 12; Doc. No. 21-1 6 at 16.] See, e.g., Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138-41 (9th Cir. 2005); Levy v. 7 California, 2011 U.S. Dist. LEXIS 13326, at *12-20 (N.D. Cal., Feb. 1, 2011). Defendants argue, 8 therefore, that the principle of Heck should be applied to the present case and bar Plaintiffs’ claims 9 because they have not shown that the dependency proceedings were terminated in their favor. 2 10 11 [Doc. No. 20-1 at 12; Doc. No. 21-1 at 16.] Heck is not applicable to Plaintiffs’ lawsuit. In extending Heck to cover civil commitment 12 proceedings, the Ninth Circuit explained that “Heck’s favorable termination rule was intended to 13 prevent a person in custody from using § 1983 to circumvent the more stringent requirements for 14 habeas corpus.” Huftile, 410 F.3d at 1139. The Ninth Circuit went on to explain that habeas relief 15 is not limited to “prisoners,” and detainees under an involuntary civil commitment scheme can use 16 habeas to challenge a term of confinement. Id. at 1139-40. Therefore, it appears that Heck can 17 only be applied to civil proceedings where the plaintiff is detained or was previously detained and 18 entitled to habeas relief. See id. at 1139-40. Heck does not apply to challenges to dependency 19 proceedings brought by a parent because California juvenile dependency proceedings focus on the 20 status of the child not the prosecution and confinement of the parents. See Doe v. Mann, 415 F.3d 21 1038, 1059 (9th Cir. 2005) (“At the heart of the dependency proceedings is a dispute about the 22 status of the child . . . .”); id. at 1056 n.25 (“child dependency proceedings in California may be 23 triggered regardless of whether the state pursues any criminal prosecution of a parent or a guardian 24 for abuse or neglect”). Therefore, Plaintiffs are not required to show that the dependency 25 proceedings were terminated in their favor prior to bringing a lawsuit for claims related to the 26 proceedings. 27 F. 28 The County Defendants argue that the FAC should be dismissed for being duplicative. Duplicative Lawsuit -8- 1 [Doc. No. 21-1 at 3-4.] In the federal court system, “the general principle is to avoid duplicative 2 litigation.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). 3 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same subject 4 matter at the same time in the same court and against the same defendant.’” Adams v. California 5 Dep’t of Health Service, 487 F.3d 684, 688 (9th Cir. 2007) (citations omitted). “A district court 6 may exercise its discretion to control its docket by dismissing a duplicative, later-filed action.” 7 Latham Orthopedics Med. Group v. United States of America-Corp., 2010 U.S. Dist. LEXIS 8 122370, at *6 (C.D. Cal., Nov. 2, 2010). 9 The present action is related to the removal of Plaintiffs’ child N., and Plaintiffs’ other 10 pending actions are related to the removal of their other children. [Compare FAC with Anderson, 11 10-cv-689 [Doc. No. 43]; Anderson, 10-cv-705 [Doc. No. 2].] Therefore, although the actions 12 involve similar subject matter, they do not involve the same subject matter, and they are not 13 duplicative. See Adams, 487 F.3d at 688. 14 G. Statute of Limitations 15 Defendants argue that the complaint is barred by the applicable statute of limitations. 16 [Doc. No. 20-1 at 15; Doc. No. 21-1 at 17-18.] Under California law, the statute of limitations for 17 personal injury actions is two years. See Cal. Code Civ. Pro. § 335.1. “Section 1983 does not 18 contain a statute of limitations.” Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Therefore, 19 the law of the state in which the cause of action arose governs the length of the statute of 20 limitations for section 1983 claims. Wallace v. Kato, 549 U.S. 384, 387 (2007). Accordingly, 21 California Code of Civil Procedure section 335.1 also governs Plaintiffs’ § 1983 claims, and those 22 claims have a limitations period of two years as well. See, e.g., Canatella v. Van De Kamp, 486 23 F.3d 1128, 1332-33 (9th Cir. 2007). 24 Though state law determines the statute of limitations, “federal law determines when a civil 25 rights claim accrues.” Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). 26 Accrual occurs under both federal and state law when a plaintiff knows or has reason to know of 27 the injury which is the basis of the action. See id. at 1154; Jolly v. Eli Lilly & Co., 44 Cal. 3d 28 1103, 1110-11 (1988). A defendant raising a statute of limitations defense has the burden of proof. -9- 1 Cal. Sansome Co. v. United States Gypsum, 55 F.3d 1402, 1406 (9th Cir. 1995); Samuels v. Mix, 2 22 Cal. 4th 1, 10 (1999). 3 Plaintiffs filed their complaint on January 11, 2011. [Compl.] Therefore, the relevant 4 statute of limitations can only bar claims that are based on events that occurred prior to January 11, 5 2009. Most of the allegations in the FAC relate to events after January 11, 2009. [See FAC.] 6 Plaintiffs allege that the dependency proceedings for their child N. were only commenced on 7 September 23, 2008. [Id. ¶ 52.] Further, the allegations related to events prior to January 11, 2009 8 concern the filing of false documents and secret ex parte meetings. [See, e.g., id. ¶¶ 48, 52-53, 60, 9 63, 65.] Defendants have not shown that Plaintiffs knew or had reason to know about the alleged 10 secret meetings and false documents prior to January 11, 2009. Therefore, Defendants have not 11 met the burden of proof for their statute of limitations defenses. 12 III. Defendant Specific Affirmative Defenses 13 A. 14 The Superior Court Defendants argue that Defendants Judge Bashant, Judge Campos, Judicial Immunity 15 Judge Huegenor, and Judge Staven are protected by the doctrine of judicial immunity from the 16 claims in the FAC. [Doc. No. 20-1 at 3-4.] A judge is generally immune from a civil action for 17 damages, declaratory, injunctive and other equitable relief. Moore v. Brewster, 96 F.3d 1240, 18 1243 (9th Cir. 1996). This immunity applies “‘however erroneous the act may have been, and 19 however injurious in its consequences it may have proved to the plaintiff.’” Cleavinger v. Saxner, 20 474 U.S. 193, 199-200 (1985) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872)). “A 21 judge will not be deprived of immunity because the action he took was in error, was done 22 maliciously, or was in excess of his authority; rather, he will be subject to liability only when he 23 has acted in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356 (1978); 24 see also Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (“Grave procedural errors or 25 acts in excess of judicial authority do not deprive a judge of this immunity.”). However, this 26 immunity is limited in that it only protects “judicial acts.” See Stump, 435 U.S. at 360; Moore, 96 27 F.3d at 1244. 28 Plaintiffs’ FAC seeks relief against the Defendant judges based on their conduct in - 10 - 1 presiding over Plaintiffs’ custody proceedings. [See FAC at 2-37; Doc. No. 23 at 5-6.] Plaintiffs 2 are clearly challenging judicial activities. Therefore, the Defendant judges are protected by 3 judicial immunity unless they were acting in “clear absence of all jurisdiction.” Stump, 435 U.S. 4 at 356. The FAC alleges that the Defendant judges did not have personal jurisdiction over 5 Plaintiffs’ child N. under California Family Code sections 3402(g), 3421(a)(1), and 3422. [FAC at 6 9.] However, this is at most an allegation that the Defendant judges erroneously interpreted the 7 law and acted in excess of their jurisdiction, not an allegation that the acts were done “in clear 8 absence of all jurisdiction.” See Schucker, 846 F.2d at 1205; see also Stump, 435 U.S. at 357 n.7 9 (explaining the difference between a judge “acting in excess of his jurisdiction” and a judge 10 “acting in clear absence of jurisdiction”). Accordingly, because the Defendant judges are 11 protected by the doctrine of judicial immunity, the Court DISMISSES WITH PREJUDICE all of 12 Plaintiffs’ claims against Defendants Judge Bashant, Judge Campos, Judge Huegenor, and Judge 13 Staven. 14 At the hearing, the Superior Court Defendants argued that Defendant Sherry Erickson, the 15 court reporter during the dependency proceedings, would be entitled to derivative judicial 16 immunity because her actions were taken at the instructions of the state court judges. In the FAC, 17 Plaintiffs allege that Sherry Erickson purposefully altered records, transcripts and documents 18 during the proceedings. [FAC at 25-26.] The Supreme Court has held that a court reporter’s 19 preparation of transcripts for court proceedings is not a discretionary act. See Antoine v. Byers & 20 Anderson, 508 U.S. 429, 436 (1993). Therefore, court reporters are not entitled to derivative 21 judicial immunity for acts related to the preparation of court documents. See id. at 436-37. 22 Accordingly, Defendant Sherry Erickson is not entitled to judicial immunity. 23 B. 24 The County Defendants argue that Defendants Tonya Sloan, Candi Mayes, Candice Cohen, Witness Immunity 25 Connie Cain, Brooke Guilds, Elizabeth Edwards, Jane Simone, Shelly Paul, and Connie Sekerak 26 Austin are immune from § 1983 claims for statements that they gave as witnesses during the 27 dependency proceedings. [Doc. No. 21-1 at 11.] “Witnesses, including police witnesses, are 28 immune from liability for their testimony in earlier proceedings even if they committed perjury.” - 11 - 1 Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir. 2001) (citing Briscoe v. LaHue, 460 U.S. 2 325, 345 (1983)). Like witnesses, prosecutors and other lawyers are absolutely immune from 3 damages liability for making false or defamatory statements in judicial proceedings. Burns v. 4 Reed, 500 U.S. 478, 489-90 (1991). 5 However, Plaintiffs do not appear to be challenging any statements that these Defendants 6 made during the proceedings as witnesses. Although the FAC makes reference to perjury 7 committed during the proceedings, it appears to only be doing so in reference to Plaintiffs’ claims 8 against the state court judge Defendants. [See FAC at 2-9.] The only claims in the FAC related to 9 the proceedings that appear to be brought against these Defendants are claims related to the 10 preparation and filing of false documents. Social workers are not entitled to absolute witness 11 immunity from § 1983 claims for documents they submit in support of termination proceedings. 12 See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1109 (9th Cir. 2010). 13 Accordingly, these Defendants are not entitled to absolute witness immunity. 14 C. Court Appointed Attorneys Do Not Act Under Color of Stat eLaw 15 The County Defendants argue that Plaintiffs may not bring claims under 42 U.S.C. § 1983 16 against Defendants Candice Cohen, Candi Mayes, Caitlin Rae, John Sansone, and John Philips 17 because private counsel appointed to represent indigent persons do not act under color of law. 18 [Doc. No. 21-1 at 17.] “To state a claim under § 1983, a plaintiff must allege two essential 19 elements: (1) that a right secured by the Constitution or laws of the United States was violated, and 20 (2) that the alleged violation was committed by a person acting under the color of State law.” 21 Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 22 The Supreme Court has held that a public defender appointed to represent a criminal 23 defendant is not a state actor and does not act under color of state law for the purposes of a § 1983 24 claim. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); accord. Miranda v. Clark Cnty, 319 25 F.3d 465, 468 (9th Cir. 2003) (en banc). Similarly, counsel appointed to represent minors or 26 parents in state court juvenile proceedings, either as counsel or guardians ad-litem, are not 27 considered state actors for the purpose of a § 1983 claim. See Kirtley v. Rainey, 326 F.3d 1088, 28 1092-96 (9th Cir. 2003) (holding that a private attorney appointed by the state to represent a minor - 12 - 1 in court proceedings as guardian ad litem does not act under color of state law for the purpose of a 2 § 1983 claim); Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir. 1986) (per curiam) 3 (holding that a private attorney appointed by court to represent minor in state court juvenile 4 delinquency proceedings does not act under color of state law for the purpose of a § 1983 claim), 5 cert. denied, 479 U.S. 828 (1986); Chambers v. Santa Clara Cnty, 2006 U.S. Dist. LEXIS 63121, 6 at *8-9 (N.D. Cal. Aug. 21, 2006) (same). Because these court appointed Defendants were not 7 acting under color of state law, Plaintiffs cannot bring § 1983 claims against them. See Long, 442 8 F.3d at 1185. Accordingly, the Court DISMISSES WITH PREJUDICE all of Plaintiffs’ § 1983 9 claims against Defendants Candice Cohen, Candi Mayes, Caitlin Rae, John Sansone, and John 10 Philips. 11 D. 12 The Superior Court Defendants argue that Plaintiffs’ claims should be dismissed as barred California Litigation Privilege 13 by the California Litigation Privilege. [Doc. No. 20-1 at 8.] The County Defendants only argue 14 that Plaintiffs’ defamation claim should be barred by the litigation privilege. [Doc. No. 21-1 at 15 11.] 16 California’s litigation privilege, found at California Civil Code § 47(b), provides, in part, 17 that a publication or broadcast made as part of a judicial proceeding is privileged. The California 18 Supreme Court recently summarized this litigation privilege as follows: 19 20 21 22 This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. 23 Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007) (citations 24 and internal quotation marks omitted). 25 However, due to the Supremacy Clause, the California Litigation Privilege does not bar 26 federal civil rights actions. See Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840, 851 (9th 27 Cir. 2004). Therefore, the litigation privilege can only apply to Plaintiffs’ state law claims. See 28 id. The only state law claim that appears to be challenging Defendants’ communications during - 13 - 1 the dependency proceedings is Plaintiffs’ defamation claim. [See FAC at 99-101.] Accordingly, 2 the Court DISMISSES WITH PREJUDICE Plaintiffs’ defamation cause of action as barred by 3 the litigation privilege. 4 E. 5 Agency” 6 Defendants “District Attorney Office” and “Health and Human Services The County Defendants argue that the District Attorney Office and the Health and Human 7 Services Agency are not public entities subject to suit, citing California Government Code sections 8 945 and 811.2. [Doc. No. 21-1 at 14-15.] California Government Code § 945 provides “A public 9 entity may sue and be sued.” California Government Code § 811.2 defines a “public entity” as 10 “the State, the Regents of the University of California, a county, city, district, public authority, 11 public agency, and any other political subdivision or public corporation in the State.” 12 With respect to Defendant District Attorney Office, California courts have found district 13 attorney offices to be public entities under other sections of the California Government Code. See 14 Miller v. Filter, 150 Cal. App. 4th 652, 669-70 (2007) (finding attorneys deputized by district 15 attorneys were “public employees” and therefore entitled to absolute immunity under California 16 statutes because they were employees of a “public entity,” the Sierra County District Attorney’s 17 Office); Kaplan v. LaBarbera, 58 Cal. App. 4th 175, 180 (1997) (finding that the district attorney’s 18 office and its family support division is immune from suit under California statutes because the 19 district attorney’s office is a “public entity”). Therefore, district courts have rejected the argument 20 that a district attorney office is not a public entity under California Government Code sections 945 21 and 811.2. See, e.g., Nazir v. Cnty of Los Angeles, 2011 U.S. Dist. LEXIS 26820, at *16-17 (C.D. 22 Cal., Mar. 2, 2011); Serotte v. Marin Cnty DA, 2010 U.S. Dist. LEXIS 97017, at *3-4 (N.D. Cal., 23 Sept. 16, 2010). With respect to Defendant Health and Human Services Agency, the plain 24 language of section 811.2 defines a “public agency” as a “public entity.” Accordingly, both of 25 these Defendants are public entities subject to suit. 26 IV. Plaintiffs’ Claims 27 A. 28 Plaintiffs assert a number of state law claims including assault, battery, false imprisonment, State Law Claims - 14 - 1 civil rights under state law, defamation, civil rights under the Unruh act, intentional infliction of 2 emotional distress, and negligent infliction of emotional distress. [FAC at 70-73, 99-106.] 3 Defendants argue that all of these claims should be dismissed for failure to allege compliance with 4 the the California Tort Claims Act (“CTCA”). [Doc. No. 20-1 at 9; Doc. No. 21-1 at 4.] 5 Under the California Tort Claims Act, a plaintiff may not maintain an action for damages 6 against a public entity or a public employee unless he timely files a notice of tort claim. CAL. 7 GOV’T CODE §§ 905, 911.2, 945.4 & 950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 8 1470, 1477 (9th Cir.1995) (“The California Tort Claims Act requires, as a condition precedent to 9 suit against a public entity, the timely presentation of a written claim and the rejection of the claim 10 in whole or in part.”). “Compliance with the claims statutes is mandatory; and failure to file a 11 claim is fatal to the cause of action.” City of San Jose v. Sup. Ct, 12 Cal. 3d 447, 454 (1974) 12 (citation omitted). “Complaints that do not allege facts demonstrating either that a claim was 13 timely presented or that compliance with the claims statute is excused are subject to a general 14 demurrer for not stating facts sufficient to constitute a cause of action.” Shirk v. Vista Unified 15 School Dist., 42 Cal. 4th 201, 209 (2007); accord. Mangold, 67 F.3d at 1477. 16 Under the CTCA, claims against public entities are required to be presented to the relevant 17 public entity within six months of the date of accrual of the cause of action for personal injury and 18 property damage claims. See CAL. GOV’T CODE § 911.2; Baines Pickwick v. City of L.A., 72 Cal. 19 App. 4th 298, 303 (1999). Accrual of the cause of action for purposes of the CTCA is the date of 20 accrual that would be applied under applicable statute of limitations. Shirk, 42 Cal. 4th at 209. 21 Under California law, a personal injury claim accrues when a plaintiff knows or has reason to 22 know of the injury which is the basis of the action. Jolly, 44 Cal. 3d at 1110-11. 23 Once the claim is submitted, the public entity then has 45 days to grant or deny the claim. 24 See CAL. GOV’T CODE § 912.4. Where written notice of rejection is sent, a suit must be 25 commended no later than six months after the notice is deposited in the mail. See CAL. GOV’T 26 CODE § 945.6(a)(1); Baines Pickwick, 72 Cal. App. 4th at 303. “Timely claim presentation is not 27 merely a procedural requirement, but is . . . an element of the plaintiff’s cause of action.” Shirk v. 28 Vista Unified School Dist., 42 Cal. 4th 201, 209 (2007) (citations omitted). Therefore, compliance - 15 - 1 with the timeliness requirements of the CTCA may be addressed on a motion to dismiss. See 2 Ovando v. City of Los Angeles, 92 F. Supp. 2d 1011, 1023 (C.D. Cal. 2000); see, e.g., Shirk, 42 3 Cal. 4th at 207-14; Addison v. State, 21 Cal. 3d 313 (1978). 4 Plaintiffs do not allege facts in the FAC demonstrating that they either complied with the 5 CTCA or that they are excused from compliance. [See FAC.] Accordingly, all of Plaintiffs’ state 6 law claims may be dismissed on this ground alone. See Mangold, 67 F.3d at 1477. At the hearing, 7 Plaintiffs stated that they did file claims related to this lawsuit with the County of San Diego. 8 After the hearing, the County Defendants filed a supplemental document attaching two claims that 9 Plaintiffs filed with the county and notices that the county sent the Plaintiffs in response to these 10 two claims.4 [Doc. No. 27, Exs. A-D.] The County Defendants argue that these two claims are not 11 timely under the CTCA. [Id.; see also Doc. 21-1 at 4.] 12 The first claim was signed on May 4, 2009 and filed with the county on June 1, 2009. 13 [Doc. No. 27, Ex. A.] The claim states that it is based on Plaintiffs’ arrest and detention by the 14 district attorneys from the child abduction unit and the removal of Plaintiffs’ daughter N. by the 15 Health and Human Services Agency that both occurred on February 4, 2009. [Id.] On July 10, 16 2009, the county sent Plaintiffs a notice of rejection of this claim. [Id. Ex. B.] The notice warned 17 Plaintiffs that they had only six months from the date of the notice to file a court action. [Id.] 18 Plaintiffs did not file the present lawsuit until January 11, 2011, a year and a half later. [Compl.] 19 Accordingly, the present lawsuit was not filed in compliance with the timeliness requirements of 20 the CTCA. See CAL. GOV’T CODE § 945.6(a)(1). 21 The second claim was signed on October 10, 2010 and filed on October 21, 2010. [Doc. 22 No. 27, Ex. C.] This claims states that it is also based on the removal of Plaintiffs’ daughter N. by 23 county officials that occurred on February 4, 2009. [Id.] Plaintiffs knew about this alleged injury 24 as early as May 4, 2009 when they filed their first claim related to the removal of their daughter. 25 [See id. Ex. A.] Accordingly, the second claim is untimely because it was filed over a year after 26 27 28 4 The Court may take judicial notice of the claims and the notices because they are matters of public record. See FED. R. EVID. 201; MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); see, e.g., Via v. City of Fairfield, 2011 U.S. Dist. LEXIS 63242, at *18 (E.D. Cal. Jun. 13, 2011) (taking judicial notice of plaintiff’s CTCA claim). - 16 - 1 the claim accrued. See CAL. GOV’T CODE § 911.2; Jolly, 44 Cal. 3d at 1110-11. Because 2 Plaintiffs have not complied with requirements of the CTCA prior to initiating this action, the 3 Court DISMISSES WITH PREJUDICE Plaintiff’s first, second, third, fourteenth, fifteenth, 4 sixteenth, seventeenth, and eighteenth causes of action. 5 B. Fourth Amendment Claims and Right to Privacy Claim 6 Plaintiffs assert two causes of action pursuant to 42 U.S.C. § 1983 for violations of their 7 Fourth Amendment rights and one cause of action for violation of their right to privacy. [FAC at 8 74-75, 81-85.] Plaintiffs appear to be bringing these claims on several different grounds. 9 First, Plaintiffs allege that their arrest and detention by the El Cajon police officers and the 10 district attorneys violated their fourth amendment rights. [FAC at 74.] In seeking to dismiss this 11 claim the County Defendants argue that there were no constitutional violations because under the 12 circumstances alleged by Plaintiffs, the detention was a Terry stop. [Doc. No. 21-1 at 9-10.] 13 To determine whether a seizure was a Terry stop or an arrest, the “general consideration” is 14 that a Terry stop is brief and of a minimally intrusive nature. United States v. Guzman-Padilla, 15 573 F.3d 865, 883-84 (9th Cir. 2009). Beyond this general consideration, the courts usually use 16 two inquiries to determine whether a seizure was a Terry stop or arrest. Id. “First, it is 17 well-established that intrusive measures may convert a stop into an arrest if the measures would 18 cause a reasonable person to feel that he or she will not be free to leave after brief 19 questioning—i.e., that indefinite custodial detention is inevitable.” Id. at 884. “Second, because 20 '[t]he purpose of a Terry stop is to allow the officer to pursue his investigation without fear of 21 violence,’ ‘[courts] allow intrusive and aggressive police conduct without deeming it an arrest . . . 22 when it is a reasonable response to legitimate safety concerns on the part of the investigating 23 officers.’” Id. 24 Plaintiffs allege that they were detained by El Cajon police officers, taken to the Health and 25 Human Service Agency, and interrogated by district attorneys from the child abduction unit for an 26 hour. [FAC ¶¶ 81-83, 89.] Plaintiffs allege that the district attorneys refused their request to leave 27 and their request for an attorney. [Id. ¶ 83.] Plaintiffs allege that after the interrogation, they were 28 handcuffed and placed under arrest for kidnapping without being given Miranda warnings. [Id. ¶ - 17 - 1 86.] Taking these allegations as true, as the Court must on a motion to dismiss, a trier of fact 2 could conclude that the circumstances alleged in the FAC do not constitute a Terry stop. 3 Accordingly, the Court declines to dismiss Plaintiffs’ fourth cause of action to the extent it is 4 based on their alleged detention and arrest for kidnapping. However, Jill Linberg, Kathy 5 O’Connell, and Carol Snyder are the only named Defendants that are alleged to be involved in the 6 detention incident.5 [FAC ¶¶ 84-85.] Therefore, Plaintiffs may proceed on their fourth 7 amendment claim for their detention and arrest against only these three Defendants. 8 9 Plaintiffs also allege that the removal of their child N. violated their Fourth Amendment rights. [FAC at 74.] However, the seizure of Plaintiffs’ child N. does not implicate Plaintiffs’ 10 Fourth Amendment rights. See P.C. Connecticut Dept. of Children and Families, 662 F. Supp. 2d 11 218, 232 (D. Conn. 2009) (holding that seizure of children did not implicate the Fourth 12 Amendment rights of the children’s parents) (citing cases). Meanwhile, Plaintiffs cannot bring 13 claims on behalf of their children while acting in pro per. See Johns v. County of San Diego, 114 14 F.3d 874, 877 (9th Cir. 1997) (holding that a guardian or parent cannot bring a lawsuit on behalf of 15 a minor child without retaining a lawyer). Even if Plaintiffs were represented by counsel, they 16 would lack standing to pursue Fourth Amendment claims on behalf of their children. “‘Fourth 17 Amendment rights are personal rights which . . . may not be vicariously asserted.’” Moreland v. 18 Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (quoting Alderman v. United 19 States, 394 U.S. 165, 174 (1969)). “Thus, the general rule is that only the person whose Fourth 20 Amendment rights were violated can sue to vindicate those rights.” Id. Therefore, a parent does 21 not have standing to sue for an alleged violation of the Fourth Amendment on behalf of his minor 22 child. See, e.g., Leubner v. Cnty. of San Joaquin, 2009 U.S. Dist. LEXIS 37817, at *4-5 (E.D. 23 Cal. May 5, 2009); Osborne v. Cnty. of Riverside, 385 F. Supp. 2d 1048, 1052 (C.D. Cal. 2005). 24 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ fourth cause of action 25 to the extent it is based on the removal of Plaintiffs’ child N. 26 Plaintiffs also bring a fourth amendment claim for unlawful search and a claim for 27 28 5 Plaintiffs argue in the FAC that other Defendants are vicariously liable for these Fourth Amendment violations. [FAC at 75.] However, there is no vicarious liability for § 1983 claims. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). - 18 - 1 violation of their right to privacy based on the search of their private dwelling. [FAC at 81-85.] 2 However, there is absolutely no factual support for this claim. In the FAC, Plaintiffs do not allege 3 that Defendants ever searched Plaintiffs’ home in relation to the removal of their child N. [See 4 FAC ¶¶ 43-146.] To the contrary, Plaintiffs’ allege that N. never lived with them in California. 5 [Id. ¶ 43.] Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ seventh and 6 eighth causes of action. 7 C. 8 Plaintiffs assert two causes of action pursuant to 42 U.S.C. § 1983 for violations of their Fifth Amendment Claims 9 Fifth Amendment rights. [FAC at 76-77, 106-08.] However, the Fifth Amendment applies “only 10 to actions of the federal government – not to those of state or local governments.” Lee v. City of 11 Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). Because Plaintiffs have not alleged that any of 12 the Defendants are federal actors, and to the contrary, allege that they are state and local actors 13 [FAC at 37-43], Plaintiffs have failed to properly allege a violation of the Fifth Amendment. See 14 id. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ fifth and nineteenth 15 causes of action. 16 D. 17 Plaintiffs assert a cause of action pursuant to 42 U.S.C. § 1983 for violations of their due 18 19 Fourteenth Amendment Claims process and equal protection rights. [FAC at 78-81.] 1. Equal Protection 20 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 21 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 22 direction that all persons similarly situated should be treated alike.” Lee, 250 F.3d at 686 23 (citations omitted). “To state a claim under 42 U.S.C. § 1983 for a violation of [equal protection] 24 a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the 25 plaintiff based upon membership in a protected class.” Id. 26 The FAC consists of mostly vague and conclusory allegations that the state court judge 27 Defendants were racially biased and Plaintiffs were discriminated against on the basis of their race 28 as African Americans and subjected to derogative remarks during the dependency proceedings. - 19 - 1 [See FAC at 2-9, 17-21, 28, 48.] Plaintiffs provide no factual basis for these allegations other than 2 an allegation that Judge Campos allowed attorney Christina Bobb to use a racially derogative term 3 toward Plaintiffs during the proceedings. [Id. at 28.] However, Christina Bobb is not a named 4 Defendant in this lawsuit, and Judge Campos and the other state court judge Defendants are 5 protected by judicial immunity from Plaintiffs’ claims. See supra section III.A. Accordingly, the 6 Court DISMISSES WITH PREJUDICE Plaintiffs’ equal protection claim in their sixth cause of 7 action. 8 9 2. Due Process In order to state a claim for violation of due process, Plaintiffs must allege “(1) a 10 deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate 11 procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). The Fourteenth 12 Amendment protects the right to familial association and guarantees that parents cannot be 13 separated from their children without due process of law, except in emergencies. Mabe v. San 14 Bernardino Cnty Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). Ordinarily, due 15 process of law requires the opportunity to be heard “at a meaningful time and in a meaningful 16 manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). 17 Plaintiffs appear to be bringing their due process claim on several different grounds. First, 18 Plaintiffs appear to allege that the Defendant state court judges held secret ex parte meetings 19 without giving Plaintiffs notice, allowed perjury and the introduction of false documents during 20 the proceedings, and otherwise acted improperly during the dependency proceedings. [FAC at 2- 21 36, 45-46, 49, 104.] With respect to these allegations, Defendants Judge Campos, Judge 22 Hueghenor, Judge Staven, and Judge Bashant are protected by absolute judicial immunity from 23 Plaintiffs’ due process claim. See supra section III.A. Therefore, to the extent Plaintiffs’ due 24 process claim is based on these allegations it is barred by the doctrine of judicial immunity. 25 26 Plaintiffs also allege that the “Social Worker Defendants” took their child N. on February 4, 2009 without a petition ever being filed on her.6 [FAC ¶ 105.] The FAC lists Connie Sererak 27 28 6 At the hearing, the County Defendants argued that the FAC alleges that there was a petition that was filed on September 23, 2008, prior to the removal of Plaintiffs’ child N. However, although Plaintiffs admit in the FAC that a petition was filed on September 23, 2008, they also allege that this - 20 - 1 Austin, Shelley Paule, Tonya Sloan, Connie Cain, Jane Simon, Elizabeth Edwards, Brooke Guild, 2 and Candi Mayes as the “Social Worker Defendants.” [Id. ¶ 21.] Officials may only remove a 3 child from the custody of its parent when there is prior judicial authorization or “if the information 4 they possess at the time of the seizure is such as provides reasonable cause to believe that the child 5 is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably 6 necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). 7 “The existence of reasonable cause, and the related questions, are all questions of fact to be 8 determined by the jury.” Id. Because Plaintiffs allege that the officials did not have judicial 9 authorization to remove their child, and the Court cannot determine whether reasonable cause 10 existed at the pleadings stage, Plaintiffs have properly alleged a violation of their due process 11 rights against these Defendants. However, Defendant Candi Mayes as a court appointed attorney 12 is not a state actor, so Plaintiffs cannot bring a § 1983 claim against her. See supra section III.C. 13 Therefore, Plaintiffs may proceed on their due process claim to the extent it is based on the 14 removal of N. without prior judicial authorization or reasonable cause against Defendants Connie 15 Cain, Connie Sererak Austin, Shelley Paule, Tonya Sloan, Jane Simon, Elizabeth Edwards, and 16 Brooke Guild. 17 Plaintiffs further allege that Tonya Sloan, Candi Mayes, Candice Cohen, and Evangelina 18 Woo presented false documents during the juvenile proceedings. [FAC at 21, 25, 27, 49, 52, 61- 19 63.] Plaintiffs also allege that Defendant court reporter Sherry Erickson purposefully altered 20 records, transcripts and documents during the proceedings. [Id. at 25-26.] The Ninth Circuit has 21 held that “deliberately fabricating evidence in civil child abuse proceedings violates the Due 22 Process clause of the Fourteenth Amendment when a liberty or property interest is at stake.” 23 Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1108 (9th Cir. 2010). Therefore, 24 Plaintiffs potentially have a due process claim against these five Defendants. However, 25 Defendants Candi Mayes and Candice Cohen as court appointed attorneys are not state actors, so 26 Plaintiffs cannot bring a § 1983 claim against them. See supra section III.C. Also, the allegations 27 28 petition related to a different child, and that they were not provided with any notice of this petition or allowed to attend the hearing on the petition. [FAC ¶¶ 52-53, 60.] - 21 - 1 against Evangelina Woo have no factual support and are too vague and conclusory to support a 2 claim against her. [See, e.g., FAC at 27.] See Twombly, 550 U.S. at 570. Accordingly, Plaintiffs 3 may proceed on their due process claim related to the alteration of documents and the filing of 4 false documents against only Defendants Tonya Sloan and Sherry Erickson. 5 Finally, Plaintiffs also allege that on or about May 2009, the “Social Worker Defendants” 6 took Plaintiffs’ child N. to a doctor for a medical examination without Plaintiffs’ consent or 7 authorization. [FAC ¶ 107-08.] “[P]arents have a right arising from the liberty interest in family 8 association to be with their children while they are receiving medical attention.” Wallis v. 9 Spencer, 202 F.3d 1126, 1142 (9th Cir. 1999). “[G]overnment officials cannot exclude parents 10 entirely from the location of their child’s physical examination absent parental consent, some 11 legitimate basis for exclusion, or an emergency requiring immediate medical attention.” Greene v. 12 Camreta, 588 F.3d 1011, 1037 (9th Cir. 2009) vacated in part on other grounds by 131 S. Ct. 2020 13 (2011). Therefore, Plaintiffs have sufficiently pleaded a due process claim against these 14 Defendants. However, as previously stated, Plaintiffs may not bring a § 1983 claim against 15 Defendants Candi Mayes because she is not a state actor. See supra section III.C. Accordingly, 16 Plaintiffs may proceed on their due process claim related to the May 2009 medical examination 17 against Defendants Connie Cain, Connie Sererak Austin, Shelley Paule, Tonya Sloan, Jane Simon, 18 Elizabeth Edwards, and Brooke Guild. 19 E. Sixth Amendment Claims 20 Plaintiffs assert a cause of action pursuant to 42 U.S.C. § 1983 for violation of their Sixth 21 Amendment rights. [FAC at 85-88.] The Sixth Amendment only applies “to a person charged 22 with the commission of a criminal offense, and to him alone.” Gannett Co. v. DePasquale, 443 23 U.S. 368, 379-80 (1979). Plaintiffs admit that although they are bringing a sixth amendment 24 claim, they have not been criminally prosecuted. [FAC at 85.] Further, “[d]ependency 25 proceedings are civil in nature, designed not to prosecute the parent, but to protect the child.” In re 26 Mary S., 186 Cal. App. 3d 414, 418 (1986); accord. In re Malinda S., 51 Cal. 3d 368, 384 (1990). 27 Because Plaintiffs do not allege that they were involved in a criminal prosecution and only allege 28 that they were involved in civil proceedings, they have not properly alleged a claim for violation - 22 - 1 of the Sixth Amendment. See Schneider v. Amador Cnty, 2011 U.S. Dist. LEXIS 98466, at *9 2 (E.D. Cal. Sept. 1, 2011). Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ 3 ninth cause of action. 4 F. Section 1985 and 1986 Claims 5 Plaintiffs assert causes of action under 42 U.S.C. § 1985 and 42 U.S.C. § 1986. [FAC at 6 88-93.] Section 1985 “proscribes conspiracies to interfere with civil rights.” Sanchez v. City of 7 Santa Ana, 936 F.2d 1027, 1039 (9th Cir.1990). A claim brought for violation of section 1985 8 requires four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or 9 indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges 10 and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a 11 person is either injured in his person or property or deprived of any right or privilege of a citizen 12 of the United States. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation 13 omitted). A racial, or perhaps otherwise class-based, invidiously discriminatory animus is an 14 indispensable element of a section 1985 claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 15 989 (9th Cir. 2001); see also Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (“The language 16 requiring intent to deprive of equal protection . . . means that there must be some racial, or perhaps 17 otherwise class-based invidiously discriminatory animus behind the conspirators’ action.”). 18 To state a claim of conspiracy under § 1985, a plaintiff must allege facts with sufficient 19 particularity to show an agreement or a meeting of the minds to violate her constitutional rights. 20 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Woodrum v. Woodward County, 866 F.2d 21 1121, 1126 (9th Cir. 1989). “Vague and conclusory allegations of official participation in civil 22 rights violations are not sufficient to withstand a motion to dismiss.” Ivey v. Board of Regents, 23 673 F.2d 266, 268 (9th Cir. 1982); see also Karim-Panahi, 839 F.2d at 626 (“[a] mere allegation of 24 conspiracy without factual specificity is insufficient”). 25 The FAC contains only conclusory allegations of a conspiracy to detain Plaintiffs’ child N. 26 that was motivated by invidious discrimination. [FAC at 89.] The FAC does not allege facts with 27 sufficient particularity to show that there was an agreement to violate Plaintiffs’ constitutional 28 rights. Therefore, Plaintiffs have not properly stated a claim under § 1985. See Margolis, 140 - 23 - 1 F.3d at 853. 2 In addition, if a complaint does not properly state a claim under § 1985, then it also does 3 not properly state a claim under § 1986. McCalden v. California Library Ass’n, 955 F.2d 1214, 4 1223 (9th Cir. 1992). Therefore, Plaintiffs have also not properly alleged a claim under § 1986. 5 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ tenth and eleventh 6 causes of action. 7 G. 8 Plaintiffs assert two claims for municipal liability pursuant to Monell v. Department of Monell Claims 9 Social Services of City of New York, 436 U.S. 658 (1978). [FAC at 93-97.] A local government 10 may be held liable under Section 1983 only if the plaintiff can demonstrate that the government’s 11 official policy or custom was the “moving force” responsible for infliction of her injuries. Id. at 12 694. In this case, Plaintiffs’ allegations pertain exclusively to the initial and continued removal of 13 their child N. by state and local officials and their detention and arrest by local officials. [See 14 FAC.] “A plaintiff cannot demonstrate the existence of a municipal policy or custom based solely 15 on a single occurrence of unconstitutional action by a non-policymaking employee.” McDade v. 16 West, 223 F.3d 1135, 1141 (9th Cir.2000). The Court is not bound to accept Plaintiffs’ 17 unsupported legal conclusions as true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In 18 addition, the Superior Court Defendants are state officials and Monell liability does not apply to 19 them. See Krainski v. State ex rel. Bd. of Regents, 616 F.3d 963, 968 (9th Cir. 2010) (explaining 20 that “the Supreme Court has expressly declined to extend Monell’s theory of municipal liability 21 under § 1983 to state entities”). Accordingly, the Court DISMISSES WITHOUT PREJUDICE 22 Plaintiffs’ twelfth and thirteenth causes of action with respect to the County Defendants and 23 DISMISSES WITH PREJUDICE Plaintiffs’ twelfth and thirteenth causes of action with respect 24 to the Superior Court Defendants. 25 H. 26 Plaintiffs assert a cause of action for injunctive relief. [FAC at 108-10.] It is unclear from 27 the FAC what injunctive relief Plaintiffs are seeking. To the extent Plaintiffs are seeking to enjoin 28 the ongoing state court juvenile dependency proceedings or seeking the return of their child, such Injunctive Relief - 24 - 1 a claim would be barred by the abstention doctrine mentioned above. See supra section II.A. In 2 addition, an injunction against the juvenile dependency proceedings would violated the Anti- 3 Injunction Act, which bars federal courts from enjoining state court proceedings. See 28 U.S.C. § 4 2283. Further, to the extent Plaintiffs are seeking to enjoin the state of California’s juvenile 5 proceedings as a whole, this claim would also be barred by abstention under O’Shea v. Littleton, 6 414 U.S. 488 (1974). See E.T. v. Cantil-Sakauye, 2011 U.S. App. LEXIS 18867, at *6-10 (9th 7 Cir., Apr. 14, 2011). 8 9 To the extent Plaintiffs are seeking to enjoin the Defendants from unlawfully arresting and searching them, such a claim would be moot. To obtain an injunction, a plaintiff must establish 10 that a “real or immediate threat” exists that he will be wronged again. City of Los Angeles v. 11 Lyons, 461 U.S. 95, 111 (1983). The alleged threat cannot be “conjectural” or “hypothetical.” Id. 12 at 101-02. Therefore, where the activities sought to be enjoined have already occurred, and the 13 Court cannot undo what has already been done, and there is no prospective harm to the plaintiff, 14 the action is moot and no injunction can be granted. ICR Graduate School v. Honig, 758 F. Supp. 15 1350, 1354-55 (S.D. Cal. 1991) (citing Friends of the Earth v. Bengland, 576 F.2d 1377, 1379 (9th 16 Cir. 1978)). Here, no conduct is alleged to be currently threatened against Plaintiffs. The 17 allegedly unlawful arrest and search has already occurred. [See FAC ¶¶ 81-102.] Accordingly, 18 the Court DISMISSES WITH PREJUDICE Plaintiffs’ claim for injunctive relief. 19 20 CONCLUSION For the reasons above, the Court GRANTS IN PART and DENIES IN PART the County 21 Defendants’ motion to dismiss and GRANTS IN PART and DENIES IN PART the Superior 22 Court Defendants’ motion to dismiss. Specifically, the Court: 23 24 1. DISMISSES WITH PREJUDICE Defendants Judge Bashant, Judge Campos, Judge Huegenor, and Judge Staven; 25 2. DISMISSES WITH PREJUDICE causes of action 1, 2, 3, and 5; 26 3. DISMISSES WITH PREJUDICE cause of action 6 to the extent it is based on 27 violations of the equal protection clause and to the extent it is based on violations of the due 28 process clause related to the state court judge Defendants, - 25 - 1 2 4. 5. against Defendants Candice Cohen, Candi Mayes, Caitlin Rae, John Sansone, and John Philips; 5 6 6. DISMISSES WITH PREJUDICE causes of action 12 and13 against Defendant Sherry Erickson; and 7 8 DISMISSES WITH PREJUDICE causes of action 4, 5, 6, 7, 8, 9, 12, and 13 and 20; 3 4 DISMISSES WITH PREJUDICE causes of action 7, 8, 9, 14, 15, 16, 17, 18, 19 7. DISMISSES WITHOUT PREJUDICE causes of action 10, 11, 12, 13, and 14. Plaintiffs may proceed on: 9 1. their Fourth Amendment claim (cause of action 4) against Defendants Jill Lindberg, 10 Kathy O’Connell, and Carol Snyder related to their alleged detention and arrest for kidnapping on 11 February 4, 2009; 12 2. their due process claim (cause of action 6) against Defendants Connie Cain, Connie 13 Sererak Austin, Shelley Paule, Tonya Sloan, Jane Simon, Elizabeth Edwards, and Brooke Guild 14 based on the alleged removal of their child N. without prior judicial authorization or reasonable 15 cause; 16 3. their due process claim (cause of action 6) against Defendants Tonya Sloan and 17 Sherry Erickson related to the alleged fabrication and alteration of documents during the juvenile 18 dependency proceedings; and 19 4. their due process claim (cause of action 6) against Defendants Connie Cain, Connie 20 Sererak Austin, Shelley Paule, Tonya Sloan, Jane Simon, Elizabeth Edwards, and Brooke Guild 21 related to N.’s May 2009 medical examination. 22 The Court DISMISSES WITHOUT PREJUDICE the remaining Defendants. 23 24 IT IS SO ORDERED. DATED: December 1, 2011 _______________________________ 25 26 IRMA E. GONZALEZ, Chief Judge United States District Court 27 28 - 26 -
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