Ivan Rubtsov et al v. Los Angeles County Department of Children and Family Services et al

Filing 18

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT #12 Any amended complaint must be filed on or before July 14, 2014 by Judge Dean D. Pregerson . (lc) .Modified on 6/30/2014 (lc).

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 IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PLAINTIFFS’
COMPLAINT
[DKT. NO. 12]

19
20

Presently before the Court is Defendants’ motion to dismiss

21

Plaintiffs’ complaint (the “Motion”). (Docket No. 12.) For the

22

reasons stated in this Order, the Motion is GRANTED IN PART and

23

DENIED IN PART.

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

1

(“Watrobski”), and Does 1-20, 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 some time in 2013.

5

(Complaint ¶ 20.) V.R., a 14 year old, is the biological daughter

6

of Rubtsov and resides with Rubtsov and Tzubery. (Id. ¶ 18.)

7

Rubtsov was previously married to V.R.’s biological mother, Ulyana

8

Rubtsova (“Ulyana”), but they are now divorced and Rubtsov was

9

given legal and physical custody of V.R. in 2011; Ulyana has

10
11

custody of their other two children. (Id. ¶¶ 18-19.)
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. ¶ 21.) Shortly thereafter, Ulyana made

14

allegations against Rubtsov. (Id.) A total of 11 referrals resulted

15

against Plaintiffs, all of which were ultimately closed as either

16

“unfounded” or “inconclusive.” (Id.) Plaintiffs allege, however,

17

that after the referrals were closed, Watrobski changed the

18

dispositions to “conclusive” or “founded” without Plaintiffs’ prior

19

knowledge or consent. (Id.) Plaintiffs allege that Rubtsov was

20

notified in May 2013 that the County “might have suddenly

21

substantiated an allegation of child abuse or neglect against him”

22

and that, as a result, he would be included in the Child Abuse

23

Central Index (“CACI”) by the California Department of Justice

24

(“DOJ”). (Id. ¶ 24.) Plaintiffs allege that all allegations made

25

against them have since been determined to be false. (Id.)

26

In 2012, Rubtsov and Tzubery applied to Penny Lane Foster

27

Family Agency (the “Agency”) to be foster parents and were

28

approved. (Id. ¶ 28.) In May 2013, a 3 month old child was placed
2

1

in their home. (Id.) However, after three days, the Agency informed

2

Plaintiffs that all three of them were included in CACI and that

3

the Agency had been ordered by the County to remove the child from

4

their care. (Id.) Plaintiffs also found out that their information

5

was listed on many other state databases. (Id. ¶ 29.) Plaintiffs

6

were told that “unless and until these matters were cleared, no

7

children could be placed in their home, they were not approved to

8

adopt and/or obtain guardianship of children.” (Id. ¶ 30.)

9

In May 2013, Rubtsov requested information related to all

10

referrals and demanded an appeal of Plaintiffs’ inclusion in CACI

11

and all other state databases. (Id. ¶ 32.) Rubtsov requested an

12

administrative hearing and filed a request for disclosure of the

13

documents regarding the referrals pursuant to Welfare and

14

Institutions Code § 827. (Id. ¶¶ 33-34.) He was first told that a

15

hearing was denied because he was not in the CACI database. (Id. ¶

16

35.) However, in August 2013, the County notified Rubtsov that only

17

he could have a hearing, that Tzubery and V.R. were not entitled to

18

one, and that “he would have to waive his rights.”1 (Id. ¶ 36.)

19

Plaintiffs claim that the County “failed to provide them with an

20

opportunity to offer live testimony, call witnesses or examine

21

those witnesses whose statements were considered by Defendants when

22

they placed their personal information in the ... databases.” (Id.

23

¶ 37.) Defendants told Rubtsov that there was no appeal mechanism

24

for inclusion in databases other than CACI. (Id. ¶¶ 36-38.) V.R.

25

was told by Defendants that there was no appeal mechanism or right

26

to a hearing for a minor’s removal from the databases. (Id. ¶ 39.)

27
1

28

It is unclear what “rights” Plaintiffs allege would have to
be waived.
3

1

Plaintiffs assert three causes of action arising out of these

2

facts, each of which Plaintiffs bring against all Defendants: (1)

3

42 U.S.C. § 1983 constitutional violations (due process and right

4

to privacy) for unlawful policies, customs, and habits; (2) civil

5

conspiracy; and (3) intentional infliction of emotional distress

6

(“IIED”). (Id. ¶¶ 50-65.) Defendants now seek dismissal of these

7

causes of action under Rule 12(b)(6). (Docket No. 12.)

8

II. Legal Standard

9

A complaint will survive a motion to dismiss when it contains

10

“sufficient factual matter, accepted as true, to state a claim to

11

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

12

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

13

570 (2007)). When considering a Rule 12(b)(6) motion, a court must

14

“accept as true all allegations of material fact and must construe

15

those facts in the light most favorable to the plaintiff.” Resnick

16

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint

17

need not include “detailed factual allegations,” it must offer

18

“more than an unadorned, the-defendant-unlawfully-harmed-me

19

accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or

20

allegations that are no more than a statement of a legal conclusion

21

“are not entitled to the assumption of truth.” Id. at 679. In other

22

words, a pleading that merely offers “labels and conclusions,” a

23

“formulaic recitation of the elements,” or “naked assertions” will

24

not be sufficient to state a claim upon which relief can be

25

granted. Id. at 678 (citations and internal quotation marks

26

omitted).

27
28

“When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
4

1

plausibly give rise to an entitlement of relief.” Id. at 679.

2

Plaintiffs must allege “plausible grounds to infer” that their

3

claims rise “above the speculative level.” Twombly, 550 U.S. at

4

555. “Determining whether a complaint states a plausible claim for

5

relief” is a “context-specific task that requires the reviewing

6

court to draw on its judicial experience and common sense.” Iqbal,

7

556 U.S. at 679.

8

III. Discussion

9

A. Civil Rights Claims Against County

10

Defendants argue that Plaintiffs have failed to state claims

11

against the County because they have not alleged facts supporting

12

municipal liability under Monell v. Dept. of Social Services, 436

13

U.S. 658 (1978). Defendants argue that Plaintiffs have failed to

14

plead facts supporting any unlawful policy or practice of the

15

County.

16

In order to survive a motion to dismiss a claim for municipal

17

liability under Monell, a plaintiff must identify the practices and

18

policies that he alleges are deficient, explain how such policy or

19

practice is deficient, and explain how the deficiency caused harm

20

to the plaintiff. Young v. City of Visalia, 687 F.Supp.2d 1141,

21

1149-50 (E.D. Cal. 2009). In other words, a plaintiff must allege

22

“specific facts giving rise to a plausible Monell claim” instead of

23

“formulaic recitations of the existence of unlawful policies,

24

customs, or habits.” Warner v. County of San Diego, 2011 WL 662993

25

(S.D. Cal. 2011).

26

Here, Plaintiffs allege that the County had “woefully

27

inadequate policies and procedures for review of conclusive

28

allegations of child abuse in [databases].” (Complaint ¶ 51.) In
5

1

the context of the factual allegations, it is clear that the policy

2

or practice to which Plaintiffs refer is the failure to offer a

3

review procedure that would allow Plaintiffs the opportunity to

4

challenge their inclusion in the CWS/CMS database and other state

5

databases. Plaintiffs allege that they were told that there were no

6

procedures for challenging inclusion in databases other than CACI,

7

and that Tzubery and V.R. were told that they could not even

8

challenge their inclusion in CACI. (Id. ¶¶ 36-39.) Under

9

California’s statutory scheme for investigating and reporting child

10

abuse allegations, due process requires that those individuals

11

reported for inclusion in CACI be afforded a hearing to contest

12

their inclusion in CACI and the evidence supporting that inclusion.

13

Burt v. County of Orange, 120 Cal.App.4th 273, 285-86 (2004). The

14

absence of any sort of process gives rise to a claim against the

15

reporting municipal entity for failing to provide such process. Id.

16

This right has also been found to apply to an individual’s

17

inclusion in CWS/CMS. Castillo v. County of Los Angeles, 959

18

F.Supp.2d 1255 (C.D. Cal. 2013).

19

Further, Defendants allude to an argument that Plaintiffs have

20

failed to allege any harm to their privacy interests because the

21

databases on which their information is listed are not publically

22

accessible. However, the inclusion of an individual’s name on a

23

child abuse registry may implicate privacy interests even where the

24

information is not available to the general public. See Burt, 120

25

Cal.App.4th at 284-85. While liability will ultimately be

26

determined by balancing the governmental interest in the intrusion

27

on privacy against Plaintiffs’ privacy rights, Plaintiffs’ claim is

28

plausibly pled for purposes of this Motion. See Castillo, 959
6

1

F.Supp.2d at 1263-64 (balancing privacy interests against

2

government interests). Therefore, Plaintiffs have stated a

3

plausible claim against the County for violation of their right to

4

due process and right to privacy. The Court DENIES the Motion as to

5

this cause of action.

6

B. Claims Against Watrobski

7

The only factual allegation against Defendant Watrobski,

8

specifically, states that “[a]fter the last referrals were closed,

9

the dispositions were changed by Defendant Watrobski to conclusive

10

or founded, without Plaintiffs’ prior knowledge or consent.”2

11

(Complaint ¶ 21.) Plaintiffs further state that Watrobski is “an

12

officer, agent, and employee of Defendant ... County of Los

13

Angeles.” (Id. ¶ 9.) No other information is contained in the

14

Complaint regarding Watrobski’s role as an employee of the County

15

or whether he was involved in any of the other alleged acts of

16

“Defendants.”3

17

This single alleged act, standing alone, is insufficient to

18

state a plausible claim for personal liability against Watrobski.

19

The complaint does not contain any allegations that Watrobski

20

personally denied Plaintiffs a hearing, nor any allegations that

21

Watrobski had no legitimate basis for changing the outcome of the

22
2

23
24
25

The complaint includes many allegations that refer to acts
performed by “Defendants,” but it is unclear whether Plaintiffs
intend to allege that Watrobski personally performed all of the
alleged acts or whether Plaintiffs allege that another individual
performed those acts on behalf of the County.
3

26
27
28

Plaintiffs include many more allegations regarding
Watrobski’s actions and his role as an employee of the County in
their opposition to the Motion. However, the Court does not
consider these allegations in determining the resolution of this
Motion, as the Court may properly consider only those allegations
contained in the Complaint.
7

1

referrals against Plaintiffs. Further, this act alone does not

2

establish any conspiracy between Watrobski and any other

3

individual, nor does the act rise to the level of “extreme and

4

outrageous conduct” that is required for an IIED claim. Therefore,

5

the Court GRANTS the Motion and DISMISSES the claims against

6

Watrobski WITHOUT PREJUDICE. Plaintiffs may amend to clarify which

7

alleged acts were performed by Watrobski that support claims

8

against him personally. Further, any amended complaint should

9

clarify whether Plaintiffs allege that Watrobski was a policy maker

10

for the County or whether he was merely an employee. (See Reply,

11

Docket No. 15, p.4-5.)

12

Defendants also argue that Watrobski is entitled to qualified

13

immunity for the alleged act he performed, as public employees are

14

not liable for injuries resulting from an exercise of discretion.

15

Cal. Gov. Code § 820.2. However, under the facts as currently

16

alleged, it is unclear whether Watrobski performed any acts

17

involving “discretion” that might possibly entitle him to immunity

18

or whether he performed acts that clearly violated Plaintiffs’

19

rights such that he may be held liable. Therefore, the Court finds

20

that Watrobski is not entitled to immunity at this point. Upon the

21

filing of an amended complaint that clarifies Watrobski’s

22

involvement in the alleged acts, the Court will be in a position to

23

determine whether any entitlement to immunity might exist.

24

C. Civil Conspiracy Claim

25

Plaintiffs’ civil conspiracy claim is insufficiently pled. To

26

establish liability for a civil conspiracy claim, a plaintiff must

27

plead facts supporting the existence of “an agreement or meeting of

28

the minds to violate constitutional rights.” Mendocino
8

1

Environmental Center v. Mendocino County, 192 F.3d 1283, 1301 (9th

2

Cir. 1999) (internal quotations and citations omitted). Plaintiffs’

3

complaint contains no clear allegations regarding who allegedly

4

participated in this conspiracy or what those individuals allegedly

5

agreed to do. Based on the complaint, the Court and the Defendants

6

are left to wonder: who purportedly conspired with who to achieve

7

what purpose? Therefore, Plaintiffs’ civil conspiracy claim is

8

DISMISSED WITHOUT PREJUDICE. Upon amendment, Plaintiffs should

9

clarify who allegedly participated in a conspiracy and what that

10

conspiracy allegedly agreed to do that violated Plaintiffs’ rights.

11

D. IIED Claim

12

Defendants do not directly challenge the sufficiency of

13

Plaintiffs’ IIED claim. The Court has determined that all claims

14

against Watrobski are insufficiently pled, and therefore the IIED

15

claim against Watrobski is dismissed without prejudice. However, as

16

Defendants offer no argument as to why Plaintiffs’ IIED claim is

17

insufficiently pled against the County, the Court does not decide

18

whether that claim is sufficient, and the cause of action remains

19

operative as filed.

20

IV. Conclusion

21

For the foregoing reasons, the Motion is GRANTED IN PART and

22

DENIED IN PART. Any amended complaint must be filed on or before

23

July 14, 2014.

24

IT IS SO ORDERED.

25

Dated: June 30, 2014
DEAN D. PREGERSON
United States District Judge

26
27
28
9