Hass v. County of Sacramento, et al.

Filing 16

ORDER signed by Judge John A. Mendez on 12/19/2013 ORDERING that Defendants' 8 Motion to Dismiss is GRANTED. Defendants' Motion to Dismiss Plaintiff's first cause of action is GRANTED WITH PREJUDICE. Defendants' Motion to Dismi ss Plaintiff's second cause of action is GRANTED WITH LEAVE TO AMEND. Plaintiff's Amended Complaint must be filed within twenty (20) days from the date of this order. Defendants' responsive pleading is due within twenty (20) days thereafter. If Plaintiff elects not to file an Amended Complaint, the case will proceed without the first and second causes of action. (Zignago, K.)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JAMES D. HASS, No. 2:13-CV-01746 JAM KJN 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 11 12 13 14 SACRAMENTO COUNTY DEPARTMENT OF SUPPORT SERVICES, SACRAMENTO COUNTY SHERIFF SCOTT JONES, ATTORNEY SEAN GJERDE, AND DOES 1 through X, inclusive, 15 Defendants. 16 This matter is before the Court on Defendants County of 17 18 Sacramento (“Defendant County”) and Sacramento County Sheriff 19 Scott Jones’ (“Defendant Jones”) (collectively “Defendants”) 20 Motion to Dismiss (Doc. ##4,8) Plaintiff James Hass’ 21 (“Plaintiff”) Complaint (Doc. #1) for failure to state a claim 22 pursuant to Federal Rule of Civil Procedure 12(b)(6). 23 opposes the motion (“Opposition”) (Doc. #6). 24 filed a reply (Doc. #14). 25 motion is GRANTED. 1 Plaintiff Defendants have For the following reasons, Defendants’ 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for November 6, 2013. 1 1 2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND On May 1, 2009, Plaintiff alleges he met with “legal counsel 3 on staff” at the Sacramento County Department of Child Support 4 Services (“DCSS”) regarding his court-ordered child support 5 payments. 6 child support for his son in the amount of $3,200 with an 7 additional $2,000 for arrearages accruing on unpaid support and 8 $720 for the opposing party’s attorney fees. 9 After meeting with Plaintiff, DCSS allegedly determined that Compl. ¶ 9. Plaintiff had been ordered to pay monthly Compl. ¶¶ 8, 10. 10 Plaintiff lacked the ability to pay this amount, and “acted as 11 legal counsel of record for Plaintiff” by filing a motion to 12 modify Plaintiff’s child support payments. Compl. ¶¶ 9, 11. 13 At the hearing to modify child support payments in July 14 2009, the family court ordered Plaintiff to file a new Financial 15 Income and Expense Declaration and continued the matter to 16 October 22, 2009. 17 failed to “advise Plaintiff of this Court Order” or “me[e]t or 18 confer or assist Plaintiff with the preparation and/or the filing 19 of a new Declaration for the October 22, 2009 hearing.” 20 ¶¶ 14-15. 21 and neither DCSS nor Plaintiff appeared at the hearing on October 22 22, 2009, the motion to modify payments was removed from the 23 court calendar. 24 at the established level and, as of December 2010, was in excess 25 of $110,000. 26 Compl. ¶ 12. Plaintiff alleges that DCSS Compl. After Plaintiff failed to file the required documents, Compl. ¶ 16. Child support continued to accrue Compl. ¶ 17. On December 30, 2009, Plaintiff retained Attorney Sean 27 Gjerde (“Defendant Gjerde”) to file a Petition in bankruptcy 28 court on his behalf. Compl. ¶ 19. 2 This Petition was dismissed 1 and re-filed on numerous occasions, and Defendant Gjerde’s 2 representation of Plaintiff is the subject matter of Plaintiff’s 3 third through seventh causes of action. 4 Motion to Dismiss only addresses Plaintiff’s first and second 5 causes of action, the facts of Defendant Gjerde’s representation 6 are not relevant and are not summarized here. 7 However, as Defendants’ In February 2010, DCSS filed a contempt petition against 8 Plaintiff, alleging that Plaintiff willfully failed to pay child 9 support. Compl. ¶ 24. Plaintiff retained Defendant Gjerde to 10 represent him in the family law matter. 11 December 8, 2010, Plaintiff was arraigned on the contempt matter 12 and trial was set for February 7, 2011. 13 did not appear for trial, although Defendant Gjerde did appear. 14 Compl. ¶¶ 35, 42. 15 February 7, 2011, the court ordered that Plaintiff be 16 incarcerated in the Sacramento County Jail for 55 days. 17 42. 18 Compl. ¶ 25. Compl. ¶ 34. On Plaintiff As a result of Plaintiff’s non-appearance on Compl. ¶ The following day, on February 8, 2011, Plaintiff appeared 19 in court because he mistakenly believed that trial was set for 20 that date. 21 custody, and was booked into the Sacramento County Main Jail. 22 Id. 23 oppressive conditions which violated his civil rights.” 24 ¶ 49. 25 used to house gang members, repeat felons, those accused of 26 serious felony crimes, suicidal inmates, and those being 27 processed.” 28 only permitted to shower twice during his incarceration and was Compl. ¶ 47. Plaintiff was immediately taken into Plaintiff alleges that he was “compelled to live under Compl. Plaintiff alleges that he was housed in a unit “typically Compl. ¶ 62. Plaintiff further alleges that he was 3 1 required to remain in his cell at all times, with the exception 2 of four “recreation” occasions. 3 television or radio privileges and “shared his windowless cell 4 with bags of garbage . . . and sometimes another inmate.” 5 ¶ 66. 6 conditions” that “fell below the standard of care for inmates 7 according to [Defendant Jones’] published statement of 8 standards.” 9 incarceration, he “filed a Petition for a Writ of Habeas Corpus” Compl. ¶¶ 64-65. He had no Compl. Plaintiff alleges that he was incarcerated under “inhumane Compl. ¶¶ 77-78. Plaintiff states that, during his 10 and “presented a Request for a Stay of sentence pending 11 resolution of his Habeas Petition,” but was never heard on these 12 requests. 13 released from custody. 14 Compl. ¶¶ 68, 69, 73. On March 5, 2011, Plaintiff was Compl. ¶ 74. On March 7, 2012, Plaintiff filed the Complaint (Doc. #1) 15 in Sacramento County Superior Court. 16 removed to this Court by Defendants on August 22, 2013. 17 Plaintiff’s Complaint includes the following causes of action: 18 (1) Malpractice against Defendant County (erroneously sued as 19 Department of Child Support Services); (2) “Negligence and 20 Violation of Civil Rights” against Defendant Jones; 21 (3) Malpractice against Defendant Gjerde for his representation 22 of Plaintiff in the family law matter; (4) Malpractice against 23 Defendant Gjerde for failure to keep his client advised; 24 (5) Malpractice against Defendant Gjerde for the Plaintiff’s loss 25 of $70,000 from Home Depot; (6) Malpractice against Defendant 26 Gjerde for Plaintiff’s loss of business, personal assets, and 27 home; and (7) “Fraud and Deceit/False Promise” against Defendant 28 Gjerde. 4 The case was susequently 1 This Court has original jurisdiction under 28 U.S.C. 2 § 1331 because Plaintiff has asserted a claim for relief under 42 3 U.S.C. § 1983 for violation of his civil rights under the Eighth 4 Amendment of the United States Constitution. 5 6 II. OPINION 7 A. 8 A party may move to dismiss an action for failure to state a 9 Legal Standard claim upon which relief can be granted pursuant to Federal Rule 10 of Civil Procedure 12(b)(6). 11 plaintiff must plead “enough facts to state a claim to relief 12 that is plausible on its face.” 13 556 U.S. 662, 570 (2007). 14 district court must accept all the allegations in the complaint 15 as true and draw all reasonable inferences in favor of the 16 plaintiff. 17 overruled on other grounds by Davis v. Scherer, 468 U.S. 183 18 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). 19 entitled to the presumption of truth, allegations in a complaint 20 or counterclaim may not simply recite the elements of a cause of 21 action, but must sufficiently allege underlying facts to give 22 fair notice and enable the opposing party to defend itself 23 effectively.” 24 2011), cert. denied, 132 S. Ct. 2101, 182 L. Ed. 2d 882 (U.S. 25 2012). 26 must plausibly suggest an entitlement to relief, such that it is 27 not unfair to require the opposing party to be subjected to the 28 expense of discovery and continued litigation.” To survive a motion to dismiss a Bell Atlantic Corp. v. Twombly, In considering a motion to dismiss, a Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), “First, to be Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. “Second, the factual allegations that are taken as true 5 Id. Assertions 1 that are mere “legal conclusions” are therefore not entitled to 2 the presumption of truth. 3 (2009) (citing Twombly, 550 U.S. at 555). 4 appropriate when a plaintiff fails to state a claim supportable 5 by a cognizable legal theory. 6 Department, 901 F.2d 696, 699 (9th Cir. 1990). 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 Dismissal is Balistreri v. Pacifica Police Upon granting a motion to dismiss for failure to state a 8 claim, a court has discretion to allow leave to amend the 9 complaint pursuant to Federal Rule of Civil Procedure 15(a). 10 “Dismissal with prejudice and without leave to amend is not 11 appropriate unless it is clear . . . that the complaint could not 12 be saved by amendment.” 13 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 14 15 16 B. Eminence Capital, L.L.C. v. Aspeon, Discussion 1. Malpractice against Defendant County Plaintiff’s first cause of action is against Defendant 17 County (on behalf of DCSS) for malpractice. 18 that Plaintiff has failed to state facts upon which relief can be 19 granted because no attorney-client relationship existed between 20 DCSS and Plaintiff. 21 Family Code section 17406(a) expressly provides that no such 22 relationship exists between “the local child support agency . . . 23 and any person” as long as the agency is carrying out its 24 statutory duties. 25 the “attorney of record” in Plaintiff’s child support 26 modification proceedings, and that Defendant County is estopped 27 from denying the existence of an attorney-client relationship, 28 under California Evidence Code section 623. Mot. at 7. Mot. at 8. Defendants argue Defendants note that California Plaintiff responds that DCSS was 6 Opp. at 14-15. 1 The existence of an attorney-client relationship is an 2 essential element of a claim for legal malpractice. Fox v. 3 Pollack, 181 Cal.App.3d 954, 959 (1986). 4 section 17406(a) provides that “[i]n all actions involving 5 paternity or support . . . the local child support agency and the 6 Attorney General represent the public interest in establishing, 7 modifying, and enforcing support obligations.” 8 § 17406(a). 9 shall be deemed to have been created between the local child California Family Code Cal. Fam. Code Accordingly, “[n]o attorney-client relationship 10 support agency . . . and any person by virtue of the action of 11 the local child support agency . . . in carrying out these 12 statutory duties.” 13 proceedings, “[t]here is no attorney-client relationship created 14 between the [local child support agency] and the parent,” because 15 “the ‘client’ in such actions remains the county.” 16 Cnty. of Alameda, 8 Cal.App.4th 294, 297 (1992). Id. Therefore, in child support modification Jager v. 17 Here, Plaintiff has alleged that Defendant County – through 18 DCSS – “acted as legal counsel of record for Plaintiff” in child 19 support modification proceedings. 20 are no allegations that DCSS went beyond its statutory duties in 21 arguing that Plaintiff’s child support payments should be 22 modified. 23 duties,” no attorney-client relationship existed between 24 Plaintiff and DCSS. 25 Compl. ¶ 11. However, there As DCSS was merely “carrying out these statutory Cal. Fam. Code § 17406(a). Plaintiff’s reliance on California Evidence Code section 623 26 is misplaced. As an initial matter, the California Evidence 27 Code is not used in federal court. 28 no authority suggesting that an evidentiary rule of estoppel 7 Furthermore, Plaintiff cites 1 trumps an express statutory mandate regarding the non-existence 2 of an attorney-client relationship. 3 not apply to the present case, because DCSS did not 4 “intentionally and deliberately [lead Plaintiff] to believe” that 5 an attorney-client relationship existed. 6 As discussed above, DCSS was merely carrying out its statutory 7 duties in requesting a child support modification in Plaintiff’s 8 case. 9 would likely be exempt from its application. Moreover, section 623 does Cal. Evid. Code § 623. Finally, even if the doctrine of estoppel did apply, DCSS See City of Long 10 Beach v. Mansell, 3 Cal.3d 462, 493 (1970) (noting “the well- 11 established proposition that an estoppel will not be applied 12 against the government if to do so would effectively nullify a 13 strong rule of policy, adopted for the benefit of the public”). 14 As no attorney-client relationship existed between Plaintiff 15 and Defendant County, Plaintiff has failed to state a claim for 16 legal malpractice. 17 (finding that no attorney-client relationship existed “between a 18 parent seeking child support enforcement and the district 19 attorney”). 20 DISMISSED WITH PREJUDICE. See Jager, 8 Cal.App.4th at 297 (1992) Therefore, Plaintiff’s first cause of action is 21 Defendants also argue that Plaintiff’s claim for malpractice 22 against Defendant County is time-barred by the applicable statute 23 of limitations. 24 claim for malpractice, the Court need not reach this issue. 25 26 2. However, as Plaintiff has failed to state a Negligence and § 1983 Violations Plaintiff’s second cause of action is against Defendant 27 Jones for negligence and for violating Plaintiff’s civil rights 28 under 42 U.S.C. § 1983. Defendant argues that Plaintiff’s second 8 1 cause of action, to the extent that it purports to sue Defendant 2 Jones in an individual capacity, under a theory of either 3 negligence or § 1983 liability, must be dismissed because 4 Plaintiff has failed to allege any individual involvement or 5 culpability on Defendant Jones’ part. 6 concedes that “there is insufficient evidence to support 7 allegations against [Defendant] Jones as an individual.” 8 10 n.5. 9 of action is based on a theory of negligence, it is DISMISSED Mot. at 10-11. Plaintiff Opp. at Therefore, to the extent that Plaintiff’s second cause 10 WITH LEAVE TO AMEND. 11 § 1983 claim is brought against Defendant Jones in an individual 12 capacity, it is DISMISSED WITH LEAVE TO AMEND. 13 Similarly, to the extent that Plaintiff’s However, Plaintiff contends that he has alleged sufficient 14 facts to support a § 1983 claim against Defendant Jones in his 15 official capacity. 16 against Defendant Jones in his official capacity must be 17 dismissed because Plaintiff has failed to allege that an official 18 county policy existed. 19 arguing that the conditions in the county jail violated the 20 Eighth Amendment, due to (1) solitary confinement, (2) unsanitary 21 conditions, and (3) insufficient diet and exercise. 22 14. 23 Opp. at 10. Defendants argue that any claim Mot. at 11-12. Plaintiff responds by Opp. at 13- When a government official is sued in his official capacity 24 for a civil rights violation under § 1983, it is the legal 25 equivalent of a suit against “the entity of which [the] officer 26 is an agent.” 27 York, 436 U.S. 658, 691 (1978). 28 sued under § 1983, “it cannot be held liable unless a municipal Monell v. Dep't of Soc. Servs. of City of New Although a municipality can be 9 1 policy or custom caused the constitutional injury.” 2 v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 3 U.S. 163, 166 (1993). 4 policy in sufficient detail, and an allegation of a general 5 policy will not suffice. 6 Ninth Circuit approvingly discussed the district court’s 7 dismissal on the ground that “the complaint did not allege a 8 deliberate County policy with sufficient particularity.” 9 of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1247 Leatherman Furthermore, the claim must allege the For example, in a similar case, the Estate 10 (9th Cir. 1999). 11 had been amended to allege “that the County’s conduct ‘was part 12 of a general policy of neglect’” followed by the defendant. 13 This was despite the fact that the complaint Id. Here, Plaintiff is suing Defendant Jones in his official 14 capacity. Opp. at 10. Accordingly, the § 1983 claim is legally 15 equivalent to a claim against the County of Sacramento. 16 Complaint alleges several hardships visited upon Plaintiff during 17 his incarceration, but fails to allege that these were the result 18 of an official municipal policy. 19 oblique reference to Defendant Jones’ “published statement of 20 standards,” no such statement is attached to the Complaint. 21 Compl. ¶ 78. 22 alleged abuses were in compliance with Defendant Jones’ 23 “statement of standards,” or whether the abuses violated those 24 standards. 25 policy existed, the second cause of action against Defendant 26 Jones is DISMISSED WITH LEAVE TO AMEND. 27 938 F. Supp. 582, 587 (C.D. Cal. 1996) (dismissing a § 1983 claim 28 against a sheriff-defendant in his official capacity, because The Although Plaintiff makes an Nor is it clear from the Complaint whether the Id. As Plaintiff fails to allege that an official 10 See Stewart v. Block, 1 “the conclusory allegations in the complaint do not contain facts 2 showing that Defendant Block, in his official capacity, was 3 responsible for a policy” which injured Plaintiff). 4 5 6 III. ORDER For the foregoing reasons, Defendants’ Motion to Dismiss is 7 GRANTED. Defendants’ Motion to Dismiss Plaintiff’s first cause 8 of action is GRANTED WITH PREJUDICE. 9 Dismiss Plaintiff’s second cause of action is GRANTED WITH LEAVE Defendants’ Motion to 10 TO AMEND. 11 twenty (20) days from the date of this order. 12 responsive pleading is due within twenty (20) days thereafter. 13 If Plaintiff elects not to file an Amended Complaint, the case 14 will proceed without the first and second causes of action. 15 16 Plaintiff’s Amended Complaint must be filed within IT IS SO ORDERED. Dated: December 19, 2013 17 18 19 20 21 22 23 24 25 26 27 28 11 Defendants’

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