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