Petersen et al v. Browne et al

Filing 43

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 42 27 (Illston, Susan) (Filed on 1/16/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RYAN PETERSEN, MICHAEL P. PETERSEN,
and RANDI PETERSEN,

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United States District Court
For the Northern District of California

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No. C 12-3607 SI
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Plaintiffs,
v.
MILDRED BROWNE, et al.

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Defendants.

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The motion by defendants Mount Diablo Unified School District and Mildred Browne to dismiss

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plaintiffs’ complaint is currently set for hearing on January 18, 2013. Pursuant to Civil Local Rule 7-

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1(b), the Court determines that these matters are appropriate for resolution without oral argument and

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VACATES the hearing. For the reasons set forth below, the Court GRANTS the motion to dismiss,

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with limited leave to amend.

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BACKGROUND

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On June 26, 2012, plaintiffs Ryan Petersen, Michael P. Petersen (“Michael Jr.”), and their

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mother Randi Petersen filed this action against defendant Mildred Browne, former Assistant

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Superintendent of the Mount Diablo Unified School District (“MDUSD”); defendant Ken Ferro, the

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MDUSD program administrator; defendant Connie Cushing, a former MDUSD program specialist;

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defendant MDUSD; defendant attorney Paula Lorentzen; and unnamed MDUSD employees Does one

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through fifty.1

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This is the latest in a series of related cases against MDUSD filed by plaintiff Randi Petersen
and/or her ex-husband, Michael Petersen, Sr. (“Michael Sr.”). The other cases are Michael Petersen
v. California Special Education Hearing Office, McGeorge School of Law, C 07-2400 SI (N.D. Cal.

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Plaintiffs’ claims concern the special education accommodation that plaintiffs Michael and Ryan

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allegedly did not receive while attending MDUSD schools. According to the complaint, plaintiff

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Michael has been diagnosed with autism, severe sensory integration disorder, and Cyclic Vomiting

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Syndrome. Complaint ¶¶ 2, 20, 22. Plaintiff Ryan is hearing impaired. Id. at ¶ 2. Ryan and Michael

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attended MDUSD schools between the years of 1998 and 2003, and plaintiff Randi Petersen advocated

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for their special educational needs during their time there. Id. at ¶¶ 21, 22, 31.
Plaintiffs have brought a series of lawsuits against defendants related to the special education

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needs of Michael, Jr. and Ryan. Plaintiff Randi Petersen brought her first suit against MDUSD in 2002,

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individually and on behalf of Michael Jr. and Ryan. She named as defendants MDUSD, Browne,

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United States District Court
For the Northern District of California

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Cushing, Lorentzen, three other persons involved with special education in MDUSD, and her husband

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Michael Petersen, Sr. Plaintiff’s claims were based on the Individuals with Disability Education Act

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(IDEA), 20 U.S.C. § 1400 et seq.; the Rehabilitation Act, 29 U.S.C. § 794; civil rights violations under

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42 U.S.C. §§ 1983 and 1985; disability discrimination under the Equal Opportunity for Individuals with

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Disabilities Act; and intentional infliction of emotional distress. The Court dismissed the complaint

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with leave to amend for failing to state a claim, for plaintiff’s lack of standing to bring claims on behalf

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of her children as the non-custodial parent, and because the Court could not assert jurisdiction over her

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family court matter. Plaintiff did not amend the complaint.

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Plaintiffs Randi, Michael Sr. and Michael Jr. filed suit again in 2004. They named MDUSD,

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Browne, and Cushing as defendants, claiming violations of the Rehabilitation Act; the Americans with

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Disabilities Act (ADA); §§ 1983 and 1985 claims based on equal protection and due process; intentional

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infliction of emotional distress; and additional torts of retaliation and violation of public policy.

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Plaintiffs’ allegations were nearly identical to the first suit. The Court found that plaintiffs’ claims

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under the Rehabilitation Act, the ADA, and §§ 1983 and 1985 were in fact based on their alleged

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injuries under the IDEA, which the Court dismissed because plaintiffs failed to exhaust administrative

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remedies. The tort claims were barred by plaintiffs’ failure to comply with the California Tort Claims

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2007); Randi Petersen v. Contra Costa Superior Family Court, C 05-1032 SI (N.D. Cal. 2005); Randi
& Michael Petersen et al. v. Mount Diablo School District, C 04-1059 SI (N.D. Cal. 2004), and Randi
Petersen v. Mount Diablo School District, C 02-887 SI (N.D. Cal. 2002).
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Act, and because the Court could not extend supplemental jurisdiction once the federal claims were

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dismissed. The Court dismissed all claims without leave to amend.

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Randi Petersen on behalf of herself, Michael Jr. and Ryan brought suit again in 2005. This time,

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she named the Contra Costa Superior Family Court, the family court judge who heard her custody

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dispute, Lorentzen, MDUSD, Browne, Cushing, Ferro, several members of MDUSD’s school board and

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other MDUSD personnel, several attorneys, the Northern District of California Federal Court, and the

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undersigned. Plaintiff made nearly identical claims as in the 2004 suit, but did not assert an IDEA

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claim. The undersigned recused herself, and Judge Charles Breyer dismissed the claims for failure to

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prosecute after plaintiff missed hearings and failed to serve many of the defendants.

United States District Court
For the Northern District of California

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In 2007, Michael Petersen, Sr.—not a party to this suit—brought suit on behalf of himself and

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plaintiffs Michael Jr. and Ryan Petersen. Plaintiffs named the California Special Education Hearing

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Office at McGeorge School of Law, Hearing Officer Vincent Pastorino, MDUSD, Browne, and Ferro

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as defendants. Plaintiffs’ claims again included the Rehabilitation Act, the ADA, the IDEA, §§ 1983

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and 1985, and several claims alleging violation of contract laws. The Court dismissed all but one claim

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without leave to amend because the IDEA-based claims were time-barred, and there was no federal

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jurisdiction if plaintiffs’ claims were based on contract law. The Court allowed plaintiffs to amend a

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limited claim on behalf of Ryan under the IDEA. Plaintiff amended the claim. The Court granted

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summary judgment for the defendants because it found that the claim was barred by a settlement

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agreement between the Petersens and MDUSD, plaintiffs had failed to exhaust administrative remedies,

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and the claim was past the ninety-day statute of limitations to appeal Special Education Hearing rulings.

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The Court denied a motion to declare Michael Petersen, Sr. and Randi Petersen vexatious litigants, but

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noted it was a close question.

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In this action, plaintiffs Randi, Michael Jr. (now about 20 years old) and Ryan (now about 19)

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allege essentially the same set of facts and conclusory allegations as in the previous four actions,

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including breach of the IDEA, the Equal Opportunity for Individuals with Disabilities Act, and the

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Rehabilitation Act. There are a few novel allegations. First, plaintiffs allege that the MDUSD

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defendants participated in a conspiracy wherein MDUSD personnel were paid bonuses to deny
educational accommodations to students, including plaintiffs Michael Jr. and Ryan, in order to keep the
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budget in control. Complaint ¶¶ 13, 13(A). Plaintiffs allege that conversations around this “bribery

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conspiracy” began at the beginning of the 1998 school year. Id. at ¶ 15. Plaintiffs claim to have been

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informed of this conduct by Michael Petersen, Sr., who allegedly participated in some conversations.

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Id. at ¶ 25. Plaintiffs also allege that MDUSD personnel would slap students in the face and otherwise

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abuse them. Id. at ¶ 13. Finally, plaintiffs allege that defendant Lorentzen inappropriately represented

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Michael Jr. and Ryan in special education proceedings and meetings. According to the complaint, she

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was only appointed by the family court to represent plaintiffs Michael Jr. and Ryan in the custody

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dispute, and she was unqualified to represent them for the purpose of educational accommodations. Id.

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at ¶ 23. Plaintiffs claim Lorentzen exploited her appointment as representative of the children by

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United States District Court
For the Northern District of California

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extorting fees of $20,000 to represent them in the educational accommodation proceedings. Id. at ¶¶

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13(C), 23.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility ” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require “heightened fact pleading

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of specifics,” Twombly, 550 U.S. at 544, a plaintiff must provide “more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do,” id. at 555. The plaintiff must

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allege facts sufficient to “raise a right to relief above the speculative level.” Id.

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In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff’s

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allegations are true and must draw all reasonable inferences in his or her favor. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
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Iqbal, 556 U.S. at 678. In considering a motion to dismiss, the court may take judicial notice of matters

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of public record outside the pleadings. See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th

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Cir. 1986).
If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth

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Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal

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quotation marks omitted). Dismissal of a pro se complaint without leave to amend is proper only if it

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is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Noll v.

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United States District Court
For the Northern District of California

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460

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(9th Cir. 1980)).

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DISCUSSION

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Plaintiffs asserted thirty claims against defendants in this action. Many of plaintiffs’ claims are

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barred by res judicata. Plaintiffs’ claims related to allegations of bribery and RICO do not state valid

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claims. Plaintiffs’ remaining claims are asserted under statutes that are inapplicable to their case.

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Res Judicata

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Under the doctrine of res judicata, “a final judgment on the merits of an action preludes the

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parties or their privies from relitigating issues that were or could have been raised in that action.” Allen

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v. McCurry, 449 U.S. 90, 94 (1980). Res judicata will bar a later suit where the first case,

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“(1) involve[d] the same ‘claim’ as the later suit, (2) ha[s] reached a final judgment on the merits, and

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(3) involve[d] the same parties or their privies.” Nordhorn v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir.

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1993). In determining whether successive claims constitute the same cause of action, the Court will

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consider, “(1) whether rights or interests established in the prior judgment would be destroyed or

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impaired by prosecution of the second action; (2) whether substantially the same evidence is presented

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in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the
two suits arise out of the same transactional nucleus of facts.” Costantini v. Trans World Airlines, 681
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F.2d 1199, 1201–02 (9th Cir.), cert denied, 459 U.S. 1087 (1982). “The last of these criteria is the most

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important.” Id. at 1202.

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Plaintiffs’ claims arise from the same set of facts—the accommodations plaintiffs Ryan and

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Michael Jr. did or did not receive while attending MDUSD—complained of in lawsuits before the Court

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in 2002, 2004, 2005, and 2007. Defendants argue that plaintiffs’ claims are barred by res judicata

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because of the nearly identical parties, facts, and rights at issue. Plaintiffs provide no response to this

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argument.
The Court agrees that many of the causes of action in this complaint are barred by res judicata.

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Plaintiffs claim violation of their rights under the Rehabilitation Act and the IDEA, as they did in

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United States District Court
For the Northern District of California

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previous complaints. In 2004, the Court found that plaintiffs’ Rehabilitation Act claim relied on their

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rights under the IDEA, dismissing without leave to amend for failure to exhaust administrative remedies

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as required by the IDEA. The Court’s dismissal of plaintiffs’ claims in 2004 precludes plaintiffs’

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Rehabilitation Act, IDEA, and 42 U.S.C. § 12203 claims because they arise out of the same

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“transactional nucleus of facts,” involve the same parties, and “infringement of the same right.” See

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Constantini, 681 F.2d at 1201–02.

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Similarly, res judicata bars plaintiffs from recovering under other claims for the events

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surrounding plaintiffs Michael Jr. and Ryan’s special education. Plaintiffs are precluded from any relief

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that may be had under 34 C.F.R. § 300.321, which sets requirements for I.E.P. meetings, because that

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claim also arises from Michael and Ryan’s education and disability accommodations. Plaintiffs are also

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precluded from claims of negligence under either California Government Code §§ 905.2–905 or

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California Civil Code §§ 1708–1711 and 1714. These claims arise from plaintiffs Michael Jr. and

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Ryan’s special education rights and plaintiff Randi’s custody and ability to advocate for her children,

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which were adjudicated in the previous actions, and are thus barred by res judicata.
Therefore, because they are precluded by res judicata, the Court dismisses claims one, two, six,

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seven, nine, and ten without leave to amend.

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2.

Plaintiffs’ Bribery and RICO Claims
Plaintiffs allege a conspiracy in which MDUSD bribed staff in exchange for reducing special
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education services to students, including plaintiffs Michael Jr. and Ryan. They claim that plaintiff

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Randi’s ex-husband, Michael Petersen, Sr., told her about conspiratorial conversations he had with

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defendants that occurred in or around the year 2000. See Complaint ¶ 25. Most of plaintiffs’ claims for

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relief for this alleged misconduct are brought directly under state and federal criminal statutes, which

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do not provide a private right of action. The same is true for their claims under the California

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Government Code. Therefore, plaintiffs’ claims under 18 U.S.C. §§ 201, 241, 242, and 245, California

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Penal Code §§ 37, 67–67.5, 182, 424, 518, 11164, 11165.2–11165.7, and 11166–11166.5 and under

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California Government Code §§ 19990 and 87100 are dismissed.
Plaintiffs also assert a claim under the Racketeering Influenced and Corrupt Organizations

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United States District Court
For the Northern District of California

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(RICO) Act, 18 U.S.C. § 1964(c), which provides for civil recovery. Plaintiffs’ allegations of bribery

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might, if proven, provide the predicate illegal act on which a RICO violation could rest. But there are

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fatal problems with the claim. First, plaintiffs do not allege facts supporting the necessary elements of

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a RICO claim. To state a RICO claim under 18 U.S.C. § 1962(c), a plaintiff must allege facts asserting

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"(1) conduct (2) of an enterprise, (3) through a pattern (4) of racketeering activity." See Sedima, S.P.R.L.

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v. Imrex Co., 473 U.S. 479, 496 (1985). As with their other claims, plaintiffs have provided a single,

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tangled set of facts, and have not connected particular facts to their RICO claim. See Complaint ¶ 85.

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Nor does the complaint allege a plausible injury to “business or property.” See § 1964(c). RICO claims

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require direct financial loss, not personal injuries, and no such injury is alleged in the complaint. See

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Diaz v. Gates, 420 F.3d 897, 899–900 (9th Cir. 2005). Plaintiffs’ claim also appears on the face of the

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complaint to be barred by RICO’s four-year statute of limitations, which runs from when plaintiffs

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“know[] or should know of the injury which is the basis of the action.” Living Designs, Inc. v. E.I.

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Dupont de Nemour & Co., 431 F.3d 353, 365 (9th Cir. 2005). Plaintiffs have not alleged any fact which

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would delay or preclude the running of the four year statute of limitations, or stating when Randi first

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learned of the “conspiracy/bribery” contentions .

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Accordingly, plaintiffs’ claim twenty-four under RICO is dismissed with leave to amend.

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Plaintiffs’ claims three through five, eight, twelve through fifteen, nineteen through twenty-one, and

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twenty-eight are dismissed without leave to amend.

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Additional Claims
The remainder of plaintiffs’ claims are inapplicable to their case. California Civil Code § 1620

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defines an express contract, and is not relevant to the facts alleged. California Commercial Code § 3294

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does not exist, but as defendants note, plaintiffs may mean Civil Code § 3294 regarding punitive

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damages. Public entities are shielded, however, from punitive damages by California Government Code

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§ 818. Claim eighteen is under California Commercial Code § 3307, regarding fiduciary duties, but

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plaintiffs have not alleged any facts supporting application of the Commercial Code. Plaintiffs’ claims

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under California Civil Code §§ 2322 and 3517 just fail—those statutes address the authority of agents

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and the doctrine of clean hands, respectively. Similarly, plaintiffs do not have valid claims under

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United States District Court
For the Northern District of California

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California Contract Law §§ 1619–1632 and 337–337(a), which are statutes that do not exist, or the

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Family Law Act of 1975, which is an Australian law unenforceable in this country.

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Plaintiffs also make claims against defendant Lorentzen under California Business and

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Profession Code §§ 6067, 6068(d), regarding attorney admission to the bar, California State Bar Ethical

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Rule 5-200(A)–(B), and California Civil Code § 1712, which relates to the obligation to return property

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obtained unlawfully or without permission. Plaintiffs allege that defendant Lorentzen unlawfully

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obtained from them fees amounting to $20,000, but none of the laws upon which they make their claims

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provides a private right of action. For that reason, these claims are also dismissed.

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Plaintiffs’ claims eleven, sixteen through eighteen, twenty-two, twenty-three, twenty-five
through twenty-seven, twenty-nine and thirty are therefore dismissed without leave to amend.

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CONCLUSION

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For the foregoing reasons and for good cause shown, the Court hereby dismisses plaintiffs’

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claims without leave to amend, except for claim twenty-four under RICO, which is dismissed with

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leave to amend. Any amended complaint must be filed no later than February 1, 2013.

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IT IS SO ORDERED.
Dated: January 16, 2013
SUSAN ILLSTON
United States District Judge

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