J. et al v. County of Alameda et al

Filing 31

ORDER by Judge Claudia Wilken GRANTING 24 MOTION TO DISMISS WITH LEAVE TO AMEND. (ndr, COURT STAFF) (Filed on 11/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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R.J.; N.J.; and N.J.; MINORS, BY
AND THROUGH THEIR GUARDIAN AD
LITEM CURTIS R. NAMBA,

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Plaintiffs,

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United States District Court
For the Northern District of California

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No. C 11-4123 CW
ORDER GRANTING
MOTION TO DISMISS
WITH LEAVE TO
AMEND

v.
COUNTY OF ALAMEDA; ALAMEDA COUNTY
SOCIAL SERVICES; DOE ALAMEDA
COUNTY SOCIAL SERVICES' SOCIAL
WORKER; DOE ALAMEDA COUNTY SOCIAL
SERVICES' SUPERVISOR; WEST COAST
CHILDREN'S CLINIC; DOES 1-60,
INCLUSIVE,
Defendants.
________________________________/

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INTRODUCTION
Plaintiffs bring a second amended complaint (2AC) against

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Defendants.

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Coast Children's Clinic (West Coast) negligently breached its

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statutory duty to warn Plaintiffs, as reasonably foreseeable

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victims, of the serious threat of bodily harm made against them by

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West Coast's patient.

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claim they have suffered physical and emotional harm.

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moves to dismiss the complaint; Plaintiffs oppose.

In relevant part, they allege that Defendant West

As a result of this breach, Plaintiffs

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West Coast

BACKGROUND
Plaintiffs in this case are three minor children, R.J., N.J.,
and N.J., who are represented in these proceedings by a Guardian
ad Litem, Curtis R. Namba.

At all times relevant to this case,

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they were foster children in Alameda County.

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2007, Plaintiffs lived with their foster parents, Lois Jones and

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TaTanisha McNeil.

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placed in the foster home with them.

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Prior to September

At that time their half-sister, Laronda W., was

According to the complaint, on or about November 30, 2009,
Ronald revealed that Laronda had been sexually abusing him since

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she came into the home.

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copulation, intercourse and fondling.

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discovered that Laronda had molested two year old Noah, and

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United States District Court
For the Northern District of California

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Plaintiffs believe that she also molested his twin sister.

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The reported abuse included oral
A few days later it was

Plaintiffs bring a 2AC against Defendants Alameda County,

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County of Alameda Department of Social Services (DSS), and West

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Coast.

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statutory and regulatory duties as to Alameda County and DSS,

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2) civil rights claim under 42 U.S.C 1983 as to Alameda County and

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DSS, 3) fraud, misrepresentation, fraudulent concealment and

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omission as to Alameda County and DSS, and 4) negligent breach of

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psychotherapist's statutory duty to warn as to West Coast.

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Coast moves to dismiss Plaintiffs' fourth cause of action on the

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grounds that it fails to state a claim.

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The lawsuit names four causes of action: 1) violations of

West

Plaintiffs allege that West Coast had knowledge of Laronda's

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history of violence and sexual abuse of other children who were in

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homes where she was placed.

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including West Coast, were aware that she was a sex offender as

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early as 2001 when they received reports that she had engaged in

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sexual activity with a five year old.

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Laronda was removed from another foster home in May 2001 for

They allege that all Defendants,

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2

Moreover they claim that

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beating up and molesting her younger sister.

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claim that all Defendants were aware that Laronda was removed from

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yet another home for sexually abusing an eleven year old boy.

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They claim that West Coast was aware that instances of sexually

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abusive behaviors were continuing up until the time that Laronda

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was placed into the foster home with Plaintiffs.

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allege that West Coast employed therapists who had a

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psychotherapist-patient relationship with Laronda and that Laronda

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communicated to her therapists threats of physical violence

United States District Court
For the Northern District of California

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Plaintiffs

against minor children residing with her in foster homes.

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Plaintiffs also

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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DISCUSSION

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Plaintiffs contend that, under California law, West Coast had

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a duty to warn reasonably foreseeable victims of the immediate

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danger stemming from Laronda's threats and violent, sexually

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abusive tendencies.

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by failing to warn either the County Defendants or Plaintiffs'

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foster parents of the danger posed by Laronda to her siblings.

They claim that West Coast breached this duty

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In its motion, West Coast argues that it had no duty to warn

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in this case because its therapists had no knowledge of Laronda's

United States District Court
For the Northern District of California

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history or propensity to harm other children in her home as

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alleged in the complaint.

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cannot "show that West Coast therapists knew of Laronda's alleged

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sexual molestation of foster children before she was seen at West

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Coast or that Laronda made a serious threat of violence against

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plaintiffs."

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argument is inapplicable on a motion to dismiss.

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a motion to dismiss is not whether the facts alleged are true and

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verifiable but, rather, whether Plaintiffs have alleged facts

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which, if true, support the claim.

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It further maintains that Plaintiffs

As Plaintiffs correctly point out, West Coast's
The question on

California Civil Code § 43.92(a) states that there is no

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cause of action against a psychotherapist for failing to warn of

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and protect others from a patient's threatened violent behavior or

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failing to predict and warn of a patient's violent behavior

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"except where the patient has communicated to the psychotherapist

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a serious threat of physical violence against a reasonably

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identifiable victim or victims."

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Plaintiffs list several specific instances of past abuse by
Laronda which they claim showed her propensity for sexual violence
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against other children.

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communicated threats of violence against children in her foster

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care placement to her therapist employed by West Coast.

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in claiming that Laronda "communicated to the psychotherapists a

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serious threat of physical violence against reasonable

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identifiable victim or victims, specifically minor children

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residing in foster homes where she was placed," Plaintiffs merely

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recite the language of the statute.

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allegations are not required, the critical element of this

Plaintiffs also allege that she

However,

Although detailed factual

United States District Court
For the Northern District of California

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complaint is conclusory, and alleges no specific facts as to what

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Laronda actually said to the psychotherapist that constituted a

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threat to specific persons.

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Although this is a second amended complaint, it is the first

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motion related to this complaint on which the Court has ruled.

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Moreover, West Coast failed to cite the correct standard in its

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moving papers.

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their complaint within fourteen days so long as they can

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truthfully cure the deficiencies noted above.

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Accordingly, Plaintiffs are granted leave to amend

If Plaintiffs file an amended complaint, West Coast shall

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answer or file a motion to dismiss fourteen days thereafter.

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West Coast moves to dismiss, Plaintiffs' opposition shall be due

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seven days after the motion is filed.

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seven days after that.

If

Any reply shall be due

This motion will be decided on the papers.

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CONCLUSION
For the foregoing reasons the motion to dismiss is granted
with leave to amend.

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IT IS SO ORDERED.

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Dated: 11/23/2011

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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