Fotinos v. Fotinos et al

Filing 84

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS ( 18 , 22 , 26 , 33 , 34 , 58 , 61 , 62 ) MOTIONS TO DISMISS AND DENYING PLAINTIFFS 46 MOTION FOR LEAVE TO AMEND. (ndr, COURT STAFF) (Filed on 3/22/2013)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 MICHELE FOTINOS, on behalf of herself and as Guardian ad Litem for her minor children, R.F. and A.F., Plaintiff, 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 v. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND JOHN FOTINOS; DAWN GROVER; RENEE LA FARGE; BONNIE MILLER; KAMALA HARRIS, Attorney General; JAYNE KIM, Chief Trial Counsel, State Bar of California; ROBYN PITTS, City of Belmont Police Officer; MARK REED, San Mateo County Deputy Sheriff; PATRICK CAREY, San Mateo County Deputy Sheriff; SHANNON MORGAN; CITY OF BELMONT; COUNTY OF SAN MATEO; and RENEE LAFARGE, 17 18 No. C 12-953 CW Defendant. ________________________________/ 19 Defendant John Fotinos, Defendant Dawn Grover, Defendant 20 Renee La Farge, Defendant Bonnie Miller, Defendant Kamala Harris, 21 Defendant Jayne Kim, Defendant City of Belmont, and Defendants 22 County of San Mateo, Mark Reed, Patrick Carey and Shannon Morgan 23 (San Mateo County Defendants) have filed motions to dismiss in 24 this case. 25 pursuant to California’s anti-Strategic Lawsuit Against Public 26 Participation (anti-SLAPP) statute. 27 oppositions to Defendant Harris’s motion, Defendant Miller’s 28 motion, Defendant City of Belmont’s motion, and the San Mateo Defendant Miller also moves to strike the complaint Plaintiff has filed 1 County Defendants’ motions. 2 J. Fotinos’s motion, Defendant Grover’s motion, Defendant La 3 Farge’s motion or Defendant Kim’s motion. 4 motion for leave to amend or supplement the First Amended 5 Complaint. 6 rather than being required to file an opposition to Motions to 7 Dismiss of Defendants Kim, La Farge, J. Fotinos, and Grover, I be 8 allowed to amend/supplement to include the facts that I set out in 9 this motion.” Plaintiff has not opposed Defendant Plaintiff has filed a In that motion, Plaintiff’s counsel “request[s] that Defendants Kim, La Farge and Lee have filed United States District Court For the Northern District of California 10 oppositions to the motion for leave to amend. 11 decided on the papers. 12 Court GRANTS in part Defendant La Farge’s motion to dismiss 13 (Docket No. 18), GRANTS Defendant Harris’s motion to dismiss 14 (Docket No. 22), GRANTS Defendant Kim’s Motion to dismiss (Docket 15 No. 26), GRANTS in part Defendant J. Fotinos’s motion to dismiss 16 (Docket No. 33), GRANTS in part Defendant Grover’s motion to 17 dismiss (Docket No. 34), GRANTS in part Defendant Miller’s motion 18 to dismiss and DENIES her motion to strike (Docket No. 58), GRANTS 19 Defendant City of Belmont’s motion to dismiss (Docket No. 61), 20 GRANTS the San Mateo County Defendants’ motion to dismiss (Docket 21 No. 62), and DENIES the motion for leave to amend or supplement 22 (Docket No. 46). 23 24 The motions were Having considered the parties’ papers, the BACKGROUND This case arises out of a nine-year custody battle between 25 Plaintiff Michele Fotinos and her ex-husband, Defendant John 26 Fotinos. 27 physically and emotionally abusing their two children, R.F. and 28 A.F. and alienating them from her. 2 In her complaint, Plaintiff accuses her ex-husband of After numerous setbacks in her efforts to gain custody of her children in state court, Plaintiff 2 filed this lawsuit against numerous Defendants on behalf of 3 herself and as guardian ad litem for R.F. and A.F. 4 Judge James granted Plaintiff’s ex parte application for 5 appointment as guardian ad litem on March 22, 2012. 6 11. 7 Grover; Bonnie Miller, the children’s former court-appointed 8 counsel; the City of Belmont; Belmont police officer Robyn Pitts1; 9 San Mateo County; San Mateo County deputy sheriffs Mark Reed and 10 United States District Court For the Northern District of California 1 Patrick Carey; Renee La Farge, a former reunification therapist 11 for Plaintiff and her children; Shannon Morgan, a San Mateo County 12 social worker; Jayne Kim, Chief Trial Counsel for the California 13 State Bar; and Kamala Harris, Attorney General of the state of Magistrate Docket No. The named Defendants are John Fotinos and his wife, Dawn 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendant Robyn Pitts has not been served. It has been more than 120 days since this action commenced. Accordingly, Plaintiff’s claims against Pitts are dismissed. See Fed. R. Civ. P. 4(m). 3 1 California. 2 which are federal causes of action.2 DISCUSSION 3 4 5 Plaintiff alleges eleven causes of action, six of I. Plaintiff’s Motion for Leave to Amend Instead of opposing several of the motions to dismiss, 6 Plaintiff has filed an “Ex Parte Motion for Leave to 7 Amend/Supplement First Amended Complaint.” 8 basis for filing her motion ex parte in violation of Civil Local 9 Rule 7-10 and she has not attached a copy of the proposed amended United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff provides no complaint in violation of Civil Local Rule 10-1. Moreover, Plaintiff’s motion does not provide any grounds for granting leave 2 Plaintiff also alleges five state law claims against Defendants J. Fotinos, Grover, Miller and La Farge. Title 28 U.S.C. section 1367(c)(2) authorizes district courts to decline to exercise supplemental jurisdiction over a state law claim if “the claim substantially predominates over the claim or claims over which the district court has original jurisdiction.” In determining whether to decline to exercise supplemental jurisdiction, the Court should consider whether remanding the rest of the case to state court will accommodate the values of “economy, convenience, fairness, and comity.” Executive Software North America, Inc. v. United States District Court, 24 F.3d 1545, 1557 (9th Cir. 1994), overruled on other grounds by Cal. Dep't of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). At this time, the Court dismisses all of Plaintiff’s federal claims. Although some of Plaintiff’s claims have been dismissed with leave to amend, there is a possibility that Plaintiff will not be able to pursue her federal claims. If Plaintiff is unable to amend her complaint to pursue her federal claims, it will be more efficient for the state court to evaluate Plaintiff’s state law claims and the values of economy, convenience, fairness, and comity will favor dismissing the state law claims without prejudice to refiling in state court. Accordingly, the Court will not now decide Defendants’ motions to dismiss to the extent that they seek dismissal of Plaintiff’s state law claims. If Plaintiff successfully amends her complaint to state one or more federal law claims against one or more of these Defendants, the Court will reconsider Defendants’ motions to dismiss Plaintiff’s state law claims. 4 1 to amend, and the facts and law to which the motion and attached 2 declaration refer are not sufficient to overcome the deficiencies 3 in her complaint identified in Defendants’ motions to dismiss. Plaintiff’s motion for leave to amend/supplement is denied. 4 5 6 7 8 9 United States District Court For the Northern District of California 10 II. Motion to Strike Complaint Pursuant to Anti-SLAPP Statute Defendant Miller asserts that the complaint must be stricken under California Code of Civil Procedure § 425.16, California’s anti-SLAPP statute. However, the anti-SLAPP statute can only be applied to state law causes of action. See Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010). Because the Court dismisses all of Plaintiff’s federal law claims, it does not reach 11 Plaintiff’s state law claims. To the extent Defendant Miller 12 seeks to strike Plaintiff’s federal claims pursuant to the anti13 SLAPP statute, her motion is denied. 14 15 To the extent Defendant Miller seeks to strike Plaintiff’s state law claims, her motion is denied without prejudice to reconsideration if Plaintiff is able 16 to successfully amend her complaint to state a federal law claim. 17 III. Lack of Jurisdiction 18 Subject matter jurisdiction is a threshold issue which goes 19 to the power of the court to hear the case. 20 matter jurisdiction must exist at the time the action is 21 commenced. 22 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). 23 court is presumed to lack subject matter jurisdiction until the 24 contrary affirmatively appears. 25 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Federal subject Morongo Band of Mission Indians v. Cal. State Bd. of A federal Stock W., Inc. v. Confederated 26 Dismissal is appropriate under Rule 12(b)(1) when the 27 district court lacks subject matter jurisdiction over the claim. 28 5 1 Fed. R. Civ. P. 12(b)(1). 2 attack the sufficiency of the pleadings to establish federal 3 jurisdiction, or allege an actual lack of jurisdiction which 4 exists despite the formal sufficiency of the complaint. 5 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th 6 Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 7 1987). A Rule 12(b)(1) motion may either Thornhill 8 A. 9 Defendants La Farge, J. Fotinos and Grover argue that this Domestic Relations Exception United States District Court For the Northern District of California 10 Court should decline jurisdiction over Plaintiff’s claims because 11 they are barred by the domestic relations exception. 12 this case is distinguishable from the cases cited by Defendants. 13 In this case, Plaintiff alleges constitutional violations related 14 to the divorce and custody proceedings in state court. 15 Peterson v. Babbitt, cited by Defendant La Farge, Plaintiff does 16 not allege that the state court’s decision in this case violates 17 her constitutional rights. 18 her claims are based on the conduct of various parties who took 19 part in the state court proceedings. 20 contention--that the “core issue” in this case “is the issue of 21 visitation/custody and the parental status” of Plaintiff and 22 Defendant J. Fotinos--is not well taken. 23 Dismiss at 8-9. 24 the extent they rely on the domestic relations exception. However, Unlike 708 F.2d 465 (9th Cir. 1983). Rather, Defendant La Farge’s La Farge Motion to Accordingly, Defendants’ motions are denied to 25 B. 26 Defendants La Farge, J. Fotinos and Grover also argue that Rooker-Feldman Doctrine 27 Plaintiff’s claims are barred by the Rooker-Feldman doctrine, see 28 Rooker v. Fidelity Trust Co., 263 U.S. 412 (1923); District of 6 1 Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), because 2 “Plaintiffs are seeking to revise one or more family court orders 3 as to her custodial/visitation rights.” 4 Dismiss at 9. 5 results of the family court proceedings, she does not seek any 6 modification of the state court orders, nor can her claims be 7 characterized as “a forbidden de facto appeal of a state court 8 judgment.” 9 Accordingly Defendants’ motions to dismiss are denied to the United States District Court For the Northern District of California 10 La Farge Motion to While Plaintiff expresses her disagreement with the Noel v. Hall, 341 F.3d 1146, 1165 (9th Cir. 2003). extent they rely on the Rooker-Feldman Doctrine. 11 C. 12 Defendants La Farge and Miller argue that they are entitled Quasi-Judicial Immunity 13 to quasi-judicial immunity because of their roles in the state 14 court custody litigation. 15 appointed attorney and Miller acted as the court-ordered 16 reunification therapist for Plaintiff and her children. 17 concedes that Miller is entitled to quasi-judicial immunity for 18 all actions taken while appointed as the children’s attorney.3 19 However, Plaintiff’s claims are based, at least in part, on her 20 allegations that, after being discharged by the state court, both 21 La Farge and Miller continued to act to influence the children’s 22 testimony in the ongoing proceedings. 23 191-205. 24 based on actions taken after La Farge and Miller were discharged 25 by the state court, their motions to dismiss based on quasi- 26 judicial immunity are denied. 27 28 3 La Farge acted as the children’s court- Plaintiff See, e.g., 1AC ¶¶ 46, 47, Accordingly, to the extent that Plaintiff’s claims are As noted above, Plaintiff has not filed an opposition to Defendant La Farge’s motion to dismiss. 7 1 Nonetheless, Plaintiff’s complaint also includes allegations 2 regarding actions that La Farge and Miller made while appointed by 3 the state court. 4 shall not rely on any alleged unlawful acts by La Farge or Miller 5 during the times they were acting as court-appointed reunification 6 therapist or court-appointed counsel respectively. If Plaintiff files an amended complaint, she 7 D. 8 Defendant Miller also moves to dismiss the complaint against 9 Noerr-Pennington Doctrine her based on the Noer-Pennington doctrine. See Eastern Railroad United States District Court For the Northern District of California 10 Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 11 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). 12 Defendant Miller asserts that, even though Plaintiff’s claims are 13 based on conduct alleged to have occurred after Defendant Miller 14 was no longer engaged as the children’s counsel, she “was 15 conceivably using her training and expertise as an attorney to 16 advise the children and obviously acting in her capacity as a 17 lawyer to allegedly advise Defendant J. Fotinos.” 18 8. 19 Miller acted in a manner incidental to the underlying custody 20 dispute and Miller’s conduct should therefore be protected by the 21 Noer-Pennington doctrine. 22 authority to support her contention that an individual who is 23 neither a party nor representing a party is protected by the Noer- 24 Pennington doctrine. 25 See, e.g., Columbia Pictures Industries, Inc. v. Professional Real 26 Estate Investors, Inc., 944 F.2d 1525, 1528 (9th Cir. 1991) (“A 27 decision to accept or reject an offer of settlement is conduct 28 incidental to the prosecution of the suit and not a separate and 8 Miller Reply at Accordingly, Miller asserts, Plaintiff has only alleged that However, Miller has provided no The cases she cites are distinguishable. 1 distinct activity which might form the basis for antitrust 2 liability.”); Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 3 (9th Cir. 2005) (“Discovery, like settlement talks, is ‘conduct 4 incidental to’ a petition . . .”). 5 dismiss is denied to the extent it relies on the Noer-Pennington 6 Doctrine. 7 IV. 8 9 Defendant Miller’s motion to Failure to State a Claim A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. United States District Court For the Northern District of California 10 Civ. P. 8(a). 11 state a claim, dismissal is appropriate only when the complaint 12 does not give the defendant fair notice of a legally cognizable 13 claim and the grounds on which it rests. 14 Twombly, 550 U.S. 544, 555 (2007). 15 complaint is sufficient to state a claim, the court will take all 16 material allegations as true and construe them in the light most 17 favorable to the plaintiff. 18 896, 898 (9th Cir. 1986). 19 to legal conclusions; “threadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements,” are not 21 taken as true. 22 (citing Twombly, 550 U.S. at 555). 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, 556 U.S. 662, 678 (2009) 23 When granting a motion to dismiss, the court is generally 24 required to grant the plaintiff leave to amend, even if no request 25 to amend the pleading was made, unless amendment would be futile. 26 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 27 F.2d 242, 246-47 (9th Cir. 1990). 28 amendment would be futile, the court examines whether the 9 In determining whether 1 complaint could be amended to cure the defect requiring dismissal 2 "without contradicting any of the allegations of [the] original 3 complaint." 4 Cir. 1990). 5 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Although the court is generally confined to consideration of 6 the allegations in the pleadings, when the complaint is 7 accompanied by attached documents, such documents are deemed part 8 of the complaint and may be considered in evaluating the merits of 9 a Rule 12(b)(6) motion. United States District Court For the Northern District of California 10 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 11 A. 12 Plaintiff alleges that Defendants J. Fotinos, Grover, Miller, First Cause of Action--42 U.S.C. § 1985(2) 13 and La Farge conspired “for the purpose of impeding, hindering, 14 obstructing, or defeating the due course of justice in the custody 15 proceeding in the California superior court” in violation of Title 16 42 U.S.C. § 1985(2). 17 so by coercing the children to testify falsely in the state court 18 proceedings. 19 Plaintiff alleges that these Defendants did Plaintiff makes clear that she brings her claim pursuant to 20 the second clause of § 1985(2), which provides that an injured 21 party has a cause of action against any of the conspirators 22 23 24 25 26 if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. 27 42 U.S.C. § 1985(2). 28 claim under this statute requires an allegation of a class-based, 10 The Ninth Circuit has held, “A cognizable 1 invidiously discriminatory animus.” 2 Ass’n of Bridge Workers, Local 118, 556 F.2d 939, 941 (9th Cir. 3 1977). 4 Phillips v. International Plaintiff has only made a bare allegation that the relevant 5 Defendants acted with the intent to deny her and her children 6 “equal protection of the law as victims of domestic abuse.” 7 ¶ 286. 8 9 United States District Court For the Northern District of California 10 11 1AC However, the Supreme Court has held, Discriminatory purpose . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. 12 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 272-73 13 (1993) (citations omitted). 14 suggesting that any conspiracy, assuming that one existed, was 15 motivated by animus against victims of domestic violence. 16 the complaint alleges that the conspiracy operated to prevent 17 Plaintiff from regaining custody of her children. 18 ¶ 291 (actions taken “for the sole purpose of defeating M. 19 Fotinos’ OSC for change of custody”); ¶ 286 (actions taken “so 20 that M. Fotinos would not regain custody of her children”); ¶ 288 21 (actions taken “to defeat their mother’s claim for custody”).4 Plaintiff has made no allegations Rather, See, e.g. 1AC 22 23 24 25 26 27 28 4 In her opposition to Defendant Miller’s Motion to Dismiss, Plaintiff asserts that her claim is based on her and her children’s status as victims of domestic violence, her and R.F.’s status as women, and her children’s national origin. Docket No. 66 at 10. However, the 1AC similarly fails to allege that any of the conspirators acted because of her or her daughter’s gender, or her children’s national origin. 11 1 Moreover, Plaintiff has failed to establish that victims of 2 domestic violence are a protected class. 3 § 1985(3) claims, the Ninth Circuit has extended the requirement 4 of class-based animus “beyond race only when the class in question 5 can show that there has been a governmental determination that its 6 members require and warrant special federal assistance in 7 protecting their civil rights.” 8 714, 718 (9th Cir. 1985). 9 pursuant to § 1985(3), it is required “either that the courts have For purposes of Schultz v. Sundberg, 759 F.2d In other words, to state a claim United States District Court For the Northern District of California 10 designated the class in question a suspect or quasi-suspect 11 classification requiring more exacting scrutiny or that Congress 12 has indicated through legislation that the class required special 13 protection.” 14 Id. The Ninth Circuit has suggested that this requirement of a 15 suspect or quasi-suspect class also applies to claims pursuant to 16 the second clause of § 1985(2) such as Plaintiff’s. 17 County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993), the 18 Ninth Circuit held that a plaintiff had no cause of action 19 pursuant to the second clause of § 1985(2) because he failed to 20 allege “that the County denied him access to state courts because 21 he was a member of a protected class.” 22 Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991) (holding that 23 the district court properly rejected the plaintiff’s § 1985(2) 24 claim because the plaintiff “failed to assert his membership in a 25 protected class or any denial of equal protection”); Kimble v. 26 D.J. McDuffy, Inc., 648 F.2d 340, 347 (5th Cir. 1981) (“If racial 27 or class-based animus is required by Section 1985(3), it is 28 required by Section 1985(2) as well.”) (overruled as to the first 12 In Portman v. See also Bagley v. CMC 1 clause of § 1985(2) by Kush v. Rutledge, 460 U.S. 719, 726 2 (1983)). 3 District courts have also required allegations of membership in a protected class in order to state a claim pursuant to the 5 second clause of § 1985(2). 6 Riverside, 2011 U.S. Dist. LEXIS 154767 (C.D. Cal.) (“To state a 7 claim under § 1985(2) or (3), a plaintiff must allege (1) that 8 some racial, or perhaps otherwise class-based, invidiously 9 discriminatory anumus lay behind the conspirator’s action . . .”) 10 United States District Court For the Northern District of California 4 (internal quotation marks omitted); Moore v. City of Ceres, 2011 11 U.S. Dist. LEXIS 130556, *20 (C.D. Cal.) (finding that the 12 plaintiff failed to state a claim pursuant to § 1985(2) because he 13 had not “alleged that any Defendant denied him access to state 14 courts because he was a member of a protected class”). See, e.g., Armster v. County of 15 Plaintiff provides no basis for a finding that victims of 16 domestic violence are a suspect or quasi-suspect class as required 17 for a § 1985(2) claim. 18 equal protection claims based on allegations that the police 19 failed to provide adequate protection to victims of domestic 20 violence were allowed to proceed is unavailing. 21 § 1983, “membership in a protected class is not a prerequisite to 22 the entitlement to equal protection, it merely factors into the 23 level of scrutiny courts will use in reviewing certain 24 governmental classifications.” Bari v. Held, 1992 U.S. Dist. 25 LEXIS 13634, *53 (N.D. Cal.). Accordingly the fact that cases 26 have been allowed to proceed with such § 1983 equal protection 27 claims does not itself establish that victims of domestic violence 28 are a protected class for purposes of a § 1985(2) claim. 13 Her citation to two cases in which § 1983 For purposes of 1 Moreover, neither of the cases cited reached the question of 2 whether victims of domestic violence are members of a suspect or 3 quasi-suspect class. 4 (9th Cir. 2000), a victim of domestic violence was murdered by her 5 husband. 6 various law enforcement officials denied her “right to equal 7 protection by providing her with inferior police protection on 8 account of her status as a woman, a Latina, and a victim of 9 domestic violence.” In Estate of Macias v. Ihde, 219 F.3d 1018 Her survivors filed a § 1983 action alleging that Id. at 1019. The district court granted a United States District Court For the Northern District of California 10 motion for summary judgment pursuant to Federal Rule of Civil 11 Procedure 56, finding that there was no causal link between the 12 defendants’ conduct and the murder. 13 Circuit reversed, holding that “the district court erred as a 14 matter of law in concluding that the alleged constitutional 15 deprivation was the murder.” 16 court nor the Ninth Circuit reached the question of whether 17 victims of domestic violence are members of a protected class. 18 Id. Id. at 1020. Id. at 1028. The Ninth Neither the district 19 In Balisteri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 20 1988) (overruled in part on other grounds by DeShaney v. Winnebago 21 Dep’t of Social Servs., 489 U.S. 189 (1989), the Ninth Circuit 22 held that the district court erred in dismissing the plaintiff’s 23 § 1983 equal protection claim based on an alleged intent “to treat 24 domestic cases less seriously than other assaults.” 25 As noted above, that a plaintiff could pursue this § 1983 claim 26 does not establish that victims of domestic violence are a 27 protected class for purposes of § 1985(2). 28 Circuit has only applied rational basis review to classifications 14 Id. at 701. Indeed, the Ninth 1 based on status as a victim of domestic violence. 2 Block, 72 F.3d 712, 717 (9th Cir. 1996) (“even absent evidence of 3 gender discrimination, the Navarros’ equal protection claim still 4 survives because they could prove that the domestic violence/non- 5 domestic violence classification fails even the rationality 6 test”). 7 See Navarro v. Accordingly, Plaintiff’s § 1985(2) claim is dismissed. If Plaintiff can allege, consistent with her original complaint, 9 additional facts sufficient to establish that Defendants acted out 10 United States District Court For the Northern District of California 8 of animus against her and her children because they are members of 11 a recognized protected class, she may replead this claim in her 12 second amended complaint. 13 B. 14 Plaintiff alleges two separate schemes under the Racketeer Seventh Cause of Action--RICO 15 Influenced and Corrupt Organizations Act (RICO). 16 private cause of action for ‘[a]ny person injured in his business 17 or property by reason of a violation of section 1962 of this 18 chapter.’” 19 987 (2010) (quoting 18 U.S.C. § 1964(c)). 20 the substantive criminal RICO provisions. 21 “RICO provides a Hemi Group, LLC v. City of New York, 130 S. Ct. 983, Section 1962 contains To state a claim under RICO, Plaintiff must allege a pattern 22 of racketeering activity. 23 pattern of racketeering activity, a plaintiff’s allegations must 24 show that the predicate acts are related (“relatedness 25 requirement”), “and that they amount to or pose a threat of 26 continued criminal activity” (“continuity requirement”). 27 Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) 28 (emphasis in original). 18 U.S.C. § 1961. 15 To establish a H.J., 1 A plaintiff may satisfy the continuity requirement by 2 alleging either “closed-ended” or “open-ended” continuity. 3 Closed-ended continuity involves “a series of related predicates 4 extending over a substantial period of time.” 5 242; see also Religious Technology Center v. Wollersheim, 971 F.2d 6 364, 366-67 (9th Cir. 1992). 7 specific threat of repetition extending indefinitely into the 8 future,” or predicate acts that “are part of an ongoing entity's 9 regular way of doing business.” United States District Court For the Northern District of California 10 11 H.J., 492 U.S. at Open-ended continuity involves “a H.J., 492 U.S. at 242; Ticor Title Ins. Co. v. Florida, 937 F.2d 447, 450 (9th Cir. 1991). Where the predicate acts were designed to bring about a 12 single event or injury to a single plaintiff, continuity is not 13 sufficiently plead. 14 Inc. v. SelecTV of California, Inc., 833 F.2d 1360, 1364 (9th Cir. 15 1987) (two predicate acts aimed at fraudulent inducement to enter 16 a contract); Religious Technology Center, 971 F.2d at 366 (only 17 goal of defendants was successful prosecution of their state 18 lawsuit); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1535 (9th 19 Cir. 1992) (defendants' acts served single purpose of 20 impoverishing plaintiff). 21 See, e.g., Medallion Television Enterprises, In Sever, a single plaintiff brought suit against his former 22 employers alleging that they had fired him, blacklisted him, and 23 induced a subsequent employer to fire him after he wrote articles 24 criticizing the defendant former employers and testified before 25 Congress to their economic detriment. 26 alleged that the defendants engaged in a pattern of racketeering 27 activity that damaged his ability to obtain employment. 28 court dismissed the plaintiff's fourth amended complaint for 16 The plaintiff's RICO claim The lower 1 failure to state a RICO claim, in part because he had failed to 2 allege a pattern of racketeering. 3 affirmed, holding, among other things, that the allegations did 4 not satisfy the continuity requirement set out in H.J., noting 5 that there was no suggestion that the defendants would have harmed 6 any other Congressional witnesses or that the alleged practices 7 had become a regular way of conducting business. 8 addition, the Court noted that “there was but a single victim 9 involved.” Id. at 1533. The Ninth Circuit Id. In Id. at 1535. United States District Court For the Northern District of California 10 As in Sever, Plaintiff’s complaint alleges only that 11 Defendants’ “collective conduct is in a sense a single episode 12 having the singular purpose of” depriving Plaintiff of custody of 13 her children. 14 has failed to allege a pattern of racketeering activity and 15 dismisses Plaintiff’s RICO claims. Id. Accordingly, the Court finds that Plaintiff 16 If Plaintiff can allege, consistent with her original 17 complaint, additional facts sufficient to establish a pattern of 18 racketeering activity, she may replead her RICO claims in her 19 second amended complaint. 20 C. 21 Plaintiff alleges that Defendants Morgan, Carey and Reed Eighth Cause of Action--First Amendment Claim 22 violated R.F.’s and her rights under the First Amendment to the 23 United States Constitution. 24 cause of action for the ‘deprivation of any rights, privileges, or 25 immunities secured by the Constitution and laws’ of the United 26 States.” 27 (quoting 42 U.S.C. § 1983). Title 42 U.S.C. § 1983 “provides a Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) 28 17 1 Plaintiff alleges that in late 2011 Defendant Morgan, a 2 social worker employed by San Mateo County’s Child Protective 3 Services Department, “wrote a report designed to minimize and 4 cover up” child abuse suffered by her children. 5 Plaintiff further alleges that Defendant Morgan violated an 6 unspecified “law on confidentiality” by providing a copy of the 7 report to J. Fotinos’s attorney. 8 that Defendants Carey and Reed, San Mateo County Deputy Sheriffs, 9 relied on those reports in failing to take seriously Plaintiff’s 1Ac ¶ 359. 1AC ¶ 358. Plaintiff alleges United States District Court For the Northern District of California 10 complaints of child abuse, thereby failing to fulfill their duties 11 under California law. 12 Defendants Morgan, Carey and Reed are “retaliating against” 13 Plaintiff and her children “in violation of the free speech clause 14 of the First Amendment” because the alleged evidence of her 15 daughter’s abuse “is a reflection on the reckless, indifferent, 16 and deliberate disregard the San Mateo judges . . . have shown for 17 the mother and her children.” 18 1AC ¶ 364. Plaintiff then alleges that 1AC ¶ 365. Plaintiff’s primary contentions are that Defendants Morgan, 19 Carey and Reed are violating provisions of California law. 20 general rule, a violation of state law does not lead to liability 21 under § 1983.” 22 Plaintiff further asserts that, as a result of “Morgan making and 23 disseminating the false report” to Plaintiff’s and J. Fotinos’s 24 counsel, “M. Fotinos and R.F. are denied meaningful access to the 25 courts” because J. Fotinos’s counsel provided a copy of the report 26 to the judge presiding over Plaintiff’s request for a domestic 27 violence restraining order. 28 how providing a report by a Child Protective Services social 18 “As a Campbell v. Burt, 141 F.3d 927, 930 (1998). 1AC ¶ 364. However, it is not clear 1 worker regarding alleged child abuse to a judge considering a 2 domestic violence restraining order is a violation of Plaintiff’s 3 First Amendment rights. 4 Plaintiff’s First Amendment claim is dismissed. If Plaintiff 5 can allege, consistent with her original complaint, additional 6 facts sufficient to establish a First Amendment claim against 7 Defendants Morgan, Carey and Reed, she may replead this claim in 8 her second amended complaint. 9 United States District Court For the Northern District of California 10 D. Ninth Cause of Action--Equal Protection and Due Process Claim 11 Plaintiff next alleges that the same actions by Defendants 12 Morgan, Carey and Reed that underlie her § 1983 First Amendment 13 claim constituted a violation of Plaintiff’s and her children’s 14 rights to Due Process and their “equal protection rights” to child 15 protective and police services “as victims of domestic violence.” 16 1AC ¶¶ 369, 372. 17 Plaintiff alleges that Defendant Morgan violated her and her 18 children’s due process rights by providing the report regarding 19 alleged child abuse to J. Fotinos’s attorney “knowing he would 20 forward it” to the judge presiding over Plaintiff’s request for a 21 domestic violence restraining order. 22 report is inadmissible under the California Evidence Code, 23 Plaintiff’s counsel was not given the opportunity to cross examine 24 Morgan at the hearing, and the judge read the report “even before 25 the hearing had started.” 26 improperly considered by the judge, it is not clear how Defendant 27 Morgan can be held liable for the actions of J. Fotinos’s attorney Plaintiff asserts that the Even assuming that the report was 28 19 1 in submitting the report to the court, or the action of the judge 2 in failing to strike the report. 3 Plaintiff further alleges that various shortcomings in the 4 manner in which Defendants Carey and Reed responded to R.F.’s 5 report of abuse by her father violated Plaintiff’s and her 6 children’s Due Process rights. 7 Plaintiff asserts a Due Process claim based on the officers’ 8 failure to act. 9 confer no affirmative right to governmental aid, even where such 1AC ¶ 372. In other words, However, “the Due Process Clauses generally United States District Court For the Northern District of California 10 aid may be necessary to secure life, liberty, or property 11 interests of which the government itself may not deprive the 12 individual.” 13 489 U.S. 189, 196 (1989). 14 Deshaney v. Winnebago County Dep’t of Social Svcs., Plaintiff’s Equal Protection claim also fails because 15 Plaintiff does not allege that any of the Defendants acted because 16 of her and her children’s status as victims of domestic violence. 17 Accordingly she has failed to make a showing of discriminatory 18 intent necessary to support an equal protection claim. 19 Block, 72 F.3d 712, 716 n.5 (9th Cir. 1995) (quoting Personnel 20 Adm’r of Mass. v. Feeny, 442 U.S. 256, 279 (1979)). 21 Plaintiff has alleged that Morgan acted “for damage control on 22 behalf of the San Mateo judicial establishment.” 23 contradicts Plaintiff’s allegation that Defendant Morgan acted 24 with discriminatory intent. 25 Navarro v. Indeed, 1AC ¶ 371. This Plaintiff’s Equal Protection and Due Process claim is 26 dismissed. 27 complaint, additional facts sufficient to establish a claim If Plaintiff can allege, consistent with her original 28 20 1 against Defendants Morgan, Carey and Reed, she may replead this 2 claim in her second amended complaint. 3 E. 4 Plaintiff next alleges a § 1983 claim against Defendants City Tenth Cause of Action--Monell Claim 5 of Belmont and San Mateo County. 6 cities and counties can only be brought in accordance with Monell 7 v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). 8 who seek to impose liability on local governments under § 1983 9 must prove that ‘action pursuant to official municipal policy’ Section 1983 claims against “Plaintiffs United States District Court For the Northern District of California 10 caused their injury.” 11 (2011) (citing Monell, 436 U.S. at 691). 12 policy includes the decisions of a government’s lawmakers, the 13 acts of its policymaking officials, and practices so persistent 14 and widespread as to practically have the force of law.” 15 Connick v. Thompson, 131 S. Ct. 1350, 1359 “Official municipal Id. A city may not be held vicariously liable for the 16 unconstitutional acts of its employees on the basis of an 17 employer-employee relationship with the tortfeasor. 18 U.S. at 691-92. 19 can be established in one of three ways. 20 plaintiff must prove (1) “that a city employee committed the 21 alleged constitutional violation pursuant to a formal governmental 22 policy or a longstanding practice or custom which constitutes the 23 standard operating procedure of the local governmental entity;” 24 (2) “that the individual who committed the constitutional tort was 25 an official with final policy-making authority;” or (3) “that an 26 official with final policy-making authority ratified a 27 subordinate’s unconstitutional decision or action and the basis Monell, 436 The Ninth Circuit has held that Monell liability 28 21 Specifically, the 1 for it.” 2 1992). 3 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. Plaintiff alleges that the City of Belmont and Santa Clara 4 County “maintain a policy, practice, custom, and habit whereby 5 police officers are improperly trained with respect to domestic 6 violence victims seeking [emergency protective orders] and fail 7 repeatedly to provide all the rights domestic violence victims are 8 entitled to.”5 9 finds that Plaintiff has failed to allege any constitutional 1AC ¶ 376. However, as discussed above, the Court United States District Court For the Northern District of California 10 injury. 11 Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1992). 12 even assuming Plaintiff is able to allege a constitutional injury, 13 she has failed to allege any facts to support a finding that any 14 of the individual Defendants acted according to any city or county 15 policy or practice. 16 complaint to support Plaintiff’s Monell claims concern criticism 17 of how San Mateo County has handled an unrelated criminal 18 prosecution of an individual not involved in this case and 19 criticism of how the San Mateo County District Attorney and a San 20 Mateo Superior Court judge have handled unrelated criminal 21 prosecutions of J. Fotinos. Accordingly, Plaintiff cannot allege a Monell claim. Moreover, Indeed, the only factual allegations in the See 1AC at ¶¶ 377-79. 22 Plaintiff’s oppositions to the City of Belmont’s and San 23 Mateo County’s motions to dismiss contain general allegations that 24 Defendants Carey, Reed and Pitts failed to follow certain state 25 26 27 28 5 In her opposition to the City of Belmont’s motion to dismiss, Plaintiff asserts that her Monell claim is based on gender as well as status as domestic violence victims. However, the allegations in the 1AC fail to support such a claim. 22 1 laws or local policies. 2 statements that these failures were due to a lack of training. 3 This is not sufficient. 4 However, Plaintiff makes only conclusory Plaintiff has failed to state a Monell claim. If she can 5 allege, consistent with her original complaint, additional facts 6 sufficient to establish such a claim, she may replead it in her 7 second amended complaint. 8 F. 9 Plaintiff alleges that, unless the Court orders Defendant Eleventh Cause of Action--Injunctive Relief United States District Court For the Northern District of California 10 Harris, the Attorney General of the State of California, to 11 prosecute J. Fotinos and certain San Mateo County judges who 12 presided over Plaintiff’s child custody dispute, both Plaintiff 13 and residents of San Mateo County will suffer harm. 14 Plaintiff alleges that, unless the Court orders Defendant Kim, the 15 Chief Trial Counsel of the State Bar of California, to investigate 16 attorneys Kinney and Miller, Plaintiffs will continue to suffer 17 irreparable harm. 18 19 1. Similarly, Defendant Harris As Defendant Harris points out, Plaintiff has not alleged 20 that Defendant Harris has violated, or is about to violate, any 21 federal law or federal right enjoyed by Plaintiff. 22 Amendment deprives federal courts of jurisdiction over suits by 23 private citizens against states, state agents and state 24 instrumentalities. 25 425, 429-31 (1997); Welch v. Texas Dept. of Hwys. and Pub. Trans., 26 483 U.S. 468, 486 (1987). 27 action against Defendant Harris is barred by the Eleventh 28 Amendment. The Eleventh Regents of the Univ. of Cal. v. Doe, 519 U.S. Accordingly, Plaintiff’s cause of Moreover, the Supreme Court has long held that “a 23 1 citizen lacks standing to contest the policies of the prosecuting 2 authority when he himself is neither prosecuted nor threatened 3 with prosecution.” 4 (1973) (citing Younger v. Harris, 401 U.S. 37, 42 (1971); Bailey 5 v. Patterson, 369 U.S. 31, 33 (1962); Poe v. Ullman, 367 U.S. 497, 6 501 (1961)). 7 Linda R.S. v. Richard D., 410 U.S. 614, 619 Plaintiff’s late-filed opposition does not address any of 8 Defendant Harris’s well-taken legal arguments. 9 cites the Attorney General’s general supervisory powers over Instead, Plaintiff United States District Court For the Northern District of California 10 sheriff's departments. 11 Attorney General shall have direct supervision over every district 12 attorney and sheriff . . . in all matters pertaining to the duties 13 of their respective offices . . . .”); Cal Gov. Code § 12560 (“The 14 Attorney General has direct supervision over the sheriffs of the 15 several counties of the State. . . .”). 16 provisions provides grounds for Plaintiff's claim. 17 18 See, e.g., Cal. Const. Art. V, § 13 (“The However, nothing in these Plaintiff’s claim against Defendant Harris is dismissed with prejudice. 19 2. 20 Defendant Kim Plaintiff also seeks an injunction requiring Defendant Kim, 21 Chief Trial Counsel of the State Bar of California, to open 22 professional misconduct investigations of opposing counsel and 23 another attorney involved in her dispute with her ex-husband. 24 Eleventh Amendment also bars Plaintiff’s claims against Defendant 25 Kim. 26 Defendant Kim. 27 Young, 209 U.S. 123 (1908), in the complaint is unavailing. The Plaintiff has not alleged any violations of federal law by Accordingly, Plaintiff’s reference to Ex Parte 28 24 1 Moreover, instead of filing an opposition to Defendant Kim’s 2 motion to dismiss, Plaintiff has filed an “Ex Parte Motion for 3 Leave to Amend/Supplement First Amended Complaint.” 4 filing, Plaintiff’s only response to Defendant Kim’s motion is to 5 suggest that Defendant Kim “may have second thoughts” about 6 deciding to discipline the relevant attorneys when she learns 7 certain facts that Plaintiff seeks leave to allege. 8 at ¶ 18. 9 United States District Court For the Northern District of California 10 Docket No. 46 Plaintiff’s claim against Defendant Kim is dismissed with prejudice. 11 12 In that CONCLUSION For the foregoing reasons, the Court GRANTS in part Defendant 13 La Farge’s motion to dismiss (Docket No. 18), GRANTS Defendant 14 Harris’s motion to dismiss (Docket No. 22), GRANTS Defendant Kim’s 15 Motion to dismiss (Docket No. 26), GRANTS in part Defendant J. 16 Fotinos’s motion to dismiss (Docket No. 33), GRANTS in part 17 Defendant Grover’s motion to dismiss (Docket No. 34), GRANTS in 18 part Defendant Miller’s motion to dismiss and DENIES her motion to 19 strike (Docket No. 58),6 GRANTS Defendant City of Belmont’s motion 20 to dismiss (Docket No. 61), GRANTS San Mateo County Defendants’ 21 motion to dismiss (Docket No. 62), and DENIES Plaintiff’s motion 22 for leave to amend or supplement (Docket No. 46). 23 24 The claims against Defendants Harris and Kim are dismissed with prejudice. The claims against the remaining Defendants are 25 26 27 28 6 Because the court does not rely on any of the evidence submitted in support of Plaintiff’s opposition to Defendant Miller’s Motion to Dismiss, it denies Defendant Miller’s evidentiary objections as moot. 25 1 dismissed without prejudice. 2 complaint within fourteen days, remedying the defects addressed 3 above if she is able truthfully to do so without contradicting the 4 allegations in her original complaint. 5 additional causes of action without leave of the Court. 6 event that Plaintiff files an amended complaint, Defendants may 7 answer or move to dismiss the amended complaint within twenty-one 8 days thereafter. 9 her federal claims will be dismissed with prejudice and her state Plaintiff may file an amended Plaintiff may not add any In the If Plaintiff does not file an amended complaint, United States District Court For the Northern District of California 10 claims will be dismissed without prejudice to refiling in state 11 court. 12 13 IT IS SO ORDERED. 14 15 16 Dated: 3/22/2013 CLAUDIA WILKEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 26

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