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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHELE FOTINOS, on behalf of
herself and as Guardian ad Litem
for her minor children, R.F. and
A.F.,
Plaintiff,

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United States District Court
For the Northern District of California

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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,

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No. C 12-953 CW

Defendant.
________________________________/

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Defendant John Fotinos, Defendant Dawn Grover, Defendant

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Renee La Farge, Defendant Bonnie Miller, Defendant Kamala Harris,

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Defendant Jayne Kim, Defendant City of Belmont, and Defendants

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County of San Mateo, Mark Reed, Patrick Carey and Shannon Morgan

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(San Mateo County Defendants) have filed motions to dismiss in

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this case.

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pursuant to California’s anti-Strategic Lawsuit Against Public

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Participation (anti-SLAPP) statute.

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oppositions to Defendant Harris’s motion, Defendant Miller’s

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motion, Defendant City of Belmont’s motion, and the San Mateo

Defendant Miller also moves to strike the complaint

Plaintiff has filed

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County Defendants’ motions.

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J. Fotinos’s motion, Defendant Grover’s motion, Defendant La

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Farge’s motion or Defendant Kim’s motion.

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motion for leave to amend or supplement the First Amended

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Complaint.

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rather than being required to file an opposition to Motions to

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Dismiss of Defendants Kim, La Farge, J. Fotinos, and Grover, I be

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allowed to amend/supplement to include the facts that I set out in

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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

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oppositions to the motion for leave to amend.

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decided on the papers.

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Court GRANTS in part Defendant La Farge’s motion to dismiss

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(Docket No. 18), GRANTS Defendant Harris’s motion to dismiss

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(Docket No. 22), GRANTS Defendant Kim’s Motion to dismiss (Docket

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No. 26), GRANTS in part Defendant J. Fotinos’s motion to dismiss

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(Docket No. 33), GRANTS in part Defendant Grover’s motion to

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dismiss (Docket No. 34), GRANTS in part Defendant Miller’s motion

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to dismiss and DENIES her motion to strike (Docket No. 58), GRANTS

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Defendant City of Belmont’s motion to dismiss (Docket No. 61),

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GRANTS the San Mateo County Defendants’ motion to dismiss (Docket

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No. 62), and DENIES the motion for leave to amend or supplement

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(Docket No. 46).

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The motions were

Having considered the parties’ papers, the

BACKGROUND
This case arises out of a nine-year custody battle between

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Plaintiff Michele Fotinos and her ex-husband, Defendant John

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Fotinos.

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physically and emotionally abusing their two children, R.F. and

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A.F. and alienating them from her.
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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

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filed this lawsuit against numerous Defendants on behalf of

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herself and as guardian ad litem for R.F. and A.F.

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Judge James granted Plaintiff’s ex parte application for

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appointment as guardian ad litem on March 22, 2012.

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11.

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Grover; Bonnie Miller, the children’s former court-appointed

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counsel; the City of Belmont; Belmont police officer Robyn Pitts1;

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San Mateo County; San Mateo County deputy sheriffs Mark Reed and

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United States District Court
For the Northern District of California

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Patrick Carey; Renee La Farge, a former reunification therapist

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for Plaintiff and her children; Shannon Morgan, a San Mateo County

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social worker; Jayne Kim, Chief Trial Counsel for the California

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State Bar; and Kamala Harris, Attorney General of the state of

Magistrate

Docket No.

The named Defendants are John Fotinos and his wife, Dawn

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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).
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California.

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which are federal causes of action.2
DISCUSSION

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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,

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Plaintiff has filed an “Ex Parte Motion for Leave to

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Amend/Supplement First Amended Complaint.”

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basis for filing her motion ex parte in violation of Civil Local

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Rule 7-10 and she has not attached a copy of the proposed amended

United States District Court
For the Northern District of California

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Plaintiff provides no

complaint in violation of Civil Local Rule 10-1.

Moreover,

Plaintiff’s motion does not provide any grounds for granting leave
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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.
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to amend, and the facts and law to which the motion and attached

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declaration refer are not sufficient to overcome the deficiencies

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in her complaint identified in Defendants’ motions to dismiss.
Plaintiff’s motion for leave to amend/supplement is denied.

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United States District Court
For the Northern District of California

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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
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Plaintiff’s state law claims.

To the extent Defendant Miller

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seeks to strike Plaintiff’s federal claims pursuant to the anti13
SLAPP statute, her motion is denied.
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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

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to successfully amend her complaint to state a federal law claim.

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III. Lack of Jurisdiction

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Subject matter jurisdiction is a threshold issue which goes

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to the power of the court to hear the case.

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matter jurisdiction must exist at the time the action is

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commenced.

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Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).

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court is presumed to lack subject matter jurisdiction until the

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contrary affirmatively appears.

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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

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Dismissal is appropriate under Rule 12(b)(1) when the

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district court lacks subject matter jurisdiction over the claim.

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Fed. R. Civ. P. 12(b)(1).

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attack the sufficiency of the pleadings to establish federal

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jurisdiction, or allege an actual lack of jurisdiction which

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exists despite the formal sufficiency of the complaint.

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Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th

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Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.

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1987).

A Rule 12(b)(1) motion may either

Thornhill

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A.

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Defendants La Farge, J. Fotinos and Grover argue that this

Domestic Relations Exception

United States District Court
For the Northern District of California

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Court should decline jurisdiction over Plaintiff’s claims because

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they are barred by the domestic relations exception.

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this case is distinguishable from the cases cited by Defendants.

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In this case, Plaintiff alleges constitutional violations related

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to the divorce and custody proceedings in state court.

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Peterson v. Babbitt, cited by Defendant La Farge, Plaintiff does

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not allege that the state court’s decision in this case violates

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her constitutional rights.

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her claims are based on the conduct of various parties who took

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part in the state court proceedings.

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contention--that the “core issue” in this case “is the issue of

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visitation/custody and the parental status” of Plaintiff and

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Defendant J. Fotinos--is not well taken.

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Dismiss at 8-9.

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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

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B.

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Defendants La Farge, J. Fotinos and Grover also argue that

Rooker-Feldman Doctrine

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Plaintiff’s claims are barred by the Rooker-Feldman doctrine, see

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Rooker v. Fidelity Trust Co., 263 U.S. 412 (1923); District of
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Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), because

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“Plaintiffs are seeking to revise one or more family court orders

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as to her custodial/visitation rights.”

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Dismiss at 9.

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results of the family court proceedings, she does not seek any

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modification of the state court orders, nor can her claims be

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characterized as “a forbidden de facto appeal of a state court

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judgment.”

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Accordingly Defendants’ motions to dismiss are denied to the

United States District Court
For the Northern District of California

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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.

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C.

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Defendants La Farge and Miller argue that they are entitled

Quasi-Judicial Immunity

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to quasi-judicial immunity because of their roles in the state

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court custody litigation.

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appointed attorney and Miller acted as the court-ordered

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reunification therapist for Plaintiff and her children.

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concedes that Miller is entitled to quasi-judicial immunity for

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all actions taken while appointed as the children’s attorney.3

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However, Plaintiff’s claims are based, at least in part, on her

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allegations that, after being discharged by the state court, both

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La Farge and Miller continued to act to influence the children’s

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testimony in the ongoing proceedings.

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191-205.

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based on actions taken after La Farge and Miller were discharged

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by the state court, their motions to dismiss based on quasi-

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judicial immunity are denied.

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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.
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Nonetheless, Plaintiff’s complaint also includes allegations

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regarding actions that La Farge and Miller made while appointed by

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the state court.

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shall not rely on any alleged unlawful acts by La Farge or Miller

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during the times they were acting as court-appointed reunification

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therapist or court-appointed counsel respectively.

If Plaintiff files an amended complaint, she

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D.

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Defendant Miller also moves to dismiss the complaint against

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Noerr-Pennington Doctrine

her based on the Noer-Pennington doctrine.

See Eastern Railroad

United States District Court
For the Northern District of California

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Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127

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(1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).

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Defendant Miller asserts that, even though Plaintiff’s claims are

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based on conduct alleged to have occurred after Defendant Miller

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was no longer engaged as the children’s counsel, she “was

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conceivably using her training and expertise as an attorney to

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advise the children and obviously acting in her capacity as a

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lawyer to allegedly advise Defendant J. Fotinos.”

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8.

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Miller acted in a manner incidental to the underlying custody

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dispute and Miller’s conduct should therefore be protected by the

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Noer-Pennington doctrine.

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authority to support her contention that an individual who is

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neither a party nor representing a party is protected by the Noer-

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Pennington doctrine.

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See, e.g., Columbia Pictures Industries, Inc. v. Professional Real

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Estate Investors, Inc., 944 F.2d 1525, 1528 (9th Cir. 1991) (“A

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decision to accept or reject an offer of settlement is conduct

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incidental to the prosecution of the suit and not a separate and
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Miller Reply at

Accordingly, Miller asserts, Plaintiff has only alleged that

However, Miller has provided no

The cases she cites are distinguishable.

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distinct activity which might form the basis for antitrust

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liability.”); Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185

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(9th Cir. 2005) (“Discovery, like settlement talks, is ‘conduct

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incidental to’ a petition . . .”).

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dismiss is denied to the extent it relies on the Noer-Pennington

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Doctrine.

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IV.

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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

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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).

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)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the
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In determining whether

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complaint could be amended to cure the defect requiring dismissal

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"without contradicting any of the allegations of [the] original

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complaint."

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Cir. 1990).

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

Although the court is generally confined to consideration of

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the allegations in the pleadings, when the complaint is

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accompanied by attached documents, such documents are deemed part

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of the complaint and may be considered in evaluating the merits of

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a Rule 12(b)(6) motion.

United States District Court
For the Northern District of California

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Durning v. First Boston Corp., 815 F.2d

1265, 1267 (9th Cir. 1987).

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A.

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Plaintiff alleges that Defendants J. Fotinos, Grover, Miller,

First Cause of Action--42 U.S.C. § 1985(2)

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and La Farge conspired “for the purpose of impeding, hindering,

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obstructing, or defeating the due course of justice in the custody

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proceeding in the California superior court” in violation of Title

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42 U.S.C. § 1985(2).

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so by coercing the children to testify falsely in the state court

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proceedings.

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Plaintiff alleges that these Defendants did

Plaintiff makes clear that she brings her claim pursuant to

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the second clause of § 1985(2), which provides that an injured

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party has a cause of action against any of the conspirators

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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.

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42 U.S.C. § 1985(2).

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claim under this statute requires an allegation of a class-based,
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The Ninth Circuit has held, “A cognizable

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invidiously discriminatory animus.”

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Ass’n of Bridge Workers, Local 118, 556 F.2d 939, 941 (9th Cir.

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1977).

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Phillips v. International

Plaintiff has only made a bare allegation that the relevant

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Defendants acted with the intent to deny her and her children

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“equal protection of the law as victims of domestic abuse.”

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¶ 286.

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United States District Court
For the Northern District of California

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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.

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Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 272-73

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(1993) (citations omitted).

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suggesting that any conspiracy, assuming that one existed, was

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motivated by animus against victims of domestic violence.

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the complaint alleges that the conspiracy operated to prevent

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Plaintiff from regaining custody of her children.

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¶ 291 (actions taken “for the sole purpose of defeating M.

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Fotinos’ OSC for change of custody”); ¶ 286 (actions taken “so

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that M. Fotinos would not regain custody of her children”); ¶ 288

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(actions taken “to defeat their mother’s claim for custody”).4

Plaintiff has made no allegations

Rather,

See, e.g. 1AC

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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.
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Moreover, Plaintiff has failed to establish that victims of

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domestic violence are a protected class.

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§ 1985(3) claims, the Ninth Circuit has extended the requirement

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of class-based animus “beyond race only when the class in question

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can show that there has been a governmental determination that its

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members require and warrant special federal assistance in

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protecting their civil rights.”

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714, 718 (9th Cir. 1985).

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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

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designated the class in question a suspect or quasi-suspect

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classification requiring more exacting scrutiny or that Congress

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has indicated through legislation that the class required special

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protection.”

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Id.

The Ninth Circuit has suggested that this requirement of a

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suspect or quasi-suspect class also applies to claims pursuant to

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the second clause of § 1985(2) such as Plaintiff’s.

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County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993), the

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Ninth Circuit held that a plaintiff had no cause of action

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pursuant to the second clause of § 1985(2) because he failed to

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allege “that the County denied him access to state courts because

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he was a member of a protected class.”

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Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991) (holding that

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the district court properly rejected the plaintiff’s § 1985(2)

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claim because the plaintiff “failed to assert his membership in a

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protected class or any denial of equal protection”); Kimble v.

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D.J. McDuffy, Inc., 648 F.2d 340, 347 (5th Cir. 1981) (“If racial

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or class-based animus is required by Section 1985(3), it is

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required by Section 1985(2) as well.”) (overruled as to the first
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In Portman v.

See also Bagley v. CMC

1

clause of § 1985(2) by Kush v. Rutledge, 460 U.S. 719, 726

2

(1983)).

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District courts have also required allegations of membership
in a protected class in order to state a claim pursuant to the

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second clause of § 1985(2).

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Riverside, 2011 U.S. Dist. LEXIS 154767 (C.D. Cal.) (“To state a

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claim under § 1985(2) or (3), a plaintiff must allege (1) that

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some racial, or perhaps otherwise class-based, invidiously

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discriminatory anumus lay behind the conspirator’s action . . .”)

10
United States District Court
For the Northern District of California

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(internal quotation marks omitted); Moore v. City of Ceres, 2011

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U.S. Dist. LEXIS 130556, *20 (C.D. Cal.) (finding that the

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plaintiff failed to state a claim pursuant to § 1985(2) because he

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had not “alleged that any Defendant denied him access to state

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courts because he was a member of a protected class”).

See, e.g., Armster v. County of

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Plaintiff provides no basis for a finding that victims of

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domestic violence are a suspect or quasi-suspect class as required

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for a § 1985(2) claim.

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equal protection claims based on allegations that the police

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failed to provide adequate protection to victims of domestic

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violence were allowed to proceed is unavailing.

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§ 1983, “membership in a protected class is not a prerequisite to

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the entitlement to equal protection, it merely factors into the

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level of scrutiny courts will use in reviewing certain

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governmental classifications.”

Bari v. Held, 1992 U.S. Dist.

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LEXIS 13634, *53 (N.D. Cal.).

Accordingly the fact that cases

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have been allowed to proceed with such § 1983 equal protection

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claims does not itself establish that victims of domestic violence

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are a protected class for purposes of a § 1985(2) claim.
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Her citation to two cases in which § 1983

For purposes of

1

Moreover, neither of the cases cited reached the question of

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whether victims of domestic violence are members of a suspect or

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quasi-suspect class.

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(9th Cir. 2000), a victim of domestic violence was murdered by her

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husband.

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various law enforcement officials denied her “right to equal

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protection by providing her with inferior police protection on

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account of her status as a woman, a Latina, and a victim of

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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

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motion for summary judgment pursuant to Federal Rule of Civil

11

Procedure 56, finding that there was no causal link between the

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defendants’ conduct and the murder.

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Circuit reversed, holding that “the district court erred as a

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matter of law in concluding that the alleged constitutional

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deprivation was the murder.”

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court nor the Ninth Circuit reached the question of whether

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victims of domestic violence are members of a protected class.

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Id.

Id. at 1020.

Id. at 1028.

The Ninth

Neither the district

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In Balisteri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir.

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1988) (overruled in part on other grounds by DeShaney v. Winnebago

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Dep’t of Social Servs., 489 U.S. 189 (1989), the Ninth Circuit

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held that the district court erred in dismissing the plaintiff’s

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§ 1983 equal protection claim based on an alleged intent “to treat

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domestic cases less seriously than other assaults.”

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As noted above, that a plaintiff could pursue this § 1983 claim

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does not establish that victims of domestic violence are a

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protected class for purposes of § 1985(2).

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Circuit has only applied rational basis review to classifications
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Id. at 701.

Indeed, the Ninth

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based on status as a victim of domestic violence.

2

Block, 72 F.3d 712, 717 (9th Cir. 1996) (“even absent evidence of

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gender discrimination, the Navarros’ equal protection claim still

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survives because they could prove that the domestic violence/non-

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domestic violence classification fails even the rationality

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test”).

7

See Navarro v.

Accordingly, Plaintiff’s § 1985(2) claim is dismissed. If
Plaintiff can allege, consistent with her original complaint,

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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

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a recognized protected class, she may replead this claim in her

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second amended complaint.

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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

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