Gingras v. Sacramento County Department of Child Support Services et al

Filing 27

ORDER by Judge Yvonne Gonzalez Rogers granting in part 4 Motion to Dismiss; granting in part 7 Motion to Dismiss for Lack of Jurisdiction; Plaintiff to filed amended complaint by 2/28/2013; denying 19 Ex Parte Motion for TRO. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/28/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN P GINGRAS,

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Plaintiff,

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United States District Court
Northern District of California

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Case No.: 12-CV-05509 YGR
ORDER GRANTING DEFENDANTS’ MOTIONS
TO DISMISS WITH LEAVE TO AMEND

vs.
COUNTY OF SACRAMENTO, CALIFORNIA
STATE TEACHERS RETIREMENT SYSTEM, and
METROVIEW CONSULTING,

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Defendant(s).

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Plaintiff alleges that Defendant County of Sacramento1 over-garnished $48,000.00 in past-

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due child support obligations from an account Plaintiff has with Defendant California State

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Teachers Retirement System (“CalSTRS”), and that the County of Sacramento hired a private

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investigation firm, Defendant Metroview Consulting, to follow Plaintiff. Plaintiff brings seven

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claims: (1) Fraudulent Intentional Misuse of Process; (2) Silent Malicious Intentional Fraud; (3)

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Conversion; (4) Fraudulent Misrepresentation; (5) Violations of Due Process Rights as Guaranteed

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by the Bill of Rights; (6) Intentional and Negligent Emotional Distress; and (7) Invasion of Privacy.
Both the County of Sacramento and CalSTRS have filed Motions to Dismiss. Plaintiff

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separately has moved for a temporary restraining order to prevent Metroview Consulting’s private

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investigators from physically and electronically stalking him. Having carefully considered the

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papers submitted and the pleadings in this action, the Court hereby GRANTS IN PART both Motions

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to Dismiss WITH LEAVE TO AMEND consistent with this Order, and DENIES the Motion for an Ex

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Parte Temporary Restraining Order.

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The County of Sacramento has been sued as Sacramento County Department of Child Support Services.

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I.

DISCUS
SSION
The Cou
unty of Sacra
amento moves to dismiss on the grou
s
unds that: (1) Plaintiff f
fails to set

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forth sufficient factual alleg
h
f
gations to sup
pport any of his claims; (2) his state law claims for fraud,
f

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conv
version, and negligent an intentiona infliction of emotiona distress are common la claims
d
nd
al
al
e
aw

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that cannot be brought again a public entity, see C Gov. Cod § 815; (3) his fraud a
nst
e
Cal.
de
and

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conv
version claim are barred by Cal. Go Code § 8
ms
d
ov.
818.8; (4) he failed to comply with th
e
he

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Gov
vernment Cla
aims Act, Ca Gov. Cod § 945.4; a (5) this a
al.
de
and
action was fi in the w
iled
wrong venue

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beca
ause it shoul have been filed in the Eastern Dis trict of Calif
ld
n
fornia. CalS
STRS moves to dismiss
s

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on th grounds that: (1) clai against a state agenc are barred by the Elev
he
t
ims
cy
d
venth Amen
ndment; (2) a

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state agency is not a “person subject to suit under 4 U.S.C. § 1983; (3) Pl
e
n
n”
o
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laintiff has fa
failed to state
e

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United States District Court
Northern District of California

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a cla against CalSTRS up which re
aim
C
pon
elief may be granted; (4) he failed to present a cl
)
o
laim to

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CalS
STRS under the Governm Claims Act, Cal. G
ment
s
Gov. Code §§ 910, 945.4 & 950.2; an (5)
§
4
nd

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serv of the Complaint on CalSTRS was inadequa
vice
n
w
ate.

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The Cou GRANTS both Motion to Dismiss WITH LEA TO AME for failu to state a
urt
b
ns
s
AVE
END
ure

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claim upon whic relief can be granted. The Court DENIES both Motions to Dismiss in
m
ch
n
h
o
nsofar as they
y

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seek dismissal for improper venue or im
k
f
mproper serv
vice. The Co DENIES Plaintiff’s M
ourt
Motion for

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an Ex Parte Tem
E
mporary Res
straining Ord because P
der
Plaintiff has not set forth sufficient g
h
grounds to

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show that he is entitled to em
w
e
mergency re
elief without providing a
actual notice to the partie he seeks
es

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to en
njoin.

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All of th pleading deficiencies identified in the Defenda
he
d
i
n
ns
it.
ants’ motion have meri Plaintiff

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conc
cedes that he has failed to allege com
e
t
mpliance wit the admin
th
nistrative cla processin
aim
ng

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requ
uirement and indicates th he will be amending his complaint to allege s
d
hat
such compli
iance.

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How
wever, Plaint will need to address all of the ple
tiff
d
eading defic
ciencies that the Defenda have
ants

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iden
ntified, as set forth herein
t
n:

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(1)

Eleventh Am
E
mendment Immunity.
I

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Plaintiff needs to allege specific facts that sh
f
how the Elev
venth Amend
dment does not bar his

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claim against CalSTRS. Th Eleventh Amendmen provides sovereign im
ms
C
he
nt
mmunity for s
states and

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bars lawsuits in federal cour against sta or their a
s
rt
ates
agencies unl the state has specific
less
e
cally waived
d

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its sovereign immunity. Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th

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Cir. 1991). Congress can abrogate or limit a state’s Eleventh Amendment immunity under § 5 of

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the Fourteenth Amendment, but such abrogation requires an “unequivocal expression” of

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Congressional intent, and is a limited power. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91

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(2000). The Eleventh Amendment does not bar lawsuits against counties. Greater L.A. Council on

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Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); see also Monell v. Dep’t of Soc.

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Servs., 436 U.S. 658, 690 n.54 (1978).

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(2)

Federal Constitutional Claims.

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Section 1983 of Title 42 of the United States Code, 42 U.S.C. § 1983, (“Section 1983”) can
provide a cause of action against persons2 acting under color of state law who have violated the

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United States District Court
Northern District of California

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United States Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). In

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general, governmental entities such as the County of Sacramento may not be held responsible for

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the acts of their employees. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997).

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Because municipal liability must be based on the actions of the municipality and not the actions of

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its employees, to impose liability on the County of Sacramento under Section 1983, Plaintiff must

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demonstrate that the constitutional deprivation was the product of a policy, practice, or custom of

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the local governmental entity. Id.
In order to state a Section 1983 cause of action against a local governmental entity such as

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the County of Sacramento, Plaintiff will need to identify:

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a)

A specific federal constitutional right that was violated;

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b)

A specific custom, policy or practice of the entity that has deprived Plaintiff

of that constitutional right;

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c)

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An affirmative causal link between the custom, policy or practice and the

alleged constitutional violation; and

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A state is not a “person” for purposes of Section 1983. See Arizonans for Official English v. Arizona, 520
U.S. 43, 69 (1997). CalSTRS asserts that it is an agency of the State of California, which for purposes of the
Section 1983 analysis would make CalSTRS an arm of the State of California, and Section 1983 claims
against CalSTRS would be barred by the Eleventh Amendment. See Howlett v. Rose, 496 U.S. 356, 365
(1990).
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d)
d

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Suffic
cient facts to allow the C
o
Court to draw the reason
w
nable inferen that the
nce

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defendan can be liab for the misconduct a
nt
ble
m
alleged. See Bell Atlantic Corp. v. T
Twombly, 550
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U.S. 544 (2007).
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(3)

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Section 1983 does not provide a cause of act
tion for violations of sta law. See Galen v.
ate

State Law Claims.
S
C

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Cou of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). In ad
unty
A
ddition, the Eleventh Am
mendment

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bars lawsuits in federal cour against sta or their a
s
rt
ates
agencies on the basis of violations o state law,
f
of

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unle the state has specifica waived its sovereign immunity. See Pennhu State Sc & Hosp.
ess
ally
n
urst
ch.

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v. Halderman, 465 U.S. 89, 124-25 (198
H
4
84). In orde to sue a go
er
overnmental entity for vi
iolations of
state law (for ex
e
xample, here Plaintiff’s state law cau
e,
uses of actio include C
on
Conversion an
nd

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United States District Court
Northern District of California

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Frau
udulent Misr
representatio Plaintiff must:
on),
f
a)
a

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Identi the speci statute(s) if any, tha waives tha governmen entity’s
ify
ific
),
at
at
ntal

immunit from suit;
ty

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b)
b

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Provi sufficient factual con
ide
ntent that allo the Cou to draw th
ows
urt
he

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reasonab inference that the def
ble
e
fendant can b liable for the miscond alleged. See
be
r
duct

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Twombly supra, 550 U.S. 544; and
y,
0
a
c)
c

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requirem
ments of the Government Claims Act if such fac exist.
G
t
t,
cts

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Alleg facts that show Plainti complied with the ad
ge
s
iff
d
dministrative

II.

CONCL
LUSION

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For the reasons set forth above, the Court Or
r
fo
t
rders as follo
ows:

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(1) Defe
endant Count of Sacram
ty
mento’s Moti to Dismi is GRANT IN PART;
ion
iss
TED
T

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(2) Defe
endant CalST
TRS’ Motion to Dismiss is GRANTED IN PART;
n
D

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(3) Pursu to Fede Rule of Civil Proced
uant
eral
C
dure 12(b)(6) Plaintiff’s Complaint i
),
is

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DISM
MISSED for failure to sta a claim up
f
ate
pon which re
elief can be granted WIT LEAVE TO AMEND
TH

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to th extent the Complaint can be amen
he
e
nded consist with this Order;
tent
s

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(4) Plain must file his amende complain by no later than Febru
ntiff
e
ed
nt
r
uary 28, 201
13;

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(5) Failu to file an amended co
ure
omplaint by such date w result in d
will
dismissal of this lawsuit
f

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for failure to pro
f
osecute;

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(6) Plaintiff’s Motion for an Ex Parte Temporary Restraining Order is DENIED.

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This Order Terminates Docket Numbers 4, 7 & 19.

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IT IS SO ORDERED.

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Date: January 28, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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