Smolinski v. City of Pacific Grove et al

Filing 36

ORDER by Judge Ronald M. Whyte granting in part and denying in part 22 Motion to Dismiss. (rmwlc1, COURT STAFF) (Filed on 10/27/2008)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Darrin Smolinski ("Smolinski") sued defendants City of Pacific Grove ("City"), Pacific Grove Police Department ("Department") and Scott Miller ("Miller") for alleged intimidation based on his sexual orientation and committed in retaliation for his exercise of a Constitutional right. Defendants moved to dismiss Smolinski's sixth, seventh, eighth and tenth claims alleging that Miller interfered with his prospective economic advantage with the Department and threatened to investigate Smolinski in retaliation for exercising a Constitutional right in violation of California Civil Code §§ 51.7 and 52.1. The court has read the moving and responding papers and considered the arguments of counsel. As explained at court, the defendants' motion to dismiss plaintiff's sixth claim is DENIED with respect to defendant Miller for the time period following his employment with the police
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS No. C-08-01809 RMW CEA

E-FILED on 10/27/2008

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DARRIN SMOLINSKI , Plaintiff, v. CITY OF PACIFIC GROVE, PACIFIC GROVE POLICE DEPARTMENT, SCOTT MILLER, Defendants.

No. C-08-01809 RMW ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Re Docket No. 22]

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

department. The court GRANTS defendants' motion to dismiss plaintiff's seventh claim since no negligent interference has been pleaded. The court GRANTS defendants' motion to dismiss plaintiff's eighth claim regarding violations of Code §§ 51.7 and 52.1 with leave to amend. Plaintiff has twenty (20) days from the date of this order to amend their complaint as to allegations regarding Miller's alleged violation of California Civil Code § 51.7. The parties have agreed to dismiss the plaintiff's tenth claim and to strike the punitive damages allegation against the City and the Department

DATED:

10/22/2008

RONALD M. WHYTE United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS No. C-08-01809 RMW CEA 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Notice of this document has been electronically sent to: Counsel for Plaintiff: Stephen J. Usoz Leslie Holmes Counsel for Defendants: Howard B. Golds Cynthia M. Germano [e-mail] [e-mail] [e-mail] [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

10/27/2008

TSF Chambers of Judge Whyte

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS No. C-08-01809 RMW CEA 3