Nemcik v. Mills et al

Filing 136

ORDER GRANTING 105 , 111 , 114 MOTIONS TO DISMISS AND 103 MOTION TO STRIKE; AND DENYING 127 MOTION FOR LEAVE TO AMEND. Signed by Judge Beth Labson Freeman on 6/30/2017. (blflc4, COURT STAFF) (Filed on 6/30/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TANYA NEMCIK,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-00322-BLF

v.
STACEY STEVENS, et al.,

ORDER GRANTING MOTIONS TO
DISMISS AND MOTION TO STRIKE;
AND DENYING MOTION FOR LEAVE
TO AMEND

Defendants.

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This action arises out of child custody proceedings in the California state courts. Plaintiff

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Tanya Nemcik (“Nemcik”) alleges that based on an erroneous child support order against her in

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family law proceedings in Santa Clara County Superior Court she faces a mountain of debt she

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cannot possibly pay. She further alleges that she has been charged with contempt of that child

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support order and believes that she will be incarcerated as a form of retaliation by Defendants. See

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Second Am. Compl. (“SAC”) ¶ 16, 34, ECF 100.

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In this lawsuit, Nemcik brings several causes of actions grounded in the state court’s

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allegedly improper calculation of her child support, conspiracy among lawyers and family law

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judges in Contra Costa and Santa Clara counties to deprive Nemcik of her constitutional rights,

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and failure by the California Commission on Judicial Performance to discipline the identified

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judges. In this Order, the Court addresses the following motions: (1) Defendant Stacey Stevens’

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(“Stevens”) anti-SLAPP motion to strike the tenth, thirteenth, and fourteenth causes of action,

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ECF 103; (2) Stevens’ motion to dismiss, ECF 105; (3) Defendant Commission on Judicial

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Performance’s motion to dismiss, ECF 111; (4) Defendant Team Legal’s motion to dismiss, ECF

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114; and (5) Nemcik’s motion for leave to amend the complaint, ECF 127.

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For the reasons stated herein, the Court rules as follows: (1) GRANTS Stevens’ motion to

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strike; (2) GRANTS Stevens’ motion to dismiss; (3) GRANTS Commission on Judicial

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Performance’s motion to dismiss; (4) GRANTS Team Legal’s motion to dismiss; and (5) DENIES

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Nemcik’s motion for leave to file a third amended complaint. Pursuant to Civ. L.R. 7-1(b), the

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Court finds Team Legal’s motion to dismiss suitable for submission without oral argument and

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hereby VACATES the hearing scheduled for August 24, 2017.

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I.

BACKGROUND

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The instant motions to dismiss are evaluated based solely on the Second Amended
Complaint (“SAC”), the operative complaint in this case. ECF 100.

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A.

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Allegations against the Commission on Judicial Performance and Stevens
The SAC states that Nemcik brings this action to assert, vindicate, and secure the benefit

United States District Court
Northern District of California

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and enjoyment of constitutional rights against those who commit crimes. SAC ¶ 10, at 3. 1

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Nemcik alleges she has been harmed in Contra Costa and Santa Clara County. Id. ¶ 11, at 3. As a

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result, Nemcik seeks monetary damages and equitable relief for occurrences in her ongoing family

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law case. Id.

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On March 16, 2010, Nemcik filed a complaint with the CJP against Contra Costa Superior

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Court Judge Fenstermacher alleging bias and unlawful acts. Id. ¶ 11, at 3-4. Nemcik filed a

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second complaint with the CJP on March 22, 2010. Id. ¶ 24. On July 7, 2010, the CJP responded

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to her complaint in a letter stating that it would not take action. Id. ¶ 25. Nemcik states that on

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June 25, 2013, the Court of Appeal determined that Judge Fenstermacher abused her discretion

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and denied Nemcik of her constitutional rights of due process. Id. ¶ 11, at 3-4. Further, Nemcik

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states that Judge Fenstermacher created unlawful orders that gave Brian Krippendorf, the father of

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her children, custody. Id. ¶¶ 6, 12, at 6-7. Nemcik alleges that her rights under the Fifth, Sixth,

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Seventh, Eighth, Ninth, and Thirteenth Amendments have been violated because of the CJP’s

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failure to perform its duty. Id. ¶ 31.

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On June 21, 2012, Nemcik’s child support case was moved from Contra Costa County to

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Santa Clara County. Id. ¶ 17, at 8. Nemcik claims that she was never informed of this and had no

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The Court observes that the SAC identifies ¶¶ 1-22 at pages 1-6 and starting at page 6,
successive paragraphs are numbered ¶¶ 5-143.
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opportunity to object to jurisdiction. Id. As a result, Nemcik alleges that the trial date was moved

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without giving her time to serve key witnesses. Id. ¶ 66. Nemcik claims that Stevens conspired

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with the commissioners, clerks, and others to change the child support venue to Santa Clara

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County. Id. ¶ 30.

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From 2013 to 2016, Nemcik alleges that Stevens and Contra Costa Judge Fannin

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conspired regarding various matters including: attaining a domestic violence restraining order

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against Nemcik, calculating erroneous child support payments, and denying Nemcik her due

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process rights to a fair trial. Id. ¶¶ 14, 16, 66, at 8, 16. Nemcik claims that attorneys and judges

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routinely conspire together to steal children for their personal financial gain. Id. ¶ 9, at 7.
Specifically, Nemcik alleges that Stevens conspired with Santa Clara Commissioner Mills to set

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United States District Court
Northern District of California

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child support at an amount higher than she was able to pay, causing her cruel and unusual

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punishment. Id. ¶ 20, at 9. Further, Nemcik alleges that Stevens conspired, again, with

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Commissioner Mills to gain his approval to harass Nemcik and her employer. Id. ¶ 128. Nemcik

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believes that Stevens intentionally interfered with an economic relationship between her and her

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employer due to the constant litigation, requests for sanctions, and attorneys’ fees thereby

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interfering with her ability to do work. Id. ¶¶ 126-27.

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In 2015, Contra Costa Superior Court Judge Landau became the judge for Nemcik’s state

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court case. Id. ¶ 40. Nemcik alleges that Judge Landau conspired with Stevens to issue an order

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deeming Nemcik a vexatious litigant and to deny her request for trial. Id. ¶ 40. Nemcik blames

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the CJP for having failed to do its duty to properly discipline the judges. Id. ¶ 42. According to

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Nemcik, if the judges had been properly trained, they would not have allowed Stevens to

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“continue her malicious rampage against [Nemcik].” Id. Nemcik claims that the CJP knew its

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conduct created a substantial risk of harm, but failed to take adequate action to prevent it. Id. ¶¶

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45-6. As a result, Nemcik states that the CJP committed crimes that caused her to lose her house,

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money, property, and time with her children. Id. ¶ 55. Additionally, Nemcik states that these

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crimes have caused her great emotional trauma. Id.

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Nemcik believes that she has been denied due process and an impartial judge. Id. ¶ 72.
Specifically, Nemcik states that Contra Costa Judge Fenstermacher, Judge Fannin, and Judge
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Landau concealed documents with the intent of denying her constitutional rights. Id. ¶ 74.
Additionally, Nemcik alleges that she was discriminated against based on her disability,

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recognized by the Americans with Disabilities Act (“ADA”). Id. ¶ 36. Nemcik states that she

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requested accommodations2 and was provided them under the ADA; however, Nemcik also

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alleges that she was discriminated against because Santa Clara Commissioner Mills denied certain

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accommodations including: a tape recorder, extra time to listen and understand court hearings, and

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“plain English orders.” Id. ¶¶ 93, 98. Once again, Nemcik alleges that the CJP had an obligation

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to train and supervise its employees, but failed to do so, resulting in ADA violations. Id. ¶ 101.

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B.

In addition to Defendants CJP and Stevens, Nemcik has asserted claims against Team

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United States District Court
Northern District of California

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Allegations against Team Legal and Thompson Reuters

Legal and Thompson Reuters. Id. ¶ 122, and p. 28.
Defendant Team Legal is a company that provides legal services including service of

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process. See SAC ¶¶ 106-07. Nemcik alleges that Team Legal acted in concert with the judges

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and judicial officers to notify her of a change in venue for her child custody case. Id. ¶¶ 108-09.

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Nemcik avers that Team Legal failed to properly train and supervise its employee, Rick Secrist,

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and knew that he claimed proper service even though Nemcik claims she was never served. Id. ¶¶

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107, 121-2. Nemcik further alleges that the court either reasonably relied on the representation of

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Team Legal or that they conspired together to purposely harm her. Id. ¶ 124.
Defendant, Thompson Reuters, is a company that owns software made to calculate child

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support. See SAC at 28. Nemcik seeks monetary damages for the amount of child support

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calculated through its software program and instructions. Id.

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C.

Allegations against all Defendants
Nemcik alleges that all Defendants intentionally acted in ways to cause her emotional

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stress by yelling at her and making unreasonable orders, requests, and false statements. Id. ¶ 135.

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Nemcik also alleges that the Defendants acted with reckless disregard as to the probability that she

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would suffer emotional distress. Id. ¶ 136. Nemcik specifically claims that the CJP was negligent

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Out of respect for Nemcik’s privacy, the Court does not describe in detail the basis for Nemcik’s
request for accommodations under the ADA.
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in its obligations and has been a substantial factor in causing her serious emotional distress. Id. ¶

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140.

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As a result, Nemcik brings this suit against the following entities and individuals: (1)

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against the CJP, for malice, oppressive, and fraudulent conduct of the CJP, judges, commissioners,

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and Stevens; (2) against Stevens, for malice and fraudulent conduct; (3) against Team Legal, for

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fraudulent conduct and conspiring for the purpose of causing her harm; and (4) against Thompson

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Reuters, for allowing judges to use its software program and instructions. SAC at 28.

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II.

LEGAL STANDARD
D.

Anti-SLAPP
“California law provides for the pre-trial dismissal of certain actions, known as Strategic

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United States District Court
Northern District of California

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Lawsuits Against Public Participation, or SLAPPs, that masquerade as ordinary lawsuits but are

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intended to deter ordinary people from exercising their political or legal rights or to punish them

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for doing so.” Makaeff v. Trump University, LLC, 715 F.3d 254, 261 (9th Cir. 2013) (internal

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quotation marks and citations omitted). Section 425.16 of the California Code of Civil Procedure,

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also referred to as the anti-SLAPP statute, provides in relevant part that:

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A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the
United States Constitution or the California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim.
Cal. Civ. P. Code § 425.16(b)(1).
Resolution of an anti-SLAPP motion is a two-step process. Baral v. Schnitt, 1 Cal. 5th

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376, 384 (2016). “First, the defendant must establish that the challenged claim arises from activity

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protected by section 425.16.” Id. (citing Taus v. Lofton, 40 Cal. 4th 683, 712 (2007)). Second,

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“[i]f the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate

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the merit of the claim by establishing a probability of success.” Id. Under the second step, “the

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claim should be dismissed if the plaintiff presents an insufficient legal basis for it, or if, on the

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basis of the facts shown by the plaintiff, no reasonable jury could find for the plaintiff.” Makaeff,

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715 F.3d at 261 (internal quotation marks and citation omitted).
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E.

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Rule 12(b)(6)
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering
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whether the complaint is sufficient to state a claim, the Court must accept as true all of the factual
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allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the
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Court need not accept as true “allegations that contradict matters properly subject to judicial notice
or by exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
While a complaint need not allege detailed factual allegations, it “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at

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678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible

United States District Court
Northern District of California

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when it “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. “Determining whether a complaint states a plausible claim for

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relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
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experience and common sense.” Id. at 679.

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III.

DISCUSSION
The Court addresses each of the pending motions below.

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A.

Stevens’ Motion to Strike (ECF 103)

Stacey Stevens was an attorney representing Brian Krippendorf in Nemcik’s state court
child custody and support case. Mem. in support of Mot. to Strike (“MTS”) 1, 4, ECF 104. She
moves to strike Nemcik’s eighth cause of action for intentional interference with prospective

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economic advantage, and ninth cause of action for intentional infliction of emotional distress
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pursuant to California’s anti-SLAPP statute. Id. at 1. According to Stevens, Nemcik’s SAC has
not cured the deficiencies of her FAC, and the allegations still relate to Stevens’ litigation related

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activity, which should be stricken under the anti-SLAPP statute. Id. at 4-5.
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Nemcik opposes the motion, arguing that Stevens is liable for these claims despite being a
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private actor, as she conspired with the state court judges who are state actors. Opp’n to MTS 2,
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ECF 109. Nemcik further argues that Stevens’ conduct went beyond the scope of petitioning the

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court. Id. at 3. Nemcik explains that she recently received documents from a subpoena that were

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used to “determine custody in closed sessions hearings.” Id. According to Nemcik, she had no

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opportunity to engage to those hearings. Id. Nemcik argues that this is evidence of Stevens’

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conspiracy to deny her due process. Id.

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California’s anti-SLAPP statute applies to litigation related conduct, provided those

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statements are made in connection with pending or anticipated litigation. See, e.g., Semiconductor

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Equip. and Materials Int’l, Inc. v. The Peer Grp., Inc., No. 15-00866-YGR, 2015 WL 5535806.

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Here, Nemcik’s eighth and ninth causes of action relate to Stevens’ litigation-connected conduct.

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In support of the eighth cause of action, the SAC states that Stevens intentionally interfered with
Nemcik’s economic relationships with employers due to constant litigation and requests for

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United States District Court
Northern District of California

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sanctions and attorney’s fees. See, e.g., SAC ¶¶ 126-27. According to the SAC, such conduct by

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Stevens interfered with Nemcik’s ability to do the work she contracted with her employer. Id. As

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to the ninth cause of action, the SAC alleges that Stevens’ “shocking” behavior caused Nemcik

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severe emotional distress. E.g., id. ¶¶ 133-135. Specifically, Stevens and other defendants

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“yell[ed]” at Nemcik and made “unreasonable orders and requests.” Id. Nemcik also references

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Exhibits A and E in support of these two causes of action. Exhibit A is a copy of a Contra Costa

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Superior Court docket for Nemcik’s child support and custody case against Brian Krippendorf.

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Ex. A to SAC, ECF 100-1. Exhibit E contains third-party statements noting that Stevens had

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“yelled” at Nemcik and made “abrasive” and “snide” comments about Nemcik. Ex. E to SAC,

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ECF 100-3. Even though these alleged behaviors might not be pleasant to encounter, they remain

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activities in connection with the litigation in Nemcik’s child support case. As such, Stevens has

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met her burden of establishing that the challenged claims arose from activity protected by

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California Civil Procedure Code § 425.16.

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As to the allegations that the closed session hearings were improper and suggestive of a

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conspiracy, such allegations do not negate that Stevens’ conduct was within the scope of the

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litigation proceeding. Nemcik admitted at the hearing that during the relevant times, she was

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represented by an attorney who was present at the “closed hearings.” See also Ex. O-220, ECF

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100-5. Given that an attorney representing Nemcik was present, the mere occurrence of hearings
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off the record does not support her conspiracy claims that Stevens’ conduct was improper and

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beyond the scope of litigation. Accordingly, this alleged conduct is also related to Stevens’

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litigation activity on behalf of her client in the context of judicial proceedings and is protected

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conduct. Thus, Stevens has satisfied the first prong of the anti-SLAPP motion.

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The burden shifts to Nemcik to demonstrate the merit of her claim by establishing a

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probability of success – “a summary-judgment-like procedure.” Baral, 1 Cal. 5th at 384. With

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regard to the eighth cause of action, elements for a claim for intentional interference with

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prospective economic advantage are: “(1) an economic relationship between the plaintiff and some

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third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt

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United States District Court
Northern District of California

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the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff

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proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 29

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Cal. 4th 1134, 1153 (2003) (citation and internal quotations omitted). Moreover, the California

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Supreme Court in Della Penna v. Toyota Motor Sales, U.S.A., Inc. held that a plaintiff seeking to

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recover damages for interference with prospective economic advantage must plead and prove as

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part of its case-in-chief that the defendant’s conduct was “wrongful by some legal measure other

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than the fact of interference itself.” 11 Cal. 4th 376, 393 (1995). Here, the exhibits in combination

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with the complaint fail to support that Stevens’ actions and statements underlying the family court

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litigation are wrongful. Further, California Civil Code § 47(b) provides privileges for statements

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made in judicial proceedings. See GeneThera, Inc. v. Troy & Gould Prof’l Corp., 171 Cal. App.

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4th 901, 909 (2009). California Civil Code § 47(b) broadly applies to “any communication and all

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torts other than malicious prosecution.” Id. Accordingly, Nemcik has not demonstrated

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likelihood of success on this claim based on Stevens’ litigation conduct.

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Turning to the ninth cause of action for intentional infliction of emotional distress, the

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required elements are: “(1) extreme and outrageous conduct by the defendant with the intention of

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causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s

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suffering severe or extreme emotional distress; and (3) actual and proximate causation of the

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emotional distress by the defendant’s outrageous conduct.” Christensen v. Superior Court, 54 Cal.
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3d 868, 903 (1991) (internal quotation marks and citation omitted). The alleged conduct “must be

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so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id.

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(internal quotation marks and citation omitted). Again, like the eighth cause of action discussed

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above, California Civil Code § 47(b) provides absolute privilege for Stevens’ conduct that forms

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the basis for Nemcik’s claims. See GeneThera, 171 Cal. App. 4th at 909. Thus, Nemcik has not

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demonstrated any likelihood of success on either the eighth or ninth causes of action, and thus she

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has not met her burden under the second prong.

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B.

Stevens’ Motion to Dismiss (ECF 105)
Stevens moves to dismiss Nemcik’s second cause of action under § 1983 for two reasons.

First, Stevens argues that her action was that of an attorney working on behalf of a client in a legal

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United States District Court
Northern District of California

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proceeding and does not constitute “acting under the color of state law” for the purposes of §

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1983. Mem. in support of Mot. to Dismiss (“MTD”) 3, ECF 106. Second, Stevens contends that

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to the extent Nemcik attempts to allege that Stevens conspired with a state actor, Nemcik has only

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conclusorily alleged that conspiracy. Id. at 3-4. Lastly, Stevens also argues that the Rooker-

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Feldman doctrine prohibits this Court from adjudicating this suit. In opposition, Nemcik argues

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that private persons who conspire with state actors are acting under the color of law for purposes

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of § 1983. Opp’n to MTD 2-3, ECF 109. Nemcik does not substantively address Stevens’

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arguments regarding § 1983 and the Rooker-Feldman doctrine, but generally argues that the cited

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cases do not apply to her. Id. at 4-5.

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To state a claim under §1983, a plaintiff must allege that the defendant was acting under

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color of state law at the time the acts complained of were committed, that the acts complained of

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resulted in the deprivation of a right, privilege, or immunity secured by the Constitution or laws of

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the United States, and that the plaintiff was damaged as a result. Thornton v. City of St. Helens,

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425 F.3d 1158, 1163-64 (9th Cir. 2005). Private persons may act under color of state law if they

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“willfully participate in joint action with state officials to deprive others of constitutional rights.”

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United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989). When

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determining whether a private party acted under color of law, the courts must “start with the

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presumption that private conduct does not constitute governmental action.” Sutton v. Providence
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St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.1999).

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As discussed above in connection with Stevens’ motion to strike, the SAC and the

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referenced exhibits are devoid of any facts supporting the existence of an agreement or any “joint

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action” between Stevens and a judge or any other state actor, and how that agreement violated her

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constitutional rights. See Copple v. Astrella & Rice, P.C., 442 F. Supp. 2d 829, 837 (N.D. Cal.

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2006) (finding conclusory allegations of conspiracy between an attorney and a judge insufficient

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to support a § 1983 claim).

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Stevens also seeks to dismiss Nemcik’s third cause of action under 42 U.S.C. § 12203
because Nemcik has not alleged a retaliation claim, and the alleged violation of the Americans
with Disabilities Act (“ADA”) cannot be asserted against Stevens in her individual capacity.

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United States District Court
Northern District of California

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MTD 4. Under the ADA, a plaintiff can only state a claim under subsections 12203(a) and (b)

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against “persons” in the contexts of employment, public services or public accommodation, and

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the ADA provides no remedy outside of those contexts against individuals. Rein v. Ainer, No. 14-

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01698-JD, 2014 WL 5828797, at *4 (N.D. Cal. Nov. 10, 2014) (citing Cai v. Chiron Corp., No.

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04-1587-CRB, 2004 WL 1837985, at *4 (N.D. Cal. Aug. 17, 2004) and Stern v. Cal. State

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Archives, 982 F. Supp. 690, 693 (E.D. Cal. 1997)). This ADA claim fails because Stevens was not

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Nemcik’s employer and played no role in providing her public services or public accommodation.

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Accordingly, this ADA claim cannot be asserted against Stevens.

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With regard to Nemcik’s fifth cause of action asserted under 42 U.S.C. § 1985, conspiracy

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to interfere with civil rights, the SAC also lacks plausible allegations, similar to the deficiencies

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suffered by her second cause of action under § 1983. 42 U.S.C. § 1985 contains three clauses

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specifying types of prohibited conduct, none of which is alleged here. First, there is no allegation

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that Stevens conspired “by force, intimidation, or threat, any person from accepting or holding any

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office, trust, or place of confidence under the United States, or from discharging any duties

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thereof” as required by 42 U.S.C. § 1985(1). Second, there is no allegation that Stevens conspired

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“to deter, by force, intimidation, or threat, any party or witness in any court of the United States

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from attending such court, or from testifying to any matter pending therein.” 42 U.S.C. § 1985(2).

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Likewise, with respect to the second subclause of §1985(2), prohibiting conspiracy “with intent to
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deny to any citizen the equal protection of the laws,” Nemcik has not alleged that Stevens denied

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her access to state courts because Nemcik was a member of a protected class. See Portman v. Cty.

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of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). As to the last clause, § 1985(3) protects against

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racial animus and extends protection to non-racial groups only if “the courts have designated the

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class in question a suspect or quasi-suspect classification.” Holgate v. Baldwin, 425 F.3d 671, 676

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(9th Cir. 2005) (noting that “economic motivations should be deemed beyond the reach of §

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1985(3)”) (citations omitted). Again, the complaint contains no allegations that Nemcik suffered

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from racial animus or that she falls into a suspect or quasi-suspect classification.

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Finally, turning to Stevens’ argument based on the Rooker-Feldman doctrine, the Court
agrees with Stevens and finds that it has no authority to review the instant action. See Dist. of

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United States District Court
Northern District of California

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Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co.,

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263 U.S. 413, 415-16 (1923). “The purpose of the doctrine is to protect state judgments from

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collateral federal attack. Because district courts lack power to hear direct appeals from state court

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decisions, they must decline jurisdiction whenever they are ‘in essence called upon to review the

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state court decision.’” Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir.

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2001) (quoting Feldman, 460 U.S. at 482 n.16). The Rooker-Feldman doctrine precludes not only

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review of decisions of the state’s highest court, but also those of its lower courts. See Dubinka v.

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Judges of Superior Court, 23 F.3d 218, 221 (9th Cir. 1994). A challenge under the Rooker-

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Feldman doctrine is a challenge for lack of subject matter jurisdiction. Olson Farms, Inc. v.

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Barbosa, 134 F.3d 933, 937 (9th Cir. 1998).

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The Rooker-Feldman doctrine applies when a plaintiff in federal court alleges a “de facto

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appeal” by (1) asserting errors by the state court as an injury, and (2) seeking relief from the state

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court judgment as a remedy. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139-40 (9th Cir. 2004).

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“A federal action constitutes such a de facto appeal where ‘claims raised in the federal court action

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are ‘inextricably intertwined’ with the state court’s decision such that the adjudication of the

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federal claims would undercut the state ruling or require the district court to interpret the

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application of state laws or procedural rules.’” Reusser v. Wachovia Bank, N.A., 525 F.3d 855,

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859 (9th Cir. 2008) (quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003)).
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The Court has previously determined based on Nemcik’s first amended complaint that the

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Rooker-Feldman doctrine bars this action. Here, the SAC is no different. The SAC still seeks to

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present the final determination of a state court child support and child custody proceeding for this

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Court to review. Specifically, Nemcik alleges that the state court wrongfully took away

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unsupervised time with her children and issued unlawful child support and restraining orders.

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E.g., SAC ¶ 11 (“This case also seeks monetary damages and equitable relief for an ongoing

7

family law case that includes Department of Child Support Services.”); id. ¶¶ 27, 30 (“Contra

8

Costa Superior Court “Judge Fannin further damaged Plaintiff by taking away all of her

9

unsupervised time with her children,” and setting “unlawful child support orders”); id. ¶ 40
(Contra Costa Superior Court Judge Landau “also unlawfully conspired with STEVENS to order

11
United States District Court
Northern District of California

10

Plaintiff a vexatious litigant”); id. ¶ 71 (“Further damages of STEVENS have imposed on Plaintiff

12

in the form of Domestic Violence Restraining Order”). As such, in order for this Court to give

13

Nemcik the relief she seeks, the Court would have to find that the state court orders were

14

incorrect. The law does not allow a federal court to review theses state court orders referenced in

15

the complaint. Accordingly, Nemcik’s action, the basis of which is to re-calculate her child

16

support orders, or to receive unsupervised time with her children, is barred by the Rooker-Feldman

17

doctrine.

18
19

C.

The Commission on Judicial Performance’s Motion to Dismiss (ECF 111)
The Commission on Judicial Performance (“CJP”) moves to dismiss the asserted claims on

20

several grounds. First, it argues that Eleventh Amendment immunity bars Nemcik’s claims. CJP

21

Mot. 5-6, ECF 111. Second, it contends that states and arms of a state are not considered

22

“persons” for purposes of §1983, and thus are not subject to suit under §1983. Id. at 6-7 (citing

23

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71 (1989)). Third, it argues that the domestic

24

relations exception to federal court jurisdiction prevents federal district courts from adjudicating

25

domestic relations claims. CJP Mot. 7-8 (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)).

26

Lastly, it asserts that the Rooker-Feldman doctrine, the Younger abstention doctrine, Nemcik’s

27

failure to comply with the California Government Claims Act, and the statute of limitations are

28

additional grounds for which the claims should be dismissed. CJP Mot. 8-13.
12

In opposition, Nemcik acknowledges that “the Commission on Judicial Performance is a

1
2

government agency and that [] one cannot recover monetary damages from a government agency.”

3

Opp’n to CJP Mot. 3, ECF 116; id. at 2 (stating that “Plaintiff recently learned that a state agency

4

cannot be a defendant in my complaint and that the Commission on Judicial Performance is a state

5

agency”).
In light of Nemcik’s admission that the CJP cannot be sued in her complaint, the Court

6
7

grants the CJP’s motion to dismiss. The asserted claims also must be dismissed on two additional

8

alternative grounds raised by the CJP. First, the Eleventh Amendment bars this suit against the

9

CJP. See Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003)
(considering court employees as “arms of the State”); Ricotta v. State of Cal., 4 F. Supp. 2d 961,

11
United States District Court
Northern District of California

10

976 (S.D. Cal. 1998) (finding that the Eleventh Amendment barred the suit against the

12

Commission on Judicial Performance based on facts and circumstances arising from a marriage

13

dissolution proceeding in state court). Second, the Rooker-Feldman doctrine bars the claims

14

against the CJP. As discussed above for claims asserted against Stevens, the case requires this

15

Court to examine whether the state court properly calculated Nemcik’s child support and properly

16

issued those orders in family court. See supra III.B. Given that the claims against the CJP cannot

17

proceed for these reasons, the Court does not address the other grounds raised by the CJP in

18

support of its motion to dismiss.

19
20
21

D.

Team Legal
i.

Team Legal’s Request for Judicial Notice

Prior to turning to Team Legal’s motion to dismiss, the Court first addresses Team Legal’s

22

Request for Judicial Notice (“RJN”). Team Legal has requested judicial notice of three

23

documents, attached to the request as Exhibits 1 through 3: (1) Nemcik’s first amended

24

complaint; (2) Court’s Omnibus Order Regarding Pending Motions by Defendants to Dismiss or

25

Strike the FAC and by Plaintiff for a Stay and Temporary Restraining Order and Preliminary

26

Injunction dated August 16, 2016; and (3) Nemcik’s SAC. RJN, ECF 114-2. Judicial notice is

27

appropriate with respect to these exhibits for the purpose of the motion to dismiss because they are

28

documents publicly filed in this Court. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649
13

1

(9th Cir. 1988) (court may take judicial notice of matters of public record). Nemcik does not

2

object to the request. Accordingly, the Court GRANTS Team Legal’s request for judicial notice.

3
4

ii.

Team Legal’s Motion to Dismiss (ECF 114)

Team Legal moves to dismiss the claims asserted against it, including the second and fifth

5

claims under 42 U.S.C. § 1983(5). According to Team Legal, it was Mr. Secrist’s service of

6

process upon Nemcik in the state court custody dispute that forms the basis for her claims against

7

Team Legal here. Team Legal Mot. 2, ECF 114-1. Team Legal contends that such basis, as well

8

as Nemcik’s conclusory allegation regarding any alleged conspiracy, fails to meet the pleading

9

standard. Id. at 6. Team Legal further argues that Nemcik did not obtain leave from the Court to
add Team Legal as a defendant to her SAC, so the addition of Team Legal violates this Court’s

11
United States District Court
Northern District of California

10

order granting a limited scope of permissible amendment. Id. at 3-4.

12

In opposition, Nemcik avers that “Team Legal hired and trained and supervised process

13

server, Rick Secrist, of which he was named as a defendant in the First Amended Complaint.”

14

Opp’n 2, ECF 121. Nemcik does not address the merits of other arguments made by Team Legal

15

other than that the defendants named in the SAC have caused her harm. Id.

16

In ruling on Team Legal’s motion, the Court has disregarded all of its factual allegations

17

that are outside the SAC. However, a review of the SAC leads the Court to conclude that the §

18

1983 claims against Team Legal fail to meet the Rule 12(b)(6) pleading standard. The SAC does

19

not state any plausible facts supporting how Team Legal conspired with a state actor or how the

20

alleged conspiracy violated any of Nemcik’s civil rights. For example, the SAC merely states in

21

conclusory terms that “Team Legal acted in concert with judges and judicial officers and other

22

government agencies and knew that employee Rick Secrist wrote claiming service even though it

23

had not been served” and that Team Legal “failed to train and properly supervise their

24

employees.” SAC ¶¶ 107-08. SAC also states that Rick Secrist “did not serve the documents” on

25

Nemcik. Id. ¶ 121. However, the statements in connection with the alleged conspiracy are

26

conclusory and fail to show how Team Legal conspired with a state actor. See supra III.B.;

27

Copple, 442 F. Supp. 2d at 837 (finding conclusory allegations of conspiracy cannot support a §

28

1983 claim).
14

1

As to Nemcik’s remaining state law claims against all Defendants named in the SAC, the

2

Court does not address them under Rule 12(b)(6). Because Nemcik has not sufficiently alleged a

3

federal cause of action, and without a viable federal cause of action, the Court declines to exercise

4

supplemental jurisdiction over Nemcik’s state law claims.

5

E.

Thompson Reuters
As to Defendant Thompson Reuters, the Court finds no causes of action asserted in the

6
7

SAC against it. See SAC ¶¶ 22-143. Although the SAC lists Thompson Reuters as a defendant,

8

id. ¶ 9, Thompson Reuters is only mentioned again in the prayer for relief, id. at 28. Because the

9

SAC states no viable federal claim against Thompson Reuters, the SAC is dismissed as to

10

United States District Court
Northern District of California

11
12
13
14

Thompson Reuters as well.
F.

The Court Denies Leave to Amend the Second Amended Complaint
Having determined that Nemcik’s SAC must be dismissed, the Court now analyzes

whether to grant leave to amend the SAC.
In deciding whether to grant leave to amend, the Court must consider the factors set forth

15

by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962) and discussed at length by the

16

Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district

17

court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1)

18

undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by

19

amendment, (4) undue prejudice to the opposing party, and (5) futility of amendment. Eminence

20

Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries

21

the greatest weight.” Id. However a strong showing with respect to one of the other factors may

22

warrant denial of leave to amend. Id.

23

Here, the Court does not determine whether to grant leave to amend based on the first,

24

second, and fourth factors – (1) undue delay, (2) bad faith or dilatory motive, and (4) undue

25

prejudice to the opposing party. The case is at an early procedural stage and it is not apparent

26

from the record that these factors are applicable to the present case. However, the third and fifth

27

factors – (3) repeated failure to cure deficiencies by amendment and (5) futility of amendment –

28

are applicable to this case.
15

First, with respect to the third factor – repeated failure to cure deficiencies by amendment,

1
2

Nemcik filed her first complaint on January 20, 2016 and has had two opportunities for

3

substantive amendments. However, Nemcik has failed to cure deficiencies in order to state a

4

viable federal claim. This factor weighs against granting leave to amend.

5

Moreover, the Court finds the fifth factor – futility of the amendment – to be dispositive.

6

“[A] proposed amendment is futile only if no set of facts can be proved under the amendment to

7

the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-

8

Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). The Ninth Circuit has alternatively stated that the

9

test for whether amendment would be futile is “identical to the one used when considering the
sufficiency of a pleading challenged under Rule 12(b)(6).” Id.; see Utterkar v. Ebix, Inc., No. 14-

11
United States District Court
Northern District of California

10

02250-LHK, 2015 WL 5027986, at *8 (N.D. Cal. Aug. 25, 2015).

12

Here, the claims in the SAC would be deficient under the Rooker-Feldman doctrine. The

13

allegations in the SAC comprise the same deficiencies as Nemcik’s prior complaints, which seek

14

to have this Court review a state court child support and child custody action. Specifically, a

15

review of Nemcik’s purported “federal claims” would require the Court to review evidence and

16

determine the correctness of state court rulings. Since the SAC alleges damages caused by the

17

child custody and support decisions, Nemcik could only prevail on her alleged federal causes of

18

action if the family court decisions were determined to be unlawful or wrongly decided. Further,

19

Nemcik’s oppositions to Defendants’ motion to dismiss proffer no other facts or legal basis that

20

would circumvent the Rooker-Feldman doctrine and other grounds on which the motions to

21

dismiss are granted.
In addition, the conspiracy claims are simply not plausible. The SAC alleges a vast

22
23

conspiracy involving at least four judges in two counties, county agencies, private attorneys,

24

process servers and the state judicial watchdog, the CJP. No facts are alleged to support this

25

conspiracy and the conclusory allegations are based on Nemcik’s objection to the outcome of this

26

contentious family law case. Accordingly, a leave to amend the SAC would be futile.

27

IV.

28

NEMCIK’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
After Defendants filed their motions to dismiss, Nemcik moved for leave to file a third
16

1

amended complaint (“TAC”) on April 21, 2017. Mot. for Leave to File TAC, ECF 128. The

2

proposed TAC excludes Defendants CJP and Team Legal, and includes the following new

3

Defendants – Contra Costa County, Santa Clara County, Gary Krippendorf, and Brian

4

Krippendorf. ECF 128. The TAC contains both federal and state causes of action. Id. The

5

federal causes of action include claims brought under 42 U.S.C. § 1983, the ADA, and 18 U.S.C. §

6

1962 (“RICO”). Id. The state law causes of action include false imprisonment, the Bane Act,

7

products liability, assault, conspiracy to commit fraud and deceit, and intentional infliction of

8

emotional distress. Id.
Defendant Stacey Stevens filed the sole opposition to Nemcik’s motion for leave to file a

9

TAC.3 ECF 132. Stevens contends that this Court lacks jurisdiction over Nemcik’s causes of

11
United States District Court
Northern District of California

10

action under the Rooker-Feldman doctrine. Id. at 2. In the alternative, Stevens states that Nemcik

12

should be denied leave to amend as to the third, eighth, ninth, and tenth causes of action for failure

13

to allege facts sufficient to constitute a claim for relief. Id.

14

Federal Rule of Civil Procedure 15 applies here as no scheduling order has been set by the

15

Court to amend the pleadings. See Fed. R. Civ. P. 15(a)(2). As stated above, in deciding whether

16

to grant leave to amend, the Court considers whether one or more of the Foman factors are

17

present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies

18

by amendment, (4) undue prejudice to the opposing party, and (5) futility of amendment.

19

Eminence Capital, 316 F.3d at 1052.

20

The Court does not determine Nemcik’s motion for leave based on the first, second and

21

fourth factors – (1) undue delay, (2) bad faith or dilatory motive, and (4) undue prejudice to the

22

opposing party. However, the third and fifth factors – (3) repeated failure to cure deficiencies by

23

amendment and (5) futility of amendment – are applicable to this case.
First, with respect to the third factor – repeated failure to cure deficiencies by amendment,

24
25

Nemcik filed her first complaint on January 20, 2016 and has had two opportunities for

26

substantive amendments. As such, Nemcik has repeatedly failed to cure deficiencies to state a

27
28

3

The CJP and Team Legal are not named in the proposed TAC.
17

1

viable claim. This factor weighs against granting leave to amend.
Moreover, the Court finds the fifth factor – futility of the amendment – to be dispositive.

2
3

As noted above, the test for whether amendment would be futile is “identical to the one used when

4

considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Miller, 845 F.2d at

5

214; see Utterkar, 2015 WL 5027986, at *8.
Here, the claims in the TAC would be deficient under the Rooker-Feldman doctrine. The

6
7

allegations in the TAC are based entirely on Nemcik’s underlying family court proceedings. Like

8

the SAC, the TAC seeks to have this Court adjudicate a state court child support and child custody

9

action. An adjudication of Nemcik’s purported “federal claims” would require the Court to review
evidence and interpret California state law in the family court decisions. Further, since the TAC

11
United States District Court
Northern District of California

10

alleges damages caused by the child custody and support decisions, Nemcik could only prevail on

12

her alleged federal causes of action if the family court decisions were determined to be unlawful or

13

wrongly decided. Accordingly, the claims alleged in the TAC would be futile.
Separate from the Rooker-Feldman doctrine, the Court further finds that the proposed TAC

14
15

would be futile because the claims asserted therein are deficient for lack of plausible allegations,

16

discussed in more detail below.

17

A.

Nemcik’s Claims under 42 U.S.C. § 1983 (Claims 1, 3(b), and 4)
Nemcik asserts various claims under 42 U.S.C. § 1983 against all Defendants. Claims 1

18
19

and 4 are against the County of Contra Costa and the County of Santa Clara and Claim 3(b)4 is

20

asserted against all Defendants.
Under § 1983, local governments can be sued directly only if the public entity maintains a

21
22

policy or custom that results in a violation of a plaintiff's constitutional rights. Monell v. Dep’t

23

Soc. Svcs., 436 U.S. 658, 690-91 (1958). To impose Monell liability under § 1983 for a violation

24

of constitutional rights, a plaintiff must show that: (1) the plaintiff possessed a constitutional right

25

of which he or she was deprived; (2) the municipality had a policy; (3) this policy amounts to

26
27
28

4

Nemcik’s third amended complaint includes two causes of action labeled “THIRD CAUSE OF
ACTION.” As the result, the former third cause of action is referred to as (a) and the latter third
cause of action is referred to as (b).
18

1

deliberate indifference to the plaintiff’s constitutional rights; and (4) the policy is the moving force

2

behind the constitutional violation. May v. San Mateo Cty., No. 16-00252-LB, 2017 WL 1374518,

3

at *11 (N.D. Cal. 2017) (citing Plumeau v. School Dist. # 40 Cty. of Yamhill, 130 F.3d 432, 438

4

(9th Cir. 1997)). The Ninth Circuit has explained as follows how a policy may be proved:

5

There are three ways to show a policy or custom of a municipality: (1) by
showing a longstanding practice or custom which constitutes the standard
operating procedure of the local government entity; (2) by showing that
the decision-making official was, as a matter of state law, a final
policymaking authority whose edicts or acts may fairly be said to
represent official policy in the area of decision; or (3) by showing that an
official with final policymaking authority either delegated that authority
to, or ratified the decision of, a subordinate.

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

May, 2017 WL 1374518, at *11 (citing Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.
2005) (internal quotation marks and citations omitted)).
The practice or custom must consist of more than “random acts or isolated events” and
instead, must be the result of a “permanent and well-settled practice.” May, 2017 WL 1374518, at
*11 (citing Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1988), overruled
on other grounds by Bull v. City and Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010)).
Consequently, “a single incident of unconstitutional activity is not sufficient to impose liability
under Monell unless” there is proof that the incident “was caused by an existing, unconstitutional
municipal policy . . . .” May, 2017 WL 1374518, at *11 (citing City of Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985)).
In certain circumstances, a municipality may be held liable under § 1983 for constitutional
violations resulting from its failure to train its employees. City of Canton, Ohio v. Harris, 489
U.S. 378, 387 (1989). However, a plaintiff alleging liability to the city for the acts of one of its
employees cannot solely rely on the employer-employee relationship. Id. at 394. Rather, both
fault and causation as to the acts or omissions of the city itself must be sufficiently alleged. Id.
i.

Nemcik’s Claims 1 and 4

First, Nemcik asks leave to assert her first claim against the County of Contra Costa for
violating her Fourteenth Amendment due process rights. TAC ¶ 20. Nemcik offers grounds for
such liability based on her child custody action. Id. ¶ 14. The TAC states that during the course
19

1

of the action she was denied “off record” hearings, public access to records, a fair trial, and was

2

forced to arbitrate. Id. ¶¶ 23-26. As a result, Nemcik believes her Fourteenth Amendment rights

3

were violated. Id. ¶¶ 23-26.

4

Second, Nemcik asks leave to assert her fourth claim against the County of Contra Costa

5

and the County of Santa Clara for violating her civil rights. Id. ¶ 29, at 285. The TAC states that

6

both counties violated her civil rights by failing “to train, supervise, and discipline any judge,

7

commissioner or official duty of the court.” Id. The TAC claims that Contra Costa has a

8

“continued practice . . . to allow judges to conspire with attorneys off record and in chambers . . .

9

stating the obvious finding that it denies due process.” Id. ¶ 35, at 30. Further, the TAC alleges
discrimination toward pro se litigants generally, stating that Contra Costa does not provide

11
United States District Court
Northern District of California

10

adequate legal help for pro se litigants. Id. ¶ 38, at 31. Nemcik believes that Santa Clara failed to

12

train and supervise employees at the Department of Child Support Services (“DCSS”) and the

13

Department of Family and Children Services (“DFCS”). Id. ¶¶ 41, 42, at 32.
Though Nemcik argues in her motion that the causes of action in her TAC meet all four

14
15

Monell factors, Mot. for Leave to File TAC, ECF 128, the Court concludes otherwise. Claims 1

16

and 4 fail to allege at least the second Monell factor – that the municipality had a policy – because

17

the alleged constitutional violations are not related to policies of either Santa Clara County or

18

Contra Costa County. Specifically, the purported policies including the counties denying off-the-

19

record hearings, denying public access to court records, denying a fair trial, forcing parties to

20

arbitrate, and failing to train or supervise judges and commissioners are not policies of the two

21

counties. See TAC ¶¶ 23-26, at 9-15; 28-46, at 28-34. Rather these are policies of the California

22

Judicial Council. Article IV § 6 of the California Constitution establishes the Judicial Council and

23

defines its role as follows:
To improve the administration of justice the council shall survey judicial
business and make recommendations to the courts, make
recommendations annually to the Governor and Legislature, adopt rules
for court administration, practice and procedure, and perform other

24
25
26
27
28

5

The Court observes that the TAC identifies ¶¶ 1-55 at pages 3-22 and starting at page 22,
successive paragraphs are numbered ¶¶ 4-100.
20

functions prescribed by statute. The rules adopted shall not be inconsistent
with statute.

1
2

Cal. Const. art. VI, § 6(d). As such, the policies that purportedly violated Nemcik’s constitutional

3

rights are not the policies of the Santa Clara and Contra Costa Counties.6 Consequently, the

4

TAC’s first and fourth causes of action fail to raise triable Monell claims against the Santa Clara

5

and Contra Costa Counties.

6

ii.

7

Nemcik asks leave to assert her third (b) claim against all Defendants – County of Contra

Nemcik’s Claim 3(b)

8

Costa, County of Santa Clara, Stacey Stevens, Thompson Reuters, Brian Krippendorf, and Gary

9

Krippendorf – for violating her First Amendment rights. TAC ¶ 26, at 28. As to the counties,
Nemcik states that Defendants Contra Costa County and Santa Clara County are responsible for

11
United States District Court
Northern District of California

10

“judge misconduct” and for judge’s retaliating against her using “unlawful harmful court orders.”

12

Id. ¶ 24, at 27. Nemcik believes that the courts have tried every means to incarcerate her. Id. As

13

to the other Defendants – Stacey Stevens, Thompson Reuters, Brian Krippendorf, and Gary

14

Krippendorf – Nemcik believes that they have violated her right to pursue judicial remedies for

15

unlawful government conduct without fear of persecution. Id. ¶ 26, at 28. Specifically, Nemcik

16

states that Brian Krippendorf has filed two false police reports in 2016 in an effort to coerce the

17

police to incarcerate her. Id. ¶ 23, at 27. More generally, Nemcik states that Defendants have

18

stolen her children, deprived her of companionship, deprived her of property, set orders with the

19

intention of incarcerating her, and either actively engaged in torturing her children or condoned

20

others to do so for the purpose of causing her emotional trauma. Id.

21

As discussed above, there are no viable Monell claims against Defendants Santa Clara

22

County and Contra Costa County since the alleged constitutional violations are not related to

23

county policies. Instead, they would related to policies of the California Judicial Council, which is

24
25
26
27
28

6

Although California Judicial Council is not named as a defendant in the TAC, the Court notes
that the Ninth Circuit has determined that the Judicial Council is a state agency based on the
California Constitution’s description of its role. Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir.
2004). Accordingly, as discussed above in connection with CJP’s motion to dismiss, the Eleventh
Amendment would bar this suit if it were asserted against the Judicial Council. See Simmons v.
Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (considering court employees
as “arms of the State”).
21

1

a state agency and not a municipal agency. Consequently, the TAC fails to raise a triable Monell

2

claim in support of Nemcik’s third (b) claim against either Defendants Santa Clara County or

3

Contra Costa County.

4
5
6

Next, the Court considers Nemcik’s §1983 allegations against the other non-state actor
defendants – Stacey Stevens, Thompson Reuters, Brian Krippendorf, and Gary Krippendorf.
As discussed above in connection with Stevens’ motions, to state a claim under §1983, a

7

plaintiff must allege that the defendant was acting under color of state law at the time the acts

8

complained of were committed, that the acts complained of resulted in the deprivation of a right,

9

privilege, or immunity secured by the Constitution or laws of the United States, and that the
plaintiff was damaged as a result. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.

11
United States District Court
Northern District of California

10

2005). Private persons may act under color of state law if they “willfully participate in joint action

12

with state officials to deprive others of constitutional rights.” United Steelworkers of Am. v.

13

Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989). When determining whether a private

14

party acted under color of law, the courts must “start with the presumption that private conduct

15

does not constitute governmental action.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

16

826, 835 (9th Cir.1999).

17

Here, Nemcik’s allegations against Defendants Stacey Stevens, Thompson Reuters, Brian

18

Krippendorf, and Gary Krippendorf for allegedly violating her First Amendment rights are

19

deficient. Since these defendants are all private persons, Nemick must plausibly allege that they

20

have willfully participated in joint action with state officials to deprive her of constitutional rights.

21

See United Steelworkers, 865 F.2d at 1540. However, Nemcik fails to allege any facts in her TAC

22

showing that the defendants have willfully participated in any joint action with state officials to

23

deprive her of constitutional rights. See TAC ¶¶ 22-27, at 27-28; see United Steelworkers, 865

24

F.2d at 1540. Further, since the Court must start with the presumption that the conduct of a

25

private party does not constitute governmental action, the TAC fails to assert a plausible § 1983

26

claim against the private party defendants. See Sutton, 192 F.3d at 835.

27
28

Accordingly, the TAC fails to raise triable Monell claims against all Defendants in support
of Nemcik’s third (b) claim.
22

A.

1

Nemcik’s ADA Title II Claims (Claims 2 and 3(a))
Nemcik asks leave to assert her second and third causes of action for violation of the ADA

2
Title II against Contra Costa County and Santa Clara County, respectively. TAC ¶¶ 41, at 19; 4 at
3
22.
4
5
6
7

As to Nemcik’s second ADA cause of action against Contra Costa County, the TAC
alleges that Nemcik is disabled under the ADA because she is “substantially limited in her ability
to work.” Id. ¶ 39, at 18. The TAC also states that “basic questions [such as] ‘How are your
kids?’ or ‘How are you?’ can trigger anxiety and cause [Nemcik] to withdrawal.” Id. The TAC

8
further alleges that Nemcik requested ADA accommodations of a support person, a recording
9
device, and additional time if needed to take breaks. Id. ¶¶ 41-42, at 19. The TAC avers that these
10
requests were reasonable and did not create undue hardship or cost for Contra Costa County. Id.

United States District Court
Northern District of California

11
12

According to the TAC, Judge Fannin denied her accommodation requests even though “she knew
of [her] disability before and after she filed for accommodations.” Id. ¶ 44, at 19. Nemcik cites to

13
a letter from the Superior Court of California in Contra Costa County on July 29, 2014 to support
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her claims. The letter stated that the court needed more information regarding the nature of her
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disability. Ex. NN376 to TAC, ECF 128-5. Although the Contra Costa Superior Court denied
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Nemcik’s request to bring in an ADA advocate to attend hearings, it recommended that she
request a support person. Id. It further explained that it denied Nemcik’s request because bringing

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in an ADA Advocate would fundamentally alter the nature of the service, program, or activity. Id.
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As to Nemcik’s third (a) ADA cause of action against Santa Clara County, the TAC asserts
that the “Santa Clara Superior Court apparently has a custom where the Judges tell the ADA
Coordinator what they can and cannot grant as an accommodation.” TAC ¶ 5, at 23. The root of
this claim lies in alleged denial of Nemcik’s requested accommodations. Id. Specifically,
Nemcik believes that Santa Clara Superior Court “Commissioner Mills denied [her of] having a
recording device” and “tools that would enable her to understand the calculation used to set the
child support.” Id. ¶ 8, at 23. The TAC purports that Commissioner Mills knowingly used
Nemcik’s disability as a “means to trigger and aggravate her disabilities for the purpose of
rendering her incapable of effectively litigating her case.” Id. ¶ 10, at 24. Nemcik states that

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because she was denied accommodations, she could not verify the numerical inputs that

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Commissioner Mills used to calculate child support. Id. ¶ 11, at 24.
In order to properly state a claim under ADA Title II, a plaintiff must show that (1) she is a

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qualified individual with a disability, (2) she was excluded from participation in or otherwise

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discriminated against with regard to a public entity’s services, programs, or activities, and (3) such

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exclusion or discrimination was by reason of her disability. Weinreich v. Los Angeles Country

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Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
Here, the TAC alleges conduct by the state courts as evidence of the counties’ violation of

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her rights. As discussed above, the state court is not a county agency, but rather a state agency.
Accordingly, the ADA claims are deficient for failing to plausibly allege that Nemcik was

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United States District Court
Northern District of California

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discriminated against by Contra Costa County or by Santa Clara County.

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B.

Nemcik’s RICO Claims (Claim 5)
Nemcik asks leave to assert RICO claims as her fifth cause of action against Defendants

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Contra Costa and Santa Clara Counties. The TAC alleges that Defendants “create unlawful debt

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by ordering child support payment that a parent does not have the ability to pay for the purpose of

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creating arrears.” TAC ¶ 49, at 34. The TAC states that such conduct of the judges and

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commissioners “purposely sets child support at an amount higher than a parent can afford.” Id. ¶

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50, at 34-35. Moreover, the TAC alleges that the “purposeful acts” to create high amounts of

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arrear and child support is a result of “racketeering activities in both Contra Costa and Santa

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Clara.” Id. Nemcik believes that the DCSS has converted payments that they took from her for

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the “sole purpose to give to Brian Krippendorf, but which they did not.” Id. ¶ 55, at 36 (citing Ex.

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C).

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Under § 1962(c) it is “unlawful for any person employed by or associated with any

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enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s

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affairs through a pattern of racketeering activity.” A successful claim under § 1962(c) thus

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requires evidence of “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

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activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985); Living Designs, Inc. v. E.I.

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Dupont de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005). According to § 1961(1), the
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definition of “racketeering activity” encompasses significant portions of Title 18 of the U.S. Code;

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however, it does not include any provision related to child support calculations. See 18 U.C.S. §

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1961(1).
Here, the TAC does not state a specific “predicate act” listed in Title 18 of the U.S. Code.

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See 18 U.S.C. §§ 1961(1) (defining “racketeering activity”). Though Nemcik relies heavily on

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“unlawful debt” as a predicate act to establish a RICO claim in her TAC, 18 U.S.C. §1961(6)

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defines “unlawful debt” solely in the context of gambling or money lending and is therefore not

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applicable to this case. 18 U.S.C. § 1961(6) provides:

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‘Unlawful debt’ means a debt (A) incurred or contracted in gambling
activity which was in violation of the law of the United States, a State or
political subdivision thereof, or which is unenforceable under State or
Federal law in whole or in part as to principal or interest because of the
laws relating to usury, and (B) which was incurred in connection with the
business of gambling in violation of the law of the United States, a State
or political subdivision thereof, or the business of lending money or a
thing of value at a rate usurious under State or Federal law, where the
usurious rate is at least twice the enforceable rate.

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United States District Court
Northern District of California

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While Nemcik believes that the DCSS has converted money, and claims “unlawful debt”

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as a predicate RICO act, TAC ¶ 55 (citing Ex. C), such an alleged act does not fall under
“racketeering activity” as defined under 18 U.S.C. § 1962. Further, the TAC alleges a RICO
enterprise based solely on the regular activities of DCSS, the courts, private attorneys, and parties
to a family law case. That conduct is not plausibly racketeering activity. As such, the TAC fails
to state a cognizable RICO claim.
C.

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Based on the foregoing, the Court concludes that amendment of all the federal claims in

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Nemcik’s State Law Claims (Claims 6, 7, 8, 9, and 10)

Nemcik’s proposed TAC would be futile. Though the TAC asserts state causes of action – false
imprisonment, the Bane Act, products liability, assault, conspiracy to commit fraud and deceit,
and intentional infliction of emotional distress7 – without a viable federal cause of action, the
Court would decline to exercise supplemental jurisdiction over Nemcik’s state law claims in the

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The Court notes that the TAC labels these claims as 42 U.S.C. § 1983 claims, but based on the
allegations, they are not civil rights claims and are deemed state law claims.
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proposed TAC. See 28 U.S.C. § 1367(a). Accordingly, the Court need not analyze whether the

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state law claims sought to be amended by Nemcik would be futile.

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V.

ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Stevens’ motion to strike is GRANTED without leave to amend.

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2. Stevens’ motion to dismiss is GRANTED without leave to amend.

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3. Commission on Judicial Performance’s motion to dismiss is GRANTED without leave

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to amend.
4. Team Legal’s motion to dismiss is GRANTED without leave to amend.
5. The SAC is dismissed as to Thompson Reuters.

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United States District Court
Northern District of California

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6. Nemcik’s motion for leave to file a third amended complaint is DENIED.

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Dated: June 30, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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