Cotti et al v. California Department of Human Services Director et al
Filing
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ORDER GRANTING 45 , 48 , 49 , 55 , 56 , 59 , 63 MOTIONS TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND. Amended Pleading due by 1/11/2019. Signed by Judge Beth Labson Freeman on 12/19/2018. (blflc1S, COURT STAFF) (Filed on 12/19/2018)
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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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ALICE COTTI and VLADIMIR
SERDYUKOV,
Plaintiffs,
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v.
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United States District Court
Northern District of California
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CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES DIRECTOR WILL
LIGHTBOURNE, et al.,
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Case No. 18-cv-02980-BLF
ORDER GRANTING MOTIONS TO
DISMISS SECOND AMENDED
COMPLAINT WITH LEAVE TO AMEND
[RE: ECF 45, 48, 49, 55, 56, 59, 63]
Defendants.
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Plaintiffs Alice Cotti and Vladimir Serdyukov assert federal and state law claims against
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numerous agencies and individuals that were involved in the removal of Plaintiffs’ two young
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children from their care based on allegations of abuse. This order addresses seven motions to
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dismiss the operative second amended complaint (“SAC”):
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(1)
a motion to dismiss or strike the SAC under Federal Rules of Civil Procedure 8,
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12(b)(6), and 12(e) filed by the City of San Jose, the San Jose Police Department, and all other
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City entities sued in this action (ECF 45);
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(2)
a motion to dismiss the SAC under Rule 12(b)(6) filed by Defendants Amy Choi
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and Nikolas Arnold, the attorneys appointed to represent Plaintiffs in Santa Clara County
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dependency proceedings (ECF 48);
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(3)
a motion to dismiss the SAC under Rules 8 and 12(b)(6) filed by Santa Clara
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County (“the County”) (ECF 49), which is joined (ECF 61) by County employees sued in this
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action;
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(4)
a motion to dismiss the SAC under Rules 12(b)(1) and 12(b)(6) filed by California
state agencies and employees (ECF 55);
(5)
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California Peace Officers Standards & Training Commission (“POST”) (ECF 56);
(6)
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(7)
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a motion to dismiss the SAC under Rules 8 and 12(b)(6) filed by Rebekah
Children’s Services (ECF 63).
For the reasons discussed below, the motions to dismiss are GRANTED WITH LEAVE
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a motion to dismiss the SAC under Rules 12(b)(1) and 12(b)(6) filed by the
Honorable Patrick E. Tondreau, Judge of the Superior Court, Santa Clara County (ECF 59); and
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a motion to dismiss the SAC under Rules 12(b)(1) and 12(b)(6) filed by the
TO AMEND.
I.
DISCUSSION
Plaintiffs filed the original complaint, a first amended complaint, and the operative SAC
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United States District Court
Northern District of California
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while proceeding pro se. In response to the SAC, seven sets of Defendants filed the motions to
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dismiss listed above. After the motions were filed, Plaintiffs obtained counsel. See Notice of
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Appearance, ECF 71. Plaintiffs’ counsel filed short oppositions acknowledging that the SAC is
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deficient and requesting leave to amend. Counsel indicates that if granted leave to amend, she will
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drop certain claims, simplify others, and add supporting factual allegations.
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Under these circumstances, and in light of the liberal rules of amendment endorsed by the
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Supreme Court and the Ninth Circuit, it appears that the most appropriate course is to grant the
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motions to dismiss, highlight the SAC’s most glaring defects, and grant leave to amend all claims.
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See Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
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1048, 1052 (9th Cir. 2003). The Court therefore limits its discussion to Defendants’ primary
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arguments, which are addressed at a relatively high level as follows.
Rule 8 – Short and Plain Statement
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A.
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). At 80 pages in length, with more than 300
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paragraphs, the SAC does not satisfy this requirement. See SAC, ECF 34. Despite the volume of
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allegations, the SAC does not provide a coherent account of the events giving rise to this lawsuit.
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“Rule 8(a) is grounds for dismissal independent of Rule 12(b)(6), and dismissal on Rule 8(a)
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grounds does not require that the complaint be wholly without merit.” Gottschalk v. City & Cty.
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of San Francisco, 964 F. Supp. 2d 1147, 1154 (N.D. Cal. 2013).
The Court expects that the amended pleading drafted by Plaintiffs’ counsel will be
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substantially pared down and easier to understand than the SAC.
Rule 12(b)(6) – Insufficient Allegations
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B.
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A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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Plaintiffs’ well-pled factual allegations are accepted as true for purposes of a motion to dismiss
under Rule 12(b)(6). See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir.
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United States District Court
Northern District of California
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2011).
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Plaintiffs allege the following facts: police officers arrested Plaintiffs at their home on
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May 23, 2017. SAC ¶ 45. County social workers then arrived at the home and removed
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Plaintiffs’ two young children, R.S. (aged 3 years) and T.S. (aged 10 months). SAC ¶¶ 50-52. On
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May 24, 2017, a dependency investigator informed Plaintiffs that T.S. was found to have suffered
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a non-accidental fracture to her leg. SAC ¶ 71. On May 25, 2017, Plaintiffs were served with a
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petition initiated by the Department of Family and Child Services (“DFCS”) and a notice of
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detention hearing. SAC ¶ 55. Those documents stated that Plaintiffs had been arrested for severe
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domestic violence; had a history of substance abuse which put the children at risk of harm; and
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had a history of physical abuse which put the children at risk of harm. SAC ¶ 74. The documents
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also stated that one of Plaintiffs’ children was suffering from a non-accidental fracture to her leg
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and that each parent gave a different explanation of how the fracture occurred. Id. Plaintiffs were
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separated from their children for eleven months. SAC ¶ 94. Dependency proceedings were
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terminated by the Juvenile Court on May 23, 2018, and full legal and physical custody of the
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children was restored to Plaintiffs. SAC ¶ 95.
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Based on this course of events, Plaintiffs assert eleven claims against numerous agencies
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and individuals that were involved in Plaintiffs’ arrest, the removal of their children, and the
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dependency proceedings. Those claims are: (1) a claim under 42 U.S.C. § 1983 for violations of
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Plaintiffs’ First, Fourth, Eighth, Ninth, Thirteenth, and Fourteenth Amendment rights; (2) a claim
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under California’s Bane Act, Cal. Civ. Code § 52.1, for violation of Plaintiffs’ state civil rights;
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(3) intentional infliction of emotional distress; (4) negligence; (5) failure to intervene; (6) denial of
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Due Process under the Fourteenth Amendment; (7) abuse of process; (8) malicious prosecution;
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(9) legal and medical malpractice; (10) fraud; and (11) false imprisonment. Plaintiffs seek, among
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other things, expungement of records relating to proceedings initiated by the DFCS in the Santa
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Clara County Juvenile Dependency Court; an order voiding the DFCS petition; a declaration that
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“Local legislations are unconstitutional” and that Plaintiffs’ federal civil rights were violated;
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damages; declaratory and injunctive relief; “[a] reform of the entire system to restore its
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United States District Court
Northern District of California
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functionality”; and an apology from Defendants. SAC Prayer.
These claims are not supported by factual allegations showing that Defendants violated
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Plaintiffs’ rights. For example, Plaintiffs allege that “Defendants Police, DFCS and the Court
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violated Plaintiffs’ federal constitutional rights by . . . Summarily seizing the children from their
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home, parents, and family care without a warrant, just or probable cause, and absent exigent
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circumstances.” SAC ¶ 99. However, as set forth above, it appears on the face of the SAC that
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Plaintiffs were arrested, and the children seized, because of a domestic violence situation which
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involved the fracture of the 10-month-old child’s leg. SAC ¶¶ 55-74. Plaintiffs therefore have
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failed to allege plausibly that the seizure of the children violated Plaintiffs’ rights. All claims of
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the SAC suffer from a similar lack of factual support for purely conclusory allegations of
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wrongdoing.
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Any amended pleading must set forth Plaintiffs’ claims in a straightforward manner, and
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assertions of wrongdoing by each Defendant must be supported by factual allegations sufficient to
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give rise to a plausible inference of wrongdoing on the part of that Defendant.
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C.
Monell Liability
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With respect to claims against the City of San Jose and the County of Santa Clara for
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violations of Plaintiffs’ federal constitutional rights, Plaintiffs have not alleged facts showing that
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any such violations were pursuant to a municipal policy or custom. See Monell v. Dep’t of Soc.
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Servs. of the City of New York, 436 U.S. 658, 691 (1978). Any amended Monell claims against the
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City or the County shall identify the relevant policy or custom with particularity.
D.
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The Rooker-Feldman doctrine bars a federal district court from reviewing the final
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determinations of a state court. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
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476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). “Rooker-Feldman may
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also apply where the parties do not directly contest the merits of a state court decision, as the
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doctrine prohibits a federal district court from exercising subject matter jurisdiction over a suit that
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is a de facto appeal from a state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855,
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859 (9th Cir. 2008) (internal quotation marks and citation omitted). “A federal action constitutes
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such a de facto appeal where claims raised in the federal court action are inextricably intertwined
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United States District Court
Northern District of California
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with the state court’s decision such that the adjudication of the federal claims would undercut the
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state ruling or require the district court to interpret the application of state laws or procedural
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rules.” Id. (internal quotation marks and citation omitted).
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Rooker-Feldman Doctrine
It appears that some of Plaintiffs’ claims are inextricably intertwined with the state court’s
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orders. Plaintiffs expressly request that this Court expunge state court records relating to the
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dependency proceedings and void the original DFCS petition. See SAC Prayer. Such relief is
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barred by the Rooker-Feldman doctrine. When amending the complaint, Plaintiffs’ counsel shall
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omit any claims seeking to expunge, void, or otherwise undercut the state courts’ rulings.
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E.
Eleventh Amendment
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“The Eleventh Amendment bars suits against the State or its agencies for all types of relief,
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absent unequivocal consent by the state.” Krainski v. Nevada ex rel. Bd. of Regents of Nevada
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Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (internal quotation marks and citation
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omitted). “The Eleventh Amendment jurisdictional bar applies regardless of the nature of relief
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sought and extends to state instrumentalities and agencies.” Id. An Eleventh Amendment defense
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“is quasi-jurisdictional in nature and may be raised in either a Rule 12(b)(1) or 12(b)(6) motion.”
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Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017).
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Plaintiffs assert claims against several state agencies, including the California Department
of Social Services, California Department of Justice, Bureau of Children’s Justice, California
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Department of Health Care Services, First Five California, and POST. All of these claims appear
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to be barred by the Eleventh Amendment. Plaintiffs dispute the applicability of the Eleventh
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Amendment bar only with respect to POST. Presumably, the amended pleading will omit the
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claims against the other state agencies. With respect to POST, Plaintiffs suggest that Eleventh
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Amendment immunity “may not exist,” but they do not cite any authority or evidence that would
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support that conclusion. Pls.’ Opp. at 3, ECF 79. POST “operates under the direct administration
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and authority of the Attorney General and the California Department of Justice.” Boston v.
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Harris, No. 11-CV-01872-PSG, 2012 WL 1029395, at *2 (N.D. Cal. Mar. 26, 2012). If Plaintiffs
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elect to re-plead their claims against POST, they shall allege facts demonstrating that POST is not
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United States District Court
Northern District of California
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an agency of the state for Eleventh Amendment purposes.
“Eleventh Amendment immunity also shields state officials from official capacity suits.”
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Krainski, 616 F.3d at 967-68. There is “a narrow exception to Eleventh Amendment immunity for
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certain suits seeking declaratory and injunctive relief against unconstitutional actions taken by
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state officers in their official capacities.” Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d
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1032, 1036 (9th Cir. 1999) (citing Ex Parte Young, 209 U.S. 123 (1908)). “[T]he state officer
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sued must have some connection with the enforcement of the allegedly unconstitutional act,” and
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‘[t]his connection must be fairly direct; a generalized duty to enforce state law or general
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supervisory power over the persons responsible for enforcing the challenged provision will not
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subject an official to suit.” Los Angeles Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)
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(internal quotation marks, citation, and alteration omitted).
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Plaintiffs appears to assert an official capacity claim against Will Lightbourne, Director of
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the California Department of Social Service. It is unclear from Plaintiffs’ allegations whether
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Defendant Lightbourne has a sufficient connection to any allegedly unconstitutional acts to fall
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within the narrow exception discussed above. If Plaintiffs re-plead their official capacity claims
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against Lightbourne, they shall allege facts showing the “fairly direct” connection necessary to
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avoid the Eleventh Amendment bar.
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F.
Judicial Immunity
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While it is not clear from the SAC what role Defendant Tondreau had in the events giving
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rise to this suit, it appears that he was the judge who presided over the dependency proceedings
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regarding Plaintiffs’ children. See SAC ¶ 38. “A judge enjoys total immunity from suit for her
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actions except in two instances: when the judge’s actions are nonjudicial actions, i.e., actions not
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taken in the judge’s judicial capacity, or when the judge’s actions, though judicial in nature, are
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taken in the complete absence of all jurisdiction.” Wright-Bolton v. Andress-Tobiasson, 696 F.
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App’x 258, 259 (9th Cir. 2017) (internal quotation marks, citations, and alterations omitted).
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Based on the allegations of the SAC, it appears almost certain that Judge Tondreau is immune
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from suit in this case. However, because the bases for Plaintiffs’ claims against Judge Tondreau
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are unclear, and Plaintiffs theoretically could amend to allege that their claims are based on
nonjudicial actions or actions outside of Judge Tondreau’s judicial capacity, the Court will grant
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United States District Court
Northern District of California
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Plaintiffs one opportunity to amend now that they have the benefit of their counsel’s expertise.
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II.
ORDER
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(1)
The motions to dismiss are GRANTED WITH LEAVE TO AMEND;
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(2)
Any amended pleading shall be filed on or before January 11, 2019; and
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(3)
Leave to amend is limited to the claims addressed in this order. Plaintiffs may not
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add new claims or parties without obtaining prior express leave of the Court.
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Dated: December 19, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge
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