The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 JOHN L. ERVIN, Case No.: 14cv1142-WQH-BGS
12 Plaintiff,
ORDER
13 v.
14 COUNTY OF SAN DIEGO and
DOES 1-10, inclusive,
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Defendants.
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HAYES, Judge:
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The matter before the Court is the Motion to Dismiss Plaintiff’s Fourth Amended
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Complaint (ECF No. 147) filed by Defendant County of San Diego. (ECF No. 148).
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I. BACKGROUND
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On May 6, 2014, Plaintiff John L. Ervin, proceeding pro se, commenced this action by
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filing a Complaint against Defendant County of San Diego (“the County”), alleging that
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the County violated 42 U.S.C. § 1983 and seeking damages and injunctive relief arising
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from Plaintiff being listed on the Child Abuse Central Index (“CACI”). (ECF No. 1).
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On July 21, 2014, the Court issued an Order staying the action “pending final
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resolution of the related action pending in San Diego Superior Court.” (ECF No. 9 at 2).
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On February 13, 2015, the Court issued an Order granting a Motion to Reopen the action.
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(ECF No. 30 at 3).
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1 On April 1, 2015, Plaintiff filed the First Amended Complaint (“FAC”), alleging
2 claims against the County, as well as newly-named Defendants Brenda Daly, Robert
3 Lough, Debra Zanders-Willis, and the California Attorney General. (ECF No. 40). On
4 September 24, 2015, the Court granted two Motions to Dismiss (ECF Nos. 43, 53) and
5 dismissed the FAC without prejudice. (ECF No. 61).
6 On December 21, 2015, Ervin filed the Second Amended Complaint (“SAC”). (ECF
7 No. 75). The SAC asserts claims against the County and Does 1 through 10 for violations
8 of due process and equal protection of the law pursuant to 42 U.S.C. § 1983. The SAC
9 asserts a claim against Defendant California Attorney General pursuant to 42 U.S.C. § 1983
10 alleging that California’s procedure for listing individuals on the CACI violates Plaintiff’s
11 constitutional due process rights.
12 On January 25, 2016, Defendant California Attorney General filed a Motion to
13 Dismiss (ECF No. 80) and the County filed a Motion to Dismiss (ECF No. 81). The Court
14 granted the Motion to Dismiss filed by Defendant California Attorney General due to lack
15 of standing and due to ongoing state judicial proceedings regarding Plaintiff’s listing on
16 CACI and whether he received a fair hearing, pursuant to the Younger abstention doctrine.
17 (ECF No. 86 at 13–16). Pursuant to the Younger abstention doctrine, the Court denied the
18 County’s Motion to Dismiss without prejudice and stayed the case until further order of
19 the Court. Id. at 18–19.
20 On November 18, 2016, the Court issued an order lifting the stay after the state court
21 denied Plaintiff’s petition for writ of mandate. (ECF No. 90 at 2).
22 On December 7, 2016, the County filed a Motion to Dismiss the SAC. (ECF No.
23 91). On July 14, 2017, the Court granted the Motion and dismissed all claims alleged
24 against the County without prejudice. (ECF No. 94).
25 On April 13, 2018, Plaintiff appealed the state writ proceedings. (ECF No. 107 at
26 4).
27 On November 13, 2017, Ervin filed the Third Amended Complaint (“TAC”). (ECF
28 No. 100). The TAC asserts claims against the County and Does 1 through 10 for violations
1 of due process and equal protection of the law pursuant to 42 U.S.C. § 1983 arising from
2 Plaintiff’s listing on the CACI.
3 On November 27, 2017, the County filed a Motion to Dismiss the TAC with
4 prejudice or, in the alternative, a stay of this action on Younger abstention grounds until
5 the underlying state court reaches a conclusion. (ECF No. 103). On March 22, 2018,
6 pursuant to the Younger abstention doctrine, the Court denied the County’s Motion to
7 Dismiss without prejudice and stayed the case until further order of the Court. (ECF No.
8 106).
9 On March 8, 2019, the County filed a status report. (ECF No. 129). The status report
10 filed by the County stated,
11 The County is not currently aware of any reason why an order lifting the stay
cannot be issued. . . . The underlying state court proceedings in Ervin v. Cty.
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of San Diego, Superior Court Case No. 37-2015-00034821-CU-WM-CTL,
13 including post-judgment proceedings, are completely resolved as of March 6,
2019.
14
15 Id. at 1.
16 On March 14, 2019, the Court issued an order lifting the stay and stated, Defendant
17 “shall file any motion to dismiss or other responsive pleading within twenty (20) days of
18 the date of this Order.” (ECF No. 130 at 4).
19 On May 9, 2019, the Court granted Plaintiff leave to file a Fourth Amended
20 Complaint. (ECF No. 146).
21 On May 14, 2019, Plaintiff filed the Fourth Amended Complaint, the operative
22 pleading in this action. (ECF No. 147). The Fourth Amended Complaint alleges claims
23 against the County for violations of Fifth Amendment and Fourteenth Amendment due
24 process and equal protection, and First Amendment free speech pursuant to 42 U.S.C. §
25 1983. The Fourth Amended Complaint alleges claims against the County for improper
26 recording pursuant to 18 U.S.C. §§ 2511, 2520 and Cal. Penal Code §§ 632, 637.2 as well
27 as stalking pursuant to Cal. Penal Code § 1708.7.
28
1 On May 28, 2019, the County filed a Motion to Dismiss. (ECF No. 148). On June
2 17, 2019, Plaintiff filed an Opposition to the Motion to Dismiss filed by the County. (ECF
3 No. 150). On June 24, 2019, the County filed a Reply. (ECF No. 151).
4 II. ALLEGATIONS OF THE FOURTH AMENDED COMPLAINT
5 On August 28, 2011, “Plaintiff informed his then wife, Michal Ben-Nun (“Ben-
6 Nun”) he would be seeking divorce . . . after twelve years of marriage and three children
7 in common.” (ECF No. 147 ¶ 4). Plaintiff was listed on the CACI following an incident
8 on May 15, 2013, when “[Ben-Nun] accus[ed] him of criminal neglect because his son had
9 been late for dinner that evening coming home at 5:30 instead of 5:00 and because his
10 daughter, R.E., had a swollen ear lobe due to an earring Plaintiff gave her.” Id. ¶ 27.
11 “Plaintiff . . . discovered that . . . Ben-Nun became aware of his son’s lateness because
12 Ben-Nun had been using texts with the oldest daughter to spy on him. . . .” Id. ¶ 28. “The
13 Plaintiff confiscated his daughter’s phone and told her, her actions where [sic] ‘Killing
14 them as a family.’” Id. ¶ 29. At the time, approximately 9:30 p.m. on a school night,
15 Plaintiff’s 11-year-old son was in his room with the lights off and door closed. Id. Plaintiff
16 thought he was asleep. Id.
17 “Officer Steve Dickenson investigated the matter for the Child Abuse Unit of the
18 San Diego Police Department and found there had been no threat. No charges were ever
19 filed nor were the criminal threat charges even forwarded to a prosecuting attorney.” Id. ¶
20 34. “Officer Dickenson told members of CWS1 during their investigation that it was
21 obvious to him that Ben-Nun was a woman misusing the child abuse reporting system to
22 help her in Family Court.” Id. ¶ 35.
23 “On June 6, 2013, Family Law Judge Robert C. Longstreth of the San Diego
24 Superior Court heard Ben-Nun’s domestic violence restraining order request based on the
25 May 15, 2013 allegation… [and found] the allegation that Plaintiff threatened his children
26
27
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1 with violence . . . factually false.” Id. ¶ 36. Judge Longstreth “denied Ben-Nun’s requests
2 for a restraining order and her request for changes to the custody and visitation order.” Id.
3 “[I]n a letter to Judge Longstreth, CWS stated that it had substantiated allegations
4 that Plaintiff had emotionally abused his younger child A.E. while speaking with his
5 daughter T.E. about her texting in spite of A.E. being half asleep in another room with the
6 door closed.” Id. ¶ 37. On or about June 6, 2013, “Plaintiff was listed as an abuser of his
7 own son on CACI and CWSCMS2.” Id. ¶ 38.
8 “Plaintiff requested and received a grievance hearing which took place on September
9 4, 2013. . . .” Id. ¶ 39. “At the hearing, Plaintiff brought as witnesses his two older children,
10 though the grievance facilitator refused to allow them to testify.” Id. ¶ 40.
11 “Plaintiff testified that he had never threatened his children. He testified that
on May 15, 2013 he said, “Killing us as a family,” to only his daughter T.E.
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to describe what her spying was doing to them. He testified that he had not
13 intended the phrase to cause emotional damage but merely meant it to convey
to T.E. that her texts with her mother would be used by her mother in her
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ongoing attempts to permanently end the father-child relationships they
15 enjoyed.”
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Id. “Approximately 45 days after the hearing, Plaintiff received written notice that
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the hearing had upheld the substantiated finding.” Id. ¶ 41.
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On January 28, 2014, Plaintiff filed for a writ of mandate to challenge the
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grievance hearing decision (Ervin v. San Diego Cty., San Diego Superior Court Case
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Number 2014-00000207-CU-WM-CTL). Id. ¶ 42.
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“On September 12, 2014, Plaintiff prevailed on the petition. . . .“The Court
22 found that . . . there was no evidence to conclude there was abuse as
understood by statute. . . . The Court ordered Plaintiff removed from CACI
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forthwith and gave the County the option of closing the referral as
24 inconclusive or holding a new hearing in light of its findings.”
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Id. ¶ 46. On October 2, 2014 the Court executed the peremptory writ of administrative
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1 Mandate. . . .” Id. ¶ 47.
2 “The County chose to hold a second administrative hearing on October 23, 2014
3 before [Robert] Lough.” Id. ¶ 50.
4 “At the October 23 hearing Mr. Lough told the Plaintiff that the hearing could
not legally take place without his consent to be recorded, though Plaintiff had
5
brought a court reporter and did not wish to be recorded given the previous
6 issues he had with obtaining accurate transcripts. On that basis, Lough ended
the second administrative hearing and released all parties.”
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8 Id. ¶ 51.
9 “The County on or about November 5, 2014 appeared in Superior Court on
an ex parte application seeking judicial permission to relist Plaintiff on CACI
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based on the second administrative hearing or to receive permission to hold
11 another hearing and to tax Plaintiff’s memorandum of costs. The Court denied
any relief.”
12
13 Id. ¶ 54.
14 “The County then . . . scheduled a third administrative hearing for Dec. 19, 2014.” Id.
15 ¶ 55. “This third hearing was held before Mr. Lough, without Plaintiff’s presence or
16 consideration of his written objections, and without consideration of his oldest child’s
17 written declaration.” Id. ¶ 56.
18 “On January 19, 2015 the administrative decision authored by Mr. Lough was
signed. It states that the County substantiated emotional abuse and would
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relist Plaintiff on CACI. It further states that Defendant County did not offer
20 any new or rebuttal evidence that had not been previously considered by the
Superior Court.”
21
22 Id. ¶ 58. “Plaintiff was relisted on CACI in February 2015.” Id. ¶ 59.
23 “Plaintiff filed for a second writ of mandate on October 15, 2015 asking to reverse
24 his inappropriate listings on CACI and CWSCMS, (Ervin v. San Diego Cty., San Diego
25 Superior Court Case Number 2015-00034821-CU-WM-CTL).” Id. ¶ 64. “The State Court
26 ruled against Plaintiff on October 14, 2016, finding that Plaintiff had not exhausted his
27 administrative remedies.” Id. ¶ 67. “Plaintiff filed a timely appeal in the State of California
28 Fourth District Court of Appeals on April 3, 2017.” Id. ¶ 69. “Plaintiff prevailed on his
1 appeal (Ervin v. Cty. of San Diego (4/13/18 (D072057) 2018 WL 1771193)) and the matter
2 was remanded to the State Superior Court with instructions.” Id. ¶ 71.
3 “The State Superior Court heard the matter on remand on September 21, 2018 and
4 issued its ruling on October 17, 2018, writing,
5 ‘The court finds, after an independent review, the grievance hearing officer’s
finding upholding the substantiated finding of child abuse in a January 2015
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Department of Justice Grievance Decision was not supported by the weight of
7 the evidence… The court orders the Defendants/respondents County of San
Diego to direct its Health and Human Resources to reverse its finding of
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substantiated to unfounded for A.E. The County shall prepare necessary
9 documentation to remove Plaintiff’s name from the Department
of Justice Child Abuse Central Index (“CACI”) forthwith.’”
10
11 Id. ¶ 73.
12 “Brenda Daly was at all material times mentioned herein a deputy district attorney
13 for San Diego County and known to Plaintiff and Ben-Nun peripherally, as she was a
14 neighbor living about twelve houses away from them in 2011.” Id. ¶ 91.
15 “Ben-Nun recruited Ms. Daly to advise her on how to achieve the best custody
position, and Ms. Daly advised Ben-Nun to call the police and ask for an
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Emergency Protective Order which would remove Plaintiff from the house
17 and prevent him from seeing the children … and to lie about being afraid if
she had to.”
18
19 “Ben-Nun … call[ed] the police and alleged Plaintiff had threatened her days
earlier. The responding officer … advised Ben-Nun that her allegations were
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not credible and that there was nothing he could do. Ben-Nun then called Ms.
21 Daly and put her on the phone with the officer. Ms. Daly then represented to
the officer that she was a deputy district attorney and she knew that Plaintiff
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was mentally ill and dangerous, and advised the officer of his ability to request
23 an emergency protection order. The officer then did precisely as Ms. Daly
said.”
24
25 Id. ¶¶ 92-93.
26 “Ms. Daly become aware in 2013 that Plaintiff had placed complaints about her
27 actions to the district attorney’s office and to his representative on the board of county
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1 supervisors. . . . [T]hese complaints led to investigations about Ms. Daly’s wrongdoing,
2 which angered Ms. Daly who then attempted revenge.” Id. ¶ 95.
3 “Ms. Daly, who knew the leaders at Plaintiff’s children’s school and the local
police officers in the neighborhood, then sought revenge against Plaintiff by
4
having him found an abuser, using the perceived authority which came with
5 being a deputy district attorney to gain credibility with her plan.
6
In January 2013 Ms. Daly produced three letters she said were handed to her
7 by Plaintiff’s (then) ten-year-old son A.E. that evidenced abuse from him. She
handed these letters to the teacher of Plaintiff’s son . . . . [The teacher] alerted
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the principal of the school of this in an email of January 27, 2013 in which he
9 states that the handwriting and writing style did not match that of Plaintiff’s
son.
10
11 Ms. Daly in fact knew that the letters were not from Plaintiff ’s son, but were
from the files of a previous child abuse case at the district attorney’s office
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where she worked.
13
In March of 2013, Ms. Daly arranged for an interview with Eileen Delaney,
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the principal of the school for both her and Plaintiff ’s children. In this meeting
15 Ms. Daly told Ms. Delaney that she believed Plaintiff was going to file suit
against her. Within one hour from this meeting Ms. Delaney sent emails to
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San Diego Police Officer Jordan Wells alleging Plaintiff was terrorizing
17 parents at the school and requesting police involvement.
18
Shortly thereafter, a close politically-allied friend of Ms. Delaney, Cara
19 Schukoske who had the role of director of pupil services for the school district,
applied for a restraining order in civil court against Plaintiff . . . . The Civil
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Court dismissed the petition for restraining order out of hand but set a hearing
21 though the school never bothered to serve the meritless petition on Plaintiff
and the case was dismissed.
22
23 Id. ¶ 96-100.
24 Plaintiff alleges that “the County has, as a policy, adopted the strategy of creating
25 unnecessary litigation barriers against its complaining citizens.” Id. ¶ 115.
26 “Plaintiff is informed and thereupon alleges that CWS may legally interview,
investigate, remove or otherwise interact with children under only three
27
circumstances: with parental consent, pursuant to a Court order or because of
28 exigent circumstances. . . . Plaintiff is informed and thereupon alleges that
1 CWS previously had as a policy to remove children without grounds for
intervention, while pretending that Court Orders did exist, which in fact did
2
not exist . . . Plaintiff is informed and thereupon alleges that CWS has a policy
3 of performing entirely investigative (as opposed to medically necessary)
medical examinations on the genitals and anuses of children – often very small
4
children – without grounds for intervention and without the presence or
5 permission of parents . . .”
6
Id. ¶ 118-120.
7
Plaintiff alleges that “California Rules of Court, Rule 5.552 provide that a father of
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a child may receive AND copy the records from the CWS regarding their children.” Id. ¶
9
128. “Plaintiff has been informed, and thereupon believes that the County, generally does
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not allow parents to receive such records without litigation.” Id. ¶ 129.
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Plaintiff alleges that “[t]he County, consistent with their policy in other cases, has
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acted to drag out this litigation as long as possible, by, for instance, claiming there was no
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State Appeal planned when there was, unsuccessfully opposing good faith amendments,
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acting in State Court with frivolous litigation around costs to extend the stay in this matter,
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and unsuccessfully opposing lifting the stay in this matter.” Id. ¶ 130.
16
Plaintiff alleges that “[u]sing the CPRA, [he] has gathered information from
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Counties throughout California regarding CACI grievance hearings.” Id. ¶ 144. Plaintiff
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alleges that
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“The responding counties held 1,444 CACI hearings of which 617 led to
20 upholding the initial substantiation. In 1,444 hearings, only the Plaintiff was
known to the County administering the hearing to NOT being on the CACI at
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the time of the hearing.”
22
23 Id. ¶ 146–147.
24 Plaintiff alleges that he “has filed requisite government tort claim letters pursuant to
25 California Government Code sections 810–996.6 to the County regarding the allegations
26 and claims contained herein in a timely manner . . .” Id. ¶ 148.
27 Plaintiff alleges that he has suffered emotional damage and loss of future earnings.
28 Id. ¶¶ 187, 190–191.
1 III. LEGAL STANDARD
2 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a
3 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil
4 Procedure 8(a) provides that “[a] pleading that states a claim for relief must contain . . . a
5 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
6 R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to state a claim under Federal
7 Rule of Civil Procedure 12(b)(6) is proper if there is a lack of a cognizable legal theory or
8 the absence of sufficient facts alleged under a cognizable legal theory.” Conservation
9 Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotation omitted). “All
10 allegations of material fact are taken as true and construed in the light most favorable to
11 the nonmoving party.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
12 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
13 requires more than labels and conclusions, and a formulaic recitation of the elements of a
14 cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
15 Fed. R. Civ. P. 8(a)). When considering a motion to dismiss, a court must accept as true
16 all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
17 However, a court is not “required to accept as true allegations that are merely conclusory,
18 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden St.
19 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a complaint to survive a motion
20 to dismiss, the non-conclusory factual content, and reasonable inferences from that content,
21 must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret
22 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted).
23 IV. JUDICIAL NOTICE
24 “As a general rule, ‘a district court may not consider any material beyond the
25 pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of L.A., 250 F.3d 668, 688 (9th
26 Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). However, there
27 are “two exceptions to the requirement that consideration of extrinsic evidence converts a
28 12(b)(6) motion to a summary judgment motion.” Id.
1 First, Federal Rule of Evidence 201 provides that “[t]he court may judicially notice
2 a fact that is not subject to reasonable dispute because it . . . is generally known within the
3 trial court’s territorial jurisdiction; or . . . can be accurately and readily determined from
4 sources whose accuracy cannot reasonably be questioned.” Fed R. Evid. 201(b). “[U]nder
5 Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’” Lee, 250
6 F.3d at 689 (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)).
7 Courts may take judicial notice of “proceedings in other courts, both within and without
8 the federal judicial system, if those proceedings have a direct relation to matters at issue.”
9 U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th
10 Cir. 1992) (citation and internal quotations omitted).
11 Second, under the doctrine of incorporation by reference, “[a] district court ruling
12 on a motion to dismiss may consider documents whose contents are alleged in a complaint
13 and whose authenticity no party questions, but which are not physically attached to the
14 plaintiff’s pleadings.” Parrino v. FHP, Inc., 146 F.3d 699, 705 (9th Cir. 1998) (internal
15 quotation marks omitted). The “incorporation by reference” doctrine has been extended
16 “to situations in which the plaintiff’s claim depends on the contents of a document, the
17 defendant attaches the document to its motion to dismiss, and the parties do not dispute the
18 authenticity of the document, even though the plaintiff does not explicitly allege the
19 contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th
20 Cir. 2005).
21 The County requests that the Court take judicial notice of the Notice of Ruling
22 Denying Writ of Administrative Mandamus & Proposed Judgment issued by the Superior
23 Court of the State of California for the County of San Diego in Ervin v. Cty. of San Diego,
24 San Diego Superior Court Case No. 37-2015-00034821 on October 14, 2016. (ECF No.
25 148-1 at 3 n.1). Plaintiff requests that the Court take judicial notice of the unpublished
26 opinion issued by the Fourth Appellate District, Division One, of the State of California
27 for the County of San Diego in Ervin v. Cty. of San Diego, San Diego Superior Court Case
28 No. 37-2015-00034821 (ECF No. 150-1 Ex. 1) and the Minute Order denying Defendant’s
1 motion to tax costs from Plaintiff’s Second Writ of Mandate in Ervin v. Cty. of San Diego,
2 San Diego Superior Court Case No. 37-2015-00034821. (ECF No. 150-1 Ex. 2). Neither
3 the Plaintiff nor the County oppose the requests for judicial notice. The Court takes judicial
4 notice of the Notice of Ruling Denying Writ of Administrative Mandamus & Proposed
5 Judgment, the unpublished opinion and the Minute Order because this proceeding in state
6 court has a direct relation to the matters at issue in this case. See Borneo, Inc., 971 F.2d at
7 248.
8 The County requests that the Court take judicial notice of Plaintiff’s correspondence
9 with County Counsel Claims and Investigation Division (ECF No. 148-2, Ex. A), Notice
10 of Insufficient Claim (ECF No. 148-2, Ex. B), and two Notices of Rejection of Claim (ECF
11 No. 148-2, Ex. B-C). Plaintiff does not oppose the request for judicial notice. The Court
12 takes judicial notice of the records relating to Plaintiff’s claim (ECF No. 148-2, Exs. 1-4)
13 because Plaintiff’s claims depend on the contents of the documents (ECF No. 147 ¶ 148),
14 the county attached the documents to its Motion to Dismiss, and neither party disputes the
15 authenticity of the documents. See ESPN, 393 F.3d at 1076.
16 V. DISCUSSION
17 A. Procedural Due Process Violation
18 The County contends that Plaintiff’s first claim should be dismissed because the
19 Fourth Amended Complaint does not state facts to support a procedural due process claim.
20 (ECF No. 148-1 at 13). The County asserts that “Plaintiff alleges that he was notified of
21 his listing on the CACI list and received a grievance hearing.” Id. at 14. Thus, the
22 requirements of due process were satisfied. Id. Plaintiff contends that due process requires
23 “more than merely notice and hearings.” (ECF No. 150 at 13). Plaintiff contends that the
24 hearings themselves must conform to due process requirements and that his administrative
25 hearings were not impartial. Id. at 14.
26 “A § 1983 action may be brought for a violation of procedural due process . . . [and]
27 [i]n procedural due process claims, the deprivation by state action of a constitutionally
28 protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is
1 unconstitutional is the deprivation of such an interest without due process of law.”
2 Zinermon v. Burch, 494 U.S. 113, 125 (1990). “A section 1983 claim based upon
3 procedural due process . . . has three elements: (1) a liberty or property interest protected
4 by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of
5 process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “[T]o
6 determine whether a constitutional violation has occurred, it is necessary to ask what
7 process the State provided, and whether it was constitutionally adequate. This inquiry
8 would examine the procedural safeguards built into the statutory or administrative
9 procedure of effecting the deprivation, and any remedies for erroneous deprivations
10 provided by statute or tort law.” Zinermon, 494 U.S. at 126.
11 The Ninth Circuit Court of Appeals “evaluate[d] the process that California provides
12 persons listed on the CACI under the three part test set out in Mathews v. Eldridge, 424
13 U.S. 319, 335 (1976).” Humphries v. Cty. of Los Angeles, 554 F.3d 1170, 1193 (9th Cir.
14 2009), as amended (Jan. 30, 2009), rev’d and remanded sub nom. L.A. Cty., Cal. v.
15 Humphries, 562 U.S. 29 (2010). “Mathews instructs us to balance (1) the private interest
16 affected by the official action; (2) the risk of erroneous deprivation and the probable value
17 of additional procedural safeguards; and (3) the governmental interest, including the fiscal
18 and administrative burdens of additional procedures.” Id. “The procedural due process
19 inquiry is made ‘case-by-case based on the total circumstances.’” Id. (quoting Cal. ex rel.
20 Lockyer v. F.E.R.C., 329 F.3d 700, 711 (9th Cir.2003)).
21 In Humphries, the Court found that “there is a substantial risk that individuals will
22 be erroneously listed on the CACI, and that California offers insufficient means for
23 correcting those errors.” Id. at 1200. The Court stated that:
24 Beyond declaring that California’s procedural protections are constitutionally
inadequate, we do not propose to spell out here precisely what kind of
25
procedure California must create. The state has a great deal of flexibility in
26 fashioning its procedures, and it should have the full range of options open to
it. We do not hold that California must necessarily create some hearing prior
27
to listing individuals on CACI. At the very least, however, California must
28
1 promptly notify a suspected child abuser that his name is on the CACI and
provide ‘some kind of hearing’ by which he can challenge his inclusion.
2
3 Humphries, 554 F.3d at 1201. After Humphries was decided, California implemented
4 procedural mechanisms. Pursuant to California Penal Code §11169(c), an “agency shall ...
5 notify in writing the known or suspected child abuser that he or she has been reported to
6 the Child Abuse Central Index (CACI).” Cal. Pen. Code § 11169(c). Pursuant to California
7 Penal Code §11169(d), “any person who is listed on the CACI has the right to a hearing
8 before the agency that requested his or her inclusion in the CACI to challenge his or her
9 listing on the CACI.” Cal. Pen. Code § 11169(d).
10 In Plaintiff’s first cause of action against the County and DOES 1-10 for deprivation
11 of procedural due process, Plaintiff alleges that the County “deprived Plaintiff of
12 procedural due process as afforded him by the Fifth and Fourteenth amendments of the US
13 Constitution, leading to his improper listings on CACI and CWSCMS as a substantiated,
14 emotional abuser of his own son.” (ECF No. 147 at 33-34). Specifically, Plaintiff alleges
15 that
16 a. The weight of the evidence never supported that he perpetrated abuse;
b. Three administrative hearings to challenge the listing all improperly
17
considered hearsay;
18 c. The listings persisted in spite of judicial officers from superior tribunals
telling the County there was not sufficient evidence of abuse and that the
19
referral should have been closed;
20 d. The first administrative hearing improperly excluded the testimony of
Plaintiff’s children;
21
e. The second administrative hearing was held in contravention to state law;
22 f. The third administrative hearing was held in contravention to both state law
and court order;
23
g. The third administrative hearing was a “kangaroo court,” overturned on
24 writ petition even though Plaintiff was not present at the hearing;15
h. The County sought out Riverside County employee Robert Lough to
25
administer the hearing because it knew he never reversed a substantiation of
26 abuse;
i. County social workers and hearing officials, pursuant to County policy,
27
interpret the phrase “emotional abuse” colloquially rather than legally; and
28 j. The County had decided, as a policy, to designate Plaintiff as an abuser in
1 retaliation for this lawsuit, regardless of there being insufficient evidence to
do so.
2
3 Id. at 34-35.
4 The Court finds that California has procedural mechanisms in place to provide for
5 notice to the suspected child abuser prior to listing, and to provide an opportunity to
6 challenge listing on CACI. The Fourth Amended Complaint fails to allege facts that show
7 a substantial risk that individuals will be erroneously placed on the CACI list, and that
8 California has insufficient means for correcting any errors.
9 Plaintiff alleges that he was notified of his listing on the CACI and received three
10 administrative hearings to challenge the listing. Plaintiff alleges that the decision to list
11 him on CACI and CSWCMS as an emotional abuser was overturned by State Court on
12 three separate occasions. Plaintiff alleges that, after oral argument before the State of
13 California Fourth District Court of Appeals, he prevailed on appeal. On remand in State
14 Superior Court, Plaintiff alleges that the County was ordered to prepare necessary
15 documentation to remove Plaintiff’s name from CACI. Plaintiff alleges that he was
16 removed from CACI on or about October 25, 2018. The factual allegations in the Fourth
17 Amended Complaint are not sufficient to support a claim that Defendant County has
18 deprived Plaintiff of procedural due process rights under the Fifth and Fourteenth
19 Amendments. Plaintiff’s first claim against the County of San Diego is dismissed.
20 B. Substantive Due Process Violation
21 The County contends that Plaintiff’s second claim should be dismissed because “the
22 liberty interest in familial relations is limited by the compelling government interest in the
23 protection of minor children, particularly in circumstances where the protection is
24 considered necessary as against the parents themselves.” (ECF No. 151 at 4). The County
25 contends that Plaintiff correctly points out, “[T]he right to familial relations ‘does not
26 include a constitutional right to be free from child abuse investigations.’” Id. Plaintiff
27 contends that he has a “substantive due process right to an unencumbered parent-child
28 relationship and a substantive due process right to privacy.” (ECF No. 150 at 16). Plaintiff
1 contends that “the County and its employees conducted over seven investigations as to
2 whether the Plaintiff was abusing his own children without any probable cause, exigency,
3 court order or parental permission.” Id. at 17. Plaintiff asserts that the County has been
4 “intentionally acting as the mother’s private investigator, lawyer and extrajudicial advocate
5 in custody litigation” in order to “transfer custody and control of the children to mother.”
6 Id. at 17–18.
7 The Ninth Circuit has stated that “parents have a ‘constitutionally protected right to
8 the care and custody of [their] children’ and cannot be ‘summarily deprived of that custody
9 without notice and a hearing,’ except where ‘the children [are] in imminent danger.’”
10 Mueller v. Auker, 700 F.3d 1180, 1187 (9th Cir. 2012) (citing Ram v. Rubin, 118 F.3d 1306,
11 1310 (9th Cir.1997). Plaintiff’s “[constitutional] rights are not absolute . . . [u]nder certain
12 circumstances, these rights must bow to other countervailing interests and rights, such as
13 the basic independent life and liberty rights of the child and of the State acting as parens
14 patriae . . . .” Id. at 1186. “Failure to investigate or intervene when child abuse is suspected
15 can subject a state and its employees to liability.” Woodrum v. Woodward Cty. 866 F.2d
16 1121, 1125 (9th Cir. 1989).
17 In Plaintiff’s second cause of action against the County and DOES 1-10 for
18 deprivation of substantive due process, Plaintiff alleges “the County, acting under color of
19 state law, deprived Plaintiff of substantive due process as afforded him by the Fifth and
20 Fourteenth amendments of the US Constitution, by burdening Plaintiff’s rights, to be
21 informed of, and make decisions about the care, custody, and control of his children.”
22 (ECF No. 147 ¶ 201). Plaintiff alleges that the County infringed his “substantive due
23 process right to privacy as afforded by the First, Fourth, Fifth and Fourteenth Amendments
24 of the Constitution (Griswold v. Connecticut 381 U.S. 479 (1965)) and by the California
25 State Constitution.” Id. ¶ 202. Plaintiff alleges that he “a right to a life with his children
26 and new wife not subject to persistent dissection, through his children and acquittances,
27 interviewed for abuse and neglect, including sexual abuse.” Id.
28
1 The Court finds that the factual allegations in the Fourth Amended Complaint are
2 not sufficient to support a claim that Defendant County has deprived Plaintiff of substantive
3 due process. In this case, Plaintiff alleges that he received notice of his listing on the CACI,
4 received three administrative hearings to challenge the listing, was heard in State Court on
5 three separate occasions, and prevailed on appeal before the State of California Fourth
6 District Court of Appeals. Plaintiff’s second claim against the County of San Diego is
7 dismissed.
8 C. Retaliation for Exercise of Free Speech
9 The County contends that Plaintiff’s second claim should be dismissed because
10 Plaintiff alleges that the County’s defense of the instant case equates to retaliation. (ECF
11 No. 151 at 5). The County asserts “it was Plaintiff who filed the (a) instant lawsuit and (b)
12 who continues to prosecute this case. . . .” Id. The County also contends that Plaintiff
13 makes conclusory allegations regarding Brenda Daly and “fails to show that his injury was
14 a result of this alleged wrongful conduct.” (ECF No. 148-1 at 23). Plaintiff contends that
15 Brenda Daly “pressured local police and school to detain and launch litigation against
16 Plaintiff because he complained about her at the County . . . .” (ECF No. 150 at 20).
17 Plaintiff contends that these actions “would chill the free expression of individuals.” Id. at
18 21.
19 The Ninth Circuit has held that “[t]here are three elements to a First Amendment
20 retaliation claim”: “[A] plaintiff must show that (1) he was engaged in a constitutionally
21 protected activity, (2) the defendant's actions would chill a person of ordinary firmness
22 from continuing to engage in the protected activity and (3) the protected activity was a
23 substantial or motivating factor in the defendant's conduct.” O’Brien v. Welty, 818 F.3d
24 920, 932 (9th Cir. 2016) (citing Mendocino Envt'l Cntr. v. Mendocino Cty., 192 F.3d 1283,
25 1300 (9th Cir.1999)).
26 In Plaintiff’s third cause of action against the County and DOES 1-10 for retaliation
27 for exercise of free speech, Plaintiff alleges “the County, acting under color of state law,
28 deprived Plaintiff of his First amendment right to petition and speak freely without fear of
1 retaliation, by listing him on CACI and CWSCMS as a substantiated emotional abuser of
2 his son, absent sufficient evidence for doing so, in retaliation for his bringing this Federal
3 Lawsuit in May 2014.” (ECF No. 147 ¶ 212). Plaintiff alleges that “Brenda Daly, by
4 arranging the unjust detention of Plaintiff, by planting fabricated evidence of abuse at the
5 elementary school of his son and by coercing the school, three times to launch frivolous
6 litigation against him; was acting under color of state law to deprive Plaintiff of his First
7 amendment right to petition and speak freely, as her unconstitutional acts were in
8 retaliation for the complaints he had made about her prior 2011 acts to her supervisors at
9 the County.” Id. ¶ 213.
10 The factual allegations in the Fourth Amended Complaint are not sufficient to
11 support a reasonable inference that Plaintiff’s right to petition and speak freely “was a
12 substantial or motivating factor in the defendant's [the County’s] conduct” to list him on
13 CACI and CWSCMS. Id. The County proceeded pursuant to state law. Plaintiff fails to
14 allege sufficient facts to support a reasonable inference that Brenda Daly acted pursuant to
15 any policy to arrange his unjust detention, plant fabricated evidence of abuse, or coerce
16 Plaintiff’s son’s elementary school to launch frivolous litigation against Plaintiff. (ECF
17 No. 147 ¶ 213). Plaintiff’s third claim against the County of San Diego is dismissed.
18 D. Equal Protection Violation
19 The County contends that Plaintiff’s fourth claim should be dismissed because
20 Plaintiff’s arguments are overly vague and fail identify facts to show that he is part of a
21 protected or suspect class that the County intentionally discriminated against. (ECF No.
22 148-1 at 17). In addition, the County contends that Plaintiff “was removed from CACI
23 pursuant a Superior Court order and that the second and third hearings were held pursuant
24 to court order. (Peremptory Writ of Administrative Mandate filed on January 28, 2014 in
25 case number 37-2015-00034821-CU-WM-CTL.)” (ECF No. 151 at 6). Plaintiff contends
26 that “he, out of greater than 1,444 statewide CACI grievants [sic], was the only one not
27 listed on CACI during the hearing.” (ECF No. 150 at 22). Plaintiff contends that the court
28 order granting the County the option to hold a second administrative hearing on October
1 23, 2014 was not legal. Id. at 23. Plaintiff contends that his third administrative hearing
2 on November 5, 2014, was improper. Id.
3 “The Equal Protection Clause of the Fourteenth Amendment commands that no State
4 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
5 essentially a direction that all persons similarly situated should be treated alike.” City of
6 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted). “To
7 state a claim for violation of the Equal Protection Clause, a plaintiff must show that the
8 defendant acted with an intent or purpose to discriminate against him based upon his
9 membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).
10 The Supreme Court has “recognized successful equal protection claims brought by a ‘class
11 of one,’ where the plaintiff alleges that [he] has been intentionally treated differently from
12 others similarly situated and that there is no rational basis for the difference in treatment.”
13 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
14 In Plaintiff’s fourth cause of action against the County and DOES 1-10 for
15 deprivation of equal protection, Plaintiff alleges “the County and its employees, acting
16 under color of state law, deprived Plaintiff of equal protection of the law as afforded him
17 by the Fourteenth amendment of the US Constitution, leading to his listings on CACI and
18 CWSCMS, mental illness in his son, estrangement from his son and older daughter and the
19 other damages enumerated above, by treating him as a ‘class of one.’ (Vill. of Willowbrook
20 v. Olech 528 U.S. 562 (2000)).” (ECF No.147 at 39-40). More specifically, Plaintiff
21 alleges “Over 1,000 documented CACI grievance hearings took place in San Diego, Los
22 Angeles, Orange, Riverside, San Bernardino or Imperial Counties between the years 2013–
23 2018, yet only Plaintiff was knowingly NOT listed on CACI at the time of his hearing in
24 late 2014 . . . and this hearing led to Plaintiff’s CACI listing in early 2015.” Id. at 40.
25 Plaintiff fails to allege facts sufficient to establish that he has been intentionally
26 treated differently from others similarly situated. See Vill. of Willowbrook, 528 U.S. at
27 564. In this case, Plaintiff alleges that he was listed on CACI after notice and a hearing,
28 that he challenged the listing in state court, and that the state court ordered Plaintiff
1 removed from CACI. Taking Plaintiff’s allegations as true, Plaintiff fails to allege
2 sufficient facts to support a reasonable inference that the County “acted with an intent or
3 purpose to discriminate against him based upon his membership in a protected class.”
4 Serrano, 345 F.3d at 1082. Further, Plaintiff fails to allege an equal protection class-of-
5 one claim because Plaintiff fails to allege facts sufficient to establish that he has been
6 treated differently from others similarly situated. See Vill. of Willowbrook, 528 U.S. at
7 564. Plaintiff’s fourth claim against the County of San Diego is dismissed.
8 E. Monell Related Claims
9 A municipality or governmental entity cannot be found liable under § 1983 on “for
10 an injury inflicted solely by its employees or agents.” Monell v. Dept. of Social Servs. of
11 New York, 436 U.S. 658, 694 (1978). Liability can be imposed on local governing bodies
12 only for injuries inflicted pursuant to “a policy statement, ordinance, regulation, or decision
13 officially adopted and promulgated by that body’s officers.” Id. at 690-91. “[I]n addition
14 to an official policy, a municipality may be sued for ‘constitutional deprivations visited
15 pursuant to governmental ‘custom’ even though such custom has not received formal
16 approval through the governmental body’s official decisionmaking channels.’” Navarro
17 v. Block, 72 F.3d 712, 714 (9th Cir. 1995) (quoting Monell, 436 U.S. at 690-91), as
18 amended on denial of reh’g (Jan. 12, 1996). To establish municipal liability, Plaintiff must
19 show: (1) he was deprived of a constitutional right; (2) the County had a policy or custom;
20 (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional
21 right; and (4) the policy or custom was the “moving force behind the constitutional
22 violation.” Van Ort v. Est. of Stanewich, 92 F.3d 831, 835 (9th Cir.1996).
23 The Court has dismissed Plaintiff’s 42 U.S.C. § 1983 claims with respect to
24 Defendant County, therefore, Plaintiff cannot show that he was deprived of a constitutional
25 right. Because the Court concludes that Plaintiff was not deprived of a constitutional right,
26 Plaintiff cannot establish municipal liability and the Court need not reach the issue of
27 whether the alleged constitutional violation was caused by a custom or policy of the
28 County. See id. at 835.
1 F. Federal Claim of Improper Recording
2 The County contends that Plaintiff’s sixth claim should be dismissed because “there
3 are no factual allegations of the County illegally wiretapping and/or intercepting Plaintiff’s
4 telephone calls.” (ECF No. 148-1 at 19). The County “concedes it recorded the grievance
5 hearings, which it was permitted to do because the County was a party to said hearings.”
6 Id. at 24. Plaintiff contends that he did not consent to the recordings. (ECF No. 150 at 29).
7 Plaintiff contends that “the County did not consent to the recording until the had gathered
8 the Plaintiff’s permission. Id.
9 18 U.S.C § 2511(2)(c) states “[i]t shall not be unlawful under this chapter for a
10 person acting under color of law to intercept a wire, oral, or electronic communication,
11 where such person is a party to the communication or one of the parties to the
12 communication has given prior consent to such interception.” 18 U.S.C § 2511(2)(c).
13 In Plaintiff’s sixth cause of action against the County and DOES 1-10 for improper
14 recording, Plaintiff alleges that the County violated 18 U.S.C § 2511 by engaging in illegal
15 wiretapping and, thus, the recovery of civil damages is authorized pursuant to 18 U.S.C §
16 2520. (ECF No. 147 at 44). Plaintiff alleges “Defendants and all of them jointly and
17 severely made audio recordings of phone calls and other conversations between Plaintiff
18 and Robert Lough regarding confidential CWS matters and without his permission and
19 with full knowledge that Plaintiff did not wish to be recorded on or about October 23, 2014
20 and December 19, 2014.”
21 Plaintiff alleges that the recording on October 23, 2014 occurred during “a second
22 administrative hearing . . . before Mr. Lough . . . .” (ECF No. 147 ¶ 50). Plaintiff’s sole
23 reference to December 2014 in his Fourth Amended Complaint describes a Family Court
24 hearing. Id. ¶ 181. In both instances, the County was a party to the communication and,
25 thus, was authorized pursuant to 18 U.S.C § 2511(2)(c) to intercept “wire, oral, or
26 electronic communication” with Plaintiff. The Court finds that the factual allegations in
27 the Fourth Amended Complaint are not sufficient to support a claim that Defendant County
28
1 engaged in illegal wiretapping. Plaintiff’s sixth cause of action against the County of San
2 Diego is dismissed.
3 G. State Claims of Improper Recording and Stalking
4 “[I]n any civil action of which the district courts have original jurisdiction, the
5 district courts shall have supplemental jurisdiction over all other claims that are so related
6 to claims in the action within such original jurisdiction that they form part of the same case
7 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
8 “A state law claim is part of the same case or controversy when it shares a ‘common
9 nucleus of operative fact’ with the federal claims . . . .” Bahrampour v. Lampert, 356 F.3d
10 969, 978 (9th Cir. 2004). A district court may decline to exercise supplemental jurisdiction
11 over a state law claim if:
12 (1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
13
the district court has original jurisdiction,
14 (3) the district court has dismissed all claims over which it has original
jurisdiction, or
15
(4) in exceptional circumstances, there are other compelling reasons for
16 declining jurisdiction.
17
28 U.S.C. §1367(c); see also Cross v. Pac. Coast Plaza Inv., L.P., No. 06 CV 2543 JM
18
(RBB), 2007 WL 951772, *3 (S.D. Cal. Mar. 6, 2007).
19
Here, the Court has dismissed all claims over which it has original jurisdiction.
20
Thus, the Court declines to exercise jurisdiction over the state law claims. Plaintiff’s
21
seventh and eighth claim against the County of San Diego are dismissed.
22
H. Injunctive Relief
23
The County contends that Plaintiff’s ninth claim should be dismissed because
24
injunctive relief is not a cause of action and Plaintiff has failed to meet the heightened
25
burden of pleading entitlement to a permanent injunction. (ECF No.148-1 at 22). The
26
County contends that “[i]njunctive relief is a remedy and not, in itself, a cause of action,
27
and a cause of action must exist before injunctive relief may be granted.” Thompson v.
28
1 JPMorgan Chase Bank, N.A., 2017 WL 897440, at *12 (N.D. Cal. Mar. 7, 2017) (citing
2 Rockridge Trust v. Wells Fargo, N.A., 985 F.Supp.2d 1110, 1167 (N.D. Cal. 2013)). In
3 addition, according to the County, “[a] plaintiff seeking a permanent injunction must
4 demonstrate that he has suffered an irreparable injury and that other remedies at law are
5 inadequate to compensate for that injury.” eBay Inc. v. MercExchange, L.L.C., 547 U.S.
6 388, 391 (2006). Plaintiff contends that “[t]he Court need simply incorporate what the
7 Plaintiff calls a cause of action for an injunction into the prayer for relief.” (ECF No. 150
8 at 31). Plaintiff contends that “he has suffered irreparable damage.” Id. Plaintiff contends
9 that “the County will not simply change it constitutional policies after a money judgment.”
10 Id.
11 “Injunctive relief is appropriate in cases involving challenges to government policies
12 that result in a pattern of constitutional violations.” Walters v. Reno, 145 F.3d 1032, 1048
13 (9th Cir. 1998). “[I]njunctive relief [is] an extraordinary remedy that may only be awarded
14 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
15 Def. Council, Inc., 555 U.S. 7, 22 (2008). “Permanent injunctive relief is warranted where
16 . . . defendant’s past and present misconduct indicates a strong likelihood of future
17 violations.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 564 (9th Cir. 1990). “The
18 decision to grant or deny permanent injunctive relief is an act of equitable discretion by the
19 district court.” eBay Inc., 547 U.S. at 391.
20 In Plaintiff’s ninth cause of action against the County and DOES 1-10 for injunctive
21 relief, Plaintiff seeks an order enjoining and prohibiting Defendants:
22 a. From failing to establish, implement, and follow policies, procedures, customs
and practices mandated by the U.S. Constitution and California Constitution,
23
and laws, as to the questioning, detention, continued detention and
24 examination, of minor children in alleged child abuse or neglect matters;
b. From failing to properly supervise, manage, control, and direct the activities
25
of its officers, agents and employees as to their compliance with those
26 principals mandated by the First, Fourth and Fourteenth Amendments to the
United States Constitution and laws, and under the California Constitution
27
and laws, including those as to the right of privacy, and as to child abuse and
28 neglect proceedings;
1 c. From failing to implement and establish a policy of truthful, unbiased and full
and complete reporting, including evidence and testimony both positive and
2
negative (exculpatory), in the investigation or proceedings of matters pursuant
3 to Chapter 2 (commencing with section 200) of Part 1 of Division 2 of the
California Welfare and Institutions Code;
4
d. From failing to implement grievance hearing proceedings which are not based
5 exclusively on hearsay, which do not as a matter of course exclude
exculpatory witnesses and testimony, which do not as a matter of course find
6
against self-represented litigants, and which require findings of child abuse
7 based on legally cognizable terms rather; and
e. From conducting interviews during child abuse referrals absent one or more
8
of: parental consent, exigent circumstances or court order.
9
(ECF No.147 at 49-50).
10
11 The Court has dismissed Plaintiff’s 42 U.S.C. § 1983 claims with respect to
12 Defendant County, therefore, Plaintiff cannot show that he is entitled to injunctive relief
13 pursuant to 42 U.S.C. §1983. Plaintiff’s ninth claim against the County of San Diego is
14 dismissed.
15 CONCLUSION
16 The Motion to Dismiss the Fourth Amended Complaint filed by Defendant County
17 of San Diego is GRANTED. (ECF No. 148).
18 The County contends that Plaintiff should not be allowed leave to amend because he
19 has had numerous opportunities to state his claim against the County, has continued to fail
20 to correct the defects in his complaint, and has demonstrated an inability to allege facts to
21 support his claims. (ECF No. 148-1 at 27). Plaintiff requests leave to amend should any
22 part of the Motion to Dismiss be granted. (ECF No. 150 at 32).
23 Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely given
24 when justice so requires.” Fed. R. Civ. P. 15(a). In Foman v. Davis, 371 U.S. 178 (1962),
25 the Supreme Court offered several factors for district courts to consider in deciding whether
26 to grant a motion to amend under Rule 15(a):
27 In the absence of any apparent or declared reason–such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to
28
1 cure deficiencies by amendments previously allowed, undue prejudice to
7 the opposing party by virtue of allowance of the amendment, futility of
amendment, etc._the leave sought should, as the rules require, be “freely
3 given.”
4
5 Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th
6 Cir. 2004). “[W]here the plaintiff has previously been granted leave to amend and has
7 subsequently failed to add the requisite particularity to its claims, the district court’s
g discretion to deny leave to amend is particularly broad.” Zucco Partners, LLC v. Digimarc
9 Corp., 552 F.3d 981, 1007 (9th Cir. 2009). “[W]e have held that a district court does not
10 abuse its discretion in denying a motion to amend where the movant presents no new facts
ll but only new theories and provides no satisfactory explanation for his failure to fully
12 develop his contentions originally.” Bonin vy. Calderon, 59 F.3d 815, 845 (9th Cir. 1995);
13 || also Boehm v. Shemaria, 478 Fed.App’x. 457, 457 (9th Cir. 2012). When amendment
14 would be futile, the district court need not grant leave to amend. Carrico v. City & Cty. of
15 San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011); Gompper v. VISX, Inc., 298 F.3d 893,
16 898 (9th Cir. 2002).
7 Plaintiff has been provided multiple opportunities to amend claims in his complaint
18 and has failed to remedy the deficiencies alleged by this Court. The Court concludes that
19 further amendment to the complaint would be futile.
20 The Fourth Amended Complaint (ECF No. 147) is DISMISSED with prejudice. The
71 Clerk of the Court shall enter judgment in favor of Defendant and against Plaintiff.
99 Dated: October 2, 2019 itt Z. A a
73 Hon. William Q. Hayes
United States District Court
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