Rodriguez v. County of San Joaquin

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [10] VICTOR RODRIGUEZ, an individual, 11 No. 2:16-cv-00770-TLN-JDP Plaintiff, [12] v. 13 ORDER COUNTY OF SAN JOAQUIN by and 14 through the SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY; 15 STEPHANIE EVANS, an individual; LYNN K. SAGA-MATSUMOTO, an 16 individual, and DOES 1 through 9, 17 Defendants. [18] 19 This matter is before the Court pursuant to a Motion to Strike (ECF No. 27) and a Motion 20 to Dismiss (ECF No. 28) brought by Defendants County of San Joaquin through San Joaquin 21 County Human Services Agency (“HSA”), Stephanie Evans (“Evans”), and Lynn K. Saga22 Matsumoto (“Saga-Matsumoto”) (collectively, “Defendants”). Plaintiff Victor Rodriguez 23 (“Plaintiff”) opposed both motions. (ECF Nos. 29, 30.) Defendants filed replies. (ECF Nos. 32, 24 33.) 25 In considering Defendants’ Motion to Strike and Motion to Dismiss, the Court also 26 reviewed again the First Amended Complaint (“FAC”) (ECF No. 8) and the papers filed in 27 connection with Defendants’ first motion to dismiss (“First Motion to Dismiss”) (ECF Nos. 13, [28] 1 17, 20). Upon careful review, the Court REVERSES its previous order dated March 31, 2021, 2 (ECF No. 25), and DENIES Defendants’ First Motion to Dismiss (ECF No. 13) solely with 3 respect to Plaintiff’s first cause of action for First Amendment interference with familial relations. 4 Having carefully considered the briefing filed by both parties and for the reasons set forth 5 below, Defendants’ Motion to Strike (ECF No. 27) is hereby GRANTED in part and DENIED in 6 part, and Defendants’ Motion to Dismiss (ECF No. 28) is hereby GRANTED in part and 7 DENIED in part. 8 I. FACTUAL AND PROCEDURAL BACKGROUND1 9 Plaintiff’s claims arise from the investigation, court hearings, and resolution of a juvenile 10 dependency proceeding for minor, A.R. (ECF No. 26 at ¶¶ 14–30.) Plaintiff asserts A.R. is his 11 biological daughter, but Defendants prevented him from uniting with her by withholding 12 information from the juvenile dependency court. (Id. at ¶14.) 13 A.R. was born on April 27, 2012. (Id. at ¶ 15.) In April 2012, A.R. was the subject of a 14 Voluntary Family Maintenance agreement. HSA employees interviewed A.R.’s mother, E.J., 15 about the identity of A.R.’s father. (Id. at 16.) E.J. informed HSA employees that another man, 16 K.R., was listed on A.R.’s birth certificate but E.J. “was not certain that he was the biological 17 father.” (Id.) K.R. and E.J. were never married, but had three older children in common, who 18 were in K.R.’s custody. (Id.) HSA employees interviewed K.R., who acknowledged he was in 19 fact listed on A.R.’s birth certificate, but he had previously taken a DNA test and discovered he 20 was not the biological father. (Id.) K.R. “‘walked away’ and was working on having his name 21 removed from her birth certificate because he did not want to pay child support as A.R. was 22 proven to not be his child.” (Id.) 23 On March 28, 2013, E.J. was arrested for child cruelty and public intoxication. (Id. at ¶ 24 15.) On April 2, 2013, HSA filed a petition on behalf of A.R. to institute juvenile dependency 25 proceedings. (See id. at ¶¶ 18–19.) Defendants submitted numerous reports to the juvenile 26 dependency court which detailed E.J.’s extensive criminal history involving alcohol abuse, child [27] 1 The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Second 28 Amended Complaint. (ECF No. 26.) 1 endangerment, and her history with child protective services. (Id. at ¶ 19.) The petition included 2 a police report, which detailed an altercation that occurred on January 2, 20122 (the “Police 3 Report”). (Id. at ¶ 20.) The Police Report indicated E.J. had been drinking with Plaintiff when an 4 altercation ensued and E.J. attacked Plaintiff. (Id.) Witness statements from both Plaintiff and 5 E.J. acknowledge that E.J. was five-months pregnant with Plaintiff’s child. (Id.) A jurisdiction 6 report submitted by Defendants identified Plaintiff as a potential witness for the juvenile 7 dependency proceedings. (Id.) 8 At some time during 2013, Plaintiff contacted HSA and sought out the social worker on 9 the case — Evans. (Id. at 31.) Plaintiff informed Defendants he was the witness “V.R.” from the 10 July 2012 Police Report, which allegedly “acknowledged” him as A.R.’s biological father. (Id.) 11 He also requested a DNA test to prove his relationship to A.R., but Defendants declined to make 12 A.R. available for the testing. (Id. at ¶ 20, 32.) Plaintiff alleges that “[t]hroughout this same time 13 period,” he continuously sought out E.J. and A.R. by contacting known relatives. (Id. at ¶ 31.) 14 The relatives refused to provide the location of E.J. and A.R. (Id.) 15 At a detention hearing on April 3, 2013, K.R. appeared and told the juvenile dependency 16 court he was not A.R.’s true father. (Id. at ¶ 22.) HSA obtained a copy of A.R.’s birth certificate 17 and found there was no father listed. (Id.) K.R. never appeared in the juvenile dependency 18 hearings again. (Id.) 19 At a jurisdiction hearing on April 15, 2013, the juvenile dependency court proceeded in 20 K.R.’s absence and relied upon the signed Declaration of Paternity to declare K.R. to be A.R.’s 21 presumed father. (See id. at ¶¶ 22–23.) 22 The juvenile dependency court scheduled a hearing pursuant to California Welfare and 23 Institutions Code § 366.26 (“§ 366.26”) for June 4, 2014.3 (Id.¶ 27.) In preparation for this [24] 2 The FAC appears to contradict itself and says that the incident occurred on July 26, 2012 [25] (after the birth of A.R.), and that the incident occurred on January 2, 2012. (Id. ¶ 20.) However, the Court interprets this as the incident occurred on January 2, 2012, and the Police Report was [26] filed in July 2012. [27] 3 A § 366.26 hearing is a hearing to terminate the parental rights or establish guardianship 28 of children adjudged dependent children of court. Cal. Welf. & Inst. Code § 366.26 . 1 hearing, Evans prepared a declaration stating A.R.’s biological father remained unknown. (Id. at 2 ¶ 24–25.) Evans had access to the July 2012 Police Report which included witness statements 3 acknowledging that E.J. was five months pregnant with Plaintiff’s child. (Id.) She attached the 4 Police Report to the juvenile court petition but did not disclose the information in her declaration. 5 (Id. at ¶ 25(d).) Relying on Evans’ declaration that A.R.’s father was unknown, the court gave 6 Evans permission to publish a citation in the local newspaper, The Record, to provide notice to 7 any potential fathers to appear for the hearing. (Id.) The newspaper published the notice for four 8 consecutive weeks, but no potential father came forward. (See id. at ¶ 25 (e).) 9 The § 366.26 hearing was held on February 6, 2015. (Id. at ¶ 29.) On or about April 24, 10 2015, Plaintiff learned A.R. was in foster care. (Id.) Plaintiff drove to the Child Protective 11 Services (“CPS”) office to speak with a social worker, but Evans was not available. (Id.) While 12 at the CPS office, Plaintiff spoke with Ms. Beverly Louis (“Louis”) and confirmed Plaintiff was 13 the individual who filed the 2012 Police Report, which acknowledged that E.J. was five months 14 pregnant with Plaintiff’s child. (Id.) Louis advised Plaintiff that Evans would contact Plaintiff 15 the next morning. (Id.) However, Evans never contacted Plaintiff. (Id.) Plaintiff called Evans 16 on April 27, 2015, and Evans advised Plaintiff he would need to pay for his own DNA test, which 17 he agreed to do. (Id.) On May 13, 2015, Plaintiff provided a swab test to the lab for testing, but 18 Defendants refused to make A.R. available for DNA testing. (Id.) 19 On June 15, 2015, the juvenile dependency court terminated the parental rights of all 20 unknown fathers. (See id. at ¶ 29(a).) Plaintiff alleges Defendants never attempted to contact 21 him prior to the § 366.26 hearing, despite having the July 2012 Police Report with Plaintiff and 22 E.J.’s statements that Plaintiff was A.R.’s biological father. (See id. at ¶¶ 20, 29(a).) He further 23 alleges Defendants withheld this information from the juvenile dependency court and Evans 24 instead misrepresented to the court that K.R. was A.R.’s biological father. (See id. at ¶¶ 20, 27 25 (Evans requested to provide notice of the § 366.26 hearing to K.R.), 33.) As a result, Plaintiff 26 contends he did not receive proper notice for any hearings related to A.R.’s juvenile dependency 27 proceedings. (Id. at ¶ 34.) 28 On July 29, 2015, Plaintiff filed a petition with the juvenile dependency court and 1 requested the court vacate all orders made regarding A.R.’s father. (Id. at ¶ 34.) Defendants 2 opposed the petition on the basis that the rights of any potential fathers had been terminated. (Id.) 3 The juvenile dependency court denied Plaintiff’s petition. (ECF No. 14 at 5–6.) Plaintiff 4 appealed the decision, and the appellate court affirmed the denial. (Id. at 4–8.) 5 Plaintiff initiated this action on April 14, 2016. (ECF No. 1; ECF No. 13 at 3.) On 6 January 6, 2017, Plaintiff filed the FAC asserting seven causes of action against Defendants, for 7 the following violations of Plaintiff’s constitutional rights under 42 U.S.C. § 1983 (“§ 1983”) and 8 violations of state law: (1) First Amendment interference with familial relations against Evans 9 and Saga-Matsumoto; (2) Fourteenth Amendment due process violations against Evans and Saga10 Matsumoto; (3) Monell liability against HSA; (4) negligence against all Defendants; (5) negligent 11 hiring, retaining, and training against HSA; and (6) intentional infliction of emotional distress 12 (“IIED”) against Evans and HSA; and (7) negligent infliction of emotional distress (“NIED”) 13 against Evans and Saga-Matsumoto. (See ECF No. 8.) 14 On September 6, 2017, Defendants filed the First Motion to Dismiss pursuant to Federal 15 Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 13.) On March 31, 2021, the Court issued 16 an Order granting the motion to dismiss as to all causes of action. (ECF No. 25.) The first, fifth, 17 and seventh causes of action were dismissed without leave to amend. (Id. 26–27.) 18 On April 30, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) 19 asserting the identical seven causes of action as were asserted in the FAC. (ECF No. 26.) On 20 May 21, 2021, Defendants filed the instant Motion to Strike pursuant to Rule 12(f), and the 21 concurrently filed the Motion to Dismiss pursuant to Rule 12(b)(6). (ECF Nos. 27, 28.) 22 Defendants move to strike all references to the already dismissed Saga-Matsumoto and the 23 “already dismissed without leave-to-amend first, fifth, and seventh causes of action,” arguing 24 Plaintiff exceeded the leave granted to him in the Court’s previous Order. (ECF No. 27 at 5.) 25 Defendants concurrently move to dismiss all causes of action arguing: (1) the Court already 26 dismissed Plaintiff’s first, fifth, and seventh causes of action without leave to amend; (2) the 27 Court should dismiss Plaintiff’s first, second, fourth, and seventh claims against Saga-Matsumoto 28 because the Court already dismissed her; (3) Defendants are entitled to qualified immunity; and 1 (4) Plaintiff’s claims against HSA fail to allege an unconstitutional policy or practice to show the 2 County of San Joaquin is responsible for Plaintiff’s harm. (ECF No. 28 at 16–26.) 3 II. STANDARD OF LAW 4 A. Motion to Strike 5 Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any 6 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A court will 7 only consider striking a defense or allegation if it fits within one of these five categories. Yursik 8 v. Inland Crop Dusters Inc., No. CV-F-11-01602-LJO-JLT, 2011 WL 5592888 , at *3 (E.D. Cal. 9 Nov. 16, 2011) (citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 , 973–74 (9th Cir. 10 2010)). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money 11 that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 12 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, Rule 12(f) 13 motions are “generally regarded with disfavor because of the limited importance of pleading in 14 federal practice, and because they are often used as a delaying tactic.” Neilson v. Union Bank of 15 Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). 16 “Ultimately, whether to grant a motion to strike lies within the sound discretion of the 17 district court.” Id. Unless it would prejudice the opposing party, courts freely grant leave to 18 amend stricken pleadings. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also 19 Fed. R. Civ. P. 15(a)(2). If the court is in doubt as to whether the challenged matter may raise an 20 issue of fact or law, the motion to strike should be denied, leaving the assessment of the 21 sufficiency of the allegations for adjudication on the merits after proper development of the 22 factual nature of the claims through discovery. See generally Whittlestone, 618 F.3d at 974–75. 23 Where a defendant seeks to challenge the sufficiency of factual allegations in a complaint, 24 it must do so through a Rule 12(b)(6) motion, not a Rule 12(f) motion. Kelley v. Corr. Corp. of 25 Am., 750 F. Supp. 2d 1132, 1146 (E.D. Cal. 2010) (citing Consumer Solutions REO, LLC v. 26 Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 2009)). “[W]here a motion is in substance a Rule 27 12(b)(6) motion, but is incorrectly denominated as a Rule 12(f) motion, a court may convert the 28 improperly designated 12(f) motion into a Rule 12(b)(6) motion.” Id. (citing Consumer 1 Solutions, 658 F. Supp. 2d at 1021 ). 2 B. Motion to Dismiss 3 A motion to dismiss for failure to state a claim upon which relief can be granted under 4 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 7 U.S. 662 , 677–78 (2009). Under notice pleading in federal court, the complaint must “give the 8 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 9 v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified 10 notice pleading standard relies on liberal discovery rules and summary judgment motions to 11 define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema 12 N.A., 534 U.S. 506, 512 (2002). 13 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 14 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 15 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 16 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746 , 753 n.6 (1963). A plaintiff need not allege 17 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 18 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 19 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 20 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638 , 643 n.2 (9th Cir. 1986). 21 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 22 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 23 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 24 elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also Iqbal, 556 U.S. at 678 25 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 26 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 27 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355, 28 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 1 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 2 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 3 Council of Carpenters, 459 U.S. 519, 526 (1983). 4 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 5 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 . “A claim 6 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 8 680. While the plausibility requirement is not akin to a probability requirement, it demands more 9 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 10 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 12 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 13 dismissed. Id. at 680 (internal quotations omitted). 14 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 15 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 16 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 17 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels18 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 19 allegations that contradict matters properly subject to judicial notice). 20 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 21 amend even if no request to amend the pleading was made, unless it determines that the pleading 22 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122 , 23 1130 (9th Cir. 2000) (en banc) (quoting Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995)); see also 24 Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in denying 25 leave to amend when amendment would be futile). Although a district court should freely give 26 leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to deny such 27 leave is ‘particularly broad’ where the plaintiff has previously amended its complaint[.]” 28 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 1 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 2 III. ANALYSIS 3 The Court will first discuss the reversal and denial of Defendants’ First Motion to Dismiss 4 (ECF No. 13) as to Plaintiff’s first cause of action for First Amendment interference with familial 5 relations. The Court will then analyze Defendants’ Motion to Strike (ECF No. 27) and finally 6 evaluate Defendants’ Motion to Dismiss (ECF No. 28). 7 A. Reversal of Claim One (Defendant’s First Motion to Dismiss) 8 District courts retain inherent authority to revise interim or interlocutory orders any time 9 before entry of judgment. See, e.g., Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996) (“the 10 interlocutory orders and rulings made pre-trial by a district judge are subject to modification by 11 the district judge at any time prior to final judgment”) (citation omitted); Balla v. Idaho State Bd. 12 of Corr., 869 F.2d 461, 465 (9th Cir. 1989); Fed. R. Civ. P. 54(b). A district court may 13 reconsider and reverse a previous interlocutory decision for any reason it deems sufficient, even 14 in the absence of new evidence or an intervening change in or clarification of controlling law. 15 Washington v. Garcia, 977 F. Supp. 1067 , 1068–69 (S.D. Cal. 1997); Sport Squeeze Inc. v. Pro16 Innovative Concepts Inc., No. 97-CV-115 TW (JFS), 1999 WL 696009 , at *9 (S.D. Cal. June 24, 17 1999). But a court should generally leave a previous decision undisturbed absent a showing that 18 it either represented clear error or would work a manifest injustice. Christianson v. Colt Indus. 19 Operating Corp., 486 U.S. 800, 817 (1988). 20 In considering Defendants’ instant Motion to Strike (ECF No. 27) and Second Motion to 21 Dismiss (ECF No. 28), the Court also reviewed Plaintiff’s FAC (ECF No. 8) and the papers filed 22 in connection with the Defendants’ First Motion to Dismiss (ECF Nos. 13, 17, 20). Having 23 carefully considered the issues presented, the Court finds its prior order granting dismissal 24 without leave to amend as to Plaintiff’s cause of action for First Amendment interference with 25 familial relations is clearly erroneous and would work a manifest injustice. 26 The Court erroneously relied on cases discussing claims of Fourteenth Amendment 27 interference with familial relations in the analysis of Plaintiff’s First Amendment claim of 28 interference with familial relations. (ECF No. 25 at 11–12) (citing Kirkpatrick v. Cnty. of 1 Washoe, 843 F.3d 784 (9th Cir. 2016); Lehr v. Robertson, 463 U.S. 248 (1983); Olvera v. Cnty. of 2 Sacramento, 932 F. Supp. 2d 1123 (E.D. Cal. 2013)). Upon reconsideration, it is not clear to the 3 Court that the First and Fourteenth Amendment protections for familial association are 4 equivalent. See Keates v. Koile, 883 F.3d 1228 , 1235–36 (9th Cir. 2018). When stripped of cases 5 referencing the Fourteenth Amendment, Defendants’ motion to dismiss fails to persuade the 6 Court on the issue of Plaintiff’s First Amendment claim. At this early stage in the litigation, 7 accepting the Plaintiff’s factual allegations in the FAC as true, and resolving all reasonable 8 inferences in favor of Plaintiff, the Court reconsiders its previous order and finds that Plaintiff 9 sufficiently states a claim for First Amendment interference with familial relations. Cruz, 405 10 U.S. at 322; see also Retail Clerks Int’l Ass’n, 373 U.S. at 753 n.6. The Court finds that whether 11 the Plaintiff can ultimately prevail on the merits of the claim is a matter properly determined on 12 the basis of proof, which means on a summary judgment motion or at trial by the judge or a jury, 13 and not merely on the face of the pleadings. See Twombly, 550 U.S. at 556 . The Court retains the 14 inherent authority “to reverse an interlocutory order for any reason it deems sufficient, even in the 15 absence of new evidence or an intervening change in or clarification of controlling law. 16 Washington, 977 F. Supp. at 1069 . Accordingly, the Court exercises this inherent authority and 17 DENIES Defendants’ First Motion to Dismiss (ECF No. 13) as to Plaintiff’s cause of action for 18 First Amendment interference with familial relations (Claim One) reversing its prior Order. (ECF 19 No. 25.) 20 B. Motion to Strike 21 The Court’s March 31, 2021 Order dismissed Plaintiff’s claims: (1) denying leave to 22 amend for Plaintiff’s first cause of action for First Amendment interference with familial relations 23 against Evans and Saga-Matsumoto; (2) granting leave to amend for Plaintiff’s fifth cause of 24 action for negligent hiring, retaining, and training against HSA; and (3) denying leave to amend 25 for Plaintiff’s seventh cause of action for negligent infliction of emotional distress against Evans 26 and Saga-Matsumoto. (See ECF No. 25 at 26–27.) Additionally, the Order dismissed all claims 27 against Saga-Matsumoto without prejudice, however the Order included a specific instruction 28 allowing Plaintiff to later bring claims against Saga-Matsumoto through a Rule 15 motion. (Id. at 1 8–9.) 2 Defendants move to strike all claims asserted against Saga-Matsumoto and Plaintiff’s 3 first, fifth, and seventh causes of action, arguing that Plaintiff is flagrantly disobeying a Court 4 order and improperly including dismissed claims and parties in his SAC. (See ECF No. 27 at 3.) 5 In opposition, Plaintiff argues a Rule 12(f) motion “is neither an authorized nor a proper way to 6 procure the dismissal of all or part of a complaint.” (ECF No. 29 at 24 (citing Yamamoto v. 7 Omiya, 564 F.2d 1327 (9th Cir. 1977) (Hufstedler, J., concurring in part and dissenting in part)).) 8 Plaintiff also argues a Rule 12(f) motion is not appropriate to dismiss all or part of a complaint 9 because it is subject to a different standard of review than a Rule 12(b)(6) motion to dismiss. 10 (ECF No. 29 at 25.) However, the Court finds Plaintiff’s arguments are unavailing as the 11 disputed allegations were already addressed in the First Motion to Dismiss. (ECF No. 13.) 12 Plaintiff’s allegations are therefore redundant, immaterial and/or impertinent, and they violate this 13 Court’s March 31, 2021 Order. (See ECF No. 25.) 14 Under Rule 15, a party may amend his or her pleading “once as a matter of course [and] . . 15 . in all other cases, a party may amend its pleading only with the court’s leave. The court should 16 freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). District courts in this circuit 17 generally allow plaintiffs to add new claims and/or parties to an amended complaint where a prior 18 order of dismissal granted leave to amend without limitation. Jameson Beach Prop. Owners 19 Ass’n v. U.S., No. 2:13-cv-01025-MCE-AC, 2014 WL 4925253 , at *3 (E.D. Cal. Sept. 29, 2014) 20 (citing Katz v. Cal-W. Reconveyance Corp., 09-CV-04866-LHK, 2010 WL 3768049 (N.D. Cal. 21 Sept. 21, 2010)). On the other hand, where a prior court order granted limited leave to amend, 22 district courts in this circuit generally strike new claims or parties contained in an amended 23 complaint when the plaintiff did not seek leave to amend. See, e.g., Benton v. Baker Hughes, CV 24 12-07735 MMM, 2013 WL 3353636 (C.D. Cal. June 30, 2013); Crane v. Yarborough, CV 0525 8534 DSF (JC), 2012 WL 1067956 (C.D. Cal. Mar. 29, 2012). Thus, whether a district court will 26 accept new claims and/or parties in an amended complaint after a motion to dismiss will depend 27 on whether the plaintiff was granted leave to amend with or without limitation. Urista v. Bank of 28 Am., N.A., No. C11-03097 HRL, 2012 WL 10596 , at *6 (N.D. Cal. Jan. 3, 2012). In such cases, 1 courts look at the specific language of the prior order to determine whether leave to amend was 2 granted without limitation. See, e.g., Gilmore v. Union Pacific R. Co., No. 09-CV-02180, 2010 3 WL 2089346 , at *4 (E.D. Cal. May 21, 2010) (allowing plaintiff to add new claims without 4 having asked leave because court had granted leave to amend without limitation and defendants 5 would not be prejudiced); DeLeon et al. v. Wells Fargo Bank et al., No. 10-CV-01390, 2010 WL 6 4285006, at *8–9, (N.D. Cal. Oct. 22, 2010) (finding the plaintiff was required to seek leave to 7 amend to add new claims when prior dismissal specified only limited amendment had been 8 granted). 9 When the language of an order clearly states that a plaintiff may only amend to address 10 certain deficiencies identified in the order, courts have held that a plaintiff is barred from adding 11 new claims or parties. In DeLeon v. Wells Fargo Bank, N.A., the court similarly found that the 12 plaintiff was not allowed to add new claims to the complaint when its previous order dismissed 13 six claims without leave to amend and granted leave to amend with respect to certain claims to 14 give the plaintiff an opportunity to allege more facts. No. 10-CV-01390-LHK, 2010 WL 15 4285006, *3 (N.D. Cal. Oct. 22, 2010). 16 In this Court’s previous Order, the Court dismissed all claims against Saga-Matsumoto, 17 stating “if Plaintiff wishes to bring claims against Saga-Matsumoto at a later date, he may file a 18 motion to do so pursuant to Rule 15.” (ECF No. 25 at 8–9.) The Court was specific about the 19 purpose of the limited leave granted, as opposed to granting leave to amend without limitation. 20 The same Order dismissed Plaintiff’s first, fifth, and seventh causes of action “without leave to 21 amend.” (Id. at 26–27.) This is a specific instruction and limitation by the court, barring 22 Plaintiff from re-alleging the first, fifth, and seventh causes of action. Plaintiff failed to comply 23 with the clear instructions of the March 31, 2021 Order. (See id.) For that reason, the Court 24 GRANTS Defendants’ Motion to Strike and STRIKES Plaintiff’s fifth, and seventh causes of 25 action in their entirety from the SAC. (ECF No. 26 at 33–34, 36–37.) The Court further 26 STRIKES all references to Saga-Matsumoto as contained in paragraphs 10, 40, 53, 56, 63, 67, 69 27 through 74, 80, and 84, and as a named Defendant in the first, second, fourth, and seventh claims 28 for relief in Plaintiff’s SAC. (ECF No. 26) The Court repeats the instruction from the previous 1 Order, “[i]f Plaintiff wishes to bring claims against Saga-Matsumoto at a later date, he may file a 2 motion to do so pursuant to Rule 15.” (ECF No. 25 at 8–9.) As discussed previously, Plaintiff’s 3 First Amendment claim for familial association was erroneously dismissed, and the Court 4 declines to strike this cause of action with respect to Evans. 5 The Court reminds the parties that, in accordance with Local Rule 110, failure to comply 6 with any order of the Court may be grounds for imposition of any and all sanctions authorized by 7 statute or Rule or within the inherent power of the Court. E.D. Cal. L.R. 110; see also Fed. R. 8 Civ. P. 11. 9 C. Second Motion to Dismiss: Federal Claims 10 Plaintiff asserts two federal claims under § 1983: (1) Fourteenth Amendment procedural 11 and substantive due process violations against Evans (Claim Two); and (2) Monell liability 12 against HSA (Claim Three). (ECF No. 26 at 21–31.) Defendants move to dismiss the procedural 13 and substantive due process claims for failure to adequately allege a constitutional deprivation 14 and because Evans is entitled to qualified immunity. (ECF No. 28 at 17–21.) They seek 15 dismissal of the Monell claim for failure to allege a constitutional deprivation and failure to allege 16 any actual policy “that was either wrongful or [was] wrongfully ignored by HSA employees.” 17 (Id. at 24–25.) The Court will address each claim in turn. 18 i. Fourteenth Amendment Due Process 19 Plaintiff asserts a claim for procedural and substantive due process violations under the 20 Fourteenth Amendment against Evans. (ECF No. 26 at 21.) Courts have characterized the 21 Fourteenth Amendment right to familial association as having both a substantive and a procedural 22 component. See Keates, 883 F.3d at 1236 . While the right is a fundamental liberty interest, see, 23 e.g., Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011); Smith v. City of Fontana, [24] 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers–Durgin v. De La 25 Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc), officials may interfere with the right if they 26 “provide the parents with fundamentally fair procedures.” Santosky v. Kramer, 455 U.S. 745 , 754 27 (1982). The Court will address now address the parties arguments as to the substantive and 28 procedural components of the Fourteenth Amendment right to familial association. 1 a) Substantive 2 Defendants argue Plaintiff’s substantive due process claim fails for all the reasons set 3 forth in this Court’s previous Order. (ECF No. 28 at 17.) Defendants argue Plaintiff’s 4 substantive due process claim “is rooted solely in his alleged right to familial association” and 5 this Court already found Plaintiff “has not and cannot establish that he was deprived of any right 6 to familial association.” (Id. (quoting ECF No. 25 at 16).) In opposition, Plaintiff contends the 7 SAC adequately alleges a violation of Plaintiff’s right to be free from “judicial deception.” (ECF 8 No. 30 at 20–21.) Plaintiff alleges Evans “committed judicial deception when she declared that 9 A.R.’s father is unknown; when she obtained the court order for publication stating that K.R. was 10 the father[,] which the court adopted[,] and when she prevented plaintiff from obtaining A.R.’s 11 DNA sample which would have proven plaintiff’s paternity.” (ECF No. 26 at 24.) In reply, 12 Defendants argue Plaintiff’s allegation that Evans failed to read a police report in her possession 13 does not rise to the level of “deliberate” or with “reckless disregard” as required to state a claim 14 for an unconstitutional violation of the right to be free from judicial deception. (ECF No. 33 at 6– 15 7.) 16 “To establish a substantive due process claim, a plaintiff must, as a threshold matter, show 17 a government deprivation of life, liberty, or property.” Nunez v. City of L.A., 147 F.3d 867 , 871 18 (9th Cir. 1998). “To violate substantive due process, the alleged deprivation must ‘shock the 19 conscience’ and ‘offend the community’s sense of fair play and decency.’” Marsh v. Cnty. of San 20 Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (citation omitted). “Where, as here, circumstances 21 afford reasonable time for deliberation before acting, we consider conduct to be conscience22 shocking if it was taken with deliberate indifference toward a plaintiff’s constitutional rights.” 23 Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1195 (9th Cir. 2013); see also Cnty. of 24 Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 25 Plaintiff amended the complaint to characterize his constitutional injury as a due process 26 right to be free from judicial deception, rather than a constitutional right to familial association. 27 (ECF No. 26 at 23–24.) A parent has a due process right to be free from deliberately false 28 statements during juvenile court proceedings. Keates, 883 F.3d at 1240 . However, Plaintiff does 1 not provide any authority which establishes the right to be free from judicial deception as a 2 standalone constitutional claim, and in this context, the underlying constitutional deprivation is 3 still a right to familial association. See Sigal v. Cnty. of L.A., No. 2:17-CV-04851-RGK-AGR, [4] 2018 WL 5899636 , at *4 (C.D. Cal. Jan. 17, 2018) (“the use of judicial deception to obtain an 5 order to remove a child from his or her parent’s custody violates the Fourteenth Amendment due 6 process right to familial association.”). 7 Nevertheless, the Court agrees with Defendant that Plaintiff’s Fourteenth Amendment 8 claim is “rooted solely in his alleged right to familial association.” However, considering this 9 Court’s reversal on the issue of Plaintiff’s claim to First Amendment interference with familial 10 relations, this argument is not dispositive. (See ECF No. 28 at 17.) The Court will consider 11 whether Plaintiff adequately alleges a protected liberty interest of familial association under the 12 Fourteenth Amendment. 13 The Fourteenth Amendment protects “the parent-child relationship from unwanted 14 interference by the state.” Kirkpatrick, 843 F.3d at 788 . However, “parental rights do not spring 15 full-blown from the biological connection between parent and child.” Id. at 789 (quoting Lehr, [16] 463 U.S. at 260 ). Rather, [17] [i]t is when an unwed father demonstrates a full commitment to the 18 responsibilities of parenthood by coming forward to participate in the rearing of his child, that his interest in personal contact with his child 19 acquires substantial [constitutional protection]. Until then, a person with only potential parental rights enjoys a liberty interest in the 20 companionship, care, and custody of his children that is unambiguously lesser in magnitude. [21] 22 Kirkpatrick, 843 F.3d at 789 (internal quotations and citations omitted). “[T]he mere existence of 23 a biological link does not merit equivalent constitutional protection.” Lehr, 463 U.S. at 261 . 24 Thus, a person who brings a familial association claim requires a “more enduring” relationship 25 “which reflect[s] some assumption of parental responsibility.” Kirkpatrick, 843 F.3d at 788–90 26 (holding father could not challenge the seizure of a child because he had failed to establish his 27 parental rights as of the date of the seizure). 28 A person with potential parental rights enjoys a liberty interest that is “lesser in 1 magnitude.” Kirkpatrick, 843 F.3d at 789 . However, “lesser in magnitude” does not necessarily 2 equate to “negligible” as was the case in Kirkpatrick. In that case, the court held that a biological 3 father’s due process rights with respect to the child were negligible because he had minimal 4 contact with the child and made no efforts to be a parent in a constitutional sense at the time of 5 the seizure. Id. at 790 . Kirkpatrick can be distinguished from the instant case because here, prior 6 to the termination of parental rights, Plaintiff alleges he tried to locate and contact A.R. but was 7 unsuccessful in doing so. (ECF No. 26 at 16.) Furthermore, Plaintiff’s efforts to contact Evans 8 and HSA, to assert his biological connection with A.R., and his attempts to prove paternity with a 9 DNA test, all suggest Plaintiff was attempting to establish “some assumption of parental 10 responsibility.”4 11 Even if Plaintiff’s actions were not sufficient to warrant the substantial constitutional 12 protections afforded to a father that demonstrate “the full commitment to the responsibilities of 13 parenthood[,]” Plaintiff sufficiently alleged that he was a potential parent with “a liberty interest 14 in the companionship, care, and custody of his children that is “lesser in magnitude.” Id. at 790 . 15 Accepting all factual allegations as true, and resolving all reasonable inferences in favor of the 16 non-moving party, the Court finds Plaintiff sufficiently states a claim for a constitutional 17 deprivation of a liberty interest and adequately alleges Defendants actions were performed with 18 deliberate indifference to the constitutional rights of Plaintiff. (See ECF No. 26 at 11 (“Defendant 19 Evans knew or reasonably should have known that her allegations about paternity were false . . . 20 [s]he presented perjured declaration to the juvenile court by omitting exculpatory evidence that 21 the father of A.R. is plaintiff.”).) The Court finds that Plaintiff’s allegations are sufficient to 22 allege a Fourteenth Amendment substantive due process violation, and Plaintiff’s characterization 23 of his liberty interest of familial association as a separate right to be free from judicial deception 24 does not change the analysis for purposes of deciding the instant motion. [25] 4 The Court acknowledges the analysis in ECF No. 25 is not consistent with this Order. [26] However, the Court is independently analyzing the current motion, and inasmuch as this Order 27 disagrees with previous interlocutory orders, the Court retains its inherent authority to revise interim or interlocutory orders any time before entry of judgment. See, e.g., Amarel, 102 F.3d at 28 1515. 1 b) Procedural 2 “A procedural due process claim has two distinct elements: (1) a deprivation of a 3 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 4 protections.” Brewster v. Bd. of Educ., 149 F.3d 971 , 982 (9th Cir. 1998). As previously 5 discussed, Plaintiff meets the first element by sufficiently alleging a constitutional deprivation of 6 a protected liberty interest in familial association. The Court turns to consider whether Plaintiff 7 was denied adequate procedural protections. 8 Defendants argue Plaintiff’s procedural due process claim fails because Evans is entitled 9 to qualified immunity. (ECF No. 28 at 21.) Plaintiff argues the SAC sufficiently alleges 10 “deliberate or at least reckless acts and omissions of [Evans] which constituted judicial deception 11 and caused Plaintiff to lose his constitutional right to process.” (ECF No. 30 at 20–21.) 12 Pursuant to California Welfare and Institutions Code § 316.2(a), 13 At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as 14 to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not 15 relieve the court of its duty of inquiry. The inquiry shall include at least all of the following, as the court deems appropriate: [16] . . . [17] (5) Whether any man has formally or informally acknowledged or 18 declared his possible paternity of the child, including by signing a voluntary declaration of paternity. [19] 20 According to California Welfare and Institutions Code § 316.2(b), each alleged father must be 21 provided notice: (1) he is or could be the father of the child; (2) the child is the subject of 22 proceedings under § 300; and (3) the proceedings could result in the termination of parental rights 23 and adoption of the child. 24 Plaintiff alleges Evans knew or should have known that Plaintiff could be the biological 25 father of A.R. and he was actively attempting to establish his parental rights. (ECF No. 26 at 6, 8, 26 15–16.) However, in preparation for the § 366.26 hearing, Evans declared to the juvenile court 27 that despite an inquiry, the father’s identity remained unknown. (Id. at 9.) Plaintiff alleges Evans 28 acted “deliberately and in reckless disregard of the truth,” omitting evidence material to the 1 findings of the juvenile court. According to Plaintiff, the juvenile court relied on Evans’ report, 2 and Plaintiff was deprived of his due process rights as an alleged father as described in § 316.2. 3 (See id. at 18.) 4 c) Qualified Immunity 5 Defendants argue Evans is entitled to qualified immunity because “she reasonably relied 6 on the information E.J. gave her about A.R.’s potential father(s), and, more importantly, it was 7 reasonable for her to rely on K.R.’s signed declaration of paternity.” (ECF No. 28 at 19.) 8 In § 1983 actions, qualified immunity “protects government officials from civil liability 9 where ‘their conduct does not violate clearly established statutory or constitutional rights of 10 which a reasonable person would have known.’” Cunningham v. Kramer, 178 F. Supp. 3d 999 , 11 1003 (E.D. Cal. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine 12 “gives government officials breathing room to make reasonable but mistaken judgments” and 13 “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. 14 al-Kidd, 563 U.S. 731 , 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 15 Qualified immunity is an affirmative defense; the burden of pleading it rests with the defendant. 16 Crawford-El v. Britton, 523 U.S. 574, 587 (1998) (citation omitted). 17 Here, the Court finds it cannot conclude that qualified immunity is appropriate at this 18 stage in the proceedings. Dismissal under Rule 12(b)(6) “is not appropriate unless [the court] can 19 determine, based on the complaint itself, that qualified immunity applies.” Id.; see also Jensen v. 20 City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998). Defendants’ qualified immunity argument 21 is premised on the Court accepting their assertions regarding the “reasonableness” of Evans’ 22 actions. (ECF No. 28 at 19.) At this stage in the proceedings, it is Plaintiff’s factual allegations 23 that are taken as true, and it is he who is to be given the benefit of every reasonable inference 24 from his factual allegations. Cruz, 405 U.S. at 322 ; see also Retail Clerks Int’l Ass’n, 373 U.S. at 25 753 n.6. Accordingly, Defendants’ qualified immunity argument must be rejected. 26 Considering the allegations of the SAC and declining to accept Defendants’ qualified 27 immunity argument at this early stage of the litigation, the Court finds Plaintiff adequately states 28 a claim for both substantive and procedural due process violations under the Fourteenth 1 Amendment. Accordingly, the Court DENIES Defendants’ Motion as to this claim. 2 ii. Monell Liability Against HSA 3 Plaintiff alleges HSA5 “through individual policymakers and/or supervisory officials . . . 4 improperly, inadequately, or with deliberate indifference to the constitutional rights of persons, 5 grossly, negligently, or with reckless disregard for constitutional rights, failed to properly train, 6 supervise, retrain, monitor, or take corrective action” with respect to Evans and Saga-Matsumoto. 7 (ECF No. 26 at 25.) Defendants argue that Plaintiff’s Monell claim fails because: (1) Plaintiff 8 cannot show any individual HSA employees committed a constitutional violation and therefore 9 the public entity cannot be liable (citing City of L.A. v. Heller, 475 U.S. 796, 799 (1986)); and (2) 10 Plaintiff has failed to allege “any actual policy that was either wrongful or [was] wrongfully 11 ignored by HSA employees.” (ECF No. 28 at 24.) Plaintiff has adequately stated a claim that 12 Evans committed a constitutional violation, so the Court turns to an examination of whether 13 Plaintiff adequately alleges a policy or practice that amounts to deliberate indifference to the 14 Plaintiff’s constitutional rights. 15 To sufficiently plead a Monell claim and withstand a Rule 12(b)(6) motion to dismiss, 16 allegations in a complaint “may not simply recite the elements of a cause of action, but must 17 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing 18 party to defend itself effectively.” A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631 , 637 19 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 20 Where a Monell claim is premised on a policy of omission, such as failure to train or 21 supervise, a plaintiff must show: (1) he possessed a constitutional right of which he was deprived; 22 (2) the municipality had a policy; (3) the policy amounts to deliberate indifference to the 23 plaintiff’s constitutional right; and (4) the policy was the moving force behind the constitutional 24 violation. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (quoting Oviatt v. Pearce, [25] 954 F.2d 1470 , 1474 (9th Cir. 1992); City of Canton v. Harris, 489 U.S. 378 , 388–91 (1989)). [26] 27 5 The SAC refers to COLA/DCFS and COUNTY OF LOS ANGELES/DCFS. These are not defined terms or parties to this litigation and the Court will assume without deciding that 28 Plaintiff is referring to HSA. (ECF No. 26 at 25–31.) 1 A plaintiff “must demonstrate a ‘conscious’ or ‘deliberate’ choice on the part of a 2 municipality in order to ultimately prevail on a failure to train claim.” Flores v. Cnty. of L.A., 758 3 F.3d 1154, 1158 (9th Cir. 2014) (citing Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008)). Under 4 this standard, a plaintiff must allege facts showing that the defendant “disregarded the known or 5 obvious consequence that a particular omission in [its] training program would cause [municipal] 6 employees to violate citizens’ constitutional rights.” Id. (citations and internal quotations 7 omitted, alteration in original). A “pattern of similar constitutional violations by untrained 8 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to 9 train,” though there exists a “narrow range of circumstances [in which] a pattern of similar 10 violations might not be necessary to show deliberate indifference.” Connick v. Thompson, 563 11 U.S. 51, 63 (2011). This “narrow range of circumstances” may exist only when (1) “the need for 12 more or different training is so obvious”; and (2) the inadequacy of training is “so likely to result 13 in the violation of constitutional rights.” Harris, 489 U.S. at 390 n. 10. 14 Here, Plaintiff alleges a series of “policies, customs, and practices . . . which were in 15 violation of the civil rights of Plaintiff[] and others.” (ECF No. 26 at 27–28.) Specifically, 16 Plaintiff alleges customs and practice of: (1) ignoring guidelines and state laws that require social 17 workers give notice to the juvenile dependency court when a person holds themselves out to be a 18 biological parent to a child under the jurisdiction of the dependency court; (2) ignoring the 19 communications and complaints of individuals seeking to acknowledge their status as a biological 20 parent; (3) willfully misrepresenting facts to the juvenile dependency court in order to close a 21 case or otherwise arrive at the preferred outcome; and (4) preventing biological parents from 22 reuniting with their minor children without a legal basis. (ECF No. 30 at 27; see also ECF No. 26 23 at 27–29.) 24 Plaintiff’s allegations of “policies, customs, and practices” are almost exclusively based 25 on the allegedly unconstitutional actions of Evans and her involvement with A.R.’s dependency 26 proceedings. Plaintiff does not allege a pattern of similar behavior other than to allege that “by 27 permitting the individual social worker defendants, including [Evans and Saga-Matsumoto], and 28 others, to engage in the unlawful and unconstitutional conduct as herein alleged[,] Plaintiff[] [is] 1 informed and believe[s] and thereon allege[s] that the [HSA] has inadequate training . . . .” (ECF 2 No. 26 at 29.) As previously discussed, Plaintiff does not allege any specific action by Saga3 Matsumoto, and all references to her have been stricken from the SAC. The only other identified 4 individual in the SAC is Ms. Beverly Louis, assumed to be an HSA employee, who allegedly 5 “advised Plaintiff that she would have [Evans] contact [Plaintiff] the next morning.” (ECF No. 6 26 at 15.) Evans allegedly failed to contact Plaintiff the next morning. (Id.) However, such 7 allegations hardly constitute sufficient pleading of a pattern of constitutional violations. 8 Additionally, Plaintiff has not sufficiently alleged a failure to train because allegations of 9 an isolated incident by one actor is not sufficient to put a defendant on “notice that a course of 10 training is deficient in a particular respect,” or that the absence of such a course “will cause 11 violations of constitutional rights.” Flores, 758 F.3d at 1159; see also Case v. Kitsap Cnty. 12 Sheriff’s Dep’t, 249 F.3d 921 , 931–32 (9th Cir.2001). Courts have dismissed Monell claims 13 where there is no allegation of a pattern of constitutional violations, or where the allegations do 14 not show that more training would have prevented the violation. See, e.g., Hanna ex rel. 15 Henderson v. Cnty. of Fresno, No. 1:14–CV–00142, 2014 WL 6685986 , at *13 (E.D. Cal. Nov. 16 26, 2014); E.G. by & through Lepe v. Maldonado, No. 5:14–CV–01053, 2014 WL 5472654 , at *9 17 (N.D. Cal. Oct. 28, 2014). 18 In sum, the allegations are insufficient to put defendants on notice so that they might 19 appropriately investigate and respond. Plaintiff has not sufficiently pleaded facts giving rise to a 20 Monell claim under a “failure to train” theory. Therefore, Defendants’ Motion to Dismiss 21 Plaintiff’s Monell claim is GRANTED with leave to amend. 22 D. Second Motion to Dismiss: State Law Claims 23 Plaintiff asserts the following state law claims: (1) negligence against Evans and HSA 24 (Claim Four); and (2) intentional infliction of emotional distress (“IIED”) against Evans (Claim 25 Six). (ECF No. 26 at 31–36.) The Court will examine each claim in turn. 26 i. Negligence 27 Defendants argue Evans is entitled to statutory immunity pursuant to California 28 Government Code § 821.6 (“§ 821.6”) and HSA is immune where Evans is immune. (ECF No. 1 28 at 21–23.) Defendants further argue Plaintiff fails to allege any facts arising within the limited 2 exception to immunity in Government Code § 820.21. Plaintiff fails to rebut Defendants’ 3 arguments in opposition. (See ECF No. 30.) The Court will address Defendants’ arguments in 4 turn. 5 a) California Government Code §§ 821.6 and 820.21 6 Section 821.6 provides: “[a] public employee is not liable for injury caused by his 7 instituting or prospecting any judicial or administrative proceeding within the scope of his 8 employment, even if he acts maliciously and without probable cause.” Cal. Gov’t Code § 821.6. 9 California courts have held § 821.6 “provides complete immunity for social workers (and a 10 county) for their actions taken to investigate, declare children dependents of the county, and cause 11 their removal from parental control.” Ronald S. v. Cnty. of San Diego, 16 Cal. App. 4th 887 , 899 12 (1993). The immunity provided by § 821.6 is broad. See Gabrielle A. v. Cnty. of Orange, 10 Cal. 13 App. 5th 1268, 1285 (2017), as modified (Apr. 18, 2017) (“Immunity applies even to ‘lousy’ 14 decisions in which the worker abuses his or her discretion, including decisions based on ‘woefully 15 inadequate information.’”) (citations and internal quotation marks omitted); see also Masoud v. 16 Cnty. of San Joaquin, No. CIV. S-06-1170 FCD EFB, 2006 WL 3251797 , at *7 (E.D. Cal. Nov. 17 8, 2006) (“California courts have applied these immunities quite expansively to social workers, 18 and the protection afforded by these statutes is arguably much broader than the [quasi19 prosecutorial or quasi-judicial] federal immunity.”). 20 Section 820.21, however, provides for an exception to § 821.6 immunity. More 21 specifically, § 820.21 abrogates immunity for: (1) perjury; (2) fabrication of evidence; (3) failure 22 to disclose known exculpatory evidence; or (4) obtaining testimony by duress, fraud, or undue 23 influence — if committed with malice. Cal. Gov’t Code § 820.21(a); see Beltran v. Santa Clara 24 Cnty., 514 F.3d 906, 908 (9th Cir. 2008) (holding social workers “are not entitled to absolute 25 immunity from claims that they fabricated evidence during an investigation or made false 26 statements in a dependency petition affidavit that they signed under penalty of perjury” and 27 reversing dismissal of claim where “much of the information” contained in a dependency petition 28 signed under penalty of perjury was allegedly fabricated); but see Gabrielle A., 10 Cal. App. 5th 1 at 1286–87 (on summary judgment, granting immunity where allegations were “heavy on 2 speculation and light on facts” and therefore insufficient to establish malice). 3 Malice is defined as “conduct that is intended by the person described in subdivision (a) to 4 cause injury to the plaintiff or despicable conduct that is carried on by the person described in 5 subdivision (a) with a willful and conscious disregard of the rights or safety of others.” Cal. 6 Gov’t Code § 820.21(b). Thus, not only must the act fall into one of the enumerated categories, 7 but it must also be committed with malice. Id at § 820.21(a). “This is a high bar to clear.” 8 Gabrielle A., 10 Cal. App. 5th at 1285 . 9 b) Evans 10 As an initial matter, the Court finds § 821.6’s expansive application of immunity applies 11 to Evans’s actions with respect to investigating A.R.’s case and presenting information to the 12 juvenile dependency court. Gabrielle A., 10 Cal. App. 5th at 1285 . Plaintiff fails to respond to 13 Defendants’ arguments for dismissal of the negligence claim. (See ECF No. 30.) However, the 14 Court will analyze whether § 820.21’s exception to immunity would permit Plaintiff to state a 15 state law claim for negligence. 16 In opposition to Defendants’ previous motion to dismiss, Plaintiff argued § 821.6 17 immunity is inapplicable under § 820.21 because Evans maliciously committed perjury and/or 18 failed to disclose known exculpatory evidence. (ECF No. 17 at 22–23.) Here, the SAC similarly 19 includes allegations that Evans maliciously fabricated evidence. (ECF No. 26 at 9– 19.) 20 Defendants argue Plaintiff fails to adequately allege malice, or facts supporting any of the actions 21 falling under the § 820.21 exception to immunity: (1) perjury; (2) fabrication of evidence; and (3) 22 failure to disclose known exculpatory evidence. 23 California Penal Code § 118(a) defines perjury as willfully testifying in a false manner, 24 knowing the testimony is false. In support of the allegation that Evans “knew” Plaintiff was 25 A.R.’s biological father, Plaintiff alleges: (1) the witness statements he and E.J. provided to the 26 police in 2012 both state Plaintiff was the father of E.J.’s then unborn child (A.R.) (ECF No. 26 at 27 8); (2) K.R. told the juvenile dependency court at the April 3, 2013 detention hearing that he was 28 not A.R.’s true father, and his name was not listed on the birth certificate HSA obtained (id.); and 1 (3) Plaintiff told Defendants that he was A.R.’s biological father in 2013, and again in April 2015 2 (id. at 15–16). Accepting Plaintiff’s allegations as true, and resolving all inferences in favor of 3 Plaintiff, the Court finds the SAC adequately alleges that Evans knew, or reasonably should have 4 known that Plaintiff was at least a potential father of A.R., but testified to the juvenile court in a 5 false manner knowing the testimony was false. (ECF No. 26 at 10.) Defendants argue that 6 Plaintiff’s allegations can alternatively be explained as Evans’ mistaken ignorance of a police 7 report which is not perjury. At this stage in the proceedings, it is Plaintiff’s factual allegations 8 that are taken as true, and it is he who is to be given the benefit of every reasonable inference 9 from his factual allegations. Cruz, 405 U.S. at 322 ; see also Retail Clerks Int’l Ass’n, 373 U.S. at 10 753 n.6. The Court finds that Plaintiff adequately alleges that Evans committed perjury and 11 therefore a discussion of the remaining § 820.21 exceptions is unnecessary. 12 Defendant argues that Plaintiff fails to allege any facts to support his conclusory 13 allegations of malice. (ECF No. 28 at 22.) The Court agrees that Plaintiff’s allegations, if they 14 can be construed as malice, are merely “threadbare recitals” of a cause of action which are 15 insufficient. See Iqbal, 556 U.S. at 678. According to Plaintiff, Evans acted “deliberately and 16 with reckless disregard of the truth[,] intentionally made false statements[,] and/or omitted 17 exculpatory evidence that was material to the findings of the juvenile court.” (ECF No. 26 at 10.) 18 Plaintiff also provides a vague conclusory statement in the introduction to the SAC, “Defendants’ 19 wrongful conduct as herein alleged was intentional, done with malice and with conscious 20 disregard for the rights of the Plaintiff herein . . . .” (ECF No. 26 at 19.) The Court finds that 21 Plaintiff’s non-conclusory allegations do not rise to the level of “conduct that is intended by 22 [Defendants] . . . to cause injury to [Plaintiff] or despicable conduct that is carried on by 23 [Defendants] with a willful and conscious disregard of the rights or safety of others.” Cal. Gov’t 24 Code § 820.21(b). The Court finds Plaintiff —despite alleging perjury — fails to allege the 25 requisite element of malice under § 820.21, and therefore Evans is entitled to statutory immunity 26 under § 821.6. 27 Therefore, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s claim for 28 negligence against Evans with leave to amend. 1 c) HSA 2 In light of the Court’s ruling on Plaintiff’s negligence claim against Evans, Plaintiff’s 3 derivative claim against HSA fails. See Gabrielle A., 10 Cal. App. 5th at 1285 (citing Cal. Gov’t 4 Code § 815.2(b) (“Except as otherwise provided by statute, a public entity is not liable for an 5 injury resulting from an act or omission of an employee of the public entity where the employee 6 is immune from liability.”)). 7 Plaintiff offers no contrary argument, and the Court GRANTS Defendants’ Motion to 8 Dismiss Plaintiff’s claim for negligence against HSA with leave to amend. 9 ii. IIED 10 Plaintiff argues Evans and HSA caused Plaintiff to suffer emotional distress by: 11 misleading “the [juvenile] court into believing that the father was unknown”; failing to provide 12 adequate notice to plaintiff of the dependency proceedings; and failing to disclose to the juvenile 13 court Plaintiff’s efforts to establish paternity, and his efforts to obtain DNA evidence to prove his 14 paternity. (ECF No. 26 at 35.) Defendants assert that Evans is once again entitled to immunity 15 under § 821.6. (ECF No. 28 at 21.) Additionally, Defendants argue Plaintiff’s allegations in 16 support of his IIED claim are conclusory and do not constitute the kind of extreme and 17 outrageous conduct that “exceed[s] all bounds that are usually tolerated in a civilized community” 18 as required to state a claim for IIED. (ECF No. 28 at 25–26 (citing Schlauch v. Hartford Accident 19 & Indem. Co., 146 Cal. App. 3d 926 (1983)).) Finally, Defendants argue Plaintiff fails to 20 sufficiently plead the intent element of an IIED claim because Plaintiff does not allege “why 21 [Evans] would want to harm him, that she intended to cause him harm, or how her actions were in 22 reckless disregard of Plaintiff or that [Evans] realized her actions would result in harm to 23 Plaintiff.” (ECF No. 28 at 25.) 24 Plaintiff argues “motive is not an element” of an IIED claim and it is sufficient that 25 Plaintiff alleges Evans acted with intention and reckless disregard, her motive for doing so is 26 immaterial. (ECF No. 30 at 28.) 27 An IIED claim requires (1) extreme and outrageous conduct by the defendant, (2) with the 28 intention of causing, or reckless disregard of the probability of causing emotional distress, (3) the 1 plaintiff’s suffering severe or extreme emotional distress, and (4) actual and proximate causation 2 of the emotional distress by defendant’s outrageous conduct. Sabow v. United States, 93 F.3d 3 1445, 1454 (9th Cir. 1996) (citing Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991)). A 4 claim for IIED under California law requires the plaintiff to establish “extreme and outrageous 5 conduct by the defendant with the intention of causing, or reckless disregard [for] the probability 6 of causing, emotional distress.” Nunes v. Cnty. of Stanislaus, No. 1:17-cv-00633- DAD-SAB, [7] 2017 WL 3670926 , at *6 (E.D. Cal. Aug. 25, 2017) (quoting Ravel v. Hewlett-Packard Enter., 8 Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017)) (alteration in original). To amount to extreme 9 and outrageous conduct, the actions “must be so extreme as to exceed all bounds that are usually 10 tolerated in a civilized community.” Id. (quoting Cochran v. Cochran, 65 Cal. App. 4th 488 , 494 11 (1998)); see Hamilton v. Prudential Fin., No. 2:07-cv-00944-MCE-DAD, 2007 WL 2827792 , at 12 *3 (E.D. Cal. Sept. 27, 2007) (“On the spectrum of offensiveness, outrageous conduct is the most 13 extreme or severe form of offensiveness, and anything less is without legal recourse.” (citation 14 omitted)). 15 Plaintiff’s IIED claim appears to be based on the same allegations that support Plaintiff’s 16 negligence claim. For the same reasons discussed with respect to Plaintiff’s negligence claim, § 17 821.6 applies. Plaintiff fails to address the issue of immunity in opposition. (See ECF No. 30.) 18 The same lack of factual allegations that preclude a finding of “malice” under § 820.21 are also 19 fatal to the intent element of Plaintiff’s IIED claim. Moreover, the Court is not persuaded 20 Plaintiff has established the causation or extreme and outrageous elements of the claim based on 21 the aforementioned factual allegations. See Schlauch, 146 Cal. App. 3d 926, 936 (1983) (finding 22 mere assertion that defendant “acted outrageously and with intent to inflict emotional distress . . . 23 does not in itself constitute the type of outrageous conduct which will support” an IIED claim). 24 Plaintiff makes conclusory statements that Evans’ conduct “was outrageous,” and Evans conduct 25 was “intended to cause Plaintiff’s emotional distress.” (ECF No. 26 at 36.) Conclusory and 26 threadbare recitals of the IIED elements are not sufficient to state a claim for relief. See Iqbal, 27 556 U.S. at 678. 28 Section 821.6’s application of immunity applies to Evans’s actions with respect to 1 investigating A.R.’s case and presenting information to the juvenile dependency court. See 2 Gabrielle A., 10 Cal. App. 5th at 1285 . Plaintiff’s IIED claim based on such allegations is 3 necessarily barred by immunity. It follows that Plaintiff’s derivative IIED claim against HSA 4 fails. See Gabrielle A., 10 Cal. App. 5th at 1285 (citing Cal. Gov’t Code § 815.2(b) (“Except as 5 otherwise provided by statute, a public entity is not liable for an injury resulting from an act or 6 omission of an employee of the public entity where the employee is immune from liability.”)). 7 The Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s claim for IIED against 8 Evans and HSA with leave to amend. 9 IV. CONCLUSION 10 For the foregoing reasons, the Court hereby REVERSES its previous March 31, 2021 11 Order (ECF No. 25) and DENIES Defendants’ First Motion to Dismiss (ECF No. 13) with 12 respect to Plaintiff’s cause of action for First Amendment interference with familial association; 13 GRANTS in part and DENIES in part Defendants’ Motion to Strike (ECF No. 27); and GRANTS 14 in part and DENIES in part Defendants’ Motion to Dismiss (ECF No. 28) as follows: 15 1. Defendants’ First Motion to Dismiss (ECF No. 13) Plaintiff’s claim for First Amendment 16 interference with familial association (Claim One) is DENIED, reversing the Court’s 17 previous March 31, 2021 Order (ECF No. 25); 18 2. Defendants’ Motion to Strike (ECF No. 27) Plaintiff’s claim for First Amendment 19 interference with familial association (Claim One) is DENIED; 20 3. Defendants’ Motion to Strike (ECF No. 27) Plaintiff’s claim for negligent hiring, 21 retaining, and training (Claim Five) is GRANTED; 22 4. Defendants’ Motion to Strike (ECF No. 27) Plaintiff’s claim for NIED (Claim Seven) is 23 GRANTED; 24 5. Defendants’ Motion to Strike (ECF No. 27) all references to Saga-Matsumoto as 25 contained in paragraphs 10, 40, 53, 56, 63, 67, 69 through 74, 80, and 84, and as a named 26 Defendant in the first, second, fourth, and seventh claims for relief in Plaintiff’s SAC is 27 GRANTED; 28 6. Defendants’ Motion to Dismiss (ECF No. 28) Plaintiff’s claim for violations of procedural 1 and substantive due process under the Fourteenth Amendment (Claim Two) is DENIED; 2 7. Defendants’ Motion to Dismiss (ECF No. 28) Plaintiffs claim for § 1983 Monell liability 3 (Claim Three) is GRANTED with leave to amend; 4 8. Defendants’ Motion to Dismiss (ECF No. 28) Plaintiff's negligence claim (Claim Four) is 5 GRANTED with leave to amend as asserted against both Evans and HSA; and 6 9. Defendants’ Motion to Dismiss (ECF No. 28) Plaintiff’s claim for ITED (Claim Six) is 7 GRANTED with leave to amend as asserted against both Evans and HSA. 8 Plaintiff may file an amended complaint not later than thirty (30) days from the date of 9 | electronic filing of this Order. Defendants’ responsive pleading is due twenty-one (21) days after 10 | the electronic filing date of Plaintiff's amended complaint. 11 IT IS SO ORDERED. 12 | DATED: March 29, 2022 nN /) Of, Sn L Jape 15 Troy L. Nuhlep ] United States District Judge