O'Shea v. County of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] MARY B. O’SHEA, Case No. 19-cv-1243-BAS-BLM [11] Plaintiff, ORDER GRANTING MOTION 12 TO DISMISS 13 v. [ECF No. 28] 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. [17] 18 Plaintiff Mary B. O’Shea originally brought a Complaint under 42 U.S.C. 19 § 1983 for a violation of the Fourteenth Amendment, interference with familial 20 association, and fabrication of evidence. She also alleged negligent and intentional 21 infliction of emotional distress, and a violation of state civil rights. (“Complaint,” 22 ECF No. 1-2.) The Court granted the County of San Diego’s Motion to dismiss 23 finding that the causes of action were barred by the applicable statutes of limitation. 24 (ECF No. 18). The Court also found Plaintiff failed to sufficiently allege a Monell 25 claim. (Id.) The Court gave Plaintiff leave to amend. 26 Plaintiff has now brought a First Amended and Supplemental Complaint for 27 Damages (“FAC,” ECF No. 19). Plaintiff restates claims under 42 U.S.C. § 1983 1 and for negligent infliction of emotional distress.1 2 The FAC adds six new causes of action for violations of the right of privacy 3 (under both the California and the U.S. Constitution), violations of 42 U.S.C. § 1985 , 4 negligence, breach of a mandatory duty under California Government Code § 815.6, 5 and fraud. The County again moves to dismiss. For the reasons stated below, the 6 Court GRANTS the County’s Motion to Dismiss. Because the Court finds 7 amendment would be futile, Court dismisses with prejudice all claims pertaining to 8 actions of Erica Lee in the Child Welfare Service (“CWS”) investigation. However, 9 the Court will give Plaintiff leave to amend the allegations pertaining to any claims 10 of wiretapping or telephone record tampering. 11 I. ALLEGATIONS IN THE COMPLAINT 12 Once again, Plaintiff alleges that Child Welfare Case worker Erica Lee made 13 false accusations against her in a CWS report on August 23, 2014. (FAC ¶ 3.) In 14 this report, CWS employees “failed to follow established procedures and rules set 15 forth in the California Manual of Policies and Procedures,” eventually leading to an 16 “inconclusive” finding instead of an “unfounded” finding. (Id. ¶ 14.) The FAC omits 17 the allegations from the original Complaint that on October 26, 2014, Plaintiff wrote 18 a letter to the County challenging Ms. Lee’s false accusations. (See Complaint 19 ¶ 12). It also omits that, on October 30, 2014, Plaintiff confronted Ms. Lee regarding 20 her lies. (See id. ¶ 14.) Plaintiff also does not reallege the claims from her original 21 Complaint that, on November 18, 2014, in response to a request filed by Plaintiff, 22 she received a copy of her CWS file and discovered many falsities and misstatements. 23 (See id. ¶ 15.) Instead, she now claims that she obtained a copy of her CWS on 24 August 9, 2019 “in preparation of a family court child support hearing.” (FAC ¶ 24). [25] 26 1 Plaintiff also restates a claim for injunctive relief, but in her Opposition, she recognizes that this 27 cause of action is not appropriate and agrees that it should be dismissed. (“Opp’n,” ECF No. 29, at 2.) Thus, the Court DISMISSES Count Two alleging Injunctive Relief. 1 But Plaintiff does not deny the original claims that she had the information regarding 2 Ms. Lee’s false accusations in 2014. Additionally, according to her new allegations, 3 in January 2015, she contacted CWS for a grievance hearing on the issue of the 4 “inconclusive” finding, but CWS would not allow her an opportunity to change the 5 finding. (Id. ¶ 60.) 6 The FAC adds new claims. Plaintiff now claims that CWS conspired with 7 AT&T to tamper with her telephone records to damage her credibility. (Id. ¶ 16 8 (“They obstructed justice by temporarily denying access and erasing Plaintiff’s 9 records.”).) Plaintiff also alleges that CWS unlawfully wiretapped and eavesdropped 10 on her telephone. (Id. ¶ 22.) Although Plaintiff claims this wiretapping was 11 “revealed when Plaintiff finally received her telephone records on September 12, 12 2018,” (id.), she also claims she filed a lawsuit against AT&T in May 2017 related 13 to the “absence” of her telephone records. (Id. ¶ 63.) 14 Thus, Plaintiff’s FAC brings claims for violations of 42 U.S.C. § 1983 (First 15 Cause of Action), injunctive relief (Second), violation of California’s right of privacy 16 when CWS maintained a false database about her (Third), violation of U.S. 17 Constitutional privacy rights when Defendants illegally accessed her private 18 telephone records (Fourth), Conspiracy with AT&T to violate civil rights pursuant 19 to 42 U.S.C. § 1983 (Fifth), negligence (Sixth), negligent infliction of emotional 20 distress (Seventh), breach of California Government Code § 815.6 when CWS failed 21 to discharge its duty of keeping accurate records (Eighth), and fraud (Ninth). 22 II. ANALYSIS 23 A. Statute of Limitations 24 “A claim may be dismissed under Rule 12(b)(6) on the grounds that it is barred 25 by the applicable statute of limitations only when ‘the running of the statute is 26 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art 27 at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan 1 As discussed in the Court’s previous order dismissing the claim (ECF No. 18), 2 the statute of limitations for § 1983 and § 1985 claims arising in California is two 3 years. Wallace v. Kato, 549 U.S. 384 , 387–88 (2007). Similarly, the statute of 4 limitations for Plaintiff’s causes of action for violation of privacy is also two years. [5] 18 U.S.C. § 2520 (e); Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal. App. 3d 310 , 6 313 (1976). The statute of limitations for negligence and negligent infliction of 7 emotional distress is two years. Cal. Code Civ. Proc. § 335.1. The statute of 8 limitations for violation of Government Code § 815.6 is two years. Cal. Gov’t. Code. 9 § 945.6(a)(2). And, finally, the statute of limitations for Plaintiff’s ninth cause of 10 action for fraud is three years. Cal. Code Civ. Proc. § 338(d). 11 To determine when the statute of limitation begins to run, the court must apply 12 “federal rules conforming in general to common-law tort principles.” Wallace, 549 13 U.S. at 388. “The general common law principle is that a cause of action accrues 14 when ‘the plaintiff knows or has reason to know of the injury.’” Bonneau v. 15 Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) (quoting TwoRivers 16 v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)). 17 1. Allegations that CWS Worker Lee Falsified Records 18 With respect to the allegations that Erica Lee falsified CWS records, Plaintiff 19 still alleges that she contacted CWS in January 2015 to complain about the lies 20 perpetrated by Ms. Lee in the records. (FAC ¶ 60). Thus, at least as of January 2015, 21 she knew or had reason to know of the injury. Yet, she did not file a Complaint until 22 May 2019, well outside any statute of limitations applicable to this case. Therefore, 23 to the extent Plaintiff alleges causes of action based on Ms. Lee’s falsification of 24 records in 2014, these claims are barred by the statute of limitations unless the 25 limitations period was tolled. 26 In her Opposition, Plaintiff claims that any statute of limitations was equitably 27 tolled. (Opp’n at 5–6.) As the Court outlined in the previous order dismissing this 1 “excusable delay” by the plaintiff in filing and “equitable estoppel” which “focuses 2 primary on actions taken by the defendant to prevent the plaintiff from filing suit.” 3 Lukovsky v. City & Cty. Of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). 4 “[A] litigant is entitled to equitable tolling of the statute of limitations only if 5 the litigant establishes two elements: ‘(1) that he has been pursuing his rights 6 diligently, and (2 that some extraordinary circumstance stood in his way and 7 prevented timely filing.’” Menominee Indian Tribe of Wisc. v. United States, 136 S. 8 Ct. 750, 755 (2016) (quoting Holland v. Florida, 560 U.S. 631 , 649 (2010)); see also 9 Rodriguez v. Williams, 447 F. App’x 850, 851 (9th Cir. 2011) (“Equitable tolling is 10 unavailable in most cases and is appropriate only if extraordinary circumstances 11 beyond [plaintiff’s] control make it impossible to file a [complaint] on time.” 12 (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). “Equitable tolling 13 focuses on the plaintiff’s excusable ignorance of the limitations period and cannot be 14 used to avoid the consequences of plaintiff’s own negligence.” Lehman v. United 15 States, 154 F.3d 1010, 1016 (9th Cir. 1998). 16 To show equitable estoppel under California law, the plaintiff must establish: 17 (1) defendant knew the true facts and engaged in misleading conduct to hide those 18 facts; (2) the misleading conduct was to convince plaintiff to believe that she need 19 not move forward in a timely manner and defendant intended that its misleading 20 conduct be acted on; (3) plaintiff was ignorant of the true state of facts; and (4) 21 plaintiff relied on defendant’s misleading conduct to her detriment. Lukovsky, 535 22 F.3d at 1051–52 (citing Honig v. San Francisco Planning Dept., 127 Cal. App. 4th 23 520, 529 (2005).) 24 Although Plaintiff claims the statute of limitations was equitably tolled, her 25 arguments are more akin to an equitable estoppel argument: “Plaintiff engaged in 26 continuous dialogue with CWS employees throughout October 2016, and into 2017 27 to try to remedy the problem, and [] she was either ignored or misled thereby 1 as she did previously, that she could not file suit until she had gathered the necessary 2 telephone records. (Opp’n at 8.)2 3 As the Court previously ruled, “even if Plaintiff was delayed in obtaining 4 telephone records to prove her case, she fails to allege why this prevented her from 5 filing a Complaint sooner. Nothing prevented her from filing a lawsuit and then 6 obtaining discovery to prove her case.” (ECF No. 18 at 7). Furthermore, “merely 7 engaging in informal negotiations” does not equitably toll the statute of limitations. 8 65 Butterfield v. Chicago Title Ins. Co., 70 Cal. App. 4th 1047, 1063 (1999). 9 Once again, Plaintiff fails to allege facts showing either equitable tolling or 10 equitable estoppel. Because any claims involving false statements by CWS worker 11 Lee in her 2014 report are barred by the statute of limitations, Defendants’ Motion 12 to Dismiss these claims, notably the First, Third, Fifth, Seventh and Eighth Causes 13 of Action, is GRANTED. Additionally, because Plaintiff has been given the 14 opportunity to amend these causes of action to add facts supporting her claim of 15 equitable estoppel or equitable tolling of the statute of limitations and she has failed 16 to do so, the causes of action are dismissed with prejudice. 17 2. Privacy Causes of Action 18 It is difficult to ascertain from the FAC exactly what Plaintiff is alleging 19 Defendants did with respect to her telephone records. As best as the Court can 20 ascertain, Plaintiff bases her new allegations on a “New York Times” article from 21 2013 in which the existence of “The Hemisphere Project,” a service provided by 22 AT&T, was revealed. (FAC ¶¶ 5, 51–55.) This article claimed that the Hemisphere 23 Project provided counter-narcotics programs routine access to AT&T databases. [25] 2 Plaintiff also quotes extensively from law holding that a statute of limitations can be equitably [26] tolled while a plaintiff attempts to ascertain the identity of a defendant. Since there is no question 27 that Plaintiff has known all along the identity of the Defendants in this case, the Court is at a loss to ascertain how the law is applicable to this case. 1 (Id.) According to Plaintiff, The Hemisphere Project “block[ed] her access to her 2 phone records which would have assisted her in proving her innocence during against 3 [sic] child abuse charges.” (FAC ¶ 19.) It is clear the Plaintiff believes The 4 Hemisphere Project somehow accessed and altered her telephone records. What is 5 less clear is what she is alleging the Defendants’ role in this activity was. 6 At various times in the FAC, Plaintiff alleges that CWS: (1) “conspired with 7 AT&T through ‘the Hemisphere Project’ to [sic] the Plaintiff’s phone records”; (2) 8 “tampered” with her phone records; (3) prevented her from accessing her phone 9 records; (4) “participated through the Hemisphere Project in the unlawful 10 wiretapping and eavesdropping of the Plaintiff’s telephone as evidenced by a record 11 of separate phantom lines”; and (5) “collaborated with AT&T through the 12 Hemisphere Project in a massive and warrantless surveillance program that illegally 13 tracks domestic and foreign communications of AT&T customers.” (FAC ¶¶ 15, 16, 14 22, 23.) 15 Although Defendants argue that these claims are also barred by the statute of 16 limitations, the claims are too amorphous for the Court to ascertain when they 17 accrued. Therefore, the Court is unable to reach a conclusion on the applicability of 18 the statute of limitations to these claims. However, as discussed below, they are 19 insufficient to meet the standards of Rule 12(b)(6). 20 B. Insufficient Allegations 21 Defendants also move to dismiss Plaintiff’s allegations involving tampering 22 and preventing her from accessing her telephone records, as well as illegally 23 wiretapping and eavesdropping, arguing the claims are insufficient under Federal 24 Rule of Civil Procedure 12(b)(6). A complaint must plead sufficient factual 25 allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, [26] 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when 27 the plaintiff pleads factual content that allows the court to draw the reasonable 1 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 2 Procedure tests the legal sufficiency of the claims asserted in the complaint. Navarro 3 v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual 4 allegations pleaded in the complaint as true and must construe them and draw all 5 reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty 6 Mut. Ins. Co., 80 F.3d 336 , 337–38 (9th Cir. 1996). To avoid a Rule 12(b)(6) 7 dismissal, a complaint need not contain detailed factual allegations, rather, it must 8 plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 9 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A Rule 12(b)(6) dismissal may be 10 based on either a lack of a cognizable legal theory or the absence of sufficient facts 11 alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, [12] 534 F.3d 1116, 1121 (9th Cir. 2008) (quotation omitted.) 13 It is unclear from the face of the FAC what Plaintiff is alleging CWS did with 14 respect to her telephone records. Although she devotes multiple paragraphs to 15 describing The Hemisphere Project, a service provided by AT&T that she claims 16 helps narcotics law enforcement access telephone records, she fails to allege how 17 CWS is related to or responsible for The Hemisphere Project. Simply stating that 18 CWS conspired with AT&T in The Hemisphere Project is insufficient. Plaintiff fails 19 to allege how CWS tampered with her telephone records, what she claims was 20 missing from them, how they denied her access to the telephone records, or when or 21 how CWS allegedly wiretapped her phone. Therefore, the Court GRANTS the 22 County’s Motion to Dismiss these claims. Although the Court has doubts about 23 Plaintiff’s ability to sufficiently state a claim for the privacy causes of action, the 24 Court grants Plaintiff leave to amend these causes of action. See Fed. R. Civ. P. 15(a) 25 (courts “should freely give leave when justice so requires”). 26 III. CONCLUSION 27 The Court GRANTS the County’s Motion to Dismiss. (ECF No. 28.) Counts 1 ||accusations made by Ms. Lee in a 2014 CWS report, are dismissed with prejudice. 2 ||Counts Four, Five and Nine and any allegations regarding tampering or hiding 3 ||telephone records, along with eavesdropping and wiretapping claims, are dismissed 4 || without prejudice. If Plaintiff wishes to file an amended complaint on the allegations 5 || pertaining to conspiracy to withhold telephone records and illegal wiretapping only, 6 ||she may do so on or before June 26, 2020. If no amended complaint is filed by this 7 || date, the Court will close the case. 8 IT IS SO ORDERED. ? f 10 || DATED: May 28, 2020 (pil Ayphaads I] United States District Judge