Opinion
No. 2:14-cv-2402-KJM-KJN
03-21-2016
RACHEL AKEY, et al., Plaintiffs, v. PLACER COUNTY, et al., Defendants.
ORDER
This matter is before the court on defendants' motion to dismiss plaintiffs' second amended complaint. Defs.' Mot. to Dismiss ("Mot."), ECF No. 30-1. The matter was submitted without oral argument. ECF No. 34. Having reviewed the allegations of the second amended complaint and the parties' briefing, the court grants the motion with leave to amend.
I. ANALYSIS
A. Intentional Infliction of Emotional Distress (IIED) (Claims 27-28)
In the order dismissing plaintiffs' first amended complaint, the court allowed for an amended complaint showing defendants' conduct was specifically directed at plaintiff Linda Clayton or that defendants conducted themselves with an awareness of her presence. Order at 11, ECF No. 26 (citing Ess v. Eskaton Properties, Inc., 97 Cal. App. 4th 120, 130 (2002)).
In response, plaintiffs filed the second amended complaint, alleging at the time of defendant Gloria Sutton's call to co-plaintiff Rachel Akey, Ms. Clayton "was physically present with Akey and witnessed Sutton[] telling Akey [] she had lost custody of her son." Compl. ¶ 257, ECF No. 29. Plaintiffs also allege Ms. Sutton observed Ms. Clayton was extremely hurt and upset by the allegations against her daughter. Id. Plaintiffs allege the same facts with regard to defendant Scott Myers. See id. ¶ 263. Further, Plaintiffs allege Ms. Clayton directly witnessed Ms. Sutton's and Mr. Myers' intentional effort to coerce Ms. Akey's consent to the removal and assigning sole custody of N.D. to Cameron Dupree, N.D.'s father, by threatening "to take all of Ms. Akey's children away." Id. ¶¶ 257, 263. Ms. Clayton personally observed the "shock, hurt, confusion, and humiliation of her daughter in those moments," and that defendants were fully aware Ms. Clayton was listening on the phone for the entire duration of the call. Id. Plaintiffs further allege Ms. Sutton and Mr. Myers manipulated the situation, considering the emotional distress of Ms. Clayton, to pressure Ms. Akey into relinquishing her custody over N.D. Id.
Notwithstanding these details, plaintiffs do not sufficiently allege how Ms. Sutton or Mr. Myers became "fully aware Clayton was listening on the phone for the entire duration of the call." See Compl. ¶ 271. Plaintiffs' mere juxtaposition of the allegation that Ms. Clayton saw her daughter's hurt and confusion, with the allegation that defendants were fully aware Ms. Clayton was listening to the telephone conversation, does not show how defendants became aware of the presence of anyone other than the person to whom the call was directed, Rachel Akey. Plaintiffs allegations are conclusory, amounting to no more than "unadorned accusations" from which the court cannot draw reasonable inferences regarding Ms. Sutton's or Mr. Myers' conduct or level of awareness. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("[C]onclusory or formulaic recitations of elements do not alone suffice."). Plaintiffs' claims are dismissed with leave to amend once more, in compliance with this order and subject to Federal Rule of Civil Procedure 11.
B. Negligent Infliction of Emotional Distress (NIED) (Claims 29-30)
As with the IIED claims, this court allowed plaintiffs to amend their complaint to support the "requisite level of seriousness for an NIED claim." Order at 12. In response, plaintiffs' second amended complaint alleges many of the same facts pleaded in support of their IIED claims.
Plaintiffs have not sufficiently alleged the requisite level of seriousness for an NIED claim. Plaintiffs' allegations continue to be more akin to those in Garcia ex rel. v. Cnty. of Sacramento, No. 11-3317, 2012 WL 1605056 (E.D. Cal. May 7, 2012), than to Haddox v. City of Fresno, No 107-00241, 2008 WL 53244 (E.D. Cal. Jan. 2, 2008), abrogated on other grounds by Sanchez v. City of Fresno, 914 F. Supp. 2d 1079 (E.D. Cal. 2012). See Order at 12-13. For example, the second amended complaint alleges no threat of physical injury to either plaintiff Clayton or to plaintiff Akey. Although physical injury to a bystander is not a prerequisite to recovering damages for serious emotional distress, Burgess v. Superior Court, 2 Cal. 4th 1064, 1079 (1992), California courts have been skeptical of bystander claims where the bystander did not at least witness a physical injury. Order at 12 (citing Garcia ex rel. v. Cnty. of Sacramento, No. S-11-3317, 2012 WL 1605056, at *6 (E.D. Cal. May 7, 2012)).
Here, plaintiffs allege little more than experiencing emotional hurt upon seeing Ms. Akey in anguish and shock. Without any citation to authority, plaintiffs argue in conclusory terms that their pleading shows the requisite level of seriousness. See Opp'n at 3, ECF No. 32. Plaintiffs also argue "new factual allegations" show defendants knew Clayton was on the phone and was extremely upset by the accusations and the threat to remove all of Akey's children. See Opp'n at 4. To the extent these new facts fall outside the complaint, the court does not consider them as they are not subject to judicial notice or subject to incorporation by reference. See Don King Prods. Kingvision v. Lovato, 911 F. Supp. 419, 421 (N.D. Cal. 1995) ("Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the Court may not consider material outside of the complaint."). Setting aside the purported new facts, the case law does not support plaintiffs' position. See Garcia, 2012 WL 1605056, at *2; see also Lawson v. Mgmt. Activities, 69 Cal. App. 4th 652, 655 (1999) (a bystander NIED claim may be maintained where "the plaintiff suffered emotional distress upon seeing someone else physically hurt."). Given the potential, however, that plaintiffs' "new facts" could support amendment, plaintiffs' NIED claim is dismissed with leave to amend.
C. Respondeat Superior (Claim 31)
Defendants also contend plaintiffs' respondeat superior claim against Placer County must be dismissed because employees Myers and Sutton cannot be held liable for the infliction of IIED and NIED. Because the court is dismissing plaintiffs' IIED and NIED claims with leave to amend, it does not reach this issue at this time.
II. CONCLUSION
Defendant's motion to dismiss is granted with leave to amend. A third amended complaint shall be filed within fourteen days of the date this order is filed.
This order resolves ECF No. 30.
IT IS SO ORDERED. DATED: March 21, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE