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denying motion to dismiss based on § 820.8 when liability was premised on defendant supervisor's direct actions
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No. CIV. S-06-1043 LKK/DAD.
August 28, 2006
ORDER
Plaintiffs, Doe-Child, Roe-One Child, Roe-Two Child and their parents, John Doe and Jane Roe, (collectively "plaintiffs"), bring suit against defendants for alleged violations of their civil rights. Defendants include the Regents of the University of California ("UC Regents"), Kevin Patrick Coulter, M.D. ("Coulter"), Sheridan Miyamoto, R.N. ("Miyamoto"), the County of Sacramento, Sacramento County Department of Health and Human Services ("DHHS"), Child Protective Services Agency of Sacramento County ("CPS"), and Sylvia Lopez.
In their complaint, plaintiffs refer to Sheridan Miyamoto as "Myamoto," but based on defendants' papers, it appears that "Mymoto" is the incorrect spelling. The court will utilize the correct spelling of defendant's name in its order.
Plaintiffs plead the following causes of action: (1) 42 U.S.C. § 1983 (violations of civil rights); (2) 42 U.S.C. § 1985(conspiracy to interfere with civil rights); (3) 42 U.S.C. § 1986(neglect to prevent interference with civil rights); (4) assault and battery; and (5) invasion of privacy. FAC at ¶ 26-65. Pending before the court are motions to dismiss and to strike filed by defendants UC Regents, Coulter, and Miyamoto.
Plaintiffs pray for the following relief: $965,000 in compensatory damages, $5,000,000 in punitive damages, injunctive and declaratory relief, and attorneys' fees. Prayer for Relief at ¶¶ 1-8; id. ¶ 67.
I. ALLEGATIONS OF THE COMPLAINT AS AMENDED
On May 11, 2004, defendant CPS removed plaintiffs Roe-One Child, Roe-Two Child and Doe Child from their home and placed them into protective custody. The removal took place after a school teacher contacted CPS when she observed bruising on Roe-One Child and Roe-Two Child. First Amended Complaint ("FAC") at ¶ 15. Because Doe Child lived at the same home as Roe-One Child and Roe-Two Child, he was also taken into custody. Id. Plaintiffs maintain that as part of CPS' regular procedure for taking possible victims of abuse into protective custody, CPS workers transported the children to CAARE Diagnostic and Treatment Center ("CAARE") at the University of California, Davis Medical Center in Sacramento. FAC ¶ 16. There, plaintiffs allege that defendant Miyamoto, under the supervision and control of defendant Coulter, conducted invasive genital examinations of Roe-One Child and Roe-Two Child "without probable cause to do so." Id. According to plaintiffs, there was no evidence to suggest that Roe-One or Roe-Two had ever been subject to any kind of sexual abuse. Also, the minors consistently denied that anyone had ever touched their genitals or abused them sexually. Id. Plaintiffs allege that as a result of the examinations, Roe-One and Roe-Two each suffered embarrassment, physical discomfort that lasted several days, and severe emotional distress. Id. at ¶ 17.
CAARE is a subsidiary of defendant US Regents. FAC at ¶.
As a consequence of CPS' investigation, a juvenile dependency hearing was instituted. FAC at ¶ 18. Miyamoto testified that it was her custom and practice to subject every minor child referred to her by CPS to strip searches and genital examinations, regardless of whether there was probable cause to believe sexual abuse had occurred. Id. On October 26, 2004, after a month-long trial involving multiple medical experts, a Sacramento County Court dismissed the petition that had been brought by defendants pursuant to California Welfare and Institutions Code § 300, finding that there was no evidence that the minors had been subjected to any kind of sexual or physical abuse. Id. at ¶ 19.
As a result of the removal of the children for almost six months, plaintiffs complain of emotional distress as well as loss of companionship and emotional support. FAC at ¶¶ 20-21. Plaintiffs also claim there are other minor children and parents who have been harmed by defendants, and that a class action law suit might be appropriate. Id. ¶ 13.
II. STANDARDS
A. DISMISSAL STANDARDS UNDER FED. R. CIV. P. 12(b)(1)
It is well-established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge.
If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See 2A J. Moore, J. Lucas G. Grotheer, Moore's Federal Practice, ¶ 12.07 (2d ed. 1987); see also Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir. 1982); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981), cert. denied, 454 U.S. 897 (1981); Mortensen v. First Fed. Sav. Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977). A complaint will be dismissed for lack of subject matter jurisdiction (1) if the case does not "arise under" any federal law or the United States Constitution, (2) if there is no case or controversy within the meaning of that constitutional term, or (3) if the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962).
The Eleventh Amendment is a limitation on a federal court's subject matter jurisdiction in the sense that it limits the federal court's power to hear cases when properly asserted and as such can be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 678 (1974). But unlike other jurisdictional bars it need not be addressed by the court sua sponte and can be waived or forfeited by the state. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516 n. 19 (1982).
Accordingly, the Eleventh Amendment has been found "not [to] implicate a federal court's subject matter jurisdiction in any ordinary sense" and is generally treated as an affirmative defense. ITSI T.V. Productions v. Agricultural Associations, 3 F.3d 1289, 1291 (9th Cir. 1993). As with other affirmative defenses, the burden is on the party asserting it and receiving its benefits — in the Eleventh Amendment context, the public entity — to demonstrate its entitlement to sovereign immunity in federal court. Id. at 1292.
B. DISMISSAL STANDARDS UNDER FED. R. CIV. P. 12(b)(6)
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648 (1963) (inferring fact from allegations of complaint).
In general, the complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In spite of the deference the court is bound to pay to the plaintiff's allegations, however, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
C. MOTION TO STRIKE STANDARD UNDER FED. R. CIV. P. 12(F)
Rule 12(f) authorizes the court to order stricken from any pleading "any redundant, immaterial, impertinent, or scandalous matter." A party may bring on a motion to strike within 20 days after the filing of the pleading under attack. The court, however, may make appropriate orders to strike under the rule at any time on its own initiative. Thus, the court may consider and grant an untimely motion to strike where it seems proper to do so. See 5A Wright and Miller, Federal Practice and Procedure: Civil 2d § 1380.
Motions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties. See 5A C. Wright A. Miller, Federal Practice and Procedure: Civil 2d § 1380; See also Hanna v. Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985). If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits. See 5A Wright Miller, supra, at § 1380.
III. ANALYSIS
Defendants maintain that the suit should be dismissed as to the UC Regents, Coulter, and Miyamoto. Below, I explain why dismissal must be granted as to the UC Regents, denied as to Coulter, and granted in part as to Miyamoto.
A. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (UC REGENTS)
Defendants contend that the complaint must be dismissed as to the UC Regents because as an "arm" of the state of California, the Eleventh Amendment of the U.S. Constitution prohibits it from being sued in federal court. Mot. at 4-5. Defendants' argument is well-taken, and plaintiffs concede that the UC Regents are immune from suit under the Eleventh Amendment. Opp'n at 6.
The Ninth Circuit has made clear that "[t]he University of California and the Board of Regents are considered to be instrumentalities of the state," and therefore, enjoy the same immunity as the state of California. See Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982) See also Thompson v. City of Los Angeles, 885 F.2d 1439, 1442 (9th Cir. 1989) (UC Regents are "a state instrumentality for Eleventh Amendment purposes" and cannot be sued under § 1983). There are two circumstances under which the Eleventh Amendment does not bar an action for damages against a State, but neither apply in the instant case.
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. The Eleventh Amendment prevents a state from being sued in federal court by its own citizens or the citizens of another state. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984);Edelman v. Jordan, 415 U.S. 651, 662-663 (1974). "[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945)).
Accordingly, because the UC Regents are immune from suit under the Eleventh Amendment, defendants' motion to dismiss for lack of subject matter jurisdiction must be GRANTED.
Defendants additionally contend that claims one, two and three, alleging violations of 42 U.S.C. §§ 1983, 1985 and 1986, can not be asserted against the UC Regents because the Regents are not a "person" for the purposes of the Civil Rights Act. Mot. at 4-5. Defendants also maintain that claims four and five, alleging assault, battery, and invasion of privacy, should be dismissed against the UC Regents because under California Government Code § 815.2(b), a public entity is not liable for injuries resulting from an immune employee's conduct. Mot. at 10-11. Because this court lacks subject matter jurisdiction as to the UC Regents, the court need not address these contentions.
B. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (COULTER AND MIYAMOTO)
Defendants contend that the complaint should be dismissed for failure to state a claim as to Coulter and Miyamoto. I address the parties' contentions below.
The court notes that plaintiffs' § 1983, 1985, and 1986 claims against Coulter and Miyamoto would founder on the "causation" requirement if plaintiffs merely alleged that defendants were liable for damages resulting from the actual removal of plaintiffs. Liability under section 1983 requires defendants' actions be the proximate cause, not merely the cause-in-fact, of the deprivation. Arnold v. Intern. Business Machines, 637 F.2d 1350, 1355 (9th Cir. 1981). The Ninth Circuit has also explained that merely supplying authorities with a report of criminal activity does not "proximately cause" the resulting arrest, reasoning that the intervening governmental investigation or decision to prosecute is a superceding cause."Id. at 1356-58. However, because plaintiffs also allege that defendants Coulter and Miyamoto were liable for the "invasive genital examinations," and that these examinations constituted civil rights violations, the court need not reach this issue.
a. Defendant Coulter
Defendants contend that the federal and state claims alleged against Coulter should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). I cannot agree.
Defendants argue that the federal and state claims asserted against Coulter are premised on the theory of respondeat superior, and since a supervisor cannot be liable for an employee's acts under a respondeat superior theory under either state or federal law, the complaint must be dismissed for failure to state a claim. Mot. at 5-6. Defendants additionally argue that the state law claims should be dismissed against Coulter because as a "public employee," he is not liable for an injury caused by another person under California Government Code § 820.8. Id. at 9-10. Defendants' arguments are unavailing.
California Government Code § 820.8 states:
Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.
Under state and federal law, supervisors may be liable if they are sufficiently involved in the constitutional deprivation. The Ninth Circuit has instructed that, as to § 1983 claims, a supervisor may be liable if there is "personal involvement in the constitutional deprivation" or if there is a "sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (internal quotations and citation omitted). As for the state law claims, although California Government Code § 820.8 precludes supervisors from being liable for the acts of their subordinates, see Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1975), a supervisor can still be liable for injuries "proximately caused by his own negligent or wrongful act or omission." See also Michel v. Smith, 188 Cal. 199, 201 (1922) (public employee liable for acts of others if "he has directed such acts to be done or has personally co-operated therein").
Here, plaintiffs have properly pled a claim against Coulter where they allege that "defendant Miyamoto was under the supervision and control of defendant James Patrick Coulter, M.D, who approved and ratified her misconduct." FAC at ¶ 18. Plaintiffs also aver that "employees of the defendant UC Regents" — including Coulter — "subjected plaintiffs Roe-One and Roe-Two to invasive genital examinations." FAC at ¶ 14. Plaintiffs allege that Coulter is liable for his own actions — specifically, that he "approved and ratified" Miyamoto's conduct. The court also reads the complaint as alleging a "custom and practice" on the part defendants of subjecting minor children to "strip searches and invasive genital examinations . . . regardless of whether or not there was probable cause." FAC at ¶ 18. Because supervisors may be liable in their individual capacity for their "own culpable action or inaction in the training, supervision, or control of [his] subordinates, for [his] acquiescence in the constitutional deprivations," Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005) (citation omitted), the claims against Coulter must be sustained.
Construing the facts in the complaint favorably to the plaintiffs, as this court must, it is reasonable to infer that Coulter's liability is based on more than the fact that he was Miyamoto's supervisor. Rather, because plaintiffs' allegations give rise to inferences that Coulter was liable for the training, supervision, or control of Miyamoto, and because plaintiffs have alleged a custom of "invasive examinations" which Coulter was likely aware of, defendants' motion to dismiss as to Coulter must be DENIED.
b. Defendant Miyamoto
Defendants contend that plaintiffs' federal and state causes of action against Miyamoto must be dismissed because she is immune under state law. Below, I explain why the federal claims must be sustained, but why Miyamoto is immune from the state law claims.
i. Federal Law Claims
Defendants assert the federal claims against Miyamoto should be dismissed as a result of California state law immunities — specifically under California Penal Code § 11172 and California Government Code § 820.4. Mot. at 6-9. Defendants concede that "state statutory immunities generally cannot protect a defendant against a federal civil rights claim," but nevertheless urge this court to adopt the reasoning set forth in Thomas v. Chadwick, 224 Cal.App.3d 813 (1990). Mot. at 8. This court declines to do so for the reasons stated below.
First, the Ninth Circuit has reversed a district court that "applied statutory immunities for child abuse investigations to the federal constitutional claims and concluded that the City is immune from a § 1983 action under a state immunity statute."Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 1999) (citingMartinez v. California, 444 U.S. 277, 284, n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law.") and Good v. Dauphin County Social Serv., 891 F.2d 1087, 1090-91 (3d Cir. 1989) (state laws providing immunity from suit for child abuse investigators have no application to suits under § 1983)). In reversing the trial court, the Ninth Circuit explicitly stated that "[i]mmunity under § 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations." Wallis, 202 F.3d at 1144. Although it is unclear from the court's opinion in Wallis which state statutory immunities were at issue in the child abuse investigations, this court is bound by the Ninth Circuit, and in the face of such explicit admonition, this court cannot dismiss the federal claims against Miyamoto based on state law.
While this court is mindful of the California appellate court's reasoning in Chadwick, until Congress explicitly states that a state statute may provide immunity for § 1983 claims, the court declines to follow Chadwick because it contravenes Ninth Circuit authority. See Wallis, 202 F.3d at 1144; see also Kimes v. Stone, 84 F.3d 1121, 1127 (9th Cir. 1996) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law."). Furthermore, allowing a state immunity statute to bar claims under federal laws would violate the Supremacy Clause, which prevents a state from immunizing entities or individuals alleged to have violated federal law. Were it otherwise, "a state legislature would be able to frustrate the objectives of a federal statute." Wade v. City of Pittsburg, 765 F.2d 405, 407-408 (3d Cir. 1985) (citations omitted).
Thus, even assuming that its terms are applicable to the instant case, neither California Codes cited by defendants can immunize Coulter from liability resulting from a violation of federal law. Accordingly, defendants' motion to dismiss the federal claims against Miyamoto must be DENIED.
ii. State Law Claims
Defendants argue that California's mandated reporting scheme provides absolute immunity for Miyamoto. Mot. at 6-8. Defendants' argument finds support in the relevant statutes and authorities.
Under California Penal Code § 11166(a), a mandated reporter is required to make a report to child protective agency:
whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect
Failure to make a report is a misdemeanor. Cal. Pen. Code § 11166(c). Miyamoto, as a registered nurse, is a mandated reporter under California Penal Code § 11165.7(a)(21). Penal Code § 11172(a) provides absolute immunity for mandated reporters and provides that:
Under Penal Code § 11165.7, physicians, licensed nurses and other specified health care workers are "mandated reporters" with a duty to report reasonable suspicions of child abuse or neglect, but only when discovered in the context of their "professional capacity or within the scope of [their] employment."
No mandated reporter shall be civilly or criminally liable for any report required or authorized by this article, and this immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment.
The privilege "encompasses not only the actual act of reporting, but also `conduct giving rise to the obligation to report, such as the collection of data, or the observation, examination, or treatment of the suspected victim or perpetrator of child abuse, performed in a professional capacity or within the scope of employment. . . .'" McMartin v. Children's Institute International, 212 Cal.App.3d 1393, 1401 (1989) (quotingKrikorian v. Barry, 196 Cal.App.3d 1211, 1223 (1987)).
As alleged in the complaint, Miyamoto's actions fall squarely within the conduct protected by the privilege. Although plaintiffs allege that the initial report of child abuse was made by the children's teacher, prompting CPS to place the minors into protective custody, FAC at ¶ 15, Miyamoto's actions, in conducting the examination, were also part of the reporting function and directly led to the dependency proceedings. Id. at ¶¶ 16, 18. The California courts have interpreted § 11172 broadly to cover professionals who were hired to determine whether, in fact, children had been sexually abused. See Ferraro v. Chadwick, 221 Cal.App.3d 86, 92 (1990) (immunity for "activity after the report of suspected child abuse"); McMartin, 212 Cal.App.3d at 1398-1399 (immunity for institute retained "to interview, examine, interrogate and evaluate the alleged victims of child abuse" for criminal prosecution). In Krikorian v. Barry, 196 Cal.App.3d 1211, 1223 (Cal.App. 2.Dist. 1987), the court explained that "[i]t strains credulity to suggest that the [California] Legislature intended that immunity be granted for the act of reporting but not for the rendering of professional services resulting in the identification of a suspected case of child abuse. Where, as here, Miyamoto "rendered professional services resulting in the identification . . . of child abuse," she is immune from suit under § 11172.
Plaintiffs argue that Miyamoto should not be entitled to immunity under Calabreta v. Floyd, 189 F.3d 808 (9th Cir. 1999). There, the Ninth Circuit affirmed this court's holding that a social worker was not entitled to qualified immunity for quasi-prosecutorial discretionary functions where, accompanied by a police officer, she entered the home of plaintiffs without their consent. That case, however, is inapposite. In the instant case, Miyamoto is not performing any discretionary quasi-prosecutorial function. Rather, she physically examined the minors pursuant to a CPS request.
Plaintiffs additionally contend that "no knowledge or reasonable suspicion existed for believing the children had been subjected to sexual abuse," and therefore, Miyamoto is not entitled to immunity. Opp'n at 13. California courts, however, have "soundly rejected the argument that immunity does not attach unless `reasonable suspicion' existed." See Stecks v. Young, 38 Cal.App.4th 365, 373 (1996). It is also firmly established that the immunity conferred by § 11172 is absolute. See, e.g. Robbins v. Hamburger Home for Girls, 32 Cal.App.4th 671, 679 (1995); James W. v. Superior Court, 17 Cal.App.4th 246, 254;Ferraro, 221 Cal.App.3d at 91; see also McMartin, 212 Cal.App.3d at 1400 (§ 11172 immunity covers false reports made "with the intent to vex, annoy, or harass an innocent party"). Whether or not Miyamoto had reasonable suspicion to believe there was child abuse, therefore, does not preclude her immunity from suit under § 11172. For the reasons set forth above, defendants' motion to dismiss the state law claims against Miyamoto must be GRANTED.
Since the court concludes that Miyamoto is immune under California Penal Code § 11172, there is no need to address defendant's argument that she is immune under California Government Code § 820.4.
C. MOTION TO STRIKE
Defendants move to strike various portions of the complaint. The court addresses defendants' arguments below.
a. Injunctive Relief
Defendants urge this court to strike plaintiffs' request for injunctive relief, claiming that plaintiffs have not alleged sufficient facts which require injunctive relief. Mot. at 12;see FAC at ¶¶ 30, 38, 46, 55, 63. I cannot agree. First, "[t]he district court has considerable discretion to fashion appropriate injunctive relief, particularly where the public interest is involved." See United States v. Akers, 785 F.2d 814, 823 (9th Cir. 1986); see also Fed.R.Civ.P. 54(c) ("[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings."). Secondly,"[i]njunctive relief is appropriate in cases involving challenges to government policies resulting in a pattern of constitutional violations."Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998).
Plaintiffs' allegations are sufficient for this court to conclude that their prayer for injunctive relief is appropriate, especially where Miyamoto allegedly testified that she routinely conducted genital examinations of every child referred to her by CPS, regardless of whether she had probable cause to believe sexual abuse occurred. FAC at ¶ 18. If this court finds that defendants' actions are unconstitutional, plaintiffs will have challenged "government policies" which result "in a pattern of constitutional violations," and an injunction would be appropriate to prevent further constitutional violations. Walters, supra. The motion to strike these allegations must be DENIED.
On August 11, 2006, after oral argument, defendants' counsel sent an ex parte letter to this court regarding their motion to strike plaintiffs' allegations "requesting injunctive relief against future repetition of defendants' actions." The court shall file this letter on the docket accordingly. In that letter, defendants contend that Miyamoto's actions were done "in strict adherence to and, under the circumstances, mandated by a protocol issued by the State of California Governor's Office of Emergency Services . . ." Defendants attach with their letter a document which purportedly sets forth this protocol entitled, "California Medical Protocol for Examination of Child Physical Abuse and Neglect Victims." Defendants argue that "plaintiffs' apparently viable claim for injunctive relief" would "conflict with the continued future operation of the state's child abuse detection." Defendants request that the state be provided notice of these proceedings so that they may determine whether or not they wish to act to protect their interests in these proceedings. The defendants are referred to Local Rule 24-132 for the proper procedure to follow.
b. Declaratory Relief
Defendants further contend that plaintiffs have made no allegations regarding the existence of an "actual controversy" for which the court can declare the rights of the parties, and that, therefore, the request for declaratory relief should be stricken. Mot. at 12-13; see 28 U.S.C. § 2201(a); Prayer for Relief at ¶ 5. Defendants' argument is unavailing. The complaint does allege that an "actual controversy" exists since it states that defendants were aware of Miyamoto's allegedly unconstitutional actions, and approved and ratified such actions. Indeed, this court may provide appropriate relief by declaring defendants' actions unconstitutional, and may enjoin them from such actions. Or, this court may declare that defendants' actions were not violative of the Constitution. In any event, it is clear the complaint sufficiently alleges facts which suggest that declaratory relief may be appropriate. Therefore, defendants' motion to strike plaintiffs' prayer for declaratory judgment is DENIED.
c. Class Certification
Defendants moves to strike plaintiffs' allegation that a class action lawsuit might be appropriate. Mot. at 13; FAC at ¶ 13. Although plaintiff has not formally moved for class certification by filing a motion, defendants claim that plaintiff's allegations are insufficient to meet the numerosity requirement of Rule 23(a)(1) of the Federal Rules of Civil Procedure. Mot. at 13-14.
Generally, defendants can attack the merits of a proposed class's claim in a motion to dismiss even before the plaintiff moves for class certification. 10 Judge William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial, § 770, at 10-115 (The Rutter Group 2005). If defendants choose to attack a proposed class' ability to meet the prerequisites of Fed.R.Civ.P. 23(a) or (b), however, defendants should do so by opposing the plaintiff's motion for class certification. Id. ¶ 10:771, at 10-115. Defendants' arguments relate to the class' ability to satisfy the prerequisites of Rule 23(a) and is not proper in a motion to dismiss and should be made in an opposition to plaintiffs' motion for certification. Id. See, e.g. Briggs v. Aldi, Inc., 218 F.Supp.2d 1260, 1265 (D.Kan. 2002) (the appropriate time to address whether a plaintiff has met the requirements necessary to maintain a class action is after the plaintiff has filed a motion for class certification). In the absence of any authority from defendants suggesting that the court should consider the merits of certification issues at the 12(b)(6) dismissal stage, the court declines to do so. The motion to strike is DENIED.
d. Attorney's Fees
Plaintiffs request compensatory damages for attorney's fees "incurred as a consequence of defendants' illegal acts prior to the filing of this lawsuit." FAC at 11. It appears plaintiffs are requesting fees as a result of litigating the juvenile dependency hearing allegedly instituted as a result of defendants actions. FAC at ¶ 18. Defendants move to strike this prayer for relief on two grounds. First, defendants contend that plaintiffs cannot prove Miyamoto lacked probable cause in examining the children. Mot. To Dismiss at 14; see Engel v. CBS, Inc., 981 F.2d 1076, 1079 (9th Cir. 1992). Second, defendants argue that based on the state law immunities discussed above, they are not liable as a matter of law. Id. at 14-15.
Defendants' arguments miss the mark. Whether Miyamoto lacked probable cause to examine plaintiffs are questions of fact to be determined at trial. Secondly, as discussed above, the state law immunities discussed above bar the state law claims, but are not dispositive as to the federal claims. In sum, if at trial defendants are liable for violating plaintiffs' civil rights, plaintiffs would be entitled to recover for damages that resulted from the unconstitutional actions, including the costs of litigating the state dependency hearing. The motion to strike plaintiffs' request for "compensatory damages. . . . for plaintiffs' legal fees and costs incurred as a consequence of defendants' illegal acts prior to filing this lawsuit" must be DENIED.
Defendants move in the alternative for an order requiring plaintiff to provide a more definite statement pursuant to Fed.R.Civ.P. 12(e) with regard to the request for injunctive and declaratory relief, class certification, and attorneys' fees.See Mot. at 12-15. The allegations in the complaint, however, satisfy Rule 8's requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief" and adequately gives defendants notice of plaintiffs' requested relief. The motion for a more definite statement is accordingly DENIED.
e. Punitive Damages
Defendants request that various portions of plaintiffs' complaint requesting punitive damages from defendant UC Regents be stricken. FAC at ¶¶ 29, 37, 45, 54, 62; Prayer for Relief at ¶ 3. Since this court has ruled that it lacks subject matter jurisdiction over the UC Regents, and because the UC Regents will be dismissed from suit, the court need not strike any allegations relating to damages, including punitive damages, due to actions on the part of the UC Regents.
6. Prayer For Relief
Defendant finally contends that ¶ 3 of the Prayer of Relief should be stricken. There, plaintiffs seek punitive damages against all defendants "because of the violation of important public policies protecting persons from housing discrimination because of disability or source of income". Plaintiffs admit that this was a typographical error, as a template from a previous case had been used to generate the complaint in this case. Opp'n at 16. Plaintiffs' request to amend their complaint to change the sentence to instead read "and/or because of important public policies protecting persons from the violation of their civil rights" is GRANTED.
IV. CONCLUSION
Defendants' motions are GRANTED in part, and DENIED in part as follows:
1. The motion to dismiss for lack of subject matter jurisdiction as to defendant UC Regents is GRANTED.
2. The motion to dismiss counts four and five as to Miyamoto is GRANTED.
3. All other motions are DENIED.
Defendants also request in the alternative that the court order plaintiffs, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, to present a more definite statement as to the basis of Coulter's liability. Mot. To Dismiss at 6. A Rule 12(e) motion should only be granted when a pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." CMAX, Inc. v. Hall, 290 F.2d 736, 738 (9th Cir. 1961). The motion attacks unintelligibility, not a lack of detail. Feezor v. Bel Air Mart, 2004 WL 3619126, *1 (E.D. Cal. 2004) (Karlton, J.) (citing Resolution Trust Corp. v. Dean, 854 F.Supp 626, 649 (D. Ariz. 1994)). Because, as explained above, plaintiffs' complaint satisfies Rule 8's requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief" and puts Coulter on notice of what his alleged basis of liability is, the motion for a more definite statement must be DENIED.
IT IS SO ORDERED.