Opinion
For Ivan Rubtsov, Ana Tzubery, V. R., a minor, by and through her Guardian Ad Litem, Nick Rubstov, Plaintiffs: Diane Barbara Weissburg, LEAD ATTORNEY, Weissburg Law Firm, Los Angeles, CA.
For Los Angeles County Department of Children and Family Services, Michael Watrobski, Individually, and in his Officially Capacity, Defendants: Clayton C Averbuck, LEAD ATTORNEY, Jennifer E Gysler, Monroy Averbuck & Gysler, Westlake Village, CA.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT
[DKT. NO. 30]
DEAN D. PREGERSON, United States District Judge.
Presently before the Court is Defendants' motion to dismiss Plaintiffs' Second Amended Complaint (" SAC"). Having considered the submissions of the parties, the court grants the motion and adopts the following Order.
I. Background
As described in this court's earlier Orders, Plaintiffs Ivan Rubtsov (" Rubtsov"), Ana Tzubery (" Tzubery"), and Rubtsov's daughter, minor V.R. (" V.R.") (collectively, " Plaintiffs") bring this action against the Los Angeles County Department of Children and Family Services (the " County"), DCFS grievance review officer Michael Watrobski (" Watrobski"), and Doe defendants, alleging violations of law resulting from the inclusion of Plaintiffs' personal information in statewide databases for child abuse allegations.
Rubtsov and his wife, Tzubery, reside with Rubtsov's fourteen year-old daughter, V.R. Rubtsov's ex-wife, Ulyana Rubtsova (" Ulyana"), has custody of Rubtsov's other two children.
Plaintiffs allege that in 2008, Rubtsov made allegations to the County against Ulyana of physical abuse and neglect of their three children. (SAC ¶ 25.) Ulyana made similar allegations against Rubtsov. (Id.) Ultimately, eleven resulting referrals with respect to Rubtsov were closed as unfounded or inconclusive. (Id.) Nevertheless, Plaintiffs allege that Defendant Watrobski and nonparty Ian Rosen, a social worker, changed certain of the dispositions to " conclusive or founded" against Rubtsov. (SAC ¶ 26.)
The SAC alleges that the referrals " as to Plaintiff Rubtsova were closed." Rubtsova, Plaintiff Rubtsov's ex-wife, is not a party to this action. The court presumes this allegation to include a typographical error, and that the SAC refers to Plaintiff Rubtsov, not Rubtsova, as the SAC later alleges that Rubtsova was convicted of misdemeanor false imprisonment. (SAC ¶ 30.)
In 2012, Rubtsov and Tzubery applied to Penny Lane Foster Family Agency (the " Agency") " to be foster parents, possibly adopt, and/or obtain guardianship of children, " and were approved. (SAC P 39.) In May 2013, an infant child was placed in Plaintiffs' home by the Agency. (Id.) However, after three days, the Agency removed the infant from Plaintiffs' home and informed Plaintiffs that their names were listed in at least one, and possible several, databases of potential child abusers. Plaintiffs later confirmed that they were included in the Child Abuse Central Index (" CACI"), Child Welfare System/Case Management System (" CWS/CMS"), and other databases. (SAC ¶ 36.) The Agency told Plaintiffs that, because of their inclusion in the databases, Plaintiffs could not be foster parents, adopt children, or work with children. (SAC ¶ 41.) Someone at the Agency informed Rubtsov that Defendant Watrobski and Rosen substantiated a 2009 referral for severe child abuse or neglect against Rubtsov. (SAC ¶ 31.)
Plaintiffs allege, upon information and belief, that nonparty Rosen created the referral to help Rubtsov's ex-wife, Rubtsova, obtain custody of the couple's children. (SAC ¶ 33.) Following the removal of the infant from Plaintiffs' home, Rubtsov requested information and a hearing regarding Plaintiffs' inclusion in the databases. The hearing request was initially denied. Plaintiffs allege that Rubtsov was told he was not in the CACI database, and therefore was not entitled to a hearing. (SAC ¶ 46.) Later, Defendant Watrobski allegedly told Rubtsov that Rubtsov could have a CACI hearing, but only if Rubtsov waived certain rights, and that the other Plaintiffs would remain in the databases regardless of the outcome of Rubtsov's hearing. (SAC ¶ 47.) Plaintiffs also allege that DCFS Manager Xavier Rosales, a nonparty to this action, told Rubtsov that he was not entitled to information about the 2009 referral and that the County " could take Plaintiffs' children at any time." (SAC ¶ ¶ 46, 48.) Plaintiffs allege that they have not had an opportunity to meaningfully challenge their inclusion in the databases.
Plaintiffs originally asserted causes of action for (1) " 42 U.S.C. § 1983 constitutional violations for unlawful policies, customs, and habits; " (2) civil conspiracy; and (3) intentional infliction of emotional distress (" IIED") against both the County and Watrobski. The court dismissed all causes of action against Watrobski, with leave to amend, but allowed the first cause of action to proceed against the County. Plaintiffs then filed a First Amended Complaint. On Defendants' motion, the court again dismissed all claims against Watrobski, and dismissed all but the first cause of action as to the County. The court again granted Plaintiffs leave to amend.
Plaintiff's SAC, unlike previous iterations of their complaint, alleges six causes of action for: (1) 42 U.S.C. § 1983 violations, " Unlawful Policies, Customs and Habits against Defendant County . . .; " (2) 42 U.S.C. § 1983 violations, " Unlawful Policies, Customs and Habits . . . As Against All Individual Defendants; " (3) Civil Conspiracy against all individual defendants; (4) IIED; (5) California Civil Code § 43 violations; and (6) California Civil Code § 52.1 violations. Defendants once again move to dismiss portions of the SAC.
II. Legal Standard
A complaint will survive a motion to dismiss when it contains " sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When considering a Rule 12(b)(6) motion, a court must " accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include " detailed factual allegations, " it must offer " more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion " are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers " labels and conclusions, " a " formulaic recitation of the elements, " or " naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted).
" When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege " plausible grounds to infer" that their claims rise " above the speculative level." Twombly, 550 U.S. at 555. " Determining whether a complaint states a plausible claim for relief" is a " context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
III. Discussion
A. Section 1983 Claim Against Watrobski Individually
As explained in this court's earlier Order, a claim for unconstitutional custom or policy is a municipal liability claim, which may be asserted against the County only. The court therefore dismissed Plaintiffs' § 1983 claims against Watrobski in his official capacity as redundant of Plaintiffs' claims against the County. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Hartmann v. California Dep't of Corrs. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
In granting Plaintiffs leave to amend, the court noted that Plaintiffs could not assert claims against Watrobski in an individual capacity solely by reference to customs, policies, and acts relevant to Plaintiffs' municipal liability claim, but rather would have to identify which of Watrobski's acts form the basis for a claim against him in an individual capacity. Plaintiffs' SAC, however, does little to rectify the deficiencies that led to dismissal of individual constitutional claims against Watrobski.
First, the SAC once again names Defendant Watrobski in both his individual and official capacities. The Second Cause of Action for civil rights violations is brought against " All Individual Defendants." Because the SAC names no other individual Defendants, Plaintiffs presumably refer to Watrobski. As already explained, a claim against Watrobski individually, in his official capacity, is duplicative of Plaintiffs' First Cause of Action against the County. Furthermore, it is unclear whether Plaintiffs bring this claim against Watrobski in his individual or official capacity, as the Second Cause of Action, though brought against " All Individual Defendants, " is avowedly premised upon " unlawful policies, customs and habits." As explained in this court's earlier Order, policies, customs, and habits are relevant to Plaintiffs' municipal liability claim, and not to their claim against any individuals in individual capacities.
In addition, although the substance of the Second Cause of Action does refer to certain specific acts, rather than policies or customs, it is unclear to whom those allegations pertain. Indeed, although framed as a claim against individuals, the Second Cause of action does not mention any specific person. As Watrobski is the only individual actually named in the SAC, one might assume that the acts described in the Second Cause of Action are all intended to be attributed to him. That, however, does not appear to be the case. Allegations of a threat to remove Plaintiff V.R. from Rubtsov's care, for example, pertains not to Watrobski, but to Rosales, who is not named as a Defendant anywhere in the SAC, let alone named in the Second Cause of Action (SAC ¶ 48.) Given Plaintiffs' continued conflation of municipal liability claims with individual liability claims, and failure to identify with any specificity who did what, the Second Cause of Action must be dismissed.
B. Civil Conspiracy
Like the Second Cause of Action, Plaintiffs' Third Cause of Action for Civil Conspiracy is brought against " All Individual Defendants." The court need not belabor that the SAC identifies but a single individual Defendant, Watrobski. The Civil Conspiracy claim alleged in the SAC is virtually identical to that of the FAC, which the court dismissed for failure to identify any individual with whom Watrobski conspired. The SAC again vaguely and conclusorily states that unnamed " Defendants, " plural, conspired to falsely substantiate allegations of child abuse against Plaintiffs. (SAC ¶ 80.) Although the Third Cause of Action does incorporate certain factual allegations by reference, such incorporation does not aid Plaintiffs. The SAC does not clarify which of the incorporated allegations are relevant to the civil conspiracy claim. The mere fact that other individuals are alleged to have done certain other things, such as Rosales' conversations with the Plaintiffs or Rosen's unspecified actions, is not sufficient, without any explained connection to any of Watrobski's acts, to support the existence of " an agreement or meeting of the minds to violate constitutional rights." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999) (internal quotations and citations omitted). Plaintiffs' contention that discovery will reveal the necessary information (Opp. at 8.) cannot sustain the Third Cause of Action in the absence of specific facts establishing a plausible claim for civil conspiracy. See Ismail v. Shelby Ford, No. SA CV 10-901-VBF, 2014 WL 1681993 at *18 (C.D. Cal. Apr. 29, 2014).
C. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires " (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Davidson v. City of Westminster, 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894 (1982). The conduct " must be so extreme as to exceed all bounds of that usually tolerated in a civilized society." Id.
This court concluded that the allegations of the FAC did not rise to the level of extreme or outrageous conduct necessary to support an IIED claim against either the County or Watrobski. The allegations of the SAC do not differ in any material way. Although Plaintiff's opposition argues that Watrobski " ordered the stealing of a child, " that allegation does not appear anywhere in the SAC. Plaintiffs' IIED claim is, therefore, again dismissed.
Rosales, who is not named as a defendant, is alleged to have stated that the County could take away Rubtsov's children at any time.
D. Remaining Claims
In dismissing claims, or portions thereof, in Plaintiffs' FAC, the court granted Plaintiffs leave to amend those claims. Plaintiffs did not seek, nor did the court grant, leave to amend the complaint to add new claims. Nevertheless, Plaintiffs' SAC does include two new causes of action under the California Civil Code. In any event, however, Plaintiffs have not substantively opposed Defendants' motion to dismiss those claims, beyond arguing, unpersuasively, that the new claims fall within the scope of this court's leave to amend. For those reasons, Plaintiffs' Fifth and Sixth Causes of Action are DISMISSED.
IV. Conclusion
For the reasons stated above, Defendants' Motion to Dismiss is GRANTED. Plaintiffs' claims are dismissed, with the exception of Plaintiffs' First Cause of Action. Plaintiffs are granted leave to amend one final time with respect to their claims against Watrobski in his individual capacity and for civil conspiracy. The IIED claim against Watrobski is dismissed with prejudice. Any amended complaint shall be filed within fourteen days of the date of this Order. Alternatively, Plaintiffs may, if they so choose, proceed with their First Cause of Action alone.
IT IS SO ORDERED.