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Neronde v. Nevada County

June 14, 2010

ALICIA NERONDE, PLAINTIFF,
v.
NEVADA COUNTY ET AL., DEFENDANTS.



ORDER

Defendants' April 26, 2010 motion to dismiss came on for hearing June 3, 2010. Leslie Mitchel appeared for plaintiff. Scott McLeran appeared for defendants. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

Factual Allegations

Plaintiff claims that at all times relevant herein, she was a student volunteer at the Nevada County Animal Control facility under Nevada County's "49er Regional Occupational Program" where she was supervised by defendant Mienar. Plaintiff alleges that on March 10, 2008, defendant Mienar, while at work and during work hours, took plaintiff to a remote area of Nevada County and there made sexual advances toward plaintiff and touched her in intimate parts of her body without her consent. Plaintiff claims that she was a minor at the time of the alleged incident. Plaintiff further claims that defendants Nevada County and the Nevada County Sheriff's Department knew or should have known of defendant Mienar's propensities to act in this manner.

Procedural Background

On April 1, 2010, plaintiff filed a complaint against defendants Nevada County, Nevada County Sheriff's Department, and Sergeant Timothy Mienar for violation of the Civil Rights Act, 42 U.S.C. § 1983, and for sexual harassment under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940 et seq.

On April 23, 2010, this matter was reassigned to the undersigned based on the consent of the parties. On April 26, 2010, defendants filed a motion to dismiss. On May 20, 2010, plaintiff filed an opposition.

Standards

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Discussion

1. Violation of The Civil Rights Act, 42 U.S.C. § 1983

Defendants moves to dismiss plaintiff's first claim on the ground that she fails to allege that the acts complained of were performed pursuant to a custom or policy.

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party ...


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