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Neronde v. Nevada County

October 21, 2010

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



ORDER

Defendants Nevada County and Nevada County Sheriff's Department's ("the County defendants") August 27, 2010 motion to dismiss came on for hearing October 7, 2010. Anthony Poidmore appeared for plaintiff. Scott McLeran appeared for the County 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 intern at the Nevada County Animal Control facility under Nevada County's "49er Regional Occupational Program" where she was supervised by defendant Sergeant Timothy Mienar. (SAC at 2-3.) Plaintiff alleges that on March 10, 2008, 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. (Id. at 3.) Plaintiff claims that she was a minor at the time of the alleged incident. (Id.)

PROCEDURAL BACKGROUND

On April 1, 2010, plaintiff filed a complaint against the County defendants and 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. The County defendants were served on April 6, 2010.*fn1

On April 23, 2010, this matter was reassigned to the undersigned based on the consent of the parties. On April 26, 2010, the County defendants filed a motion to dismiss. On May 20, 2010, plaintiff filed an opposition. On June 15, 2010, the undersigned granted the County defendants' motion to dismiss and granted plaintiff leave to amend.

On July 15, 2010, plaintiff filed a first amended complaint and a motion to amend, seeking leave to add additional state law claims. On August 3, 2010, the County defendants filed a statement of non-opposition. On August 10, 2010, plaintiff was granted leave to file a second amended complaint. On August 26, 2010, plaintiff filed a second amended complaint. Therein, plaintiff presents the following causes of action: (1) violation of the Civil Rights Act, 42 U.S.C. § 1983 against Mienar; (2) sexual harassment in violation of FEHA, Cal. Gov. Code § 12940 et seq., against all defendants; (3) assault against all defendants; (4) battery against all defendants; (5) sexual battery against all defendants; and (6) intentional infliction of emotional distress against all defendants.

On August 27, 2010, the County defendants filed a motion to dismiss the second amended complaint. On September 23, 2010, plaintiff filed an opposition. A reply was not filed.

STANDARD

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 California Fair Employment and Housing Act, ...


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