The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
For reasons discussed below, Defendants' motion to dismiss is granted in part and denied in part, and Plaintiffs' First Amended Complaint is dismissed with leave to amend.
This action was opened and the original complaint was filed on September 4, 2009, with payment of the filing fee. [Docket no. 1.] Although Plaintiff Amy Konstantelos is an attorney and a member of the State Bar of California, the two plaintiffs are proceeding pro se in this action. Defendants filed motions to dismiss the original complaint on September 29, 2009 (docket no. 6), and October 5, 2009 (docket no. 11). However, Defendants withdrew these motions to dismiss, and the parties stipulated to an extension of time for the filing of an amended complaint and responsive pleadings. [Docket no. 12, filed October 8, 2009; docket no. 18, filed November 6, 2009, and docket no. 20, filed December 9, 2009.]
Plaintiffs' First Amended Complaint ("FAC") was filed on December 28, 2009. [Docket no. 22.] Defendants moved to dismiss the FAC in a motion to dismiss ("MTD") filed June 13, 2010. [Docket no. 37.]*fn1
Plaintiffs opposition ("Opp."), captioned "Memorandum in Response," was filed on July 12, 2010. [Docket no. 40.] Defendants filed a reply ("Rep.") on July 26, 2010. [Docket no. 42.] The motion to dismiss has been taken under submission and is ready for decision.
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a claim for relief. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them." Id. "A Rule 12(b)(6) dismissal may be based on either a 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984)(citing 2A Moore's Federal Practice ¶ 12.08).
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has explained the pleading requirements of Rule 8(a)(2) and the requirements for surviving a Rule 12(b)(6) motion to dismiss in Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)("Iqbal"), Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)(per curiam), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ("Twombly"); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).
The pleading standard of Rule 8 does not require "detailed factual allegations." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555); see also Erickson, 551 U.S. at 93; Moss,, 572 F.3d at 968. However, a complaint does not meet the pleading standard if it contains merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
Instead, to comply with the requirements of Rule 8(a)(2) and survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts "merely consistent with" a theory of liability, it falls short of "the line between possibility and plausibility." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
The Supreme Court has set out a two-pronged approach for reviewing possible failure to state a claim. Iqbal, 129 S. Ct. at 1949-50; see also Moss, 572 F.3d at 969-70. First, the reviewing court may identify those statements in a complaint that are actually conclusions, even if presented as factual allegations. Iqbal, 129 S. Ct. at 1949-50. Such conclusory statements (unlike proper factual allegations) are not entitled to a presumption of truth. Id. In this context it is the conclusory nature of the statements (rather than any fanciful or nonsensical nature) "that disentitles them to the presumption of truth." Id. at 1951. Second, the reviewing court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these factual allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 1950; see also Moss, 572 F.3d at 969-70.
If the court finds that a complaint should be dismissed for failure to state a claim, the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)(en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Moss, 572 F.3d at 972.
Plaintiffs' original Complaint named eight defendants: Los Angeles County, its Department of Children and Family Services ("DCFS"), Patricia Ploehn, County Supervisor Michael Antonovich, Norm Hickling, Los Angeles County Sheriff's Department ("LACSD"), County Sheriff Leroy Baca, and William McGowan. [Docket no. 1.] Apparently all eight were named on the summons, and were served. Plaintiffs have entered default against Defendant McGowan, who has not appeared. [Docket nos. 15, 16.] The other seven original defendants have appeared, and have joined in the pending motion to dismiss.
In the FAC, Plaintiffs name twelve defendants: Patricia Ploehn, Edward Flores, Laura Miller, Chychy Ekochah, Jimi Corona, Rick Bryant, Preston Oppenheimer, Norm Hickling, Pam Dawson, Alex Anderson, Sheriff Baca, and William McGowan. [FAC pp. 1-5.] The FAC omitted, and thereby effectively dismissed, four of the original defendants, namely: Los Angeles County, the DCFS, the LACSD, and Supervisor Antonovich. [See Minute Order filed February 2, 2011, docket no. 48.] Four of the defendants newly named in the FAC have not been timely served, have not appeared, and have been ordered stricken, namely: Defendants Flores, Ekochah, Dawson, and Anderson. [See Minute Order filed February 7, 2011, docket no. 49.]
There remain eight defendants, including defaulting Defendant McGowan and seven defendants who have joined in the pending motion to dismiss, namely: Defendants Ploehn, Hickling, Baca, Miller, Corona, Bryant, and Oppenheimer. Plaintiffs have named Defendant Baca in an official capacity only, Defendant McGowan in an individual capacity only, and the other movant Defendants in both official and individual capacities. [FAC pp. 3-5.] Plaintiffs seek monetary damages under 42 U.S.C. § 1983, for violations of federal civil rights, and under California law for state tort claims. [FAC pp. 20 and passim.] Plaintiffs set forth their claims in the form of four "counts."
Plaintiffs Mrs. Amy Konstantelos and Mr. Eric Konstantelos make the following allegations in the FAC. Plaintiffs suffered ongoing harassment from Defendant William McGowan, a convicted felon and probationer, who had been ordered by a court to stay away from the Konstantelos family. [FAC p. 5.] On July 28, 2008, Plaintiffs met with Defendant Norm Hickling, Field Deputy for County Supervisor Antonovich, complained about the harassment by Defendant McGowan, and told Defendant Hickling that they believed Defendant McGowan was being protected by the Sheriff's Department and the Probation Department. [FAC p. 5.] Defendant Hickling assured Plaintiffs that he took their complaints seriously and would investigate the matter. [FAC p. 6.] For some two months, Defendant Hickling repeatedly assured Plaintiffs that their complaints were being investigated. [FAC p. 6.]
Plaintiffs allege that, on July 28, 2008, they returned home to find Defendant McGowan vandalizing their property. [FAC p. 6.] Defendant McGowan revealed that he knew Plaintiffs had been to the Supervisor's office, and had also gone to a Sheriff's office and had talked to the FBI. [FAC p. 6.] Defendant McGowan stated that he was an informant, that the sheriffs would do nothing to stop him, and would not help Plaintiffs in their complaints against him. [FAC p. 7.] Plaintiffs informed Defendant Hickling of this. [FAC p. 7.] Mrs. Konstantelos made a series of complaints to the Sheriff's
Department about Defendant McGowan and the behavior of sheriff's officers on August 7, August 11, and August 12, 2008. [FAC p. 7.] On August 21, 2008, Mrs. Konstantelos filed six tort claims against Los Angeles County regarding actions by county employees in this matter. [FAC p. 8.] Plaintiffs disclosed all of these complaints to Defendant Hickling, who mislead Plaintiffs by urging them to trust the Sheriff's Department and cooperate with its investigation. [FAC p. 8.]
Plaintiffs allege that, on or about August 25, 2008, Defendant Hickling called the DCFS Child Abuse Hotline and maliciously made false allegations of child abuse and neglect against Plaintiffs, stating that Mrs. Konstantelos was mentally ill and that Plaintiffs' children were afraid. [FAC pp. 8-9.] Plaintiffs allege that Defendant Hickling did this in an attempt to shield Los Angeles County from potential liability on Plaintiffs' claims. [FAC pp. 8-9.] After this, Defendant Hickling continued to assure Plaintiffs that they could trust him to help them, but meanwhile he was directing DCFS workers Ed Flores and Defendant Laura Miller to contact sheriff's deputies Defendant Hickling had conspired with and who, without any basis, verified the false ...