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Heather Deluz v. the Law Office of Order and Frederick S. Cohen

February 16, 2011

HEATHER DELUZ, PLAINTIFF,
v.
THE LAW OFFICE OF ORDER AND FREDERICK S. COHEN, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

On August 6, 2010, this case came before the court for hearing on the motion to dismiss and special motion to strike filed by defendants Stephanie Stilley and Thomas L. Russell, and on the special motion to strike filed by defendants The Law Office of Fredrick*fn1 S. Cohen and Fredrick S. Cohen individually.*fn2 Plaintiff, who is proceeding pro se in this case, appeared on her own behalf. Richard Stone Linkert, Esq. appeared on behalf of defendants Stilley and Russell.

Jason J. Sommer, Esq. appeared on behalf of the Cohen defendants, and defendant Cohen was also present. After the parties' arguments were heard, the motions were taken under submission.

Upon consideration of the briefs on file, the parties' arguments in open court, and the entire record, the undersigned now recommends that defendants' motions to dismiss for failure to state a claim be granted, that plaintiff's complaint be dismissed without leave to amend, and that the district court decline to exercise supplemental jurisdiction over plaintiff's state law claims.

PLAINTIFF'S COMPLAINT

In her "Complaint for Damages," plaintiff asserts that she has brought this action under 42 U.S.C. § 1983 to challenge a deprivation of her rights under the Fourteenth Amendment to the United States Constitution. (Compl. ¶ 1.)

Plaintiff alleges the following factual background: the deprivation of plaintiff's rights occurred in a contested custody proceeding in which plaintiff was accused of parental alienation (Id. ¶¶ 2-3); after the parties to the proceeding were ordered to participate in an evaluation by a Family Court Services mediator, defendant Fredrick S. Cohen was appointed by the Sacramento County Superior Court as counsel for the parties' two minor children (Id. ¶¶ 4-5); defendant Stephanie Stilley was ordered by the court, on the recommendation of defendant Cohen, to supervise visitation between plaintiff and her children (Id. ¶ 6); defendant Thomas Russell is the supervisor of defendant Stilley (Id. ¶ 7); defendant Cohen did not conduct an investigation, review court record, interview the parties with the minor children, or conduct home inspections, but nonetheless recommended that custody be awarded to the children's father despite a history of domestic violence in the relationship between the children's parents, as well as emotional abuse and neglect by the father during visitation (Id. ¶¶ 8-9); defendant Cohen deliberately led the court, court mediators, and plaintiff to believe that he had conducted a thorough investigation, when he had not conducted an in-home investigation and falsified court records which were served on plaintiff's attorneys (Id. ¶¶ 10-11); the court trusted defendant Cohen, as minors' counsel, to have the children's best interests in mind and therefore accepted and followed his recommendation to change custody of the children (Id. ¶ 12); since the change of custody, the minor children have been repeatedly physically and emotionally abused by their father (¶ 13); plaintiff has very little visitation time with the children (Id. ¶14); plaintiff was questioned repeatedly by defendant Stilley each time there was a visitation, and plaintiff therefore "trusted Ms. Stilley to write a favorable report in the best interest of the minor children" regarding the abuse described to plaintiff by the children, but defendant Stilley instead used the information against plaintiff in her report (Id. ¶ 15); plaintiff requested that supervised visitation be moved to a new facility because defendant Stilley is incompetent and plays solitaire on her computer during supervised visits, but defendant Cohen refused to allow a change (Id. ¶ 16); defendant Russell has refused to investigate the incompetence of defendant Stilley (Id. ¶ 17); no one knows the "exact whereabouts" of the minor children (Id. ¶ 18); because of the court-ordered placement of plaintiff's children with their father on the recommendations of the defendants, plaintiff has been deprived of her parental rights and is alienated from her children (Id. ¶ 19). In her statement of jurisdiction, plaintiff further alleges that defendants deprived her of rights guaranteed by the First and Fifth Amendments as well as the Fourteenth Amendment of the U.S. Constitution. (Id. ¶ 20.)

In her first cause of action, brought pursuant to 42 U.S.C. § 1983, plaintiff alleges that defendants conspired with each other and with non-defendants to deprive her of "her rights and obligations of parenthood," citing defendant Cohen's recommendation that her minor children be placed in the custody of their father, despite plaintiff's extensive efforts to demonstrate the father's unsuitability. (Id. ¶¶ 29-51.) Plaintiff alleges four additional causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, and defamation of character. (Id. ¶¶ 52-78.)

Plaintiff seeks general damages for wrongful interference with her parental rights, in an amount to be proven at trial; general damages for fraud and severe emotional distress and mental suffering the amount of $20,000,000.00; general damages for defamation of character in the sum of $25,000,000.00 to be proven at trial; medical and related expenses according to proof; costs of suit; and punitive damages in the amount of $2,500,00.00. (Compl. at 17.)

DEFENDANTS' MOTIONS

Defendants Stilley and Russell move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff has not stated a cognizable claim against the defendants and because they are immune from § 1983 suits for damages pursuant to quasi-judicial immunity. In the alternative, the defendants seek to strike plaintiff's supplemental state law claims pursuant to California's Anti-SLAPP statute.

The Cohen defendants also move to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or to strike pursuant to California Code of Civil Procedure § 425.16 on the grounds that:

(1) plaintiff's claims are subject to the protections of California's Anti-SLAPP statute and plaintiff cannot meet her burden of showing a likelihood of prevailing on her claims;

(2) plaintiff has not and cannot state a cognizable claim against defendant Cohen because his only contact with her arose out of his representation of plaintiff's minor children and he owed no duty to plaintiff; and

(3) the conduct complained of is absolutely privileged under California Civil Code ยง 47 and the ...


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