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Brent Allen Winters, et al v. Delores Jordan

March 11, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is a motion to dismiss plaintiffs' Third Amended Complaint and/or for a more definite statement filed by the following defendants pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(e): Adult Protective Services ("APS"), Jeffrey S. Brown, Tamaran Cook, Kelly Carpenter, Keith Royal, Richard Kimball, Guy Selleck, Joe McCormack, Zsa Zsa Wied, Robert Bringolf, Dominic La Fountain, Theresa Kingsbury, Jeff Martin, Daniel Saunders, Nathan Hutson, Jesse King, Micah Arbaugh, Chris Sharp, Matt Steen, Elaine LaCroix, Alicia Milhous, Clifford Newell, Charles O'Rourke, Jason Jones, and Susan McGuire.*fn1 (See Mot. to Dismiss and/or for More Definite Statement ("Mot. to Dismiss"), Dkt. No. 116.) These proposed findings and recommendations only address the motion to the extent it is brought by defendants APS, Jeffrey S. Brown, Kelly Carpenter, and Tamaran Cook (collectively, the "APS defendants"). As to the remaining moving defendants, the motion will be addressed by a separate order or findings and recommendations.

Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered the parties' briefs and appropriate portions of the record in this case and, for the reasons that follow, recommends that the APS defendants' motion to dismiss be granted in part and denied in part. Specifically, the undersigned recommends that: (1) all of plaintiffs' claims alleged against defendant Jeffrey S. Brown be dismissed with prejudice; and (2) all of plaintiffs' claims alleged against APS, Kelly Carpenter, and Tamaran Cook, except plaintiff Susan Winters's equal protection claim, be dismissed with prejudice.


Plaintiffs' Third Amended Complaint*fn2 is a wide-ranging, 25-page complaint that alleges, in eight-point font, over two-dozen claims for relief against over 60 defendants.*fn3 (Dkt. No. 66.) Several of plaintiffs' claims are alleged against "All Defendants," with no differentiation in regards to the alleged conduct of each defendant that supports each such claim.

In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Order and Findings & Recommendations, Aug. 24, 2009, at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)*fn4

Generally, the claims against the APS defendants arise out of an underlying family dispute between the Winters family and defendant Virginia Armstrong, who is, among other things, the mother of plaintiff Susan Winters and grandmother to other plaintiffs. The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters's elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs permanently returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties, including the residence at 11318 Via Vista in Nevada City, California, from the Armstrong Living Trust dated July 29, 1994, to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son. (Id.)

The relationship between Virginia Armstrong and plaintiffs, which apparently gave rise to allegations of possible elder abuse committed by plaintiffs against Virginia Armstrong, resulted in several proceedings in the Nevada County Superior Court. Relevant here, plaintiffs allege that on October 15, 2007, APS filed a petition for a temporary restraining order in Virginia Armstrong's name and "against her daughter Susan Winters and her son-in-law Brent Winters." (Third Am. Compl. ¶ 22.) Plaintiffs allege that APS was assisted by defendant Delores Jordan, who was "unduly influencing" Virginia Armstrong. (Id.) Susan Winters then filed a petition for a restraining order against Delores Jordan. (Id. ¶ 23.) These dueling petitions led to ongoing proceedings in the Nevada County Superior Court. (See id. ¶¶ 23-26.)

Additionally, on April 21, 2008, a judge of the Nevada County Superior Court, Judge Thomas Anderson, "instituted proceedings for restraining orders" against plaintiffs Susan Winters, Brent Winters, and all of their children, and such restraining order was allegedly for the protection of Virginia Armstrong. (Third Am. Compl. ¶ 46.) That same day, Judge Anderson, on his own motion, appointed an attorney, defendant Dewey Harpainter, to represent Virginia Armstrong "to prosecute the restraining orders." (Id. ¶ 47.) In connection with these various court proceedings, Cook and Carpenter, who are allegedly social workers with APS, allegedly made representations in court and also filed reports with the court. (See id. ¶¶ 6, 43, 70, 73.)

Also in April of 2008, plaintiff Susan Winters allegedly contacted APS to seek assistance in protecting Virginia Armstrong from defendant Delores Jordan. (Third Am. Compl. at 14.) Someone with APS allegedly told Susan Winters that APS could not assist Susan Winters unless she was a conservator for Virginia Armstrong. (Id. at 14.)

Plaintiffs' Third Amended Complaint alleges only one claim against APS that is specific to APS's alleged conduct: the violation of plaintiffs' rights of equal protection (claim 7). The remaining claims against APS are alleged generically and conclusorily against "All Defendants" and consist of the following claims: trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress, or "IIED" (claim 38).

In regards to defendant Jeffrey S. Brown, who is alleged to be the "Nevada County Adult Protective Services Agency Director" (Third Am. Compl. at 25), plaintiffs only allege one claim that provides any facts specific to Brown: a claim for "respondeat superior" liability (claim 34). Plaintiffs clarify in their written opposition that the claim against Brown is only for common law tort liability and is not addressed to any alleged civil rights violations committed by APS, Carpenter, or Cook. (Pls.' Opp'n to Mot. to Dismiss at 9 ("The Winters' Respondeat Superior claims are civil torts not § 1983 civil-rights claims."), Dkt. No. 118.) The remaining claims alleged against Brown are the generic claims alleged against "All Defendants": trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the RICO statute (claim 31); loss of consortium (claim 36); and IIED (claim 38).

As to defendants Carpenter and Cook, plaintiffs' Third Amended Complaint alleges that Carpenter and Cook: abused the court's process (claim 6); violated plaintiffs' rights of equal protection (claim 7); and committed "Slander, Libel, and Slander & Libel Per Se" (claim 21). Plaintiffs further allege that Cook violated plaintiffs' First Amendment rights to petition for the redress of grievances (claim 26). The remaining claims alleged against Carpenter and Cook are the generic claims alleged against "All Defendants": trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the RICO statute (claim 31); loss of consortium (claim 36); and IIED (claim 38).


A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) ("In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 'affidavits or any other evidence properly before the court . . .. It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." (citation omitted, modification in original)).

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"). In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).


A. The APS Defendants' Jurisdiction and Abstention Arguments

At the outset, the APS defendants argue that this court lacks jurisdiction over plaintiffs' claims or should abstain from adjudicating those claims on the basis of the Rooker Feldman doctrine, the Younger abstention doctrine, the trust and domestic relations exception to federal subject matter jurisdiction, and the probate exception to federal subject matter jurisdiction. (See Mot. to Dismiss at 5-7.) It readily appears that the APS defendants simply copied the same unsuccessful arguments offered by other defendants who previously moved to dismiss plaintiff's Third Amended Complaint. (See, e.g., Mot. to Dismiss, Feb. 16, 2010, Dkt. No. 107.) The APS defendants' jurisdictional and abstention arguments premised on the above-referenced doctrines and principles are unpersuasive for the same reasons provided in the undersigned's previously entered findings and recommendations, which were adopted in full. (See Findings & Recommendations, July 20, 2010, at 11-17, Dkt. No. 144, adopted by, Order, Sept. 14, 2010, Dkt. No. 177.)

B. Defendants Carpenter and Cook's Arguments Premised on California's Absolute Litigation Privilege

Next, the APS defendants argue that claims six, fourteen, fifteen, eighteen, twenty-one, and thirty-one should be dismissed with prejudice as to Carpenter and Cook, who were social workers that participated in proceedings in the Nevada County Superior Court related to the protection of Virginia Armstrong. Briefly stated, they argue that Carpenter's and Cook's acts that underlie these claims were absolutely privileged under California's litigation privilege found in California Civil Code § 47(b). Although the undersigned agrees that claims six and twenty-one should be dismissed pursuant to the litigation privilege, claims fourteen, fifteen, eighteen, and thirty-one are not subject to that privilege.

California's litigation privilege, found at California Civil Code § 47(b), provides, in part, that a publication or broadcast made as part of a judicial proceeding is privileged. See also Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241, 163 P.3d 89, 95 (2007). The California Supreme Court recently summarized this litigation privilege as follows:

This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.

Id. (citations and internal quotation marks omitted, modification in original). "[W]here the gravamen of the complaint is a privileged communication . . . the privilege extends to necessarily related non-communicative acts. . . ." Rusheen v. Cohen, 37 Cal. 4th 1048, 1062, 128 P.3d 713, 722 (2006). The California Supreme Court has given this privilege "a broad interpretation" in furtherance of the purpose of the privilege, which is "to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." Action Apartment Ass'n, Inc., 41 Cal. 4th at 1241, 163 P.3d at 95. Thus, although the privilege was originally enacted with reference to claims of defamation, "'the privilege is now held applicable to any communication, whether or not it amounts to a publication . . . , and all torts except malicious prosecution.'" Rusheen, 37 Cal. 4th at 1057, 128 P.3d at 718 (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212, 786 P.2d 365 (1990)). "Any doubt as to ...

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