The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Presently before the court*fn1 are defendant County of
Yuba's (the "County") motion to dismiss plaintiff's claims against it,
motion for a more definite statement, and motion to strike plaintiff's
request for punitive damages filed pursuant to Federal Rules of Civil
Procedure 12(b)(6), 12(e), and 12(f), respectively (Dkt. No.
13).*fn2 The court heard the County's motion on its
law and motion calendar on June 9, 2011. Attorney Clayton T. Cook
appeared on behalf of the County. Defendant Yolanda Fryson, who is incarcerated,
did not appear or request an opportunity to appear.*fn3
Plaintiff, who is proceeding without counsel, appeared on his
The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that the County's motion to dismiss be granted in part and denied in part.*fn4 The undersigned overrules the County's evidentiary objection to an exhibit filed by plaintiff with his written opposition. Finally, the undersigned recommends that the County's motion to strike plaintiff's prayer for punitive damages be denied.
Plaintiff's complaint alleges claims against: (1) Yolanda Fryson, who is alleged to be have been a social worker employed by Yuba County Child Protective Services ("Yuba CPS") at all times material to plaintiff's claims; and (2) Yuba CPS. (See Compl. ¶¶ 4-5, 12-13) Plaintiff's claims arise from an alleged, failed blackmail scheme perpetrated by Fryson against plaintiff in September and October of 2008. (See id. ¶¶ 19-23.)
Plaintiff alleges that Fryson contacted him and told him that she "had information that a claim was filed and that Plaintiff was being accused of sexual molestation of a minor, sexual relations with a 17 year old girl and physical abuse of Plaintiff's girlfriend." (Compl. ¶ 20.) Plaintiff further alleges that Fryson told him that she could "make the charges 'go away'" in exchange for a payment of $10,000. (Id. ¶ 21.) Fryson allegedly "showed her Yuba County badge" to plaintiff during Fryson's initial meeting with plaintiff. (Id.)
Plaintiff alleges that he was forced to retain legal counsel to defend against the purported charges of molestation and abuse and any criminal matters that might arise therefrom. (See Compl. ¶ 22.) Plaintiff alleges that after speaking with his attorney, he contacted the Placer County Sheriff's Department, and that the Placer County Sheriff's Department "assisted the Plaintiff in watching the bribe being taken and bugged the phone calls made from [Fryson]." (Id. ¶ 23.) Plaintiff appears to allege, in essence, that law enforcement personnel assisted him in setting up a "sting operation" to catch Fryson accepting a bribe.*fn5
Plaintiff claims that he was damaged by these events in several respects. He alleges that he was forced to "put up a $5,000 retainer for an attorney for the quick advise [sic] and direction for the ordeal that [he] was going through." (Compl. ¶ 24.) He further alleges that he "could not go home or to his office until he was able to prove that the allegations and claims made of him sexually molesting a minor was [sic] fraudulent." (Id.) He also alleges that he suffered mental effects of the ordeal including high anxiety, depression, sleep loss, heavy drinking, mood swings toward loved ones, loss of interest in everything he was doing, and suicidal thoughts. (See id. ¶ 25-28.)
Plaintiff alleges that he "submitted a timely claim under the government tort claims act on or about February 4, 2009, to defendant Public Entity." (Compl. ¶ 1.) Plaintiff subsequently filed his complaint on October 21, 2010.
Plaintiff's complaint alleges the following six claims for relief against Yuba CPS:
(1) violation of plaintiff's due process rights provided by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution (Compl. ¶¶ 30-37); (2) violation of plaintiff's rights of equal protection provided by the Fourteenth Amendment (id. ¶¶ 38-46); (3) negligent supervision, hiring, and retention (id. ¶¶ 47-59); (4) fraud*fn6 (id. ¶¶ 76-81); (5) negligent infliction of emotional distress (id. ¶¶ 71-75); and (6) violation of the Tom Bane Civil Rights Act ("Bane Act"), Cal. Civ. Code § 52.1 (id. ¶¶ 82-90).*fn7 Plaintiff further alleges that Yuba CPS is responsible or liable for the acts of its employees committed during the course and scope of their employment pursuant to Government Code Section 815.2. (See id. ¶¶ 5-6.) Plaintiff seeks compensatory damages, punitive damages, attorney's fees and costs, and civil penalties. (See id. at p. 14.)
On April 15, 2011, the County filed the pending motions.*fn8 Plaintiff filed a timely written opposition ("Pl.'s. Opp'n"), which appends exhibits and a declaration of his attorney, who does not appear to represent plaintiff in this action. The County filed a reply and an objection to one piece of evidence submitted by plaintiff; the objection is addressed below.
A. Motions To Dismiss For Failure To State A Claim, Fed. R. Civ. P. 12(b)(6)
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); accord 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"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under Iqbal.).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), 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). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see, e.g., Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) ("Facts raised for the first time in plaintiff's opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice.") (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001))); see also Simmonds v. Credit Suisse Sec. (USA) LLC, 638 F.3d 1072, 1091 (9th Cir. 2011) (considering letters submitted with an opposition to a motion to dismiss in deciding to dismiss several complaints with prejudice).
B. Motion to Strike, Fed. R. Civ. P. 12(f)
Federal Rule of Civil Procedure 12(f) provides that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); see also Amaral v. Wachovia Mortgage Corp., 692 F. Supp. 2d 1226, 1230 (E.D. Cal. 2010). Motions to strike are generally disfavored, and this court has previously stated that a motion to strike brought pursuant to Rule 12(f) "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (citation and quotation mar ks omitted); see also Ollier v. Sweetwater Union High Sch. Dist., 735 F. Supp. 2d 1222, 1223-24 (S.D. Cal. 2010); Osei v. Countrywide Home Loans, 692 F. Supp. 2d 1240, 1255 (E.D. Cal. 2010); Wolk v. Green, 516 F. Supp. 2d 1121, 1134 (N.D. Cal. 2007).
A. Plaintiff's Section 1983 Claims Are Subject to Dismissal
Plaintiff's complaint pleads two claims pursuant to 42 U.S.C. § 1983, both of which allege violations of plaintiff's constitutional rights. Plaintiff's first claim for relief alleges violations of plaintiff's due process rights. His second claim for relief alleges a violation of his equal protection rights. The County moves to dismiss both claims, and each claim is addressed in turn below.
Plaintiff's claims of violations of his constitutional rights are permissibly brought pursuant to 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Generally, with respect to individualdefendants, "Section 1983 imposes civil liability upon an individual who under color of state law subjects or causes, any citizen of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws." Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) ("To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes" (citation omitted).).
A municipality may also be held liable for civil rights violations under Section 1983, but the standards governing the liability of a municipality materially differ from those that govern the liability of individuals who acted under color of state law. Relevant here, in Monell v. Department of Social Services, 436 U.S. 658, the Supreme Court limited municipal liability and held that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. Instead, "[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690 (footnote omitted). The Court further stated that "it is when execution of a [local] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is ...