ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
On January 11, 2011, Plaintiff Shandra Solis filed a Complaint against Defendants Fresno Police Department, City of Fresno, Officer David Fries and Officer John Gomez. Plaintiff brings claims for (1) violation of right to equal protection; (2) retaliation in violation of California's Fair Employment and Housing Act ("FEHA"); and (3) conspiracy. On February 10, 2011, Defendants filed a motion to dismiss or in the alternative motion for more definite statement and a motion to strike. For the reasons that follow, the motion to dismiss will be granted.
Under Federal Rule of Civil Procedure 12(b)(6),a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]" Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
In June 2002, Plaintiff began working in the Identification Bureau of the Fresno Police Department ("FPD"). Complaint at ¶ 13. While employed by the FPD, Plaintiff met Officer Kennan Rodems ("Officer Rodems"). Plaintiff and Officer Rodems were married in June 2005. Id.
In 2006, during her employment with the FPD, Plaintiff and three other female employees submitted complaints of discrimination and sexual harassment against three male supervisors.
Id. at ¶ 14. The complaints of discrimination and sexual harassment were well known within the FPD, City of Fresno and District Attorney's Office ("DA's Office"). Id. at ¶ 15. Following the submission of her complaint, Plaintiff was subjected to retaliation by members of the FPD in that she was ostracized and treated differently than she had been treated prior to the submission of the complaint. Id. Because of the retaliation the FPD subjected Plaintiff to, Plaintiff transferred to the Fresno Fire Department in August 2006. Id. at ¶ 16.
Marital differences developed between Plaintiff and Officer Rodems that resulted in her moving out of the family home in February 2009. Id. at ¶ 17. In late April/early May 2009, Plaintiff and Officer Rodems met to discuss a financial matter at a Fresno bank. Id. at ¶ 19. In the parking lot of the bank, an argument developed between Plaintiff and Officer Rodems. Id. at ¶ 20. In a moment of frustration during the argument, Plaintiff "keyed" a door on the passenger side of the truck being driven by Officer Rodems. Id. The truck was jointly owned by Plaintiff and Officer Rodems. Id. The "keying" by Plaintiff consisted of a single vertical scratch. Id. After Plaintiff entered her vehicle to leave, Officer Rodems approached her vehicle and pounded on the vehicle window and yelled at her in anger. Id.
Thereafter, Officer Rodems drove home and called the FPD to report the incident.
Id. at ¶ 21. Officer Rodems' report and the manner in which the FPD handled the complaint significantly deviated from the FPD's normal and customary practice for handling reports of vandalism of this nature. Id. The FPD's normal and customary practice for handling reports of vandalism is to have the complaining party make a report over the internet or to take a "counter report" by a "community service officer."*fn1 Id. at ¶ 22. In this case, however, the FPD discriminated against, singled out and treated Plaintiff differently in that the processing of the complaint and the investigation was not done in accordance with the FPD's normal and customary process. Id.
After Officer Rodems called the FPD to report the alleged vandalism, the FPD dispatched Officer David Fries ("Officer Fries") to investigate the matter. Id. at ¶ 23. Officer Fries called Officer Rodems to speak with him and then went to the bank where the incident occurred. Id. During an interview of a witness at the bank, the witness told Officer Fries that Officer Rodems raised his fist towards Plaintiff during their argument, but did not strike her. Id. Other than the mention of this fact in his report, neither Officer Fries nor anyone else from the FPD followed up on this report of criminal assault. Id.
Officer Fries then drove to Officer Rodems' home in Clovis to personally interview Officer Rodems and view the damage to the truck. Id. at ¶ 24. The passenger side of the truck in question had a single vertical scratch from the "keying" and several smaller horizontal scratches that were clearly not related to or caused by Plaintiff. Id. at ¶ 25. According to the report prepared by Officer Fries, Officer Rodems reported that he saw Plaintiff take "her key and run it vertically down the back passenger door." Id. Officer Rodems did not report that Plaintiff had caused any other damage to his truck and Officer Fries did not ask Officer Rodems if any of the horizontal scratches had been caused by Plaintiff. Id.
Plaintiff was contacted by Officer Fries by telephone as part of his investigation. Id. at ¶ 26. During their conversation, Plaintiff acknowledged "keying" the door of the truck. Id. Officer Fries failed to ask Plaintiff to describe or explain exactly what she had done or what damage she caused. Id. Plaintiff reported to Officer Fries that Officer Rodems was constantly harassing her with unwanted phone calls and text messages. Id. Despite the lack of evidence indicating that Plaintiff had caused the horizontal scratches on the side of the truck, Officer Fries wrote in his report that after Plaintiff had vertically scratched the door, "she walked towards her passenger door of her car scratching the front passenger door of [Officer Rodems'] pickup with the key." Id. at ¶ 27.
After Officer Fries completed his investigation, the FPD assigned the case to Officer Gomez, a detective, to conduct further investigation and handle the case. Id. at ¶ 28. The assignment of a detective to investigate a minor vandalism case is not the normal and customary practice of the FPD. Id. Officer Gomez prepared and submitted to the DA's Office a recommendation that Plaintiff be prosecuted for felony vandalism. Id. at ¶ 30. A charge of felony vandalism is only possible when the amount of the damage caused by the vandalism is $400 or more. Id. Plaintiff alleges that Officer Gomez' recommendation was based in part on estimates to repair all the damage on the passenger side of the truck, including but not limited to the horizontal scratches which Plaintiff did not cause. Id. Those estimates indicated that the cost to repair all of the damage would be approximately $1,000. Id. This estimate did not accurately represent the cost to repair the damage caused by Plaintiff. Id. Plaintiff alleges that neither Officer Gomez nor the FPD had ever previously submitted to the DA's Office a recommendation for prosecution for felony vandalism in a case of this nature. Id. at ¶ 31.
During the investigative process and thereafter, Plaintiff complained about and attempted to file her own complaint against Officer Rodems for assault, battery and harassing phone calls and text messages. Id. at ¶ 33. However, Officer Fries, Officer Gomez and the FPD refused to fairly investigate the matter or take any action similar to what they had done with regard to Officer Rodems' allegations of vandalism against Plaintiff. Id. Furthermore, Officer Gomez and/or the FPD failed to submit Plaintiffs' complaint to the DA's Office. Id.
When the DA's Office received the referral of the felony vandalism allegations against Plaintiff from Officer Gomez, the DA's office failed to follow its normal and customary practice for handling cases. Id. ¶ 34. The normal and customary practice of the DA's office is that the decision of whether or not to file felony or misdemeanor criminal charges is made by a Deputy District Attorney. Id. at ¶ 35. In this case, the matter was referred to Dennis Cooper ("Cooper"), Chief Deputy District Attorney and supervisor of the Domestic Violence Unit. Id. at ¶¶ 11, 35. Cooper discriminated against Plaintiff by sending her a letter asking to meet with her to discuss the case due to "the particularities of the incident." ...