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Marie Parlante v. Savanna Cazares

February 16, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


This diversity action*fn1 against numerous defendants, originally filed on October 13, 2011 (dkt. no. 1), was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has paid the filing fee and is proceeding in this action pro se. On December 8, 2011, defendant Savanna Cazares ("Cazares") filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), noticed for hearing on February 16, 2012. (Dkt. Nos. 6, 9.) Plaintiff filed an opposition to the motion (dkt. no. 11), and Cazares filed a reply (dkt. nos. 13, 15). Subsequently, on February 13, 2012, the court vacated the hearing and ordered the motion submitted on the record. (Dkt. No. 14.) After considering the papers in support of and in opposition to the motion, the court's record in this matter, and the applicable law, the court now issues the following order.


The background facts, which are sparse and somewhat confusing, are taken from plaintiff's operative complaint. (See Complaint, Dkt. No. 1 ["Compl."].) Plaintiff alleges that she obtained approval for an interstate compact for the placement of children ("ICPC")*fn2 in regard to her biological grandson. (Compl. at 2.) However, plaintiff contends that her attorney, defendant Michael Borkowski ("Borkowski"), improperly represented plaintiff by "failing to follow the procedures for the type of California W&I code section 388 hearing he requested of the court"; failed to communicate the status of plaintiff's case in the Sacramento juvenile system and in the 3rd District Court of Appeal; and breached his professional duties to plaintiff. (Compl. at 2-3.) Borkowski purportedly received $7,500 for the services rendered to plaintiff. (Compl. at 3.) Plaintiff alleges that, but for Borkowski's breach of his duties, she would have received favorable relief in the underlying juvenile case in the form of custody of her grandson. (Compl. at 3.) According to plaintiff, her resulting damages include an inability to associate with her grandson permanently due to the termination of plaintiff's son's parental rights. (Compl. at 3.) Plaintiff does not identify exactly what claims or causes of action are brought against Borkowski, although her factual allegations concerning Borkowski appear to involve claims of negligence and/or legal malpractice.

The only allegations against Cazares and the remaining defendants are set forth in the last two paragraphs of the complaint's substantive allegations:

On information and belief Defendants Savanna Cazares, Elizabeth Wright, Theresa Ravandi, Anders Tyslan, Joan Tyslan and Does 1 to 30 have committed civil conspiracy on the part of Plaintiff and her biological grandson by promising that the child (grandson) would be well cared for while in fact the child was dumped into social services the very next day after judgment was obtained in favor of defendants from the Sacramento Superior Court acting as the juvenile court. All defendants mentioned in this paragraph at one time or another during the underlying case in Sacramento have falsely represented facts in sworn statements which is against public policy in the State of California.

The documents filed by Anders Tyslan and Joan Tyslan requesting removal of the child showed the use of the past tense in describing the behavior of the child which indicates there were problems with the child and the Tyslans despite their false representation that there were no issues. (Compl. at 3-4.)

Again, plaintiff does not identify any specific claims or causes of action against these defendants, although she appears to allege the existence of fraud and a civil conspiracy. Plaintiff requests an award in excess of $5,000,000.00 in actual, compensatory, and exemplary damages with attorneys' fees, court costs, and other costs. (Compl. at 4-5.) Plaintiff further requests that the federal court conduct a de novo review of the underlying juvenile case "due to constitutional violations of Plaintiff's federally protected rights of due process and access to the courts." (Compl. at 4.)


In considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, to avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice."

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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.

Claims against Cezares

As an initial matter, plaintiff's complaint fails to identify specific claims or causes of action against defendant Cazares. Furthermore, to the extent plaintiff attempts to state claims for fraud and civil conspiracy against Cazares, plaintiff fails to allege sufficient facts in support of such claims.

"Under California law, the 'indispensable elements of a fraud claim include a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages.'" Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (quoting Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996)). Any claim sounding in fraud is also subject to the requirements of Fed. R. Civ. P. 9. That rule, titled ...

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