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Vuk Nastic; D.N. and N.N., Minors, By v. County of San Joaquin

May 31, 2012

VUK NASTIC; D.N. AND N.N., MINORS, BY AND THROUGH THEIR GUARDIAN AD LITEM, VERICA NASTIC, PLAINTIFFS,
v.
COUNTY OF SAN JOAQUIN, ET AL., DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants County of San Joaquin, Lianne Willey, Venus Esparaza-Zavala, Lazaro Gonzales, and Nicholas Moreno's (collectively "Defendants") Motion to Dismiss (Doc. #8) Plaintiffs Vuk Nastic, Verica Nastic, and D.N. and N.N., minors, by and through their Guardian ad Litem, Vesna Marjanovic (see Doc. #12), (collectively "Plaintiffs") First Amended Complaint ("FAC") (Doc. #6) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose the motion (Doc. #11).*fn1 For the 2 reasons set forth below, Defendants' motion is GRANTED. 3 4

I. FACTUAL ALLEGATIONS

This case arises out of the investigation and arrest of Vuk 6 and Verica Nastic, followed by the initiation of juvenile 7 dependency proceedings involving their two minor children, N.N. and 8 D.N. See FAC at ¶¶ 17-35. 9

According to the operative complaint, sometime prior to June 8, 2010, Vuk Nastic's employer contacted authorities regarding photographs found on his employer-issued laptop that were suspected to be child pornography. FAC at ¶¶ 17, 21. Following an investigation, a search warrant was issued based on an affidavit by Defendant Moreno. Id. at ¶¶ 20-23. In his affidavit, Defendant Moreno made several material misrepresentations and omissions. Id. at ¶¶ 22-23.

The search warrant was executed on June 8, 2010, but turned up no evidence of a crime. FAC at ¶¶ 17-18. The same day Defendant Moreno interviewed Vuk and Verica Nastic, who denied any wrongdoing, and their children, who admitted they had taken the photographs in question of themselves. Id. at ¶ 25. Nevertheless, Defendant Moreno arrested Vuk and Verica Nastic without an arrest warrant. Id. at ¶ 26. Defendant Gonzales then took custody of N.N. and D.N., without a warrant, without evidence that the children were in imminent danger, and in absence of any necessity because their grandmother was residing in the home. Id. at ¶ 27.

On an unspecified date, the dependency judge ordered N.N. and 3 D.N. detained based on misrepresentations of Defendants Gonzales, 4 Willey, and Esparza-Zavala regarding the number and types of 5 photographs found on Vuk Nastic's laptop. FAC at ¶ 28. 6 Subsequently, N.N. and D.N. began participating in therapy with 7 Defendant Colin McGrattan and his associates; however, Defendant 8 Willey "fed [Defendant] McGrattan information about the case to 9 assist him in breaking D.N. down," and Defendant McGrattan solicited advice from Defendant Willey to carry out a joint effort to make a case against Vuk and Verica Nastic. Id. at ¶¶ 30-31.

While therapy was ongoing, the petition filed against Vuk and Verica Nastic was amended several times -- first, reducing the charge to failure to supervise the children, then adding allegations that Vuk Nastic inappropriately touched N.N., and finally adding claims that Vuk and Verica Nastic had taken the photographs at issue and that Vuk had molested N.N. FAC at ¶¶ 29, 30, 32.

During N.N. and D.N.'s time in foster care, "they were forced to attend services at a Roman Catholic church rather than being permitted to attend a church of their own faith . . . or a nearby [] church which the parents agreed would be an acceptable alternative." FAC at ¶ 34. Additionally, Vuk and Verica Nastic were not given notice of, or the opportunity to attend, any medical appointments for N.N. and D.N. Id. at ¶ 33.

In February 2011, the case against Vuk and Verica Nastic was dismissed. FAC at ¶ 35. The county counsel acknowledged "it was obvious that [they] were not involved," and further conceded there was no evidence a sexual assault occurred. FAC at ¶ 35. N.N. and 2

D.N. were returned to their parents, and the family subsequently 3 initiated this action on September 23, 2011. 4

II. OPINION

A. Legal Standard 7

A party may move to dismiss an action for failure to state a 8 claim upon which relief can be granted pursuant to Federal Rule of 9 Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure section 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by ...


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