The opinion of the court was delivered by: United States District Judge Hon. Jeffrey T. Miller
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS; DENYING LEAVE TO AMEND
Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant Maria Luisa Coria ("Coria") moves to dismiss the civil rights complaint for failure to state a claim. Defendant Officers Sean Snow ("Snow") and Rodolfo Salazar ("Salazar") separately move to dismiss the complaint. Plaintiffs Tyrel Atchley ("Atchley"), Scarlett "Tara" Atchley ("Tara"), and Magnassun Atchley ("M.A.") oppose all motions. Pursuant to Local Rule 7.1(d)(1), the matters presented are appropriate for decision without oral argument. For the reasons set forth below, the court grants in part and denies in part the motions to dismiss. The court also denies the request for leave to amend without prejudice.
On July 8, 2011, Plaintiffs commenced this civil rights action against County of San Diego; Coria, a social worker with the Health and Human Services Division of County; City of La Mesa; and La Mesa police officers Snow and Salazar. (Ct. Dkt. 1). On May 1, 2012, Plaintiffs filed the First Amended Complaint ("FAC") alleging eight causes for: (1) interference with parental rights in violation of 42 U.S.C. §1983; (2) interference with the child's fundamental right to be with parents in violation of 42 U.S.C. §1983; (3) intentional infliction of emotional distress; (4) battery; (5) assault; (6) negligence; (7) violation of Cal. Civil Code §43; and (8) violation of Cal. Civil Code §52.1.
Plaintiffs claims arise from a series of events commencing on the night of July 9, 2010.*fn1 On that date, Atchley asked a neighbor to watch his sleeping son while he went to the grocery store. While absent from the apartment, another neighbor, Leesha Chapman, a.k.a. Stormy, allegedly entered the apartment and took some of Tara's belongings, including jewelry. (FAC ¶20). Once Atchley returned to the apartment, he received a telephone call from Stormy demanding that she be paid for the return of the properly. Atchley went to Stormy's apartment - she lived in the same complex - and a confrontation ensued with Stormy and two men who were at the apartment. After a brief struggle, Atchley then fled the apartment leaving behind his cell phone, hat and some keys. (FAC ¶22). Atchley then called 911 and officers Show and Salazar responded to the call. (FAC ¶23).
Atchley, who was in his car when the officers arrived, got out of the car and explained what happened. The officers then asked why he called the police. The officers then allegedly mocked and laughed at him. (FAC ¶24). Atchley got back in his car and went to the apartment complex.
Meanwhile, Tara, who was on deployment with the U.S. Navy in the middle of the Pacific Ocean, happened to call Atchley's cell phone from the Navy ship. Stormy answered the cell phone that Atchley had left behind at her apartment. Stormy called Tara names and said that Atchley stole "dope" from her. (FAC ¶26). At 10:11 p.m. Tara called the La Mesa Police Department. Officer Snow went to the apartment and called Tara informing her that the apartment was in disarray and smelled like marijuana. (FAC ¶ 27). Tara then allegedly informed the officers that she desired to file a missing child's report. At around 5:00 the next day, Child Protective Services ("CPS") left a message for Tara that M.A. was in the custody of CPS. (FAC ¶28).
After the initial contact with Officers Snow and Salazar, Atchley drove to the apartment of LaVonne where he had left M.A. (FAC ¶31). Shortly thereafter, Officers Snow and Salazar, along with about five additional officers, arrived at LaVonne's apartment and asked Atchley to step outside. After speaking with the officers, the officers left the area. About 30-45 minutes later, Atchley left LaVonne's apartment and headed to a hotel. While in route, he received a call from a neighbor who informed him that the police were there and requested that Atchley and M.A. return to the apartment complex. (FAC ¶¶33-34).
Atchley arrived back at his apartment carrying M.A. The officers allegedly ordered Atchley to put M.A. down and to place his hands behind his back. (FAC ¶ 35). Atchley did not want to comply because M.A. was asleep and the ground was wet. Atchley then handed M.A. over to Officer Salazar. Officer Snow then rushed Atchley and threw him to the ground. Officer Snow then had Atchley sit on a step and informed him that they were "taking [his] son tonight because [Atchley] was not fit to care for [his] son." (FAC ¶37). Atchley became upset at losing his son. Officer Salazar then allegedly placed his hand on M.A. and said, "You hear that, that's your daddy [and he] is a fu**ing loser." (FAC ¶39).
The officers allegedly told Atchley that both his mother, Mesa Atchley, and Tara had requested that they take custody of M.A. and leave Atchley in the apartment alone. After the officers left, Atchley called his mother, Mesa, and was informed that she had never requested that M.A. be taken from him. (Compl. ¶44). At about 2:00 a.m. on July 10, 2010, the officers took custody of M.A. and transported him to the Polinsky Children's Center. (FAC ¶41).
On July 10, 2011, without introducing herself, Coria appeared at Plaintiffs' apartment and did a walk through. (FAC ¶42). Coria did not respond when Atchley asked her where M.A. was located. On the same day, Mesa flew to San Diego and went to the Polinsky Children's Center to meet with Defendant Coria. Coria did not return M.A. that day and continued to ask Mesa, Gilpin, a companion, Atchley whether Atchley had any drug problems. (FAC ¶43). The next day, M.A. was not returned to Atchley, (Compl. ¶47), but to Mesa.
Later on July 10, 2011, at around 9:30 p.m., Atchley went to his apartment to retrieve some personal belongings. Gilpin went to the apartment to pick up some clothes. Atchley waited in the car when an officer tapped on the window and ordered him out of the car. The police found some pills in his pocket and Atchley explained that they were prescription medications and that the prescriptions were in the glove compartment. Officer Atwood, the arresting officer, then arrested Atchley for two nonreduceable driving felonies and a reckless driving charge. Atchley spent five days in jail and was released on July 15, 2010. Ultimately, on July 23, 2010, Atchley brought his two medical prescriptions to court and, under the advice of his public defender, entered into a plea bargain and the two non-reduceable felonies were dismissed. He paid a fine of $827 and attended a Mothers Against Drunk Driving class. (FAC ¶¶44-49).
In the meantime, Tara received emergency leave and went to the Polinsky Children's center where she and Mesa met with Coria's supervisor, Barbara Wright, to discuss a safety plan. Tara was informed by Ms. Wright that if she signed the safety plan, she could take M.A. home with her. (FAC ¶50). Tara agreed that Atchley would not assume custody of their son. The plan stated that Atchley associated with persons who are known as substance abusers and dealers and that there was "possible" substance abuse by Atchley. Even though she disagreed with the safety plan, Tara signed the document. On July 11, 2010, M.A. was reunited with his mother. (FAC ¶76).
The next morning, Tara and Mesa met with Coria. Defendant Coria allegedly told Tara and Mesa that she had video surveillance of Atchley stealing washers, dryers and rims off cars. (FAC ¶52). Tara denied any drug use by Atchley. Coria stated that M.A. was going to Washington State with Mesa, away from Atchley. Shortly thereafter, Mesa returned to Seattle with M.A.
Over the next several weeks Atchley attempted to find out more information from the Department of Health Services. On one occasion Coria told Atchley to stop "kidding himself and to admit that he was a drug addict. . . She even told him to go into a six month in-patient hard detoxification center. (FAC ¶55). On August 5, 2010 M.A. was reunited with Atchley and Tara. (FAC ¶57).
On August 20, 2011, Coria presented Tara and Atchley with a second safety plan. Coria represented that M.A. had been exposed to methamphetamine and amphetamines. Coria refused to show Atchley and Tara the drug test results and also requested that they both take drug tests and represented that their refusal would result in a finding that M.A. was "in imminent danger and have him removed from [the] home." (FAC ¶61). Atchley and Tara signed the safety plan under "coercion and duress" and then submitted to drug testing. Even though no one disclosed the results of the drug tests to them, they believe the tests were negative. Id. On November 1, 2011, Tara and Atchley learned that M.A. had negative drug tests and that Coria had "lied" about the positive drug test results. (FAC ¶64).
In September 2011, Coria informed Tara and Atchley that the case had been "promoted to voluntary contract." (FAC ¶65). They refused to sign the contract because of the references to drug use and drug counseling. On October 14, 2010, and with M.A. still living with Mesa in Washington State, the case was closed. (FAC ¶67).
Plaintiffs allege that Atchley had recorded conversations "as proof of Coria and County's lies." (FAC ¶69). However, on November 9, 2010 his apartment was burglarized and the recorded conversations were stolen along with a video camera, laptop, and flash drives. Both Tara and Atchley allegedly have suffered extreme emotional distress because of the alleged events. (FAC ¶¶70-76).
Based upon the above generally described conduct, Defendant Coria and Defendants Show and Salazar move to dismiss all claims.
General Pleading Standards
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The defect must appear on the face of the complaint itself. Thus, courts ...