United States District Court, S.D. California
ORDER DENYING FEDERAL DEFENDANTS' MOTION TO
DISMISS [DOC. 30]
J. Whelan United States District Judge
before the Court is a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) filed by Defendants United States of
America and John F. Kelly, Secretary of the Department of
Homeland Security (collectively “Federal
Defendants”). Plaintiffs oppose.
Court decides the matter on the papers submitted and without
oral argument. See Civ. L.R. 7.1(d.1). For the reasons that
follow, the Court DENIES Federal
Defendants' motion to dismiss [Doc. 30].
Jane Doe and Jane Roe are female Border Patrol Agents, and
members of the Critical Incident Investigative Team
(“CIIT”) at the Chula Vista Border Patrol Station
in California. (Second Am. Comp. (“SAC”)
[Doc. 33] ¶ 20.) Defendant Armando Gonzalez was one of
Plaintiffs two supervisors on the CIIT and, as such, had the
authority to undertake or make recommendations regarding
employment decisions affecting Plaintiffs. (Id.
CIIT office in Chula Vista had one women's restroom that
doubled as a changing room for the female agents.
(SAC. ¶ 24.) Plaintiffs used the restroom every
work day both as a toilet and/or a changing room to change
from their civilian clothing into their work uniforms.
January 9, 2015, Plaintiff Doe was in the women's
restroom at the CIIT office when she observed what appeared
to be a hidden camera in the drain. (SAC ¶ 25.)
She removed the drain cover and discovered a security camera
hidden in a black sock. (Id.) Doe reported the
incident to Rebecca Phenicie at the Customs and Border Patrol
Office of Internal Affairs, which initiated an investigation.
(Id. ¶ 27.) Gonzalez later stated that he
placed the camera in the drain in order to detect possible
on-the-job drug use among his female subordinates.
(Id. ¶ 27.) An examination of the camera's
micro S.D. card revealed images of “a female's
undergarment-clad breast as she changed her shirt in the
restroom, and images of part of a female's naked buttock
as she prepared to sit on the toilet and again as she
stood.” (Id. ¶ 29.) Another micro S.D.
card recovered from Gonzalez's office contained
approximately 169 video files taken from July 20, 2013 to
December 23, 2014. (Id. ¶ 30.) The images were
of private areas of multiple female victims, including both
Plaintiffs' naked and/or undergarment-clad genitalia,
pubic areas, buttocks, and/or breasts as the victims changed
and/or used the toilet. (Id.)
March 30, 2016, Plaintiffs filed this lawsuit. On April 16,
2016, Plaintiffs filed the First Amended Complaint alleging a
variety of state claims under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b)(1) & 2671, et seq.
(“FTCA”), and employment discrimination under
federal law. (See FAC.) On December 14, 2016, this
Court denied in part and granted in part Federal
Defendants' motion to dismiss. (See Dismissal
Order [Doc. 28].)
December 28, 2016, Plaintiffs filed the Second Amended
Complaint. Federal Defendants now seek to dismiss
Plaintiffs' tenth cause of action for violation of
California Penal Code §§ 632 & 637.2, and
Plaintiffs' request for punitive damages under the sixth,
seventh and eight causes of action. (P&A [Doc.
30-1] 1:2-11.) Plaintiffs oppose the motion. (See
Opp'n [Doc. 32].)
Rule of Civil Procedure 12(b)(1) provides a procedural
mechanism for a defendant to challenge subject-matter
jurisdiction. “A jurisdictional challenge under Rule
12(b)(1) may be made either on the face of the pleadings or
by presenting extrinsic evidence. Where jurisdiction is
intertwined with the merits, we must assume the truth of the
allegations in a complaint unless controverted by undisputed
facts in the record.” Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)
(internal quotation marks, brackets, ellipsis and citations
facial attack challenges the complaint on its face. Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). But when the moving party raises a factual challenge
to jurisdiction, the court may look beyond the complaint and
consider extrinsic evidence, and “need not presume the
truthfulness of the plaintiff's allegations.”
See Id. Once the defendant has presented a factual
challenge under Rule 12(b)(1), the burden of proof shifts to
the plaintiff to “furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Id.
A. The FTCA constitutes a waiver of sovereign
immunity for Plaintiffs'California Penal Code §§ 632 ...