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Orff v. City of Imperial

United States District Court, S.D. California

June 12, 2017

KALI ORFF, et al., Plaintiffs,
v.
CITY OF IMPERIAL, et al., Defendants.

          ORDER: (1) GRANTING DEFENDANT ANDREW SMITHSON'S MOTION TO DISMISS [DOC. 8]; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF IMPERIAL AND MICHAEL COLON'S MOTION TO DISMISS [DOC. 7]

          Hon. Thomas J. Whelan Unitea States District Judge

         Pending before the Court are: (1) Defendant Andrew Smithson's Motion to Dismiss [Doc. 8]; and (2) Defendant City of Imperial and Michael Colon's Motion to Dismiss. [Doc. 7.] The first motion is unopposed. [Doc. 9.] The second is opposed. [Doc. 10.] The Court decides the matters on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that follow, the Court GRANTS the first motion and GRANTS IN PART AND DENIES IN PART the second.

         I. Background

         Plaintiff Kali Orff is a Detective with the Brawley Police Department. (Compl. [Doc. 1] ¶ 12.) Her wife, Plaintiff Michelle Kristol, is a Detective with the Ventura County Sheriff's Office. (Id.)

         According to the Complaint, “[o]n or about January 31, 2016, ” Detective Orff attended a birthday party at a friend's home. (Compl. [Doc. 1] ¶ 13.) Along with several acquaintances, she stayed the night at that home. (Id. [Doc. 1] ¶¶ 13-14.) The Complaint alleges that Defendant Andrew Smithson, a U.S. Customs and Border Protection Agent who was dating one of her friends at the time, sexually assaulted Orff several hours after she went to bed. (See Id. [Doc. 1] ¶ 14.) It alleges that upon being awakened by the assault, “Detective Orff punched her attacker in the face, called 911, and reported the sexual battery to the responding officers of [the Imperial Police Department].” (Id. [Doc. 1] ¶ 15.) Orff was then evaluated at Pioneers Memorial Hospital. (Id. [Doc. 1] ¶ 16.)

         The Complaint alleges that Defendant Smithson confessed to the assault. (Compl. [Doc. 1] ¶ 19.) Nevertheless, it alleges, “[the Imperial Police Department] made no attempt to determine the assailant's blood alcohol content or to gather any biological evidence” from him. (Id. [Doc. 1] ¶ 18.) Moreover, the Complaint alleges that “[f]ollowing the assault, [the Imperial Police Department] failed to submit Detective Orff's case to the District Attorney's office for over 100 days.” (Id. [Doc. 1] ¶ 20.) Ultimately, according to the Complaint, “the District Attorney's Office declined to prosecute, citing an unknown level of intoxication of the assailant.” (Id. [Doc. 1] ¶ 25.) It alleges, “[t]o date, . . . Smithson has not been charged with any crime, and [he] remains free to work in a position of authority on the United States border[.]” (Id. [Doc. 1] ¶ 19.)

         The Complaint further alleges that Defendant Michael Colon, Chief of the Imperial Police Department, “made an active effort to interfere with the case.” (Compl. [Doc. 1] ¶ 20.) According to the Complaint, “[s]hortly after the assault, ” Chief Colon “called Detective Orff's boss at the Brawley Police Department . . . and gave him the details of Orff's sexual assault.” (Id. [Doc. 1] ¶ 21.) During that call, Chief Colon allegedly “blamed Orff for being victimized” and “accused Orff of being immoral because of her sexual orientation.” (Id.) Thereafter, “on or about May 16, 2016, Detective Orff's wife, Detective Kristol, contacted [the Imperial Police Department] to get an explanation as to why Detective Orff's case had not been submitted to the District Attorney.” (Id. [Doc. 1] ¶ 22.) “In response, Chief Colon contacted Detective Kristol's boss, and began to divulge details of Detective Orff's assault to him and to attack Detective Orff's character and fitness as an officer.” (Id.)

         The Complaint asserts eleven causes of action: (1) violation of 42 U.S.C. § 1983 against Chief Colon and Doe Defendants; (2) violation of 42 U.S.C. § 1983 against the Imperial Police Department and the City of Imperial; (3) violation of Cal. Civ. Code § 51(b) and 52(a); (4) violation of Cal. Civ. Code § 52.1; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) public disclosure of private facts; (8) false light; (9) defamation; (10) sexual battery; and (11) battery. (Compl. [Doc. 1].)

         II. Legal Standards

         A. Motion to Dismiss for Lack of Standing

         The Court must dismiss a cause of action for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “The party asserting federal subject matter jurisdiction bears the burden of proving its existence.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Article III of the United States Constitution limits the subject matter jurisdiction of federal courts to “Cases” and “Controversies.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). This limitation forms “the core component of standing[, ]” a doctrine that ensures federal courts decide only those cases “that are of the justiciable sort referred to in Article III[, ]” those that are “ ‘appropriately resolved through the judicial process[.]' ” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).

         As an “irreducible constitutional minimum[, ]” standing is a fundamental part of every federal case, a limitation on their subject matter jurisdiction. See Chandler, 598 F.3d at 1122; Lujan, 504 U.S. at 560. It consists of three elements-all of which the party asserting federal jurisdiction must establish: (i) injury; (ii) causation; and (iii) redressability. See id.

First, the plaintiff must prove that he suffered an “injury in fact”, i.e., an “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”
Second, the plaintiff must establish a causal connection by proving that [his] injury is fairly traceable to the challenged conduct of the defendant.
Third, the plaintiff must show that [his] injury will likely be redressed by a favorable decision.

Chandler, 598 F.3d at 1122 (quoting and citing Lujan, 504 U.S. at 560-61).

         B. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In ruling on the motion, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations in the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         Well-pled allegations in the complaint are assumed true, but a court is not required to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001).

         C. Motion to Strike Pursuant to Rule 12(f)

         Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “The court may act . . . on its own[, ] or . . . on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Id. “ ‘The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .' ” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by 510 U.S. 517 (1994)). Motions to strike are generally disfavored and are “usually . . . denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.” See Travelers Cas. & Sur. Co. of Am. v. Dunmore, 2010 WL 5200940, at *3 (E.D. Cal. 2010).

         Redundant matter is the needless repetition of assertions. See Dunmore, 2010 WL 5200940, at *3. “ ‘Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being plead.' ” Whittlestone, 618 F.3d at 974 (quoting Fogerty, 984 F.2d at 1527). “Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. (internal quotation omitted). “Scandalous matters are allegations that unnecessarily reflect . . . on the moral character of an individual or state . . . anything in repulsive language that detracts from the dignity of the court.” Consumer Solutions REO, LLC v. Hillery, 658 F.Supp.2d 1002, 1020 (N.D. Cal. 2009) (quoting Corbell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 2004)).

         III. Discussion A. Smithson's Unopposed Motion to Dismiss Will be Granted.

         As a Preliminary matter, Plaintiffs do not oppose Defendant Andrew Smithson's motion to dismiss the fifth and sixth causes of action against him as to Plaintiff Kristol, for intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. (Smithson Mot. [Doc. 8]; Pls.' Non-opp'n [Doc. 9].) Good cause appearing, Smithson's motion will be granted.

         B. Plaintiff Kristol and Article III Standing

         Defendants City of Imperial and Miguel Colon contend that Plaintiff Kristol lacks standing to pursue her causes of action. (Defs.' Mot. [Doc. 7-1] 14:27-15:7.)

         As noted above, to show the existence of Article III standing, “the plaintiff must prove that [she] suffered an ‘injury in fact', i.e., an ‘invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.' ” Chandler, 598 F.3d at 1122 (quoting and citing Lujan, 504 U.S. at 560-61).

         The Complaint asserts the first and second causes of action, for violation of 42 U.S.C. § 1983, and the fifth and sixth causes of action, for intentional and negligent infliction of emotional distress, respectively, on behalf of Detective Kristol. (Compl. [Doc. 1] ¶¶ 27-38, 52-67.)

         1. First and Second Causes of Action

         As to the first and second causes of action, for violation of § 1983, the Complaint does not allege a clear theory as to how Defendants' conduct violated Detective Kristol's constitutional rights, as opposed to those of her wife. Even the telephone call to Detective Kristol's supervisor following her May 16, 2016 inquiry is alleged to have focused on the details of her wife's assault, and on her wife's “character and fitness as an officer”-not on her own. (See Compl. [Doc. 1] ¶ 22.) The Court does not decide at this time whether Detective Kristol suffered a constitutional injury that could confer standing to assert a § 1983 cause of action-only that the Complaint as drafted does not sufficiently allege facts to support such an injury.

         The first and second causes of action will be dismissed with leave to amend as to Plaintiff Kristol for lack of Article III standing.[1]

         2. Fifth and Sixth Causes of Action

         As to the fifth and sixth causes of action, for intentional and negligent infliction of emotional distress, respectively, Plaintiffs adequately allege that Detective Kristol suffered emotional harm as a result of Chief Colon's discussion of the details of her wife's sexual assault case with her own supervisor. (See Compl. [Doc. 1] ¶¶ 53, 62-63.) This is sufficient injury to confer Article III standing. See Chandler, 598 F.3d at 1122. As to causes of action grounded in violations of California state tort law, “[t]he doctrine of respondeat superior applies to public and private employers alike.” Mary M. v. City of Los Angeles, 54 Cal.3d 202, 209 (1991). Thus, Plaintiffs have also alleged causation and redressability against all defendants as to these causes of action. See id.; Chandler, 598 F.3d at 1122.

         Defendants' motion to dismiss the fifth and sixth causes of action as to Plaintiff ...


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