United States District Court, S.D. California
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]
Thomas J. Whelan Unitea States District Judge
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
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.)
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] ¶
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] ¶
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.)
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].)
Motion to Dismiss for Lack of Standing
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)).
“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
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).
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
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.
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).
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).
Motion to Strike Pursuant to Rule 12(f)
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).
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
Discussion A. Smithson's Unopposed Motion to Dismiss Will
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
Plaintiff Kristol and Article III Standing
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.)
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).
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,
First and Second Causes of Action
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.
first and second causes of action will be dismissed with
leave to amend as to Plaintiff Kristol for lack of Article
Fifth and Sixth Causes of Action
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
motion to dismiss the fifth and sixth causes of action as to