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Cotti v. City of San Jose

United States District Court, N.D. California, San Jose Division

June 24, 2019

CITY OF SAN JOSE, et al., Defendants.



         Plaintiffs Alice Cotti and Vladimir Serdyukov sue numerous agencies and individuals who were involved in removing Plaintiffs' two minor children from their custody. This order addresses five motions to dismiss the operative third amended complaint (“TAC”); a motion to dismiss or quash based on insufficient service of process which was filed in conjunction with a prior round of motions directed to the second amended complaint (“SAC”) but was overlooked by the Court; Plaintiffs' addition of defendants in violation of the Court's prior order; and further proceedings in this case.

         Motions to Dismiss the TAC: five sets of defendants have filed motions to dismiss the TAC pursuant to one or more of the Federal Rules of Civil Procedure, including Rules 8, 12(b)(1), and 12(b)(6): (1) Rebekah Children's Services (ECF 110); (2) City of San Jose and related entities and individuals (ECF 111); (3) Patrick E. Tondreau, Judge of the Superior Court (ECF 112); (4) Amy Choi and Nikolas Arnold (ECF 113); and (5) County of Santa Clara (ECF 116). Plaintiffs have not filed opposition to any of the motions, and the deadlines for doing so have long since expired. Defendant Rebekah Children's Services and Defendant County of Santa Clara have filed replies asking that the motions be granted without further leave to amend in light of Plaintiffs' failure to oppose them. See Replies, ECF 119, 120. The Court finds the motions to be appropriate for disposition without oral argument, and the hearings set for June 27, 2019 and September 5, 2019 are VACATED. See Civ. L.R. 7-1(b) (“In the Judge's discretion . . . a motion may be determined without oral argument.”). The motions to dismiss are GRANTED WITHOUT LEAVE TO AMEND for the reasons discussed below.

         Motion to Dismiss or Quash for Insufficient Service of Process: during a prior round of motions directed to the SAC, a number of defendants associated with the County of Santa Clara filed a “Joinder in Motion to Dismiss Plaintiffs' Second Amended Complaint; Motion to Quash Service” (ECF 61). The Court overlooked that the filing not only joined another motion to dismiss brought under Rule 12(b)(6), but also constituted an independent motion to dismiss or quash under Rule 12(b)(5) based on insufficient service of process. Plaintiffs did not oppose the Rule 12(b)(5) motion, and no reply was filed. Because the Court has never ruled on the Rule 12(b)(5) motion, it remains pending. For the reasons discussed below, the Court in the exercise of its discretion declines to dismiss the individual County defendants, but instead quashes service and grants Plaintiffs thirty days to serve them with process.

         Defendants Added in Violation of Court Order: In addition, all claims against Defendants Gaona, Avila, Tran, Family Legal Advocates, Dependency Advocacy Center, Schroeder, Faulconer, and Legal Advocates for Youth and Children are STRICKEN on the basis that those defendants were added to the TAC in violation of the Court's express order prohibiting Plaintiffs from adding new claims or parties without prior leave. See Order Granting Motions to Dismiss SAC at 7, ECF 93. Those defendants are DISMISSED sua sponte, WITHOUT PREJUDICE to a motion for leave to amend.

         Further Proceedings: Plaintiffs SHALL file a status report on or before July 26, 2019, as directed in section III.D., below.

         I. BACKGROUND

         A. Procedural History

         Plaintiffs filed the complaint, first amended complaint (“FAC”), and second amended complaint (“SAC”) while proceeding pro se. The pleadings, which were lengthy and difficult to follow, alleged that Plaintiffs' two minor children had been removed from their custody without adequate cause, and that social workers' allegations regarding domestic violence, substance abuse, and a non-accidental fracture to one child's leg were without basis. See generally Compl., ECF 1; FAC, ECF 5; SAC, ECF 34.

         After multiple motions to dismiss the SAC were filed, Plaintiffs retained counsel. Plaintiffs' counsel filed short oppositions to the motions to dismiss, conceding that the SAC was deficient and representing that if granted leave to amend she would drop certain claims, simplify others, and add supporting factual allegations. In light of counsel's representations, the Court granted the motions to dismiss in a seven-page order which addressed moving parties' arguments at a relatively high level and granted leave to amend all claims. See Order Granting Motions to Dismiss SAC, ECF 93. The Court limited leave to amend to Plaintiffs' existing claims, stating that “Plaintiffs may not add new claims or parties without obtaining prior express leave of the Court.” Id. at 7. In issuing its order regarding the pending motions to dismiss, the Court overlooked a motion to dismiss brought by a number of individual employees employed by the County of Santa Clara. See ECF 61. That motion is addressed below.

         Plaintiffs were granted until January 11, 2019 to file an amended pleading. See Order Granting Motions to Dismiss SAC, ECF 93. On the due date, Plaintiffs filed an application for an extension of time, stating that Plaintiffs' counsel had obtained medical attention for multiple illnesses in late December 2018. See Application to Extend Time, ECF 95. The Court granted the application and extended the deadline for amendment to February 4, 2019. See Order on Application, ECF 96.

         Plaintiffs did not file by the extended deadline, and on February 13, 2019, the Court issued an Order to Show Cause why the action should not be dismissed for failure to comply with the Court's order and failure to prosecute. See OSC, ECF 99. The following day, Plaintiffs filed an application for a further extension of time to file an amended pleading. See Application, ECF 100. The application did not provide a reason for the failure to meet the deadline for amendment; Plaintiffs' counsel asserted only that the requested extension was necessary to prepare the amended pleading and preserve Plaintiffs' due process rights. Id. The Court discharged the Order to Show Cause and granted a further extension of Plaintiffs' filing deadline until February 25, 2019. See Order Discharging Order to Show Cause, ECF 106.

         Plaintiffs, through counsel, filed the operative third amended complaint (“TAC”) on February 25, 2019. TAC, ECF 109. While the TAC is far less prolix than the prior pro se pleadings, it suffers from significant deficiencies, discussed below.

         B. Addition of New Defendants without Leave of Court

         As noted above, when granting the prior motions to dismiss, the Court expressly limited amendment to parties and claims included in the SAC. The Court ordered that “Plaintiffs may not add new claims or parties without obtaining prior express leave of the Court.” Order Granting Motions to Dismiss SAC at 7, ECF 93. Plaintiff nonetheless named several new individuals and entities as defendants in the TAC without first obtaining leave of the Court. Those amendments are addressed below.

         C. Factual Allegations of the TAC

         The TAC alleges the following facts: on May 23, 2017, officers of the San Jose Police Department (“SJPD”) responded to a call reporting a domestic disturbance at Plaintiffs' home. TAC ¶ 31. Officers Gaona, Preuss, and Avila arrived at the scene first, and later were joined by Sergeant Tran. Id. Serdyukov had visible redness on his right hand and complained of pain in his jaw and abdomen. TAC ¶ 35. Fire and EMS were called to the home, after which both Serdyukov and Cotti were arrested for domestic violence. TAC ¶¶ 35-38, 51. Plaintiffs arranged for their licensed child care provider, Marissa Fernandez, to come to the home and take custody of their minor children. TAC ¶ 36. Ms. Fernandez did come to the home and was prepared to take over care of the children, a three-year-old boy, R.S., and a ten-month-old girl, T.S. TAC ¶¶ 36, 51. However, Sergeant Tran called Santa Clara County Department of Family and Child Services (“DFCS”). TAC ¶ 38. Social workers Jeff Johnson and Phu Nguyen arrived at the scene and took custody of Plaintiffs' children. TAC ¶¶ 39-41.

         Serdyukov was released from jail the same day, at which time he learned that the children had been taken into custody by DFCS. TAC ¶ 42. Also on May 23, 2017, social worker Sarah Gerhart met with the children. TAC ¶ 44. A nurse practitioner advised Gerhart of a bruise on T.S., and a skeletal survey was ordered. TAC ¶ 45. The nurse practitioner reported that the skeletal survey established that T.S. had a possible fracture of her left femur which was suspicious for non-accidental trauma. TAC ¶ 46. Gerhart spoke with Serdyukov later that day, but he denied any knowledge of T.S.'s injury. TAC ¶ 49. The following day, May 24, 2017, Gerhart informed Cotti that T.S. had sustained a fracture. TAC ¶ 50. Cotti denied any knowledge of T.S.'s injury, stated that T.S. had just started walking, and suggested that T.S. may have injured herself in a fall. Id.

         On May 24, 2017, Gerhart signed Juvenile Dependency Petitions stating that the children were taken into custody as a result of severe domestic violence between their parents and following the parents' arrest. TAC ¶ 51. The petitions stated that the parents had been released with criminal charges pending, summarized the findings of the bruising and fracture injuries to T.S., and stated that doctors had determined that the fracture was caused by non-accidental trauma. Id. Also on May 24, 2017, Gerhart signed an Initial Hearing Report summarizing a history of domestic violence between Serdyukov and Cotti dating back to 2016, stating that R.S. has witnessed violence between the parents, reporting Cotti's history of drug abuse, and concluding that both parents had failed to protect the children from physical harm and emotional damage. TAC ¶ 52. On May 24, 2017, Pa Chang, a social worker supervisor, declared under penalty of perjury that Gerhart's statements were true and correct. TAC ¶ 55.

         An initial detention hearing was scheduled for May 25, 2017. TAC ¶ 56. When Plaintiffs arrived at court for the hearing, Gerhart informed them that they were required to provide urine samples if they wanted to regain custody of their children. TAC ¶¶ 57-58. Plaintiffs complied and provided urine samples. Id. Plaintiffs were given a copy of the Initial Hearing Report and were appointed counsel. TAC ¶ 59. Nikolas Arnold was appointed to represented Serdyukov and John Faulconer of Family Legal Advocates (“FLA”) was appointed to represent Cotti. Id. Superior Court Judge Patrick Tondreau presided. TAC ¶ 62. Judge Tondreau set jurisdictional and detention hearings for June 15, 2017. Id.

         At the June 15, 2017 proceedings, Gerhart produced two additional reports, the 1st Addendum and the 2nd Addendum, both dated June 14, 2017. TAC ¶ 64. The reports had not been provided to Plaintiffs in advance of the hearing. Id. Cotti's prior appointed counsel did not appear, and instead she was represented by new counsel, Amy Choi. TAC ¶ 65. The court continued the matter to July 3, 2017. TAC ¶ 66. On July 3, 2017, Cotti was represented by Wesley Schroeder. TAC ¶ 67. The court set an early resolution conference for July 13, 2017. Id. No. resolution was reached at the July 13, 2017 conference, and a Jurisdictional and Detention hearing was set for July 28, 2017. TAC ¶ 68. At the July 28, 2017 hearing, the court sustained the 3rd Amended Petition. TAC ¶ 70.

         DFCS then arranged for R.S. to receive therapeutic services from Rebekah Children's Services. TAC ¶ 74. Amy Guy, an attorney with Legal Advocates for Youth and Children (“LACY”) who was appointed to represent R.S. and T.S., told Plaintiffs that she would never agree to the children returning home unless Plaintiffs submitted to multiple psychological examinations, waived their privacy rights, and dropped their appeals. TAC ¶¶ 24, 75. On April 13, 2018, the children were returned to Plaintiffs' custody. TAC ¶ 76. On May 2, 2018, the parties met to determine whether the petitions previously sustained should be dismissed. Id. No. agreement was reached between Plaintiffs and DFCS. Id. The court advised that it could not set the matter for trial until after May 14, 2018. Id.

         Because the County of Santa Clara had a policy prohibiting dependent children from staying on an “extended visit” with family for more than thirty days, Serdyukov felt compelled to waive trial and agree that the children were at risk in the home to speed resolution of the case. TAC ¶ 76. Plaintiffs allege that the policy was established by DFCS, the Social Security Agency of Santa Clara County (“SSA”), and SSA Director Francesca LeRue. TAC ¶¶ 11, 108. Plaintiffs also name as defendant the Department of Social Services (“DSS”), which is identified as “a subdivision or entity of Defendant Santa Clara County, ” but it is unclear what (if any) role DSS is alleged to have had in formulating the policy. TAC ¶ 8.

         Based on these allegations, Plaintiffs assert federal and state law claims against the following twenty-four individuals and entities: City of San Jose Defendants - the City of San Jose, the San Jose Police Department, Officer Gaona, Officer Avila, and Sergeant Tran; County of Santa Clara Defendants - the County of Santa Clara, SSA, SSA Director Francesca LeRue, DSS, DFCS, and social workers Jeff Johnson, Phu Nguyen, Sarah Gerhart, and Pa Chang; Plaintiffs' counsel - Nicolas Arnold, John Faulconer, Wesley Schroeder, Amy Choi, FLA, and Dependency Advocacy Center; Children's counsel - LACY and Amy Guy; Judge Patrick Tondreau; and Rebekah Children's Services. See generally TAC, ECF 109. Plaintiffs assert a First Cause of Action for Violation of Civil Rights under 42 U.S.C. § 1983, which is divided into four “counts”: Count 1, Warrantless Removal/Removal without a Court Order, Notice, or Exigency; Count 2, Judicial Deception; Count 3, Due Process; and Count 4, Monell Liability. TAC ¶¶ 77-110. Plaintiffs also assert a Second Cause of Action for legal malpractice under California state law. TAC ¶¶ 111-115. Plaintiffs seek money damages and attorneys' fees. TAC, Prayer.


         A. ...

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