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Chan v. City of Milpitas

United States District Court, N.D. California

July 17, 2019

KAREN CHAN, Plaintiff,
v.
CITY OF MILPITAS, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND RE: DKT. NO. 10

          NATHANAEL M. COUSINS, UNITED STATES MAGISTRATE JUDGE.

         In this civil rights action, plaintiff Karen Chan sues defendants City of Milpitas and Milpitas's Chief Enforcement Officer Eric Emmanuele for shutting down her after-school tutoring business. Chan asserts that Defendants' actions violated the First Amendment, the Fourth Amendment, and the Fourteenth Amendment of the United States Constitution, as well as California's Bane Act. See Dkt. No. 1. Defendants now move to dismiss Chan's complaint. See Dkt. No. 10. The Court finds that Chan's complaint fails to allege sufficient facts to state a claim. Accordingly, the Court GRANTS Defendants' motion to dismiss with leave to amend.

         I. Background

         A. Allegations in the Complaint

         In November 2017, Milpitas provided Chan with permits and documents required to open and operate an after-school tutoring program called Gulu Gulu Learning Academy (“GGLA”).[1] Dkt. No. 1 (“Compl.”) ¶¶ 12, 13. On June 21, 2018, Emmanuele delivered a cease and desist order to Chan, instructing her to: (1) remove all outside playground structures and all items related to daycare, such as cribs, cots, napping mats, and cooking equipment; and (2) remove all signage and website postings indicating that she provides daycare services. Id. ¶ 6. When he delivered the order, Emannuele pounded on the door, demanded entry, and entered the premises without Chan's consent. Id.

         Chan removed all outside playground structures, as well as all cribs, cots, and napping mats and informed Emmanuele that she had complied with the order. Id. ¶ 7. She later appeared at Milpitas's Planning Department to discuss the order with Adrienne Smith, who advised Chan that she “needed to merely comply with the Permit for Occupancy received from the [City] and the operations [of] GGLA could continue unimpeded.” Id. ¶ 8. During that conversation, a representative of the fire department stated that the fire department had proof that Chan was operating an illegal day care center at GGLA. Id. Chan denied that she was doing so and asked to see the fire department's proof. Id. The fire department representative ignored Chan's assertion. Id.

         Later that week, Tuco Doane, who worked for the California Department of Social Services, went to GGLA and determined that one of the seven children present was considered pre-school. Id. ¶ 9. The City gave Chan 30 days to either acquire a daycare facility license for GGLA or to move the child to Gulu Gulu Homebase, Chan's licensed daycare operation at a separate location. Id.

         Approximately ten days later, Emmanuele went to GGLA while the school was in session and, with a “bellowing” voice, indicated that GGLA was to cease operations immediately and ordered everyone to leave the premises. Id. ¶ 10. Emmanuele threatened to arrest anyone who did not comply and stated that the children's parents could either pick the children up from the premises immediately or pick them up from the police station. Id. Emmanuele executed a cease and desist order on Chan, asked for her driver's license, and stated “you are arrested and I am going to send you to jail.” Id. Chan refused to sign the order and asked to call her attorney and husband. Id. Emmanuele allowed Chan to call her attorney, her husband, and the children's parents. Id. When Chan's husband arrived, he spoke to Emmanuele and defused the situation. Id.

         The City placed a notice at the entrance of GGLA, prohibiting entrance without permission from the Milpitas Fire Marshal. Id. ¶ 11. Chan received email correspondence from City officials stating various conditions Chan had to meet in order to reopen GGLA. Id. The email stated that Chan must immediately remove all items typically associated with daycare operations; Chan must remove or permanently modify all exterior banners and signage reflecting daycare services; GGLA's website must be modified to reflect only tutorial services; Chan must limit operations to after-school hours because GGLA's permit is only authorized for tutoring and after-school instruction; GGLA's programming must be “academic” in nature; programming may only be offered to school-aged children who are already being instructed through regular schooling; and the wrought iron gate enclosing the parking lot was installed without a permit and must be removed. Id. ¶ 12.

         Soon after, Milpitas discovered there was insufficient curbside space to allow dropoff for children outside GGLA and informed Chan that it had mistakenly issued her a permit. Id. ¶ 13. Chan alleges that this has restricted the intended use of the property, thereby substantially reducing the value of her leasehold estate. Id. Moreover, following Emmanuele's cease and desist order, several parents removed their children from GGLA, decreasing attendance by 60%. Id. ¶ 14.

         B. Procedural History

         In October 2018, Chan submitted a demand to Milpitas for damages and Milpitas responded that it could not negotiate a settlement until a formal claim was submitted. Id. ¶ 17. She then submitted a claim for damages to the city clerk, pursuant to California Gov't Code § 910, but Milpitas has not yet responded. Id. ¶ 18.

         On April 11, 2019, Chan filed a complaint asserting: (1) violation of her First Amendment right of free speech and freedom of association under 42 U.S.C. § 1983; (2) excessive force and unreasonable seizure in violation of the Fourth Amendment under 42 U.S.C. § 1983; (3) violation of her Fourteenth Amendment due process rights under 42 U.S.C. § 1983; (4) false arrest; and (5) violation of California's Bane Act, Cal. Civ. Code § 52.1. See Id. ¶¶ 19-32. Defendants now move to dismiss under Fed.R.Civ.P. 12(b)(6). See Dkt. No. 10. The motion is fully briefed and the Court held a hearing on June 26, 2019. See Dkt. Nos. 14, 15, 20. All parties have consented to the jurisdiction of a magistrate judge. See Dkt. Nos. 9, 13.

         II. Legal Standard

         A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Under Rule 8(a), a complaint must include a short and plain statement showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a). Although a complaint need not allege detailed factual allegations, it must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim also “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         If a court grants a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

         III. Discussion

         A. 42 U.S.C. § 1983

         To state a constitutional violation under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct violated a right secured by the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 639 (1980). Here, Chan alleged constitutional violations of her First, Fourth, and Fourteenth Amendment rights. She also seeks to impose Monell liability against Milpitas.

         1. ...


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