United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH
LEAVE TO AMEND RE: DKT. NO. 10
NATHANAEL M. COUSINS, UNITED STATES MAGISTRATE JUDGE.
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.
Allegations in the Complaint
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”). 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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
42 U.S.C. § 1983
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.