United States District Court, S.D. California
MARY B. O’SHEA, Plaintiff,
COUNTY OF SAN DIEGO, ERICA LEE, et al., Defendants.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
[ECF NO. 3]
Cynthia Bashant United States District Judge
County of San Diego (“the County”) moves to
dismiss Plaintiff Mary B. O’Shea’s Complaint
under Federal Rule of Civil Procedure 12(b)(6). Because the
Court agrees that the causes of action are barred by the
applicable statute of limitations, the Court
GRANTS the Motion, but gives Plaintiff leave
ALLEGATIONS IN THE COMPLAINT
brings this Complaint under 42 U.S.C. § 1983 for a
violation of the Fourteenth Amendment, interference with
familial association, and fabrication of evidence. She also
alleges intentional and negligent infliction of emotional
distress as well as a violation of state civil rights.
(“Complaint, ” ECF No. 1-2.)
alleges Child Welfare Case worker Erica Lee made false
statements about Plaintiff’s parenting and threatened
to force Plaintiff’s minor daughter out of her home.
Specifically, Plaintiff claims on October 8, 2014, Erica Lee
lied on official documents. (Id. ¶ 9.) On
October 26, 2014, Plaintiff wrote a letter to the County
challenging Ms. Lee’s false accusations. (Id.
¶ 12.) In response, on October 28, 2014, Ms. Lee
threatened to have Plaintiff’s minor daughter removed
from the home. (Id. ¶ 13.) On October 30, 2014,
Plaintiff confronted Ms. Lee regarding her lies and abuse of
power. (Id. ¶ 14.) On November 18, 2014, in
response to a request filed by Plaintiff, Plaintiff received
a copy of her Child Welfare Services file and discovered many
falsities and misstatements. (Id. ¶ 15.)
filed a Complaint against the County and Erica Lee on May 10,
2019. The County removed the case to federal court. At the
time of removal, Plaintiff had not served the correct Erica
Lee. (See ECF No. 14 (the Court granted the
County’s motion to quash service of process on the
wrong Erica Lee). Plaintiff has since filed a certificate of
service of process for another Erica Lee. The County moves to
dismiss the Complaint against it. (ECF No. 3.) Erica Lee is not
part of the Motion.
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the
claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6);
Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001).
The court must accept all factual allegations pleaded in the
complaint as true and must construe them and draw all
reasonable inferences from them in favor of the nonmoving
party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d
336, 337–38 (9th Cir. 1996).
the deference the court must pay to the plaintiff’s
allegations, it is not proper for the court to assume that
“the [plaintiff] can prove facts that [he or she] has
not alleged or that defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
may not usually consider material outside the complaint when
ruling on a motion to dismiss. Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th
Cir. 1990). However, documents specifically identified in the
complaint whose authenticity is not questioned by parties may
also be considered. Fecht v. Price Co., 70 F.3d
1078, 1080 n.1 (9th Cir. 1995) (superseded by statute on
other grounds). Moreover, the court may consider the full
text of those documents even when the complaint quotes only
selected portions. Id. It may also consider material
properly subject to judicial notice without converting the
motion into one for summary judgment. Barron v.
Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Statute of Limitations
County moves to dismiss all of Plaintiff’s claims on
statute of limitations grounds. “A claim may be
dismissed under Rule 12(b)(6) on the ground that it is barred
by the applicable statute of limitations only when ‘the
running of the statute is apparent on the face of the
complaint.’” Von Saher v. Norton Simon Museum
of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)
(quoting Huynh v. Chase Manhattan Bank, 465 F.3d
992, 9976 (9th Cir. 2006)).
First Cause of Action: ...