Avenmarg v. Humboldt Cnty.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesDEBRA AVENMARG, Plaintiff, v. HUMBOLDT COUNTY, et al., Defendants.
Docket NumberCase No. 19-cv-05891-RMI
Decision Date04 August 2020
Re: Dkt. No. 61

Now pending before the court is a Motion to Dismiss (dkt. 61) filed by Defendant Humboldt County seeking dismissal from Plaintiff's Second Amended Complaint ("SAC") (dkt. 57-1, 57-2 *SEALED*)1 without further leave to amend. Plaintiff has responded (dkt. 63), and the County has replied (dkt. 66). For the reasons stated below, Defendant County's motion is granted.


Plaintiff's First Amended Complaint (dkts. 42, 43 *SEALED*)2 ("FAC") contained allegations that Defendant County and Blanck violated her right to privacy under the Fourteenth Amendment, right to familial association under the First and Fourteenth Amendments, right to petition under the First Amendment, and asserted several state law claims including invasion of privacy, defamation, contract interference, whistleblower retaliation, and negligent and intentional infliction of emotional distress. FAC (dkt. 42). Defendants moved to dismiss the FAC on severalgrounds including: failure to establish municipal liability; failure to allege a constitutionally protected relationship; Claims 1 and 2 were duplicative of Claims 4 and 5; failure to allege protected speech; immunity for the motions to disqualify Plaintiff; and, separately Defendant Blanck argued that Cal. Civ. Code § 1102.5 does not provide for individual liability. See Defs.' Mot. (dkt. 44); see also Blanck's Mot. (dkt. 46).

In the Order (dkt. 55) on the previous motion to dismiss, the court granted Plaintiff leave to amend several claims. First, the court instructed Plaintiff to add facts sufficient to establish municipal liability against the County for Claims 1, 2, 4, and 5. Id. at 15. Specifically, Plaintiff needed to add facts alleging the existence of local or state laws that granted final policy making authority to Defendant Blanck, that a final policymaker ratified or approved Defendant Blanck's conduct, and to clarify what role Defendant Blanck played in regard to the policy - whether he created it, implemented or approved it, or that he acted because of it. Id. Claim-2 was dismissed with leave to amend so that Plaintiff could allege facts showing that Defendants' motions to disqualify were not entitled to immunity as petitioning under the First Amendment. Id. at 20-21. The court also granted leave to amend Claim-3 so that Plaintiff could add facts showing that her motions in GN's dependency proceeding constituted speech on a public matter protected by the First Amendment. Id. at 19. Plaintiff was also given leave to amend Claim-6 to add allegations that Plaintiff engaged in protected whistleblower activities and to allege specific retaliatory conduct by Defendants. Id. at 22. Finally, the court granted Plaintiff leave to amend Claim-8 so that Plaintiff could identify with particularity what speech she alleges to be defamatory. Id. Without amendment, claims 1, 2, 4, and 5 remained operative against Defendant Blanck as well as the unchallenged state law claims.

Plaintiff's Claims:

In the SAC, which is the subject of the pending motion to dismiss, Plaintiff brings twelve claims against Defendants. Claim-1 asserts that Defendants violated Plaintiff's right to privacy in decision making on a private matter. Specifically, Plaintiff alleges that Defendants interfered with her decision to be involved in the life of GN - her former foster child and extended family member. See SAC (dkt. 57-1) at 24. Plaintiff bases this claim on the following conduct: DefendantBlanck falsely accused her of violating her ethical duties as an attorney due to an alleged conflict of interest; Defendant Blanck told Plaintiff to choose between her employment or rescinding her motions to obtain de facto parent status in GN's dependency case; and Defendant Blanck fired Plaintiff when she refused to quit or rescind her motions. Id. at 24-26. In Claim-2, Plaintiff alleges that Defendants invaded her right to privacy under the Fourteenth Amendment by requiring her to disclose personal matters. Id. at 26-29. In particular, Defendants required Plaintiff to disclose information about her family, GN, and her employment in the following contexts: during her employment with the County; when obtaining new employment; when defending against the motions to disqualify; and when defending against Defendant Blanck's complaint to the California state bar. Id. at 27. Claim-3 asserts that Defendants retaliated against Plaintiff for engaging in constitutionally protected activity (petitioning in GN's dependency case) in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 29-31. Plaintiff alleges that Defendants retaliated against her by: wrongfully terminating her employment for filing motions in GN's dependency case, filing motions to disqualify her from cases in her new employment, and Defendant Blanck's complaint to the state bar. Id. at 30. Claim-4 alleges that Defendants interfered with Plaintiff's First Amendment right to petition courts for redress of grievances (her motions in GN's dependency case) and retaliated against her for her petitioning. Id. at 32-34. Plaintiff's Fifth Claim asserts that Defendants interfered with her First and Fourteenth Amendment right to familial association. Id. at 34-36. The conduct is not specifically identified, but Plaintiff alleges that Defendant Blanck's conduct violated her right to familial association and that Defendants "directed [] subordinates in the acts that deprived [her] of her rights." Id. at 35. In Claim-6, Plaintiff alleges that Defendant County had an unconstitutional policy that prevented "Humboldt County Counsel from taking placement of foster children in Humboldt County." Id. at 36. Plaintiff adds that Defendant Blanck had final policymaking authority regarding conflicts, that Defendant County ratified and approved Defendant Blancks' actions, and that Defendants directed subordinates to deprive Plaintiff of her right to familial association. Id. at 36.

Plaintiff also asserts six state law claims. In Claim-7, Plaintiff alleges that Defendants violated California Civil Code § 1102.5 by retaliating against her "after she engaged in a protectedactivity . . . ." Id. at 39. Claim-8 asserts that Defendants violated her right to privacy under the California Constitution. Id. at 40-42. The alleged conduct mirrors her first claim. Id. at 40-41 (Defendant Blanck falsely accused Plaintiff of having a professional ethical violation, Defendant Blanck required Plaintiff to choose between her employment or withdrawing her motion in GN's dependency case, and Defendant Blanck terminated Plaintiff's employment when she refused). Claim-9 asserts that Defendants defamed Plaintiff in violation of California Civil Code § 43. Id. at 42-44. In Claim-10, Plaintiff alleges that Defendants intentionally interfered with her contract with the Humboldt County superior court. Id. at 44-45. Specifically, she alleges that Defendants filed motions to disqualify her from dependency cases (even cases that did not exist when she worked for the County), and that Defendant Blanck filed a false or inaccurate complaint to the California state bar. Id. Plaintiff's two remaining claims are for intentional and negligent infliction of emotional distress for "conduct set forth herein above . . . ." Id. at 45-47.

Plaintiff's Factual Allegations:

Plaintiff organized her factual allegations into four sections: 1) Defendant Blanck's final policymaking authority; 2) Plaintiff's employment and termination; 3) Plaintiff's motions in GN's dependency case; and 4) Defendants' conduct after termination of Plaintiff's employment with the County Counsel's office. SAC (dkt. 57-2) at 5-24. The SAC contains largely the same set of factual allegations as the FAC - particularly those regarding her relationship with GN and Defendant Blanck's conduct related to her employment and conflict of interest. Thus, the court incorporates the summary of Plaintiff's factual allegations in its previous order ((dkt. 55) at 3-11) and relays only the newly asserted facts.

First, regarding final policymaking authority, Plaintiff alleges that the provisions of the California State Bar Act apply to all attorneys, including Defendant Blanck, and attorneys have duties to comply with disciplinary investigations, disciplinary proceedings, and reporting requirements. Id. at 6. She adds that Defendant Blanck, like all attorneys licensed to practice in the state of California, is subject to the California Rules of Professional Conduct ("CRPC"). Id. Rule 5.1 sets forth the responsibilities of managerial and supervisory attorneys in a law firm. See Cal. Rule of Prof. Conduct 5.1. A comment to the rule provides examples of the "reasonable efforts toestablish internal policies and procedures" and includes policies and procedures "to detect and resolve conflicts of interest . . . ." Id.; see Cal. Rule of Prof. Conduct 5.1(a), Comment 1.3 Plaintiff asserts that, as County Counsel, Defendant Blanck had managerial authority over the attorneys in the County Counsel's office, including Plaintiff. Id. at 6-7. As such, he was "responsible for setting policies, procedures and rules relevant to the identification, prevention and response to ethical conflicts arising during the course of dependency matters." Id. at 7. Further, "[t]he establishment, maintenance and decision-making regarding conflicts was by operation of state law, delegated to the general operation of the County Counsel's office." Id.

Plaintiff also states that Defendant Blanck evaluated her performance when she served as a deputy county counsel. Id. Defendant Blanck rated her performance as "outstanding" in nearly all categories except for two, which he marked as "above average." Id. Plaintiff received a promotion following this...

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