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Case 5:16-cv-00322-BLF Document 59 Filed 05/05/16 Page 1 of 19

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KAMALA D. HARRIS
Attorney General of California
JOHN P. DEVINE
Supervising Deputy Attorney General
State Bar No. 170773
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5522
Fax: (415) 703-5480
E-mail: John.Devine@doj.ca.gov
Attorneys for Defendant Victoria Henley

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TANYA NEMCIK,
Plaintiff,
v.

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5:16-cv-00322-BLF

EDWARD MILLS, et al.,

DEFENDANT VICTORIA HENLEYS


AMENDED AMENDED NOTICE OF
MOTION AND MOTION TO DISMISS
PLAINTIFF'S FIRST AMENDED
COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF
Defendants. Date:
Time:
Dept:
Judge:

August 18, 2016


9:00 a.m.
3
The Honorable Beth Labson
Freeman
Action Filed: 3/21/2016

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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Case 5:16-cv-00322-BLF Document 59 Filed 05/05/16 Page 2 of 19

TABLE OF CONTENTS

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Notice of Motion to Dismiss; Memorandum ............................................................................... 1


Memorandum of Points and Authorities ...................................................................................... 2
Preliminary Statement................................................................................................................. 2
I.
Nature of this action; Plaintiff's claims ................................................................. 2
II.
Grounds for this motion ....................................................................................... 3
III.
Legal standards .................................................................................................... 3
A.
Rule 12(b)(1) ........................................................................................... 3
B.
Rule 12(b)(6) ........................................................................................... 4
Argument ................................................................................................................................... 5
I.
The domestic relations exception to federal court jurisdiction bars
plaintiffs claims. ................................................................................................. 5
II.
The Rooker Feldman doctrine bars federal court jurisdiction.............................. 6
III.
The Eleventh Amendment to the United States Constitution bars federal
court jurisdiction over claims against states, state entities, and state
officials, including defendant Henley. .................................................................. 9
IV.
Federal law precludes jurisdiction because defendant Henley is not a
person suable under 42 U.S.C. 1983 in her official capacity........................... 9
V.
The complaint fails to state a claim because it does not allege facts showing
that defendant Henley violated any constitutional rights of plaintiff. .................. 10
VI.
The allegations in plaintiffs complaint are so vague that they are subject
either to a motion for dismissal under rule 12(b)(6) or motion for more
definite statement under rule 12(e) ..................................................................... 11
VII. Plaintiffs lawsuit is barred by the California Government Claims Act. .............. 12
Conclusion................................................................................................................................ 13

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

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TABLE OF AUTHORITIES

Page

CASES

Adams v. Johnson
355 F.3d 1179 (9th Cir. 2004) ................................................................................................ 4

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Aguon v. Commonwealth Ports Auth.


316 F.3d 899 (9th Cir. 2003) ................................................................................................ 10
Albright v. Oliver
510 U.S. 266 (1994) ............................................................................................................. 10
Allah v. Superior Court of the State of California
871 F.2d 887(9th Cir. 1989) ................................................................................................... 6
Arizonans for Official English v. Arizona
520 U.S. 43 (1997)............................................................................................................... 10
Ashcroft v. Iqbal
129 S. Ct. 1937 (2009) ..................................................................................................... 4, 10
Ashker v. Cal. Dept of Corr.
112 F.3d 392 (9th Cir. 1997) .................................................................................................. 9
Balistreri v. Pacifica Police Dep't.
901 F.2d 696 (9th Cir.1990) ............................................................................................10, 11
Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) ......................................................................................................... 4, 10
Bianchi v. Rylaarsdam
334 F.3d 895 (9th Cir. 2003) .................................................................................................. 7
Chandler v. State Farm Mut. Auto. Ins. Co.
598 F.3d 1115 (9th Cir.2010) ................................................................................................. 4
Cooper v. Ramos
704 F.3d 772 (9th Cir. 2012) .................................................................................................. 7
D.C. Court of Appeals v. Feldman
460 U.S. 462 (1983) ........................................................................................................... 6, 7
DeNieva v. Reyes
966 F.2d 480 (9th Cir. 1992) ................................................................................................ 10
Doe & Assocs. Law Offices v. Napolitano
252 F.3d 1026 (9th Cir. 2001) ................................................................................................ 7
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TABLE OF AUTHORITIES
(continued)
Page
Doe v. Lawrence Livermore Natl Lab.
131 F.3d 836 (9th Cir. 1997) ................................................................................................ 10
Durning v. Citibank, N.A.
950 F.2d 1419 (9th Cir. 1991) ................................................................................................ 9
Fayer v. Vaughn
649 F.3d 1061 (9th Cir. 2011) ................................................................................................ 4
Flint v. Dennison
488 F.3d 816 (9th Cir. 2007) ................................................................................................ 10
Hafer v. Melo
502 U.S. 21 (1991)............................................................................................................... 10
Hart v. Alameda County
76 Cal.App.4th 766 (1997) ................................................................................................... 12
Huffman v. Pursue Ltd.
420 U.S. 592 (1975) ............................................................................................................... 7
In re Burrus
136 U.S. 586 (1890) ............................................................................................................... 5
Kougasian v. TMSL, Inc.
359 F.3d 1136 (9th Cir. 2004) ................................................................................................ 7
MacKay v. Pfeil
827 F.2d 540 (9th Cir. 1987) .................................................................................................. 8
Manzarek v. St. Paul Fire & Marine Ins. Co.
519 F.3d 1025 (9th Cir. 2008) ................................................................................................ 4
Marshall v. Marshall
547 U.S. 293 (2006) ............................................................................................................... 5
McCarthy v. United States
850 F.2d558 (9th Cir.1988) .................................................................................................... 4
McIntyre v. McIntyre
771 F.2d 1316 (9th Cir. 1982) ................................................................................................ 5
Mitchum v. Foster
407 U.S. 225 (1972) ............................................................................................................. 10

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TABLE OF AUTHORITIES
(continued)
Page
Monroe v. Pape
365 U.S. 167 (1961) ............................................................................................................. 10
Munoz v. State of California
33 Cal.App.4th 1767 (1995) ................................................................................................. 12
Noel v. Hall
341 F.3d 1148 (9th Cir.2003) ................................................................................................. 7
Pena v. Gardner
976 F.2d 469 (9th Cir. 1992) (per curiam) .............................................................................. 9
Pennhurst State School & Hosp. v. Halderman
465 U.S. 89 (1984)................................................................................................................. 9
Porter v. Jones
319 F.3d 483 (9th Cir. 2003) .................................................................................................. 9
Rooker v. Fidelity Trust Co.
263 U.S. 413 (1923) ............................................................................................................... 6
Savage v. Glendale Union High Sch.
343 F.3d 1036 (9th Cir. 2003) ................................................................................................ 3
Shaw v. Hahn
56 F.3d 1128 (9th Cir. 1995) .................................................................................................. 4
Shwarz v. United States
234 F.3d 428 (9th Cir. 2000) .................................................................................................. 4
State of California v. Superior Court (Bodde)
32 Cal.4th 1234 (2004) ........................................................................................................ 13
Steel Co. v. Citizens for a Better Env't
523 U.S. 83 (1998)................................................................................................................. 4
Thompson v. Thompson
789 F.2d 1547 (9th Cir. 1986) ................................................................................................ 5
Weisbuch v. Cnty. of L.A.
119 F.3d 778 (9th Cir. 12 1997) ............................................................................................. 5
Will v. Mich. Dept of State Police
491 U.S. 58 (1989)............................................................................................................... 10

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TABLE OF AUTHORITIES
(continued)

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Worldwide Church of God v. McNair
805 F.2d 888 (9th Cir. 1986) .................................................................................................. 7
STATUTES
United States Code, Title 42
1983.................................................................................................................................... 1

California Government Code


915.................................................................................................................................... 12

CONSTITUTIONAL PROVISIONS

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First Amendment ......................................................................................................................... 3

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Eleventh Amendment ...........................................................................................................1, 3, 9

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California Constitution, Article VI


18(b) ................................................................................................................................. 11
18(d) ................................................................................................................................. 11
UNITED STATES CONSTITUTION .......................................................................................... 9
United States Constitution, Amendment XI.................................................................................. 9
United States Constitution, Article III .......................................................................................... 4
COURT RULES
Federal Rules of Civil Procedure
Rule 8 .................................................................................................................................. 10
Rule 8(a) .............................................................................................................................. 11
Rule 8(d)(1) ......................................................................................................................... 11
Rule 12(b)(1) ..................................................................................................................1, 3, 4
Rule 12(b)(6) .......................................................................................................... 1, 4, 10, 11
Rule 12(e) ................................................................................................................... 1, 11, 12

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CALIFORNIA
JUDICIAL
BRANCH
NEWS
SERVICE
CJBNS.ORG

AMENDED NOTICE OF MOTION TO DISMISS; MEMORANDUM

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TO PLAINTIFF IN PRO PER:

NOTICE IS HEREBY GIVEN that on Thursday, August 18, 2016, at 9:00 a.m., before the

Honorable Beth Labson Freeman, located in Courtroom 3 (5th Floor) at 280 South First Street,

San Jose, California, Defendant Victoria Henley will and does hereby move this Court to dismiss

this action pursuant to Rules 12(b)(1), 12(b)(6), and 12(e) of the Federal Rules of Civil Procedure

because this Court lacks subject-matter jurisdiction and plaintiff's complaint fails to state a claim

against Defendant Victoria Henley upon which relief can be granted, in that:

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1.

The claims are barred by the domestic relations exception to federal jurisdiction;

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2.

The claims are barred by the Rooker-Feldman doctrine;

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3.

The claims against Defendant Henley in her official capacity are barred by the
Eleventh Amendment and 42 U.S.C. section 1983;

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4.

The claims against Defendant Henley fail to state any claim for relief;

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5.

The claims against Defendant Henley are so vague and ambiguous that they deprive
her the opportunity to frame a responsive pleading; and

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6.

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Government Claims Act.

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Defendant Henley requests that the motion to dismiss be granted and that this Court issue

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The state law claims are barred by Plaintiffs failure to comply with the California

an Order dismissing all the claims against her.


This motion is and shall be based upon this notice of motion and motion to dismiss, the

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request for stay, and the accompanying memorandum of points and authorities, the pleadings and

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papers on file herein, and such oral and written material as may be presented at the hearing of this

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motion.

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MEMORANDUM OF POINTS AND AUTHORITIES

PRELIMINARY STATEMENT

I.

NATURE OF THIS ACTION; PLAINTIFF'S CLAIMS


This action regards damages, along with a request for injunctive relief, sought by Plaintiff

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against numerous individuals and the Department of Child Support Services. All are allegedly

involved in her family law matter in Santa Clara County Superior Court, which now centers on

child support payment issues. Pl. FAC passim.

Victoria Henley, who is the Director-Chief Counsel of the Commission on Judicial

Performance (CJP) in San Francisco, is sued in her personal and official capacities. Pl. FAC

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12, 15. In the prolix First Amended Complaint, Plaintiff files three separate claims for relief

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against Defendant Henley (i.e., 42 U.S.C. section 1983, Intentional Infliction of Emotional

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Distress, and Negligent Infliction of Emotional Distress). These are the Eighth, Thirteenth, and

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Fourteenth claims for relief in the First Amended Complaint. Pl. FAC 117-36, 191-96, 197-

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207.
Plaintiff asserts that she has a due process right to have the CJP review her complaint [to

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the CJP based upon Commissioner Mills yelling at her and setting her support order

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unreasonably high] and make a proper finding and then to hold the judge [sic] to account for

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their unlawful malicious acts. Pl. FAC 118, 129. Plaintiff also alleges that Commissioner

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Mills colluded with Defendant Henley, who removed the complaint against him, and ultimately

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did not submit the complaint for review. Pl. FAC 126. Despite these allegations, Plaintiffs

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First Amended Complaint attaches a July 2015 letter from the CJP indicating that the complaint

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was considered at a meeting of the commission, where it determined not to take further action

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concerning Plaintiffs complaint to it. See Pl. FAC, Exhibit O.


Among other requests in the First Amended Complaints prayer for relief, Plaintiff

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apparently seeks the amount of child support in arrears, which is $82,597 as of February 29,

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2016. Pl. FAC p. 27, line 6.

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//

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//
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II.

Several jurisdictional impediments preclude this lawsuit and the requested relief sought by

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GROUNDS FOR THIS MOTION

the Plaintiff.
The lawsuit is barred by both the domestic relations exception to federal jurisdiction

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(precluding jurisdiction where the dispute would deeply involve the district court in

adjudicating domestic matters) and the Rooker-Feldman doctrine (preventing federal district

courts from reviewing state court judgments and decisions).


The Eleventh Amendment and 42 U.S.C. section 1983 also bar any lawsuit for damages

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against Defendant Henley in her official capacity.


Apart from these jurisdictional impediments to the federal claim for relief, Plaintiffs First

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Amended Complaint fails to state a claim. This district court can look to the allegations

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concerning Defendant Henley, and then immediately see that they are wholly contradicted by

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Exhibit O, attached to the First Amended Complaint.


Finally, Plaintiff fails to allege she complied with the California Government Claims Act,

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which is a condition precedent for any state law claims for relief.

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As a result of these barriers to jurisdiction, Defendant Henley requests that the Plaintiff's

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claims for relief against her be summarily denied, and that her First Amendment Complaint be

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dismissed with prejudice.

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III.

LEGAL STANDARDS

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A.

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A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant

Rule 12(b)(1)

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to Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss tests whether a

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complaint alleges grounds for federal subject matter jurisdiction. A motion to dismiss for lack of

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subject matter jurisdiction will be granted if the complaint on its face fails to allege facts

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sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343

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F.3d 1036, 1039 n. 2 (9th Cir. 2003). In considering a Rule 12(b)(1) motion, the Court is not

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restricted to the face of the pleadings, but may review any evidence, such as affidavits and

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testimony, to resolve factual disputes concerning the existence of jurisdiction. McCarthy v.

United States, 850 F.2d558, 560 (9th Cir. 1988).

If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks

subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 10102 (1998). Once a party has moved to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's

jurisdiction. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th

Cir.2010).

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B.

Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an

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action for failure to allege enough facts to state a claim to relief that is plausible on its face.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

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probability requirement, but it asks for more than a sheer possibility that a defendant has acted

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unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). For

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purposes of ruling on a Rule 12(b)(6) motion, the court accept[s] factual allegations in the

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complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving

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party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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Nonetheless, the court need not accept as true allegations contradicted by judicially

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noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the [C]ourt may

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look beyond the plaintiffs complaint to matters of public record without converting the Rule

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12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.

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1995). Nor is the court required to assume the truth of legal conclusions merely because they

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are cast in the form of factual allegations. Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.

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2011) (per curiam) (quoting W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere

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conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to

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dismiss. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
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CALIFORNIA
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Furthermore, a plaintiff may plead [him]self out of court if he plead[s] facts which establish

that he cannot prevail on his . . . claim. Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th

Cir. 1997) (quoting Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).

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ARGUMENT
I.

THE DOMESTIC RELATIONS EXCEPTION TO FEDERAL COURT


JURISDICTION BARS PLAINTIFFS CLAIMS.
The domestic relations exception to federal court jurisdiction prevents the federal district

courts from adjudicating domestic relations claims. This principle has long been recognized. In

re Burrus, 136 U.S. 586, 593-94 (1890) (The whole subject of the domestic relations of husband

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and wife, parent and child, belongs to the laws of the States and not to the laws of the United

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States). More recently and specifically, the United States Supreme Court has recognized an

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exception to federal jurisdiction for child custody decrees. Marshall v. Marshall, 547 U.S. 293,

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308 (2006) (recognizing that, under the domestic relations exception, divorce, alimony, and

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child custody decrees remain outside federal jurisdictional bounds).

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A few opinions from the Ninth Court of Appeals have further illuminated the contours of

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the domestic relations exception. If the status of parent and child or husband and wife is the

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primary issue in a case, a federal court must decline jurisdiction. McIntyre v. McIntyre, 771 F.2d

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1316, 1317 (9th Cir. 1982) (citing Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968)). The

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McIntyre opinion went on to clarify: It follows that the exception to jurisdiction arises in those

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cases where a federal court is asked to grant a decree of divorce or annulment, or to grant custody

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or fix payments for support, the rationale being that those actions are close to the historical

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concept of an ecclesiastical action and peculiarly within the province of the state courts. Id. at

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1317-18 (citing Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982)) (emphasis added).

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As a significant additional point about the domestic relations exception, the Ninth Circuit

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Court of Appeals has held that the exception applies equally in cases arising under federal

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question jurisdiction where the dispute would deeply involve the district court in adjudicating

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domestic matters. Thompson v. Thompson, 789 F.2d 1547, 1558 (9th Cir. 1986).

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It becomes evident from reviewing Plaintiffs First Amended Complaint that she seeks the

deep involvement of the federal courts in her ongoing child support issues. Indeed the very first

allegation is the following: This case seeks monetary damages and equitable relief for an

ongoing and complex family law case where plaintiff is being abused. Pl. FAC 1. Among

other things, the First Amended Complaint extensively addresses the manner in which child

support orders and calculations were made. Pl. FAC 43-56. Plaintiffs First Amended

Complaint also makes repeated allegations against various defendants about the ongoing nature of

the child and custody support issue. For example, Defendants [DCSS, Barth, Secrest, and

Stevens] in [sic] colluded and thereby denied Plaintiff due process for the purpose of creating

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permanent child support orders even though the custody orders were not final. Pl. FAC 61.

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For another example, Plaintiff has the fundamental right of due process to be allowed the right to

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provide evidence and facts to support child support calculations. Pl. FAC 106. For yet another

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example in the claim for relief against Defendant Henley Plaintiff asserts that she has a due

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process right to have the CJP [Commission for Judicial Performance] review her complaint [to

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the CJP based upon Commissioner Mills yelling at her and setting her support order

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unreasonably high] and make a proper finding and then to hold the judge [sic] to account for

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their unlawful malicious acts. Pl. FAC 118, 129.

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Given the entirety of the allegations in the First Amended Complaint, it is apparent that

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Plaintiff is primarily concerned with the child support issues in her ongoing family law matter.

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Pl. FAC passim.

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As a result, the domestic relations exception applies in this case and bars Plaintiffs claims

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in federal court.

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II.

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THE ROOKER FELDMAN DOCTRINE BARS FEDERAL COURT


JURISDICTION.
The federal district courts lack jurisdiction to review state court judgments. Allah v.

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Superior Court of the State of California, 871 F.2d 887, 890-91(9th Cir. 1989); Rooker v. Fidelity

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Trust Co., 263 U.S. 413, 415 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87

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(1983).
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A federal court has no jurisdiction over issues that are inextricably intertwined with
allegations underlying the judgment of a state court. Feldman, supra, 460 U.S. at 486-87.
The doctrine that district courts have no authority to review final determinations of state

courts judicial proceedings applies even when the challenge to the state court decision involves

constitutional issues. Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986).

This is because state courts are as competent as federal courts to decide constitutional issues. Id.;

see also, Huffman v. Pursue Ltd., 420 U.S. 592, 611 (1975) (rejecting the argument that state

judges will not be faithful to their constitutional responsibilities).

The RookerFeldman doctrine instructs that federal district courts are without jurisdiction

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to hear direct appeals from the judgments of state courts. Cooper v. Ramos, 704 F.3d 772, 777

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(9th Cir. 2012). The doctrine bars a district court from exercising jurisdiction not only over an

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action explicitly styled as a direct appeal but also the de facto equivalent of such an appeal.

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Id. (Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir.2003)). The purpose of the doctrine is to protect

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state judgments from collateral federal attack. Doe & Assocs. Law Offices v. Napolitano, 252

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F.3d 1026, 1030 (9th Cir. 2001). The Rooker-Feldman doctrine applies where a party is: [1]

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assert[ing] as her injury legal error or errors by the state court and [2] seek[ing] as her remedy

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relief from the state court judgment. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir.

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2004) (citing Noel, 341 F.3d at 1164) (emphasis in original).

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If a plaintiff is bring[ing] a forbidden de facto appeal such that the Rooker-Feldman

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doctrine applies, the doctrine will not only prohibit the Plaintiff from litigating the de facto

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appeal, but also any issue that is inextricably intertwined with the state courts judgment.

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Cooper, 704 F.3d at 778-79. The inextricably intertwined test is only applied if the Court has

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already determined that Rooker-Feldman applies because the plaintiff is seeking a prohibited de

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facto appeal. See id. at 778 (citing Noel, 341 F.3d at 1158). A claim is inextricably intertwined

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with a state court judgment if the federal claim succeeds only to the extent that the state court

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wrongly decided the issues before it, i.e. [w]here federal relief can only be predicated upon a

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conviction that the state court was wrong. Id. at 779 (quoting Pennzoil Co. v. Texaco, Inc., 481

28

U.S. 1, 25 (1987)); see also Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003) (providing
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that claims are inextricably intertwined with the state courts decision if the adjudication of

[such] claims would undercut the state ruling).

This doctrine is applicable in this lawsuit, where the Plaintiff seeks to attack the legitimacy

of various judicial actions. Pl. FAC passim. As the lawsuit appears to relate to Defendant

Henley, she allegedly failed to hold judicial officers to account for their unlawful malicious

acts. Pl. FAC 129 (8th claim for relief 42 U.S.C. 1983). Defendant Henley also allegedly

caused Plaintiff emotional distress because [t]here were multiple hearings where Plaintiff would

verbally ask for accommodation to minimize her disability and would bring to Defendants

attention that their specific actions were causing her harm. Pl. FAC 193 (13th claim for relief

10

Intentional Infliction of Emotional Distress). Additionally, Plaintiff alleges that Defendant

11

Henley was negligent in her duty to ensure that proper accountability occurred with

12

Commissioner Mills to ensure that he would be able to cause harm to Plaintiff. Pl. FAC 202

13

(14th claim for relief Negligent Infliction of Emotional Distress). Against the backdrop of all

14

these allegations, Plaintiff seeks in her prayer for relief [t]the amount of the arrears, which is

15

$82,597 as of February 29, 2016. Pl. FAC Prayer, p. 27, line 6.

16

If as here, in order to grant the relief sought, the district court must determine the state court

17

judgment was erroneously entered or must take action that would render the judgment ineffectual,

18

the Rooker-Feldman doctrine applies. MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987)

19

(holding Rooker-Feldman doctrine bars federal court review if the relief requested requires the

20

"mere revision of errors and irregularities" or asks the federal court to determine "the legality and

21

correctness of the judgments" of the state courts).

22

Thus, where the claims brought in an action are tantamount to a challenge of state court

23

decisions, the federal district court lacks subject matter jurisdiction and dismissal is the

24

appropriate disposition of the matter.

25
26
27

///

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///
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III.

2
3

The Eleventh Amendment provides:

[T]he judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
citizens of another state . . . .

5
6

THE ELEVENTH AMENDMENT TO THE UNITED STATES


CONSTITUTION BARS FEDERAL COURT JURISDICTION OVER CLAIMS
AGAINST STATES, STATE ENTITIES, AND STATE OFFICIALS,
INCLUDING DEFENDANT HENLEY.

U.S. Const. amend. XI.

7
The Eleventh Amendment bars suits that seek damages against a state, an arm of the state,

8
9

its instrumentalities, its agencies, or its pubic officials. Durning v. Citibank, N.A., 950 F.2d 1419,

10

1422-23 (9th Cir. 1991). The Eleventh Amendment is a specific constitutional bar against

11

hearing even federal claims that otherwise would be within the jurisdiction of the federal courts.

12

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).
Plaintiffs First Amended Complaint alleges, All Persons named as Defendants herein are

13
14

sued in their individual capacities. All Persons who are public entities or officials are also sued in

15

their official capacities. Pl. FAC 15.

16

While the Eleventh Amendment allows a lawsuit against Defendant Henley in her

17

individual capacity, an action for damages against Defendant Henley in her official capacity is

18

barred by the Eleventh Amendment.1 Given the bar of Eleventh Amendment immunity, this

19

Court lacks jurisdiction over Defendant Henley in her official capacity


As a result, Plaintiffs First Amended Complaint should be dismissed with prejudice against

20
21

Defendant Henley in her official capacity.

22

IV.

23

FEDERAL LAW PRECLUDES JURISDICTION BECAUSE DEFENDANT


HENLEY IS NOT A PERSON SUABLE UNDER 42 U.S.C. 1983 IN HER
OFFICIAL CAPACITY.

24

Another procedural obstacle prevents suit against Defendant Henley. Typically, claimed

25
26
27
28

incursions into federal constitutional rights can only be vindicated through the statutory remedy
1

The Eleventh Amendment does not bar suits seeking damages against state officials in
their personal capacity. See Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); Ashker v. Cal.
Dept of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997); Pena v. Gardner, 976 F.2d 469, 472 (9th
Cir. 1992) (per curiam).
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provided in 42 U.S.C. 1983. Monroe v. Pape, 365 U.S. 167, 172 (1961); Mitchum v. Foster,

407 U.S. 225, 242 (1972). Section 1983 is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510

U.S. 266, 271 (1994) (citations and internal quotations omitted).

5
6

Against this legal backdrop, Plaintiff avers that her constitutional and civil rights have been
violated by Defendant Henley in her official capacity. Pl. FAC 15, 117-36.

State officials sued in their official capacity for damages are not persons for purposes of

1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); Hafer v. Melo,

502 U.S. 21, 27 (1991); Will v. Mich. Dept of State Police, 491 U.S. 58, 71 (1989); Flint v.

10

Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence Livermore Natl Lab., 131

11

F.3d 836, 839 (9th Cir. 1997); Aguon v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir.

12

2003); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992).

13

Thus, the Court should dismiss Plaintiffs Eighth Cause of Action in the First Amended

14

Complaint against Defendant Henley in her official capacity.

15

V.

16

THE COMPLAINT FAILS TO STATE A CLAIM BECAUSE IT DOES NOT


ALLEGE FACTS SHOWING THAT DEFENDANT HENLEY VIOLATED
ANY CONSTITUTIONAL RIGHTS OF PLAINTIFF.

17

Plaintiff has failed to state a claim under Rule 8, Federal Rules of Civil Procedure.

18

The Supreme Court explained in Twombly and Iqbal that conclusory statements that merely

19

recite the elements of a claim are insufficient for the purpose of 12(b)(6). See Iqbal, 556 U.S. at

20

678 (Threadbare recitals of the elements of a cause of action, supported by mere conclusory

21

statements, do not suffice.); Twombly, 550 U.S. at 555 (a plaintiffs obligation to provide the

22

grounds of his entitle[ment] to relief requires more than labels and conclusions, and a

23

formulaic recitation of the elements of a cause of action will not do). Additionally, to survive a

24

Rule 12(b)(6) motion, the complaint must state a claim to relief that is plausible on its face.

25

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Dismissal can be based on the lack of a

26

cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.

27

Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.1990).

28
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1
2

In this lawsuit, Plaintiff makes threadbare recitals and conclusory statements against
Defendant Henley. See Pl. FAC 117-136. No mention is made of any dates. Ibid.

Plaintiff alleges that she has a due process right to have the CJP [Commission on Judicial

Performance] review her complaint [to the CJP based upon Commissioner Mills yelling at her

and setting her support order unreasonably high] and make a proper finding and then to hold the

judge [sic] to account for their unlawful malicious acts. Pl. FAC 118, 129. But Plaintiff also

alleges, quite correctly in this instance, that [r]emoving a Judge from a case is not a remedy that

the CJP may administer. Pl. FAC 132; see Cal. Const., art VI, 18(b)(authority of CJP to

disqualify a judge from acting as a judge while a notice of formal proceedings is pending

10

against that judge); see also Cal. Const., art. VI, 18(d). (CJP authority to remove judges from

11

office).

12

What remains startling is that Plaintiff alleges that Commissioner Mills colluded with

13

Defendant Henley and removed his complaint and by choice did not review the complaint. Pl.

14

FAC 126. But attached to the First Amended Complaint is Exhibit O a letter from the

15

Commission on Judicial Performance dated July 16, 2015 stating the following:

16

Your complaint dated May 19, 2015 about the conduct of a court commissioner was
considered by the Commission on Judicial Performance at its July meeting. At that
time, the commission determined not to take further action with respect to your
complaint.

17
18
19
20
21
22

Pl. FAC, Exhibit O.


Without a showing that Defendant Henley actually did anything alleged in the Eighth Claim
for Relief in Plaintiffs First Amended Complaint, Plaintiff cannot demonstrate that any act or
failure to act by Defendant Henley violated her constitutional rights.
Therefore, Defendant Henleys motion to dismiss should be granted.

23

25

THE ALLEGATIONS IN PLAINTIFFS COMPLAINT ARE SO VAGUE


THAT THEY ARE SUBJECT EITHER TO A MOTION FOR DISMISSAL
UNDER RULE 12(B)(6) OR MOTION FOR MORE DEFINITE STATEMENT
UNDER RULE 12(E)

26

Federal Rules of Civil Procedure Rule 8(a) requires, in pertinent part, that a complaint

24

VI.

27

contain a short and plain statement of the claim, while Rule 8(d)(1) requires [e]ach allegation

28

must be simple, concise and direct. As already discussed, a dismissal is warranted under Rule
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12(b)(6) because the pleading fails to state a claim. Separately, dismissal is warranted under Rule

12(e) if pleadings are so vague and ambiguous such as to deprive the opponent of the reasonable

opportunity to frame a responsive pleading.

Plaintiffs complaint is so vague and ambiguous that it precludes Defendant Henley from

framing a responsive pleading or raising additional legal issues that might subject this lawsuit to

dismissal.

As a result, Defendant Henley moves for dismissal, or alternatively for a more definite

statement in the event that the Eighth Claim for Relief in Plaintiffs First Amended Complaint is

not dismissed.

10
11
12

VII. PLAINTIFFS LAWSUIT IS BARRED BY THE CALIFORNIA


GOVERNMENT CLAIMS ACT.
Plaintiff is barred from bringing a tort claim for damages against Defendant Henley because

13

she did not timely comply with the California Government Claims Act. See Pl. FAC 191-207

14

(Intentional and Negligent Infliction of Emotional Distress claims for relief).

15

One of the starting points for the Government Claims Act is California Government Code

16

section 911.2. It provides: A claim relating to a cause of action for death or for injury to person

17

shall be presented as provided in Article 2 (commencing with Section 915) not later than six

18

months after the accrual of the cause of action. Cal. Gov. Code 911.2.

19

According to precedent concerning the Government Claims Act, no suit for money or

20

damages may be brought until a written claim has been presented to the public entity and the

21

claim either has been acted upon or is deemed to have been rejected; a suit for money or

22

damages includes all actions where the plaintiff is seeking monetary relief, regardless whether

23

the action is founded in tort, contract or some other theory. Hart v. Alameda County (1999) 76

24

Cal.App.4th 766, 778. Presentation of a timely claim is a condition precedent to the

25

commencement of suit against the public entity. Munoz v. State of California (1995) 33

26

Cal.App.4th 1767, 1777.

27
28

Against this legal backdrop, Plaintiffs First Amended Complaint nowhere alleges that she
submitted the statutorily required claim to the State of California.
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Filed SERVICE
05/05/16 Page CJBNS.ORG
19 of 19
CALIFORNIA
JUDICIAL BRANCH
NEWS

Plaintiffs failure to allege that she presented a claim to the State of California before

bringing this suit means that she has failed to state facts sufficient to constitute a cause of action.

A plaintiff must allege facts demonstrating or excusing compliance with the claim presentation

requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts

sufficient to constitute a cause of action. State of California v. Superior Court (Bodde) (2004)

32 Cal.4th 1234, 1243. In Bodde, the Plaintiff, an inmate in the California State prison system,

attempted to sue the State of California as well as various State agencies for lack of adequate

medical care. Id. at 1237. Instead of sending a claim to the State Board of Control, as required

by section 911.2, the Plaintiff only sent a complaint to the Office of the Attorney General. Id. at

10

1238. The Court found that there was overwhelming case law and history showing that a

11

Plaintiffs failure to demonstrate or excuse complicity subjected the complaint to a general

12

demurrer. Id. at 1243.

13

Again, Plaintiff has failed to allege compliance with the presentment requirement.

14

Not complying with the Government Claims Act necessarily subjects Plaintiffs First

15

Amended Complaint to dismissal.

16

CONCLUSION

17

For the foregoing reasons, Defendant Henley requests that her motion to dismiss be

18

granted, and all the claims for relief against her (i.e., 8th , 13th, and 14th) be dismissed with

19

prejudice.

20
21

Dated: April 28, 2016

Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
JOHN P. DEVINE
Supervising Deputy Attorney General

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//s// John P. Devine


JOHN P. DEVINE
Supervising Deputy Attorney General
Attorneys for Defendant Victoria Henley

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SF2016200544

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG