Avenmarg v. Humboldt Cnty.

DEBRA AVENMARG, Plaintiff, v. HUMBOLDT COUNTY, et al., Defendants.

Case No. 19-cv-05891-RMI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EUREKA DIVISION

April 29, 2020

ORDER ON MOTIONS TO DISMISS

Re: Dkt. Nos. 44, 45, 46

Now pending before the court is Defendant Humboldt County's ("Defendant County") Second Motion to Dismiss (dkt. 44), which Defendant Blanck joined (dkt. 45), seeking dismissal of Plaintiff's First Amended Complaint ("FAC") (dkt. 43) without further leave to amend, and Defendant Blanck's Motion (dkt. 46) seeking dismissal of Plaintiff's Sixth Claim. Plaintiff has responded (dkts. 47, 48), and Defendants have replied (dkt. 50, 52). For the reasons stated below, Defendants' Motion (dkt. 44) is granted in part and denied in part, and Defendant Blanck's Motion (dkt. 46) is granted.

BACKGROUND

Plaintiff filed an original complaint against Jeffrey Blanck, counsel for Humboldt County, and Humboldt County itself, for violating her rights to privacy in making familial decisions under the Fourteenth Amendment, retaliated against her for exercising that right, and interfered with her right to petition the courts under the First Amendment. Compl. (dkt. 1). Defendant County moved to dismiss (dkt. 14), and Defendant Blanck moved to join (dkt. 24) the motion which the court granted (dkt. 25). On December 19, 2019, the court held a hearing on the motions, and Plaintiff orally moved to amend her complaint (dkt. 31). The court granted Plaintiff's motion and denied Defendants' motions as moot. Id.

On January 20, 2020, Plaintiff filed the FAC (dkt. 43) which is the subject of the pending motions to dismiss. In the FAC, Plaintiff alleges eleven claims - five federal claims and six state law claims. In Claim-1, Plaintiff alleges that Defendants Blanck and County engaged in acts which interfered with her right to privacy, specifically privacy in making familial decisions, under the Due Process Clause of the Fourteenth Amendment. FAC (dkt. 43) at 18-20. The first infringing act by Defendants was wrongfully accusing Plaintiff of violating her ethical duties as an attorney in an attempt to deter her from exercising her right to make familial decisions. Id. at 18. Second, Defendants terminated Plaintiff when she declined their ultimatum to either rescind her motion to obtain de facto parental status or voluntarily resign from her post as counsel for the County. Id. In Claim-2, Plaintiff submits that Defendants retaliated against her for exercising her constitutionally protected right to make familial decisions under the Due Process Clause of the Fourteenth Amendment. Id. at 20-22. Defendants retaliated by: 1) wrongfully terminating Plaintiff; 2) filing motions to disqualify her from cases in her new job; and 3) Defendant Blanck filing false or inaccurate complaints to the California State Bar. Id. at 20. In Claim-3, Plaintiff argues that as a public employee she had a qualified right to speak on matter of public concern under the First Amendment (i.e. right to petition the courts), and Defendants interfered with that right by taking adverse employment actions against her for exercising that right. Id. 22-24. Claim-4 alleges that Defendants, through Defendant Blanck's and his subordinates' conduct, interfered with Plaintiff's right to familial association under the First and Fourteenth Amendments. Id. at 24-26. In Claim-5, Plaintiff contends that Defendant County had an official policy that County Counsel could not foster children in Humboldt county, thereby depriving Plaintiff of her right to familial association under the First and Fourteenth Amendments. Id. 26-28.

In Claim-6, Plaintiff alleges that Defendants' retaliatory acts, recounted in her earlier claims, violated California Labor Code § 1102.5. Id. at 28-30. In Claim-7, Plaintiff submits that Defendants infringed her rights to privacy in familial decision making as guaranteed by Article 1, Sec. 1 of the California Constitution. Id. at 30-32. Claim-8 alleges that Defendants defamed Plaintiff in violation of California Civil Code § 43. Id. at 32-34. In Claim-9, Plaintiff contends thatDefendants intentionally interfered with her contractual relations with Humboldt County Superior Court to represent parents and children in juvenile dependency matters in violation of California common law. Id. at 34-35. In Claim-10, Plaintiff alleges that Defendants engaged in the aforementioned conduct with the intent to inflict emotional distress. Id. at 35-36. Lastly, in Claim-11, Plaintiff alleges, in the alternative, that Defendants' conduct constituted negligent infliction of emotional distress. Id. at 36-37.

Plaintiff's Factual Allegations

In the FAC, Plaintiff begins by describing Defendant Blanck's role and authority as County Counsel. FAC (dkt. 43) at 4-5. County Counsel is appointed by Defendant County's Board of Supervisors, and at all relevant times Defendant Blanck was the appointed County Counsel. Id. at 4. The County Counsel's Office provided legal services to Defendant County's Child Welfare Services Department ("CWS") for trials and appeals. Id. at 4-5. Defendant County's CWS was responsible for the investigation and intervention of child abuse and neglect in Defendant County, and the County Counsel's Office represented CWS in statutory based dependency proceedings. Id. at 5. The Office was responsible for addressing potential and actual ethical conflicts of its staff arising in the course of such representation. Id. It addressed conflicts by creating and managing policies and procedures such as "screening off attorneys to avoid conflicts; sending the case to private counsel and/or transferring the case out of the county." Id. The County Counsel's Office had the authority to establish, maintain, and make decisions about potential and actual ethical conflicts. Id.

On December 29, 2014, Plaintiff began working for Defendant County as Deputy County Counsel at the Office of County Counsel. Id. She was one of three attorneys assigned to provide legal services to CWS at the trial level. Id. In January of 2015, Plaintiff recognized the name of a minor in a confidential dependency case. Id. She "immediately brought the matter to the attention of the [] County Counsel legal secretary, Eliza Onate, and informed her of the apparent conflict." Id. at 6.

Plaintiff recognized the name because it was her extended family member, [Redacted] . Id. at 5. Plaintiff's family ties to GN began many yearsbefore her employment with Defendant Comity. Id. GN's [Redacted] ("GU") was a friend of Plaintiff's [Redacted] since [Redacted] , and he eventually married Plaintiff's [Redacted] . Id. Plaintiff maintained a close relationship with both her [Redacted] and [Redacted] ; they frequently visited one another and socialized together. Id. Thus, Plaintiff learned of GN's impending birth from her [Redacted] , and was "aware that the prospective parents were very young and at risk." Id. After GN's birth, Plaintiff and her family frequently discussed their concerns about GN's health, safety, and welfare. Id. In July of 2014, Plaintiff met GN for the first time at a family gathering. Id. at 6. He was approximately 7 or 8 months old at the time. Id.

Due to the extended family connection to GN, Ms. Onate, legal secretary for the Comity Counsel's Office, marked the file to alert staff that Plaintiff had a connection with the minor and instructed others that Plaintiff was not to receive any information about the case. Id. at 6. Plaintiff also informed the Deputy Comity Counsel assigned to the case of the apparent conflict to prevent any potential discussions of the case. Id. Thereafter, the County Counsel's office determined there was an apparent legal conflict of interest and created a "firewall" pursuant to the protocols, policies, and procedures regarding legal conflicts of interest. Id. In short, Plaintiff was screened from the case. Id.

On or about September 9, 2015, GN was placed in foster care by CWS. Id. He was approximately twenty-one months old at the time. Id. Plaintiff informed the Deputy Comity Counsel and attorneys involved in the matter that her [Redacted] namely her [Redacted] and [Redacted] , were requesting custody of GN to make them aware of her conflict on the case. Id. at 6-7. Plaintiff explained that she should be treated as a "non-related extended family member" ("NREFM"). Id. at 7. Around the end of September or beginning of October of 2015, GN was placed with Plaintiff's [Redacted] and [Redacted] . Id. Plaintiff obtained a modified work schedule with the Comity Counsel's Office so that she could provide care for GN once a week while her [Redacted] was at work. Id. GN exhibited a number of negative and/or unusual behaviors that Plaintiff believed were indicative of the treatment and environment which likely gave rise to his removal from his parents' home. Id. Over their time spent together, Plaintiff and GN developed an affection for one another and a clear bond. Id. She prepared his meals, changed his diapers, and put him to bed. Id.They also played together and went for walks. Id. She also worked with GN to build his language and other developmental skills. Id. GN called Plaintiff "Auntie Debra." Id. GN's placement with Plaintiff's [Redacted] and [Redacted] became problematic, and CWS suggested that GN be placed with Plaintiff. Id. Other possible placements were out of the county, far from his birth home and family. Id. Thus, Plaintiff took action to seek appropriate approvals from both CWS and the County Counsel's Office to become GN's foster parent. Id. In November of 2015, Plaintiff arranged weekly meetings for GN and his Court Appointed Special Advocate ("CASA") whose job was to advocate on GN's behalf in proceedings. Id. at 8.

On or about December 11, 2015, Plaintiff was informed that she satisfied the requirements to become a foster parent, but CWS and the County Counsel's Office were still discussing whether Plaintiff's status as Deputy County Counsel...