1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 BRENT OSTER, et al., 7 Plaintiffs, Case No. 20-cv-07828-BLF

8 v. ORDER GRANTING DEFENDANT’S 9 COUNTY OF SANTA CLARA, et al., MOTION TO DISMISS WITHOUT LEAVE TO AMEND 10 Defendants. [Re: ECF 33] 11

12 13 Before the Court is the County of Santa Clara’s Motion to Dismiss. Mot., ECF 33. The Court 14 has determined that this motion is appropriate for decision without oral argument. See Civ. L.R. 7- 15 1(b). Accordingly, the hearing on the motion scheduled for October 28, 2021, is VACATED. Based 16 on the reasons stated below, the Court GRANTS the motion WITHOUT LEAVE TO AMEND. 17 I. BACKGROUND 18 Plaintiff Brett Oster (“Plaintiff”) filed the instant complaint on November 5, 2020. See 19 Complaint (“Compl.”), ECF 1. In his Complaint, Plaintiff alleged violations of

by 20 the State of California (“State”), Attorney General of California, Superior Court of California, Santa 21 Clara Superior Court, Santa Clara Family Justice Center, Judge Beth McGowan, Judge Julie Emede, 22 Judge Thomas Kuhnle, Judge Sharon Roper, the Commission on Judicial Performance, and the State 23 Bar of California (collectively, the “State Defendants”) and the County of Santa Clara (“County”), 24 Santa Clara County Sherriff’s Office, South County Criminal Court, Does 1-5, Criminal Court 25 Judges, Santa Clara County District Attorney, Murat Ozgur, Does 10-19, and DA Prosecutors 26 (collectively, the “County Defendants”) for the actions of (1) aiding and abetting in crimes against 27 Plaintiff, (2) a general violation of Plaintiff’s constitutional rights, (3) violations of Plaintiff’s 1 of Plaintiff’s Sixth Amendment rights, (6) violations of Plaintiff’s Eighth Amendment rights, (7) 2 violations of Plaintiff’s Second Amendment rights, (8) violations of the Supremacy Clause, (9) 3 failure by the State and County Defendants to adequately screen, train, and supervise, and (10) 4 creation of a policy by the State and County Defendants which allowed the violation of Plaintiff’s 5 constitutional rights. Compl. ¶¶ 160-214. Plaintiff’s claims arise largely out of the State and County 6 Defendants’ involvement in Plaintiff’s divorce proceedings against his former wife, Kathia Oster, 7 whom Plaintiff has named as an involuntary plaintiff in this action.

. Plaintiff takes 8 specific issue with the domestic violence restraining order (“DVRO”) which was issued against 9 Plaintiff, the State’s subsequent prosecution of Plaintiff for his violation of the DVRO, and the 10 financial consequences of Plaintiff’s divorce such as the forced sale of Plaintiff’s house.

11 On April 26, 2021, the Court dismissed with prejudice Oster’s claims against the State of 12 California and dismissed without prejudice Oster’s claims against the County of Santa Clara. MTD 13 Order at 5-6, ECF 25. On June 2, 2021, the Court dismissed without prejudice Oster’s claims against 14 the Attorney General of California, the Superior Court of California, Santa Clara Superior Court, 15 Santa Clara Family Justice Center, Judge Beth McGowan, Judge Julie Emede, Judge Thomas 16 Kuhnle, Judge Sharon Roper, the State Bar of California, Santa Clara County Sherriff’s Office, 17 South County Criminal Court, Does 1-5, Criminal Court Judges, Santa Clara County District 18 Attorney, Murat Ozgur, Does 10-19, and the DA Prosecutors for failure to effect service of process 19 within the time specified by Fed. R. Civ. P. 4(m) and for failure to prosecute. ECF 31. On July 22, 20 2021, the Court dismissed without prejudice Oster’s claims against the City of Gilroy, the City of 21 Sunnyvale, the Law Firm of Hector Moreno, the Moreno Family Law firm, and the Gomez Edwards 22 Law Group for failure to effect service of process within the time specified by Fed. R. Civ. P. 4(m) 23 and for failure to prosecute. ECF 36. 24 On May 24, 2021, Oster filed an amended complaint. First Amended Complaint (“FAC”), 25 ECF 28. On June 3, 2021, the County of Santa Clara moved to dismiss the FAC arguing that it was 26 “materially identical to [the] initial complaint, which the Court dismissed for failure to state a claim. 27 Accordingly, Oster’s FAC necessarily fails to pass muster under Rule12(b)(6).” Mot. at 4. Oster did 1 II. LEGAL STANDARD 2 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 3 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 4 v. Salazar,

, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block,

, 732 5 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all 6 well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. 7 BP Exploration (Alaska) Inc.,

(9th Cir. 2011). While a complaint need not contain 8 detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a 9 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting 10 Bell Atl. Corp. v. Twombly,

(2007)). A claim is facially plausible when it “allows 11 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12

13 Leave ordinarily must be granted unless one or more of the following factors is present: (1) 14 undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by amendment, 15 (4) undue prejudice to the opposing party, and (5) futility of amendment. Foman v. Davis,

178, 182 (1962); see also Eminence Capital, LLC v. Aspeon, Inc.,

(9th Cir. 17 2003) (discussing Foman factors). 18 III. DISCUSSION 19 A. County of Santa Clara 20 The Court previously dismissed all of Oster’s claims against the County, explaining that

21 Plaintiff’s claims against the County attempt to establish liability 22 under [Monell v. Dep’tof Soc. Servs. Of the City of New York,

(1978)] by alleging that the County has created a policy 23 that violates Plaintiff’s constitutional rights and that the County failed to adequately screen, train, and supervise its employees, 24 which allowed further violation of Plaintiff’s constitutional rights. See Compl. ¶¶ 41, 42, 78, 92, 97, 162-64. For example, Plaintiff 25 alleges that “[the County] and their leadership are policymakers 26 whose deliberate choices representing official policy – that was a cause of, and a moving force behind the violation of Plaintiff[’]s 27 Constitutional rights.” Compl. ¶ 41. Such recitations, without Monell claim. See Dougherty, 654 F.3d at 900. To the extent that 1 Plaintiff attempts to plead that an alleged County policy encourages 2 courts to ignore crimes that occur during a divorce proceeding, Plaintiff fails to allege any facts demonstrating that the policy exists 3 or that the County is actually responsible for promulgating this policy. See Compl. ¶ 69. Plaintiff has not sufficiently alleged 4 liability under Monell and his claims against the County are DISMISSED WITH LEAVE TO AMEND, if Plaintiff is able to 5 plead with sufficient specificity the County’s policy. Plaintiff must 6 also allege sufficient facts to support an underlying constitutional violation, which appear to be absent from the current complaint. The 7 Court specifically highlights the County’s argument that absent acquittal or dismissal of the pending criminal charges against 8 Plaintiff, Plaintiff is barred from asserting these claims against County Defendants. See Heck v. Humphrey,

(1994); 9 County’s Mot. 5-6. 10 MTD Order at 5. 11 The FAC fails to rectify any of these flaws. Indeed, the only new allegation related to the 12 Oster’s claims against the County is that the Moreno Attorneys—the Law Firm of Hector Moreno, 13 the Moreno Family Law Firm, and the Gomez Edwards Law Group—“submitted false testimony in 14 the courts,” “made false reports to the police and DA,” “advised their client to falsify reports to 15 police,” and “used these false allegations to extort property from plaintiff.” FAC ¶ 17. “In doing so, 16 [the Moreno Attorneys] acted alongside the State, County, and City agencies acting under the color 17 of law (where they had direct connections) - together violating Plaintiff’s Constitutional Rights with 18 deliberate indifference by their actions and omissions.” FAC ¶ 17. These new allegations do not 19 establish a claim under Monell that the County has created a policy that violates Plaintiff’s 20 constitutional rights and that the County failed to adequately screen, train, and supervise its 21 employees, which allowed further violation of Plaintiff’s constitutional rights. Nor do the new 22 allegations set out sufficient facts to support an underlying constitutional violation. As the Court 23 emphasized in its previous order, Plaintiff is barred under Heck from asserting claims that the 24 County violated his constitutional rights in an ongoing criminal proceeding. See Awabdy v. City of 25 Adelanto,

(9th Cir. 2004) (to bring a malicious prosecution claim under section 26 1983, a plaintiff “must generally establish that the prior proceedings terminated in such a manner as 27 to indicate his innocence.” (citing Heck, 512 U.S. at 484–85)). 1 futile. There are no additional facts Plaintiff could plausibly plead that would cure the defects in the 2 || claims against the County, which are barred by Heck. See, e.g., McQuillion v. Schwarzenegger, 369 3 || F.3d 1091, 1099 (9th Cir. 2004) (affirming denial of leave to amend on futility grounds where 4 || plaintiffs “could not state cognizable damages claims consistent with Heck”). 5 B. Involuntary Plaintiff Kathia Oster/Portuguez 6 Oster filed his complaint on behalf of himself and his ex-wife Kathia Oster/Portuguez. FAC 7 || §§[ 1,5. The Court is still unaware of any caselaw that would permit Oster to involuntarily bring this 8 || case on behalf of his ex-wife. The Court STRIKES all claims related to Kathia Oster/Portugeuz. 9 IV. ORDER 10 The Court DISMISSES WITH PREJUDICE all claims against the County of Santa Clara. ! 11 IT ISSO ORDERED. 12 || Dated: July 26, 2021 han Loh ty) _fin fm amen) BETH LABSON FREEMAN 5 14 United States District Judge

16

18 19 20 21 22 23 24 25 26 27 Wh The only remaining Defendants in this case are Michael Moreno, Hector Moreno, and Marilyn 2g || Moreno. While there is no indication that Plaintiff has served these Defendants, the deadline under Fed. R. Civ. P. 4(m) has not yet passed.