Domestic Conspiracy Suit in California Falls Flat
(CN) - A woman who says her abusive ex shot cats in front of their children and bashed their daughter's head into a dashboard failed to show that her local officials ignored her plight because of an "animus against women," a federal judge ruled.
Michele Fotinos, of San Mateo, Calif., sued Attorney General Kamala Harris, the State Bar of California's Chief Trial Counsel Jayne Kim, San Mateo County and others in 2012.
The lawsuit alleged that John Fotinos, Michele's ex-husband, bullied, beat and intimidated her and their children, and challenged anyone who tried to intervene.
After Michele Fotinos filed for divorce in 2003, John Fotinos allegedly won custody of their children, R.F. and A.F., through a falsified ex parte application.
Michele Fotinos claimed that her "seriously disturbed" ex then "frightened" two visitation-center therapists off the case, ran a witness off the road with his truck, and so "intimidated and frightened" the children's pediatrician that she refused to treat the children any longer.
In a 2010 order to show cause, Michele sought change of custody "based on years of interference with visitation and alienation of the children as well as for child and spousal support."
San Mateo Judge Don Franchi allegedly recused himself on the day that he was scheduled to hear that case.
The federal complaint Michele Fotinos filed in San Francisco alleged that John Fotinos threw a wrench at her head while she pregnant, "assaulted a high school babysitter because she had dropped uncooked rice on the ground," shot neighbors' cats in front of his children, and, in 2011, "bashed" their child R.F.'s head against a truck dashboard, among other violent outbursts.
U.S. District Judge Claudia Wilken dismissed the claims against Harris and Kim with prejudice, however, in 2013.
"After numerous setbacks in her efforts to gain custody of her children in state court, plaintiff filed this lawsuit against numerous defendants on behalf of herself and as guardian ad litem for R.F. and A.F.," Wilken wrote at the time .
"Plaintiff has made no allegations suggesting that any conspiracy, assuming that one existed, was motivated by animus against victims of domestic violence," Wilken added. "Rather, the complaint alleges that the conspiracy operated to prevent plaintiff from regaining custody of her children."
Michele filed a second amended complaint, but Wilken dismissed that action last week, citing a failure to allege a conspiracy motivated by "animus against women."
"Although plaintiff now alleges that the conspiracy acted 'on the ground that she is a mother and because she is alleging domestic violence,' this does not change the stated primary purpose of the conspiracy, which was to prevent plaintiff from regaining custody of her children," the 13-page ruling states. "The ourt finds that plaintiff has again failed to allege that any conspiracy, assuming one existed, was motivated by animus against women."
Wilken said "it appears that further amendment would be futile," and dismissed the four federal claims in the lawsuit with prejudice.
"The only allegations added in support of Plaintiff's First Amendment claim in the 2AC [second amended complaint] are irrelevant quotations from unrelated opinions of the Inter-American Commission of Human Rights and facts about unrelated cases in other California courts," Wilken wrote. "Accordingly, Plaintiff's First Amendment claim is dismissed. Because she has already been granted leave to amend this claim and it appears that further amendment would be futile, her claim is now dismissed with prejudice."
Michele Fotinos can still refile her six state-law claims in Superior Court, according to the ruling.