Rivas et al v. California Franchise Tax Board et al

Filing 31

ORDER: Memorandum Decision GRANTING Defendants' Unopposed Motion to Dismiss 28 and VACATING Hearing on 10/19/2009 at 10:00AM, signed by Judge Oliver W. Wanger on 10/16/2009. (Gaumnitz, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION v. CALIFORNIA FRANCHISE TAX BOARD, et al., Defendants. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MICHELLE RIVAS AND THOMAS KASCHAK, et al., Plaintiffs, 1:08-CV-00942 OWW SMS MEMORANDUM DECISION GRANTING DEFENDANTS' UNOPPOSED MOTION TO DISMISS AND VACATING HEARING (DOC. 28).

This case arises out of a search of Plaintiffs' Michelle Rivas' ("Rivas") and Thomas Kaschak's ("Kaschak") residence, conducted by California Franchise tax Board ("FTB") agents on February 23, 2006, and Kaschak's January 9, 2007 arrest on charges of tax evasion. Plaintiffs' original complaint was Kaschak Doc.

dismissed with leave to amend on December 23, 2008.

filed a First Amended Complaint ("FAC") on May 15, 2009. 26.

The First Cause of Action alleges the FTB and Defendant Slue

Railsback ("Railsback"), an FTB Senior Special Agent, violated his Fourth Amendment right to be free from unreasonable search during the February 23, 2006 search and his January 9, 2007 arrest. FAC ¶¶ 22-31. The Second Cause of Action alleges that

Defendant John Chiang ("Chiang"), the California State Controller and Chairman of the FTB, violated his Fourth Amendment right to 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

be free from the excessive use of force during the February 23, 2006 search. FAC ¶¶ 32-40.

Defendants move to dismiss the First Cause of Action as to the FTB on Eleventh Amendment grounds, and the Second Cause of Action against Chiang on statute of limitations grounds. at 2-3. Doc. 28

Plaintiff filed a statement of non-opposition, reserving Doc. 30.

the right to pursue his claims against Slue Railsback.

Accordingly: (1) As to Defendant FTB, the First Cause of Action is DISMISSED WITH PREJUDICE. survives. (2) The Second Cause of Action, which only names Chiang, is DISMISSED WITH PREJUDICE in its entirety. (3) The hearing on this motion to dismiss, currently set for October 19, 2009 at 10:00 a.m. is VACATED. appear. Counsel need not As to Defendant Railsback, this claim

SO ORDERED Dated: October 16, 2009 /s/ Oliver W. Wanger Oliver W. Wanger United States District Court

2