Talk N Win, Inc., et al. v. Harris, et al.

Filing 36

ORDER on Defendants' F.R.Civ.P. 12 Motions to Dismiss 25 27 , signed by District Judge Lawrence J. O'Neill on 11/27/2013. (Plaintiffs, no later than 12/23/2013, to file and serve either: (a) papers to dismiss this action against the State defendants and DA Ward; or (b) a second amended complaint. Defendants, no later than 1/20/2014, to file and serve a response to the second amended complaint, as necessary.) (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TALK N WIN, INC., et al.,

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Plaintiffs,

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CASE NO. CV F 13-0971 LJO SMS
ORDER ON DEFENDANTS' F.R.Civ.P. 12
MOTIONS TO DISMISS
(Docs. 25, 27.)

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vs.

KAMALA D. HARRIS, et al.,

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Defendants.

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______________________________/
PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

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Judges in the Eastern District of California carry the heaviest caseload in the nation,

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and this Court is unable to devote inordinate time and resources to individual cases and

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matters. This Court cannot address all arguments, evidence and matters raised by parties and

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addresses only the arguments, evidence and matters necessary to reach the decision in this

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order given the shortage of district judges and staff. The parties and counsel are encouraged to

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contact United States Senators Dianne Feinstein and Barbara Boxer to address this Court’s

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inability to accommodate the parties and this action. The parties are required to consider, and

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if necessary, to reconsider consent to one of the Court's U.S. Magistrate Judges to conduct all

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further proceedings in that the Magistrate Judges’ availability is far more realistic and
accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill who must
prioritize criminal and older civil cases. A Magistrate Judge consent form is available on this
Court’s website.
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Civil trials set before Judge O'Neill trail until he becomes available and are subject to

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suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later

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date if Judge O'Neill is unavailable on the original date set for trial. If a trial trails, it may

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proceed with little advance notice, and the parties and counsel may be expected to proceed to

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trial with less than 24 hours notice. Moreover, this Court’s Fresno Division randomly and

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without advance notice reassigns civil actions to U.S. District Judges throughout the nation to

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serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to

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reassignment to a U.S. District Judge from outside the Eastern District of California. Case

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management difficulties, including trial setting and interruption, are avoided if the parties

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consent to conduct of further proceedings by a U.S. Magistrate Judge.
INTRODUCTION

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Defendant California and Tulare County law enforcement officials seek to dismiss as

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legally barred and insufficiently pled plaintiff Talk N Win, Inc. ("TNW") and Silva Ghreir's

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("Ms. Ghreir's") constitutional deprivation and related claims arising from seizure of computers

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and related equipment in connection with criminal investigation into gambling activities.

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TNW and Ms. Ghreir (collectively "plaintiffs") respond that their operative First Amended

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Complaint ("FAC") alleges sufficient facts to implicate the law enforcement officials in

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violations of plaintiffs' constitutional rights and wrongful detention of their property to require

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declaratory relief. This Court considered on the record the F.R.Civ.P. 12(b)(6) motions of

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defendants California Attorney General Kamala D. Harris ("AG Harris"), Wayne Quint ("Chief

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Quint"), Bureau Chief of the California Bureau of Gambling Control ("Bureau"), and Tulare

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County District Attorney Tim Ward ("DA Ward").1 This Court VACATES the December 2

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and 3, 2013 hearings on the motions to dismiss. See Local Rule 230(g). For the reasons

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discussed below, this Court DISMISSES the FAC's claims against the state defendants and DA

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Ward.

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The City of Visalia ("City") is a defendant and filed an answer to the FAC, which alleges
wrongdoing by the Visalia Police Department ("VPD"). AG Harris and Chief Quint will be referred to collectively
as the "State defendants."

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BACKGROUND2

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Plaintiffs' Telephone Card Promotion

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TNW distributes rechargeable prepaid telephone calling cards and promotional

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software to advertise calling cards and provides consulting services for its clients regarding

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marketing. TNW is a distributor "Tel-Connect" domestic long distance cards ("phone cards")

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for Pong Marketing and Promotions, Inc. ("Pong"). The phone cards are sold in retail stores

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with which TNW and Pong have entered into location agreements. To promote the phone

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cards, TNW offers the Pong Marketing Sweepstakes Management System 3.0 computer

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software to enable stores' customers to participate in a sweepstakes game through computer

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workstations. The game offers instant cash prizes.

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To participate in the game, a customer types in an account number. The promotional

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game server communicates with the customer's computer to sequentially select an electronic

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game piece from a finite field or batch. Each game piece is pre-assigned with a prize value that

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is revealed on the customer's computer screen in entertaining and colorful displays.

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Ms. Ghreir owns and operates her Dreamland and Wonderland stores (collectively

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"stores") in Visalia, California. The stores make retail sales of phone cards, and their primary

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business is phone card sales. Ms. Ghreir licenses TNW's software to allow customers to play

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the sweepstakes game on computer terminals.
Bureau Law Enforcement Advisory

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The Bureau issued its December 5, 2012 law enforcement advisory ("advisory") to
address computer sweepstakes games:
With increasing frequency, so-called "Internet cafes" that sell Internet time or
phone cards in conjunction with a "promotional sweepstakes," are operating throughout
California. The "sweepstakes aspect" of the Internet cafes permits customers to play
gambling-themed games on computers to win cash prizes. The Bureau . . . considers
Internet cafes that offer these types of sweepstakes to be illegal gambling operations.

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The advisory addresses "method of operation":
After making a purchase of Internet time or phone time, customers swipe the

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The factual recitation summarizes the FAC and other matters which this Court may consider.

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magnetic card through a card reader at a computer terminal or station inside the Internet
café to play gambling-themed games. Along with Internet time or phone time,
customers receive sweepstakes "entries" or "credits" based upon the amount spent (e.g.,
100 sweepstakes entries for $1.00 of Internet time purchased). The sweepstakes entries
are displayed on the computer screens as "credits." The customer then has the option to
select one of several gambling-themed games and makes bets with the credits.
Customers who win prizes can cash in any winnings, or use the winnings to purchase
additional internet time and sweepstakes entries.

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The advisory characterizes as illegal slot machines or devices computers that offer the

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sweepstakes described in the advisory. The advisory further addresses Bureau assistance to

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local law enforcement:

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The Bureau will assist California law enforcement agencies working toward
prosecution or pursuing civil or administrative actions in connection with Internet café
gambling operations. Assistance may encompass advice, Bureau personnel and
equipment, search warrant examples, and other experienced assistance with
enforcement operations. The local law enforcement agency will retain the lead role and
be responsible for evidence retention, seizure of funds, and prosecution, or civil or
administrative action against the establishment.

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The FAC accuses the Bureau and the California Department of Justice ("DOJ") to have

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disseminated the advisory to local law enforcement agencies, including the Tulare County

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District Attorney's Office ("DA's Office"), and to have assisted them to raid and close stores

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that sell prepaid phone cards using sweepstakes promotions.

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Investigation By Tulare County District Attorney's Office

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Near the end of January 2013, J. Lee ("Investigator Lee"), a DA's Office investigator,

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visited Ms. Ghreir's stores and asked how the businesses worked. Investigator Lee told TNW's

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Michael Strawbridge ("Mr. Strawbridge") of the advisory concerning plaintiffs' type of

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business and that he investigated whether plaintiffs' businesses conducted illegal gambling as

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described in the advisory.

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products and sweepstakes program and spent an hour at the stores.

Investigator Lee was given a complete demonstration of the

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On February 11, 2013, Investigator Lee visited the Dreamland store and was given a

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complete demonstration of the sweepstakes program and phone cards and was allowed to
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search and investigate the store. Investigator Lee spend nearly three hours at the store.

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VPD officer Clay Moffett ("Officer Moffett") prepared a search warrant affidavit

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("affidavit") at issue in this action and which indicates that he "spoke with the Tulare County

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District Attorney's Office along with investigators and several Detectives throughout the

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Central Valley in regard to the operation of illegal gambling establishments."
The Bureau's Investigation

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A DOJ agent contacted VPD about illegal gambling at Internet cafes. In February

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2013, DOJ and/or Bureau agents met with VPD and possibly DA Ward. In May 2013, two

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DOJ agents conducted an undercover investigation of Ms. Ghreir's stores in conjunction with

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VPD. Plaintiffs characterize the investigation to include inspection of Ms. Ghreir's stores and

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equipment, speaking with customers and employees, and playing the promotional sweepstakes

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games.

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Officer Moffett's affidavit notes that:

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He was contacted by DOJ Agent Gene Pinon ("Agent Pinon") regarding

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gambling casinos in Visalia and "was advised that they were operating as internet cafes, named

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Wonderland and Dreamland";

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Agent Pinon had provided Officer Moffett with California Department of Motor

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Vehicles ("DMV") printouts of Ms. Ghreir and obtained the printouts by entering Ms. Ghreir's

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address into the DMV data base; and

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On May 9, 2013, Officer Moffett conducted "an undercover detail utilizing two

undercover Department of Justice Task Force Agents to enter the businesses."

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In May 2013, Mr. Strawbridge met with Chief Quint, Assistant Bureau Chief Martin

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Horan, and Deputy Attorney General Tim Muscat to address the advisory. Mr. Strawbridge

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explained the "irreparable effects" of the advisory and law enforcement policies on TNW's

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business and customers. Mr. Strawbridge presented TNW's position that TNW's sweepstakes

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program and software are not illegal gambling devices and are lawful.

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Searches Of Ms. Ghreir's Stores And Home
On May 28, 2013, VPD, working with DA Ward, DOJ and the Bureau, coordinated
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searches of Ms. Ghreir's stores and homes. VPD seized paperwork, bank records, checks and

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cash from Ms. Ghreir's home and 70 computers with related equipment, prepaid phone cards,

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cash, cash registers, a television, an ATM, and a fax machine from the stores. All of the

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property shown to and investigated by Investigator Lee was seized.
Potential Criminal Action

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No charges have been filed by DA Ward, whom the FAC identifies as the decision

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maker on prosecution. The City detains seized computers and cash at DA Ward's direction

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while DA Ward contemplates prosecution.
The FAC's Claims

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The FAC generally challenges application of the advisory to Ms. Ghreir's stores and

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seizure of property from her home and stores. The FAC alleges claims for constitutional

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violations under 42 U.S.C. § 1983 ("section 1983"), declaratory relief as well as California

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claims for claim and delivery, conversion, and trespass. The FAC's specific claims will be

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discussed more fully below.
DOJ And The Bureau

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The FAC alleges that DOJ and/or the Bureau:
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Provided assistance addressed in the advisory along with the searches of Ms.

Ghreir's home and stores and "raids" of others engaged in phone card sales;
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Have "disseminated the Advisory to local law enforcement agencies and

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directed, advised, supported, encouraged, and/or financed them both to raid and close down

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stores that sell prepaid telephone cards using sweepstakes promotions, and to prosecute and

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intimidate their owners and employees and scare away their customers; and

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"[A]re supporting, encouraging, and/or financing the wrongful conduct that

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occurred in Visalia (and elsewhere in California)."

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The FAC further alleges that DOJ and/or Bureau personnel were present during the searches of

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Ms. Ghreir's home and stores. According to the FAC, "the raids since the filing of this action

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on stores licensed by TNW are part of a concerted action by DOJ and the Bureau intended to

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retaliate against the assertion of TNW's civil rights and other claims in this action."
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DA Ward And The DA's Office

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As to DA Ward and the DA's Office, the FAC alleges:

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and Wonderland stores";
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DA Ward "was deeply involved in investigating and searching the Dreamland

The DA's Office "was involved in facilitating, coordinating and directing the

additional searches and the raids that resulted in the harm suffered by Plaintiffs";

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DA's Office representatives "may have been present at the raids";

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The DA's Office will likely conduct any criminal prosecutions and thus

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"exercises authority over what will happen to Plaintiffs' confiscated Property";
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The DA's Office bears responsibility "that (a) the Plaintiffs' businesses were

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either destroyed or at least severely damaged, and (b) the Plaintiffs' Property was seized,

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continues to be detained, and has never been returned"; and
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DA Ward encourages and supports VPD to violate plaintiffs' constitutional

rights.

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DISCUSSCION

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F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

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The State defendants challenge the FAC's equitable relief claims "given important

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principles of federalism." DA Ward challenges the FAC's claims in absence of supporting

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facts to impose liability against him. Plaintiffs respond that the State defendants and DA Ward

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fail to establish plaintiffs' inability to prove facts to support their claims.

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A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a “lack of a cognizable

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

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Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of

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Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion “tests the legal

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sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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In addressing dismissal, a court must: (1) construe the complaint in the light most

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favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3)

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determine whether plaintiff can prove any set of facts to support a claim that would merit
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relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a

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court is not required “to accept as true allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” In re Gilead Sciences Securities Litig., 536

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F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court “need not assume the truth of legal

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conclusions cast in the form of factual allegations,” U.S. ex rel. Chunie v. Ringrose, 788 F.2d

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638, 643, n. 2 (9th Cir.1986), and must not “assume that the [plaintiff] can prove facts that it

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has not alleged or that the defendants have violated . . . laws in ways that have not been

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alleged.” Associated General Contractors of California, Inc. v. California State Council of

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Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to

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amend if “it is clear that the complaint could not be saved by an amendment.” Livid Holdings

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Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

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A plaintiff is obliged “to provide the ‘grounds’ of his ‘entitlement to relief’ [which]
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65
(2007) (internal citations omitted). Moreover, a court “will dismiss any claim that, even when

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construed in the light most favorable to plaintiff, fails to plead sufficiently all required
elements of a cause of action.” Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634
(S.D. Cal. 1998). In practice, a complaint “must contain either direct or inferential allegations
respecting all the material elements necessary to sustain recovery under some viable legal
theory.” Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009), the U.S. Supreme
Court explained:
. . . a complaint must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. . . . The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. (Citations omitted.)
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After discussing Iqbal, the Ninth Circuit summarized: “In sum, for a complaint to

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survive [dismissal], the non-conclusory ‘factual content,’ and reasonable inferences from that

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content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S.

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Secret Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at

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1949).

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The U.S. Supreme Court applies a “two-prong approach” to address dismissal:

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First, the tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice. . . . Second,
only a complaint that states a plausible claim for relief survives a motion to dismiss. . . .
Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. . . . But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it
has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

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In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.

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Iqbal, 556 U.S. 662, 129 S.Ct. at 1949-1950.

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Moreover, a court may consider exhibits submitted with the complaint. Durning v.

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First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Van Winkle v. Allstate Ins. Co., 290

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F.Supp.2d 1158, 1162, n. 2 (C.D. Cal. 2003). A “court may consider evidence on which the

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complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is

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central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached

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to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may

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treat such a document as “part of the complaint, and thus may assume that its contents are true

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for purposes of a motion to dismiss under Rule 12(b)(6).” United States v. Ritchie, 342 F.3d

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903, 908 (9th Cir.2003).

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12(b)(6) motion by deliberately omitting reference to documents upon which their claims are

Such consideration prevents “plaintiffs from surviving a Rule

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based.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).

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allegations in the complaint if contradicted by facts established by exhibits attached to the

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complaint.” Sumner Peck Ranch v. Bureau of Reclamation, 823 F.Supp. 715, 720 (E.D. Cal.

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1993) (citing Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987)).
With these standards in mind, this Court turns to the State defendants' and DA Ward's

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A “court may disregard

challenges to the FAC.
Declaratory Relief

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The FAC's (first) declaratory relief claim seeks this Court's declarations that:

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Plaintiffs' sales of "Tel-Connect calling cards in conjunction with the Pong

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Sweepstakes Management Program 3.0 are not engaged in illegal gambling" under California

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law;

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"[U]se of the Pong System to advertise and promote Tel-Connect cards is not

illegal and is not illegal gambling" under California law;
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"Ms. Ghreir's use of a legal Tel-Connect free promotional sweepstakes using the

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Pong System incident to the retail sales of Tel-Connect cards in her Dreamland and

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Wonderland store is not illegal and is not illegal gambling" under California law;

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The "Advisory's statement that computers that offer sweepstakes are 'illegal slot

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machines or devices prohibited by Penal Code section 330b, subdivision (d),' insofar as it

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relates to Plaintiffs' sales of Tel-Connect Cards in conjunction with the Pong System, is clearly

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erroneous as a matter of California law"; and

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Plaintiffs are entitled to permanently enjoin "Defendants"3 "from: (i) attempting

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to close down or restrict Plaintiffs' business operations at any location selling Tel-Connect

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Cards in conjunction with the Pong System; and (ii) interfering with Plaintiffs' efforts, and

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threatening Plaintiffs and/or their employees with criminal prosecution and/or civil penalties

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insofar as it relates, to sales of Plaintiffs' Tel-Connect Cards in conjunction with the Pong

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System."

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The FAC defines "Defendants" collectively as DOJ, the Bureau and the City.

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The State Defendants
The State defendants argue that federalism principles bar the FAC's declaratory and
injunctive relief claims.

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When a government agency is involved, it must “be granted ‘the widest latitude in the

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dispatch of its own internal affairs,’” Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001)

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(quoting Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 608 (1976)), and “[w]hen a state

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agency is involved, these considerations are, if anything, strengthened because of federalism

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concerns,” Gomez, 255 F.3d at 1128. “[A]ny injunctive relief awarded must avoid unnecessary

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disruption to the state agency’s ‘normal course of proceeding.’” Gomez, 255 F.3d at 1128

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(quoting O’Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct. 669, 679 (1974)).

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The State defendants challenge the FAC's "overbroad equitable relief claims" in that

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they attempt to curtail the Bureau's enforcement of criminal laws to prohibit illegal gambling

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devices and limit Bureau assistance to local law enforcement to investigate "difficult criminal

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matters." The State defendants fault the FAC's absence of facts to support "a broad statewide

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injunction against the enforcement of California criminal law," especially given the absence of

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First Amendment rights to protect illegal gambling.

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As an alternative to equitable relief, the State defendants point to California Penal Code

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section 335a ("section 335a"), which permits a superior court action to recover seized

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machines, devices and money. The State defendants fault plaintiffs' failure to pursue a section

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335a state court action and to explain why a state court action would not provide an adequate

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remedy.

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Plaintiffs respond that the FAC adequately describes the "State Defendants' role in

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depriving Plaintiffs of their constitutional and other rights, from the issuance of the Advisory,

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to the funding and training of local law enforcement officers, and to their direction of and

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involvement in undercover and other investigations and raids." Plaintiffs characterize the State

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defendants as "at the center of, and are coordinating, the current statewide campaign against

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TNW's Tel-Connect cards and Pong System." Plaintiffs argue that federalism concerns do not

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bar the FAC's declaratory relief claim in that "[r]equiring the federal courts totally to step aside
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when no state criminal prosecution is pending against the federal plaintiff would turn

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federalism on its head." Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209 (1974).

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Plaintiffs contend that section 335a is not their exclusive relief in that federal declaratory relief

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it available to address "a genuine threat of enforcement of a disputed state criminal statute,

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whether an attack is made on the constitutionality of the statute on its face or as applied."

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Steffel, 415 U.S. at 475, 94 S.Ct. 1209.
DA Ward

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DA Ward argues that the declaratory relief claim chiefly addresses search and seizure

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of plaintiffs' property and that the FAC's facts to connect DA Ward to the search and seizure

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are limited to allegations that Investigator Lee observed the seized property three months prior

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to the searches of Ms. Ghreir's stores. DA Ward notes that the remainder of the declaratory

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relief claim addresses legality of the sweepstakes program and enforcement of gambling laws

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but lacks facts that DA Ward "has, or will in the future, engage in any activity which would

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constitute an unlawful infringement of their rights." DA Ward continues that plaintiffs do not

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argue the unconstitutionality of any statute but rather that plaintiffs violate no law and should

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be protected from investigation and prosecution. DA Ward cautions this Court not to deter him

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"from pursuing the duties of his office."

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Plaintiffs argue that they are entitled to declaratory relief in that continued detention of

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their property precludes them to conduct business and "is at the discretion" of DA Ward who

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has not filed criminal charges. Plaintiffs contend that DA Ward in not immune from equitable

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relief to remedy an intentional pattern of misconduct particularly when no prosecution is

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pending.

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Courts have warned against judicial intervention into criminal investigations:

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A party invoking equitable intervention in the criminal investigative process has
a particularly heavy burden. Only the most extraordinary circumstances warrant
anticipatory judicial involvement in criminal investigations. Even where federalism
concerns are absent, the fundamental concept of separation of powers dictates judicial
restraint. The powers of criminal investigation are committed to the Executive branch.
The balance between the Executive and Judicial branches would be profoundly upset if
the Judiciary assumed superintendence over the law enforcement activities of the
Executive branch upon nothing more than a vague fear or suspicion that its officers will

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be unfaithful to their oaths or unequal to their responsibility. . . .

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The broad power in the police and the grand jury to probe widely for evidence
of crime is vital because the ability of the police to go directly to the suspect or his
property for evidence of guilt is significantly limited by Fourth and Fifth Amendment
protections. The Government is therefore remitted to more extensive surveillance and
circumstantial investigation to detect criminality. A court should not interdict these
investigations in the absence of clear proof of bad faith or arbitrariness.

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Reporters Committee for Freedom of Press v. American Tel. & Tel. Co., 593 F.2d 1030, 1065

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& n. 122 (D.C. Cir. 1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431 (1979); see Laird v.

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Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318 (1972) ("Carried to its logical end, this approach (of

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judicial supervision of military intelligence activities) would have the federal courts as

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virtually continuing monitors of the wisdom and soundness of Executive action; . . . it is not

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the role of the judiciary, absent actual present or immediately threatened injury resulting from

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unlawful governmental action").

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Moreover, the burden to impose injunctive relief on state actors is heavy:

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The Supreme Court and the Ninth Circuit have stressed that district courts must
be sensitive to concerns of equity, federalism, and comity when considering injunctive
relief against State agencies. Rizzo v. Goode, 423 U.S. 362, 375, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976); Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th
Cir.1992). A strong factual record is therefore necessary before a federal district court
may enjoin a State agency. Thomas, 978 F.2d at 508. The Ninth Circuit requires a
showing of pervasive and intentional misconduct before a district court may enjoin a
State agency. Thomas, 978 F.2d at 508 (9th Cir.1992). Moreover, any injunction
against a State agency must be narrowly tailored to enforce federal constitutional or
statutory law. Clark v. Coye, 60 F.3d 600, 604 (9th Cir.1995).

16
17
18
19
20
21
22
23

Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078, 1085 (N.D. Cal. 1997).

24

The FAC lacks facts of persuasive and intentional misconduct to support anticipatory

25

judicial involvement in the State defendants' affairs and DA Ward's investigation. Plaintiffs'

26

points are based on an unproven premise that the sweepstakes program and their operation of it

27

are legal under California law. This Court is unable to assume as much to intercede into state

28

and local law enforcement activities.

Plaintiffs offer no strong factual record for their
13

1

requested equitable relief and rely chiefly on hyperbolic sentiments of constitutional violations

2

and harm to their businesses. The FAC, record and their inferences in plaintiffs' favor reveal

3

merely the Bureau's dissemination of the advisory and related assistance, VDP's preparation

4

and execution of search warrants, seizure of Ms. Ghreir's computers, ATM and currency, and

5

DA Ward's ongoing criminal investigation.

6

Plaintiffs claim to seek merely a "specific, narrowly-tailored injunction dealing only

7

with the Pong System as it relates to the Tel-Connect cards." Plaintiffs misread or ignore their

8

own FAC in that the FAC's requested injunctive relief is not "narrowly tailored" and "specific."

9

It is broad and overreaching. The FAC asks for injunctive relief that the sweepstakes program

10

and its promotion are legal, that Ms. Ghreir's use of the sweepstakes program is legal, that the

11

advisory misstates the law, and that defendants cannot prosecute and enforce gambling laws as

12

to plaintiffs.

13

investigation and prosecution as to internet café gambling activities. Plaintiffs offer not even

14

the remotest support for such far reaching relief, and their suggestion that requested injunctive

15

relief "requires no ongoing court supervision" is untenable.

16

Section 1983 Claims

17
18

The requested injunctive relief effectively seeks to shut down criminal

The FAC invokes section 1983 to allege that "all Defendants" violated various
constitutional rights of plaintiffs.

19

The FAC's (second) freedom of speech claim alleges that "Defendants" "violated

20

Plaintiffs' rights to engage in protected communication" in that TNW "has a First Amendment

21

right to market a phone calling card product, using a lawful sweepstakes promotion" and that

22

Ms. Ghreir is deprived of her property to suppress "her ability to engage in communication

23

protected by the First Amendment."

24

The FAC's (third) Fourth Amendment claim alleges that plaintiffs were subjected to

25

unreasonable searches and seizures in that "Defendants had no probable cause to suspect that

26

illegal activity was taking place at any of the search locations and failed to produce warrants

27

and evidence of probable cause."

28

The FAC's (fourth) property taking claim alleges that seized computers and money
14

1

were "improperly, wrongfully, recklessly, and/or negligently seized and kept by and at the

2

order of Defendants."

3

The FAC's (fifth) equal protection claim alleges that "similarly situated businesses are

4

permitted to conduct sweepstakes that, like Plaintiffs' sweepstakes, comply with California

5

law" but that "Defendants intentionally singled out Plaintiffs for selective enforcement,

6

inequitable treatment and purposeful discrimination through the unequal, unjust and oppressive

7

purported enforcement of the laws by Defendants."

8

Section 1983 Requirements

9

“Section 1983 imposes two essential proof requirements upon a claimant: (1) that a

10

person acting under color of state law committed the conduct at issue, and (2) that the conduct

11

deprived the claimant of some right, privilege, or immunity protected by the Constitution or

12

laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632-633 (9th Cir. 1988).

13

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

14

method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266,

15

271, 114 S.Ct. 807, 811 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct.

16

2689, 2694, n. 3 (1979)). Section 1983 and other federal civil rights statutes address liability

17

“in favor of persons who are deprived of ‘rights, privileges, or immunities secured’ to them by

18

the Constitution.” Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042 (1978) (quoting Imbler v.

19

Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996 (1976)). “The first inquiry in any § 1983 suit,

20

therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and

21

laws.’” Baker, 443 U.S. at 140, 99 S.Ct. 2689 (1979). Stated differently, the first step in a

22

section 1983 claim is to identify the specific constitutional right allegedly infringed. Albright

23

v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 813 (1994). “Section 1983 imposes liability for

24

violations of rights protected by the Constitution, not for violations of duties of care arising out

25

of tort law.” Baker, 443 U.S. at 146, 99 S.Ct. 2689.

26

“Under Rule 8(a), a complaint must do more than name laws that may have been

27

violated by the defendant; it must also allege facts regarding what conduct violated those

28

laws.” Anderson v. U.S. Dept. of Housing and Urban Development, 554 F.3d 525, 528 (5th Cir.
15

1

2008).

2

Direct Participation

3

DA Ward argues that the FAC lacks facts to support his section 1983 liability in

4

absence of facts to identify his precise conduct or a DA Office policy or custom to cause

5

plaintiffs' constitutional deprivation.

6

“Section 1983 creates a cause of action based on personal liability and predicated upon

7

fault; thus, liability does not attach unless the individual defendant caused or participated in a

8

constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520

9

U.S. 1230, 117 S.Ct. 1822 (1997); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

10

(“Liability under section 1983 arises only upon a showing of personal participation by the

11

defendant.”) “The inquiry into causation must be individualized and focus on the duties and

12

responsibilities of each individual defendant whose acts or omissions are alleged to have

13

caused the constitutional deprivation.” Leer, 844 F.2d at 633. Section 1983 requires that there

14

be an actual connection or link between the defendant’s actions and the deprivation allegedly

15

suffered. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978);

16

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976).

17

A plaintiff cannot hold an official liable “because of his membership in a group without

18

a showing of individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d

19

930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). A

20

plaintiff must “establish the ‘integral participation’ of the officers in the alleged constitutional

21

violation.” Jones, 297 F.3d at 935. “‘[I]ntegral participation’ does not require that each

22

officer’s actions themselves rise to the level of a constitutional violation.” Boyd v. Benton

23

County, 374 F.3d 773, 780 (9th Cir. 2004). Integral participation requires “some fundamental

24

involvement in the conduct that allegedly caused the violation.”

25

Orange, 485 F.3d 463, 481, n. 12 (9th Cir. 2007).

26

deprivation of a constitutional right, within the meaning of section 1983, if he does an

27

affirmative act, participates in another's affirmative acts, or omits to perform an act which he is

28

legally required to do that causes the deprivation of which complaint is made.” Johnson v.
16

Blankenhorn v. City of

“A person ‘subjects’ another to the

1

Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

2

“A plaintiff must allege facts, not simply conclusions, that show that an individual was

3

personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d

4

1193, 1194 (9th Cir. 1998). A section 1983 plaintiff “must state the allegations generally so as

5

to provide notice to the defendants and alert the court as to what conduct violated clearly

6

established law.” Preschooler II v. Clark County School Bd. of Trustees, 479 F.3d 1175, 1182

7

(9th Cir. 2007).

8
9

To support DA Ward's section 1983 liability, plaintiffs point to FAC allegations to the
effect that:

10

1.

In early 2013, Investigator Lee visited Ms. Ghreir's stores;

11

2.

VDP Officer Moffett's affidavit notes that he had "spoken with the Tulare

12

County District Attorney's Office along with investigators and several Detectives throughout

13

the Central Valley in regard to the operation of illegal gambling establishments";

14
15

3.

VDP in consultation and working with DA Ward, DOJ and the Bureau

coordinated the searches of Ms. Ghreir's stores and home;

16

4.

All property shown to and investigated by Investigator Lee was seized; and

17

5.

The City detains the seized property pending DA Ward's decision to prosecute.

18

As discussed below, the FAC's limited facts, as compared to its conclusions and

19

conjecture, as to DA Ward fail to raise even inferences that conduct by DA Ward or the DA

20

Office's supports section 1983 liability. The FAC's facts, construed in plaintiffs' favor, reveal

21

no more than the DA Office's investigation, possible assistance with search warrant preparation

22

and execution, and a pending prosecution decision. The FAC's facts and inferences cannot be

23

extrapolated to support section 1983 liability as to DA Ward.

24

Free Speech

25

DA Ward challenges the FAC's (second) free speech claim in that its focus is not

26

constitutionality of regulating gambling machines but rather the lawfulness of plaintiff's

27

operation of the sweepstakes promotion, which is subject to potential criminal proceedings.

28

DA Ward points to the absence of FAC facts to establish interference with plaintiffs' First
17

1

Amendment rights given limited allegations that Investigator Lee looked into plaintiffs'

2

activities and no facts of a policy or practice to infringe on plaintiffs' rights. DA Ward points

3

to the absence of a "generalized right under the First Amendment to be free from criminal

4

investigation or prosecution."

5

Plaintiffs argue that TNW has "a First Amendment right to advertise and compete in the

6

pre-paid telephone calling card business, which is protected commercial free speech."

7

Plaintiffs continue that removal of the seized property and threat of prosecution have violated

8

"their rights of communication, assembly, and association," especially since Ms. Ghreir lacks

9

internet access.

10

Plaintiffs characterize "[t]his regulation and forced closure of Plaintiffs'

businesses" as "impermissible content-based restrictions on free speech."

11

Again, plaintiffs' points are based on an unproven premise that the sweepstakes

12

program is legal under California law. This Court is unable to assume as much. Moreover, the

13

FAC lacks facts to support DA Ward's First Amendment violations given its limited allegations

14

as to an investigation, possible assistance with search warrant preparation and execution, and a

15

pending prosecution decision. At most, the FAC alleges that plaintiffs are precluded to use the

16

seized property, which may be illegal to possess. No facts demonstrate their inability to

17

otherwise engage in commercial speech.

18

Unreasonable Search And Property Detention

19

DA Ward challenges FAC's third and fourth claims arising out of the search and seizure

20

of plaintiffs' property in that VPD obtained and executed the search warrants, coordinated

21

searches, and seized property to expose VPD, not DA Ward, to such claims. DA Ward points

22

to the absence of his specific conduct as to the search or seizure of plaintiffs' property and

23

continued detention of the property. DA Ward points to the absence of facts as to insufficiency

24

in the search warrant affidavit or VPD's interaction with DA Ward or the DA's Office as to

25

investigation of Ms. Ghreir's stores.

26

Plaintiffs argue that the FAC's search and property detention claims are not subject to

27

challenge given FAC allegations that the DA's Office adopted the advisory, investigated

28

plaintiffs' businesses, assisted in coordinating and executing searches, and compel the City's
18

1

seized property detention pending a prosecution decision.

2

The FAC's limited facts, as compared to its conclusions and conjecture, as to DA Ward

3

fail to raise even inferences that conduct by DA Ward or the DA's Office's support search and

4

property seizure claims. The FAC's facts, construed in plaintiffs' favor, reveal no more than

5

the DA Office's investigation, possible assistance with search warrant preparation and

6

execution, and a pending prosecution decision. There are no facts that Investigator Lee had

7

specialized knowledge which he communicated to VDP. The FAC reveals that plaintiffs'

8

property most likely would have been seized despite Investigator Lee's visits to Ms. Ghreir's

9

stores. The FAC's facts and inferences cannot be extrapolated to support search and property

10

detention claims as to DA Ward or the DA's Office.
Equal Protection

11
12

DA Ward faults the FAC's (fifth) equal protection claim in the absence of allegations

13

that DA Ward or the DA's Office treated plaintiffs differently than other sweepstakes

14

operators. DA Ward points to the FAC's limited allegations of Investigator Lee's visits to Ms.

15

Ghreir's stores to inquire into the sweepstakes program and observation of property seized

16

three months later.

17

Plaintiffs accuse DA Ward and "the other Defendants" to have "specifically targeted

18

Plaintiffs' businesses based solely on the content of their communications." Plaintiffs continue

19

that the "presumed basis for this unequal and disparate treatment is that Defendants dislike the

20

form of speech and activities promoted by Plaintiffs' businesses."

21

Plaintiffs' arguments reflect at best the speculative nature of DA Ward's motives.

22

Moreover, the record demonstrates the absence of facts that other phone card sweepstake

23

retailers are not subject to investigation or potential prosecution. There are no facts of unequal

24

treatment. The FAC lacks necessary facts to support an equal protection claim.

25

California Claims

26

The FAC's (sixth) claim and delivery claim alleges that "Defendants currently possess

27

personal property of plaintiffs" and did not "acquire title to the Property seized." California

28

Code of Civil Procedure section 667 provides in part: "In an action to recover the possession
19

1

of personal property, judgment for the plaintiff may be for the possession or the value thereof,

2

in case a delivery cannot be had, and damages for the detention."

3

The FAC's (seventh) conversion claim alleges that "when conducting the illegal raids

4

and seizures, Defendants City of Visalia and the Tulare DA caused damage to Ms. Ghreir's

5

personal property located at her home and Plaintiffs' property at the Wonderland store."

6
7

The FAC's (eighth) trespass to real property claim alleges that "Defendants City of
Visalia and the Tulare DA intentionally entered Ms. Ghreir's property without authorization."

8

DA Ward challenges the FAC's claim and delivery, conversion and trespass claims for

9

failure to include the substance of these claims, as currently alleged in the FAC, in a claim

10

submitted to comply with the California Government Claims Act ("Claims Act"), Cal. Gov.

11

Code, §§ 810, et seq. DA Ward points to the absence of Ms. Ghreir's timely Claims Act claim

12

submitted to Tulare County.4 DA Ward notes that TNW's Claims Act claim is premised on

13

allegations of plaintiffs' original complaint which lacked allegations that DA Ward searched

14

plaintiffs' property or seized plaintiffs' personal property. DA Ward argues that the Claims Act

15

claim is premised on VPD's seizing property during searches, not DA Ward's possession of

16

property.

17

Plaintiffs respond that TNW need only show that DA Ward prevents its possession of

18

property. A conversion plaintiff “must show an intention or purpose to convert the goods and

19

to exercise ownership over them, or to prevent the owner from taking possession of his

20

property.” Oakes v. Suelynn Corp., 24 Cal.App.3d 271, 278, 100 Cal.Rptr. 838 (1972). "Thus,

21

a necessary element of the tort is an intent to exercise ownership over property which belongs

22

to another." Collin v. American Empire Ins. Co., 21 Cal.App.4th 787, 812, 26 Cal.Rptr.2d 391

23

(1994). Plaintiffs argue that the FAC sufficiently alleges that DA Ward "is directly implicated

24

in . . . the continued detention of the Property" and that the key is not DA Ward's physical

25

control over the seized property but rather his ability to compel the City to detain the seized

26

property. Plaintiffs further argue that facts pled in plaintiffs' original complaint and FAC "all

27
28

4

Plaintiffs acknowledge that Ms. Ghreir filed no Claims Act claim with Tulare County and thus
does not challenge dismissal of the claim and delivery, conversion and trespass claims against DA Ward.

20

1

relate to the same fundamental actions and failure to act of the Tulare DA" to excuse the

2

submission of a new Claims Act claim.

3

The Claims Act describes the specific steps which must be taken before a civil action

4

for money or damages may be brought against a public entity. Addison v. State of California,

5

21 Cal.3d 313, 316, 146 Cal.Rptr. 224 (1978). The Claims Act requires timely filing of a

6

proper claim as condition precedent to maintenance of an action. Cal. Gov. Code, §§ 905,

7

911.2, 945.4 (presentment of a written claim to the applicable public entity is required before a

8

“suit for money or damages may be brought against a public entity”); County of San Luis

9

Obispo v. Ranchita Cattle Co., 16 Cal.App.3d 383, 390, 94 Cal.Rptr. 73 (1971). California

10

Government Code section 911.2(a) provides: “A claim relating to a cause of action for death or

11

for injury to person . . . shall be presented . . . not later than six months after the accrual of the

12

cause of action. A claim relating to any other cause of action shall be presented . . . not later

13

than one year after the accrual of the cause of action.”

14

The claims procedures applicable to actions against public entities are the same for

15

actions against public employees. Cal. Gov. Code, §§ 950-950.6. A “government claim must

16

be filed with the public entity before a tort action is brought against the public entity or public

17

employee.” Watson v. State of California, 21 Cal.App.4th 836, 844, 26 Cal.Rptr.2d 262

18

(1993) (citing Cal. Gov. Code, § 950.2).

19

Compliance with the Claims Act is mandatory. Farrell v. County of Placer, 23 Cal.2d

20

624, 630, 145 P.2d 570 (1944). Failure to file a claim is fatal to the cause of action. Johnson

21

v. City of Oakland, 188 Cal.App.2d 181, 183, 10 Cal.Rptr. 409 (1961). “Failure to allege facts

22

in a complaint demonstrating or excusing compliance with prelitigation governmental claims

23

presentation requirements of the Tort Claims Act subjects the complaint to a motion to dismiss

24

for failure to state a cause of action.” Comm. for Immigrant Rights of Sonoma County v.

25

County of Sonoma, 644 F.Supp.2d 1177, 1205 (2004).

26

demonstrating or excusing compliance with the claim presentation requirement.” State v.

27

Superior Court, 32 Cal.4th 1234, 1243, 13 Cal.Rptr.3d at 534 (2004).

28

submission of a claim within [six months] is a condition precedent to a tort action against
21

A “plaintiff must allege facts

“Accordingly,

1

either the employee or the public entity.”

2

Cal.Rptr. 453 (1976).

Williams v. Horvath, 16 Cal.3d 834, 838,129

3

“[N]o suit for money or damages may be brought against a public entity on a cause of

4

action for which a claim is required to be presented . . . until a written claim therefor has been

5

presented to the public entity and has been acted upon . . . or has been deemed to have been

6

rejected.” Cal. Gov. Code, § 945.4. California Government Code section 910 addresses the

7

content of a government claim and requires the claimant’s “name and post office address,” the

8

“date, place and other circumstances of the occurrence . . . which gave rise to the claim” and a

9

“general description” of the “injury, damage, or loss incurred so far as it may be known at the

10

time of presentation of the claim.” The Claims Act bars “actions alleging matters not included

11

in the claim filed with the public entity.” State of California ex rel Dept. of Transportation v.

12

Superior Court, 159 Cal.App.3d 331, 336, 205 Cal.Rptr. 518 (1984).

13

The California Court of Appeal has explained:

14

If a plaintiff relies on more than one theory of recovery against the
[governmental agency or employee], each cause of action must have been reflected in a
timely claim. In addition, the factual circumstances set forth in the written claim must
correspond with the facts alleged in the complaint; even if the claim were timely, the
complaint is vulnerable to a demurrer [or dismissal] if it alleges a factual basis for
recovery which is not fairly reflected in the written claim.

15
16
17
18
19

Fall River Joint Unified School Dist. v. Superior Court, 206 Cal.App.3d 431, 434, 253

20

Cal.Rptr. 587 (1998) (brackets in original; citations omitted).

21

“Courts have consistently interpreted the Tort Claims Act to bar actions alleging

22

matters not included in the claim filed with the public entity.” State of California ex rel Dept.

23

of Transportation v. Superior Court, 159 Cal.App.3d 331, 336, 205 Cal.Rptr. 518 (1984). “In

24

other words, the factual content of the plaintiff's claim [is] viewed by the trial court as

25

operating to proscribe the limits of any later action for which filing the claim is a

26

precondition.” Williams v. Braslow, 179 Cal.App.3d 762, 770, 224 Cal.Rptr. 895 (1986).

27

Each “theory of recovery” must be reflected in a timely claim, and “the factual circumstances

28

set forth in the claim must correspond with the facts alleged in the complaint.” Munoz v. State
22

1

of California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). “If a plaintiff relies on

2

more than one theory of recovery against the [public entity], each cause of action must have

3

been reflected in a timely claim.” Nelson v. State of California, 139 Cal.App.3d 72, 79, 188

4

Cal.Rptr. 479 (1982). A Claims Act claim "must set forth all the legal and factual bases that

5

will be asserted in any subsequent lawsuit." Doe 1 v. City of Murrieta, 102 Cal.App.4th 899,

6

920, 126 Cal.Rptr.2d 213 (2002).

7

The Claims Act is designed to protect governmental agencies from stale and fraudulent

8

claims, to provide an opportunity for timely investigation, and to encourage settling

9

meritorious claims. Johnson v. San Diego Unified School Dist., 217 Cal.App.3d 692, 697, 266

10

Cal.Rptr. 187 (1990). The “claims statutes must be satisfied even in face of the public entity's

11

actual knowledge of the circumstances surrounding the claim.” Shelton v. Superior Court, 56

12

Cal.App.3d 66, 82, 128 Cal.Rptr. 454 (1976).

13

Since the claims statutes should not be used as traps for the unwary when their

14

underlying purposes have been satisfied, courts employ a test of substantial compliance, rather

15

than strict compliance, in determining whether the plaintiff has met the filing requirements of

16

the Claims Act. Johnson, 217 Cal.App.3d at 697, 266 Cal.Rptr. 187. "Although a claim need

17

not conform to pleading standards, the facts constituting the causes of action pleaded in the

18

complaint must substantially correspond with the circumstances described in the claims as the

19

basis of the plaintiff's injury."

20

Cal.App.3d 1071, 1082-1083, 195 Cal.Rptr. 576 (1983).

Loehr v. Ventura County Community College Dist., 147

21

Nonetheless, the substantial compliance doctrine “cannot cure total omission of an

22

essential element from the claim or remedy a plaintiff's failure to comply meaningfully with

23

the statute.” Loehr, 147 Cal.App.3d at 1083, 195 Cal.Rptr. 576. “The test for substantial

24

compliance is whether the face of the filed claim discloses sufficient information to enable the

25

public entity to make an adequate investigation of the claim's merits and settle it without the

26

expense of litigation.” Connelly v. County of Fresno, 146 Cal.App.4th 29, 38, 52 Cal.Rptr.3d

27

720 (1988).

28

With their concession that Ms. Ghreir lacks claim and delivery, conversion and trespass
23

1

claims against DA Ward, the key problem for plaintiffs is the FAC's failure to identify seized

2

property belonging to TNW, especially since TNW is not included in the trespass claim which

3

addresses search warrant execution at Ms. Ghreir's properties, not at TNW's properties. The

4

seized property at issue includes computers, an ATM console and US currency taken from Ms.

5

Ghreir's stores. The FAC alleges no interest of TNW in the seized "Property." Plaintiffs fail to

6

demonstrate that the theory of DA Ward's control over the seized property was included in a

7

Claims Act claim submitted to Tulare County. Without more from plaintiffs, the substantial

8

compliance doctrine fails to save claim and delivery and conversion claims for TNW. The

9

claim and delivery, conversion and trespass claims are subject to dismissal.
CONCLUSION AND ORDER

10
11

The FAC and plaintiffs' supporting papers are a study in verbosity and a clutter of

12

hyperbole and extraneous matters intertwined with limited pertinent facts. On one hand,

13

plaintiffs claim that declaratory relief is the "core" of the case and on the other hand, they

14

assert menacing doom from seizure of Ms. Ghreir's property. In distilling the FAC and

15

plaintiffs' arguments, this Court surmises that plaintiffs' chief goal is to avoid criminal

16

prosecution under the guise of unsupported constitutional violations. Based on the FAC, this

17

Court is in no position to second guess state and local law enforcement. If TNW truly seeks to

18

test the legality of its sweepstakes program (in particular as to California Penal Code section

19

330b), it should do so in the context of a clearly defined declaratory relief claim. If Ms. Ghreir

20

truly seeks the return of her seized property, avenues are available to her via section 335a and

21

potentially California Penal Code section 1538.5, 1540 or related proceedings. However,

22

pursuit of such intentions through the FAC's convoluted allegations, claims and requested

23

relief against the State defendants and DA Ward is unwarranted and unsupported.

24

As such and for the reasons discussed above, this Court:

25

1.

26
27
28

DISMISSES without prejudice and with leave to amend the FAC's (first)

equitable relief claim and the FAC's (second through fifth) section 1983 and related claims;
2.

DISMISSES with prejudice the (sixth) claim and delivery (seventh) conversion

claims against DA Ward to the extent alleged on behalf of Ms. Ghreir and otherwise
24

1

DISMISSES without prejudice and with leave to amend the (sixth) claim and delivery and

2

(seventh) conversion claims as alleged against other defendants on behalf of TNW;

3

3.

DISMISSES with prejudice the (eighth) trespass claim against DA Ward;

4

4.

ORDERS plaintiffs, no later than December 23, 2013, to file and serve either:

5

(a) papers to dismiss this action against the State defendants and DA Ward; or (b) a second

6

amended complaint which shall not exceed 25 pages and which shall be organized by

7

sequential events or by specific topics to assist plaintiffs to focus on succinct pleading of facts

8

and claims. If plaintiffs elect to file a second amended complaint, plaintiffs are admonished to

9

pursue only legitimate, genuine claims based on sufficient supporting facts and law, that

10

plaintiffs' counsel is subject to liability under 28 U.S.C. § 1927, F.R.Civ.P. 11, and other

11

authorities, that this Court will grant plaintiffs no further attempt to plead claims, and that

12

disobedience of this order is grounds to dismiss the second amended complaint or any of its

13

claims; and

14
15

5.

ORDERS defendants, no later than January 20, 2014, to file and serve a

response to the second amended complaint, as necessary.

16
17
18
19

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

November 27, 2013

UNITED STATES DISTRICT JUDGE

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28
25