Oceanside Organics et al v. San Diego, County of et al

Filing 39

ORDER Granting 33 Motion to Dismiss Plaintiffs' Second Amended Complaint. While the Court entertains serious doubts concerning plaintiffs' ability to adequately re-plead their causes of action, especially since the Court has given pla intiffs two opportunities to do so, the Court dismisses without prejudice plaintiffs SAC. Plaintiffs shall file an amended complaint, if any, on or before fourteen (14) days of the date on which this Order is electronically docketed. Failure to file an amended complaint on this date may result in a dismissal of this case with prejudice. Signed by Judge Janis L. Sammartino on 4/18/2017. (dxj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18

OCEANSIDE ORGANICS;
OCEANSIDE FARM TO TABLE, INC.;
ALAN SHELTON; JUSTINE SHELTON;
RON MIROLLA; LISA RIGG;
MICHAEL WINKLEMAN; SARAH
DYAL; ANTHONY CARBONNE;
RICHARD DAVIS; DAVID SNYDER;
DUANE LEWIS; SANDRA LEWIS;
WAYNE LARSON; SHAWN SMITH;
KYLE SNELLER; BUCK
HUTCHERSON; LOGAN PIERCE;
BROOK BISHOP; RON BOCIAN,

19
20
21

Case No.: 15-CV-854 JLS (MDD)
ORDER GRANTING MOTION TO
DISMISS PLAINTIFFS’ SECOND
AMENDED COMPLAINT
(ECF No. 33)

Plaintiffs,
v.

24

COUNTY OF SAN DIEGO, SAN
DIEGO COUNTY SHERIFF’S
DEPARTMENT; WILLIAM GORE; TIM
CLARK; MATT STEVENS; and DOES
1-10 inclusive,

25

Defendants.

22
23

26
27

Presently before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second

28

Amended Complaint. (“MTD,” ECF No. 33.) Also before the Court is Plaintiffs’ Response
1
15-CV-854 JLS (MDD)

1

in Opposition to, (“Opp’n,” ECF No. 35), and Defendants’ Reply in Support of, (“Reply,”

2

ECF No. 37), the MTD. Having considered the parties’ arguments and the law, the Court

3

GRANTS Defendants’ MTD and DISMISSES WITHOUT PREJUDICE Plaintiffs’

4

Second Amended Complaint (“SAC”).

5

BACKGROUND

6

Plaintiff Oceanside Organics is a “closed loop marijuana collective” operating in

7

San Diego County, California. (SAC ¶ 19, ECF No. 32.) The other plaintiffs are Oceanside

8

Organics’ eighteen individual members and a corporation formed to purchase the property

9

upon which Oceanside Organics grows its medical marijuana. (Id. ¶¶ 3–18, 20.)

10

Plaintiffs agreed to contact local law enforcement to ensure the legality and

11

compliance of their collective. (Id. ¶ 28.) In mid-July 2014, Plaintiffs’ counsel contacted

12

Defendant Tim Clark, a Deputy Sheriff with the San Diego County Sheriff’s Department.

13

(Id. ¶¶ 22, 29.) In the course of their correspondence, Plaintiffs’ counsel provided to

14

Defendant Clark “copies of all valid recommendations” for medical marijuana. (Id. ¶ 30.)

15

Plaintiffs also “acquired state medical marijuana cards as requested by [D]eputy Clark.”

16

(Id.) According to Plaintiffs’ counsel, “Deputy Clark repeatedly indicated to [Plaintiffs’

17

counsel] that no legal action would be taken against the collective operation and that

18

nobody at the cultivation site would be subject to arrest.” (Id.)

19

Nevertheless, “Deputy Clark conspired with [D]eputy Stevens[, another Deputy

20

Sheriff with the San Diego County Sheriff’s Department,] to have an illegal search warrant

21

issued which was based on a knowingly false affidavit.” (Id. ¶¶ 23, 31.) Specifically,

22

Defendants “falsely sw[ore] under oath that the marijuana was being cultivated illegally,

23

despite the knowledge of both [Defendants] that the marijuana was being cultivated

24

legally.” (Id. ¶ 31.) On September 12, 2014, Plaintiffs’ property was raided, (id. ¶¶ 29, 32),

25

and Plaintiffs Shawn Smith and Kyle Sneller were arrested by Defendants Clark and

26

Stevens “without probable cause,” (id. ¶¶ 14, 15, 29, 32, 50, 55). “At the time of the

27

raid . . . , there were over 20 valid members of the collective and 31 medical marijuana

28

plants on site.” (Id. ¶ 32.)
2
15-CV-854 JLS (MDD)

1

As a result of Defendants’ actions, Plaintiffs “suffered loss of illegally confiscated

2

medical marijuana, intentional infliction of emotional distress, negligent infliction of

3

emotional distress, false arrest, [and] violation of civil rights under the Constitution of the

4

United . . . States and the State of California.” (Id. ¶ 33.) Plaintiffs further allege that

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

The County of San Diego, through the actions of the Board of
Supervisors, the District Attorney’s Office and the Sheriff's
Department maintain a custom, policy and practice of violating
the legal rights of valid medical marijuana patients in San Diego
County by failing to properly train and supervise deputies
regarding the obligation of the deputies to follow the statutory
scheme created by the citizens of the State of California to allow
cultivation of marijuana in California for medical use, by
creating and allowing an enviroment [sic] in which deputies are
encouraged and allowed to violated their oath to uphold the laws
of the State of California, by creating and allowing an
environment in which deputies are encouraged and allowed to
violate the laws of the State of California, by creating and
allowing an environment in which illegal searches, false search
warrant affidavits, false arrests and false criminal prosecutions
are encouraged and allowed, by ratifying this illegal conduct of
their deputies and by creating and allowing an environment in
which deputies are encouraged and allowed to violate the
guidelines of the Attorney General for the State of California
regarding the security and non-diversion of marijuana grown for
medical use in the State of California as well as encouraged to
violate prohibitions of the Constitution of the United States
against false arrest without probable cause and illegal search and
siezue [sic] through knowingly false search warrant affidavits.

21
22

(Id. ¶ 25.) “As a proximate result of the custom, policy and practice of the County of San

23

Diego an illegal warrant was issued, [and the] illegal raid . . . t[ook] place . . . .” (Id. ¶ 39.)

24

On April 17, 2015, Plaintiffs filed their original Complaint, setting forth six causes

25

of action against Defendants Stevens and Clark or “all Individual Defendants” under both

26

42 U.S.C. § 1983 (“Section 1983”) and California law. (ECF No. 1 ¶¶ 40–64.) Plaintiffs

27

also alleged a separate cause of action under Section 1983 against Defendants County of

28

San Diego and the San Diego County Sheriff’s Department. (Id. ¶¶ 35–39.) The Complaint
3
15-CV-854 JLS (MDD)

1

also named Sheriff William Gore as a defendant, alleging only that he “is the chief

2

policymaker and decision maker for the San Diego County Sheriff’s Department on all

3

issues regarding proper police training.” (Id. ¶ 21.)

4

The County Defendants filed their MTD on June 22, 2015 (ECF No. 5), and

5

Plaintiffs filed their Request for Preliminary Injunction on June 25, 2015, (ECF No. 7). On

6

November 30, 2015, the Court granted the County Defendants’ MTD and denied Plaintiffs’

7

Request for Preliminary Injunction. (ECF No. 22.)

8

Plaintiffs filed a First Amended Complaint (“FAC”) on February 17, 2016 (ECF No.

9

23), and Defendants filed a MTD on March 2, 2016. (ECF No. 25.) The Court granted

10

Defendants’ MTD in its entirety on October 20, 2016. (ECF No. 31.)

11
12

Plaintiffs filed a Second Amended Complaint on November 4, 2016. (ECF No. 32.)
Defendants filed the instant MTD on November 18, 2016. (ECF No. 33.)

13
14

MOTION TO DISMISS
I.

Legal Standard

15

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

16

defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

17

generally referred to as a motion to dismiss. The Court evaluates whether a complaint states

18

a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure

19

8(a), which requires a “short and plain statement of the claim showing that the pleader is

20

entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it

21

[does]

22

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

23

Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to provide

24

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

25

a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.

26

at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice

27

“if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S.

28

at 677 (citing Twombly, 550 U.S. at 557).

demand

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

4
15-CV-854 JLS (MDD)

1

In order to survive a motion to dismiss, “a complaint must contain sufficient factual

2

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

3

Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

4

when the facts pled “allow the court to draw the reasonable inference that the defendant is

5

liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at

6

556). That is not to say that the claim must be probable, but there must be “more than a

7

sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with’

8

a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly,

9

550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained

10

in the complaint. Id. This review requires context-specific analysis involving the Court’s

11

“judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-

12

pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

13

the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”

14

Id.

15

Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to

16

amend unless it determines that no modified contention “consistent with the challenged

17

pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

18

658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d

19

1393, 1401 (9th Cir. 1986)).

20

II.

21
22

Analysis
A. First Cause of Action: Violation of Civil Rights (Section 1983) Against County
Defendants (Monell Theory of Liability)

23

Plaintiffs’ first cause of action claims violation of civil rights under Section 1983

24

against Defendants County of San Diego and San Diego County Sheriff’s Department,

25

(collectively, the “County Defendants”). A government entity may not be held liable

26

under Section 1983 unless a policy, practice, or custom of the entity can be shown to be a

27

moving force behind a violation of constitutional rights. Monell v. Dep’t of Soc. Servs. of

28

the City of N.Y., 436 U.S. 658, 694 (1978). To establish liability for governmental entities
5
15-CV-854 JLS (MDD)

1

under Monell, a “plaintiff must show: (1) that [the plaintiff] possessed a constitutional

2

right of which [s]he was deprived; (2) that the municipality had a policy; (3) that

3

this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and, (4)

4

that the policy is the moving force behind the constitutional violation.” Plumeau v. Sch.

5

Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (alterations in original)

6

(quoting Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)) (internal

7

quotation marks omitted).

8

[T]here are three ways to show a policy or custom of a
municipality: (1) by showing “a longstanding practice or custom
which constitutes the standard operating procedure of the local
government entity”; (2) “by showing that the decision-making
official was, as a matter of state law, a final policymaking
authority whose edicts or acts may fairly be said to represent
official policy in the area of decision”; or (3) “by showing that
an official with final policymaking authority either delegated that
authority to, or ratified the decision of, a subordinate.”

9
10
11
12
13
14
15

Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008) (quoting Ulrich

16

v. City of S.F., 308 F.3d 968, 984–85 (9th Cir. 2002)). “A plaintiff cannot prove the

17

existence of a municipal policy or custom based solely on the occurrence of a single

18

incident of unconstitutional action by a non-policymaking employee.” Davis v. City of

19

Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (emphasis removed) (citing City of Okla.

20

City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion)). Although “[p]reviously,

21

the Ninth Circuit held that a Monell claim was sufficient to withstand a motion to dismiss

22

even if the claim was based on ‘nothing more than a bare allegation that the individual

23

officers’ conduct conformed to official policy, custom, or practice,’ Warner v. Cty. of San

24

Diego, No. 10CV1057 BTM BLM, 2011 WL 662993, at *3 (S.D. Cal. Feb. 14, 2011)

25

(quoting Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988)), “since

26

then, Twombly and Iqbal have made it clear that conclusory allegations that merely recite

27

the elements of a claim are insufficient for 12(b)(6) purposes,” id.

28

///
6
15-CV-854 JLS (MDD)

1

Defendants move to dismiss the SAC because Plaintiffs fail to show an underlying

2

constitutional deprivation and to state any plausible Monell claim under any of the three

3

mandatory elements to establish liability. (MTD 14–20,1 ECF No. 33.) Plaintiffs

4

“acknowledge that there is no federal right to access . . . medical marijuana,” but argue that

5

they are “protected under the Fourth Amendment from illegal arrest and illegal siezure [sic]

6

of property and from the custom, policy[,] and practice of a governmental entity that allows

7

illegal police conduct.” (Opp’n 4–5, ECF No. 35.) Plaintiffs again allege that Monell

8

liability may be imposed for a failure to properly train and supervise deputies. (SAC ¶ 37,

9

ECF No. 31.)

10

In particular, Plaintiffs allege that

11

the County of San Diego, through the actions of the Board of
Supervisors, the District Attorney’s Office and the Sheriff’s
Department[,] maintain[s] a custom, policy and practice of
violating the legal rights of the citizens of San Diego County by
failing to properly train and supervise deputies regarding the
obligation of the deputies to follow the statutory scheme created
by the citizens of the State of California to allow cultivation of
marijuana in California for medical use, by failing to properly
train their deputies to honor the laws of the State of California
and the Constitution of the United States prohibiting false search
warrant affidavits and illegal searches and arrests, by creating
and allowing an enviroment [sic] in which deputies are
encouraged and allowed to violate[] their oath to uphold the laws
of the State of California and the Constitution of the United
States, by creating and allowing an environment in which
deputies are encouraged and allowed to violate the laws of the
State of California, by creating and allowing an environment in
which illegal searches, false search warrant affidavits, false
arrests and false criminal prosecutions are encouraged, despite
the knowledge of defendants, and each of them, that said conduct
is in violation of the laws of the State of California and the
Constitution of the United States and by creating and allowing
an environment in which deputies are encouraged and allowed to

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.
7
15-CV-854 JLS (MDD)

1

violate the guidelines of the Attorney General for the State of
California regarding the security and non-diversion of marijuana
grown for medical use in the State of California.

2
3
4

(Id.) Plaintiffs add that Defendant “GORE is the chief policymaker and decision maker for

5

the San Diego County Sheriff’s Department on all issues regarding proper police training

6

for the San Diego County Sheriff’s Department.” (Id. ¶ 21 (emphasis in original).) And

7

Plaintiffs supply a new allegation that “Defendant Clark admitted to attorney Callaway that

8

it is the position of the San Diego Sheriff[’]s Department that nomedical [sic] marijuana

9

cultivation is permitted by the Sheriff[’]s Deptarment [sic], despite the laws of the State of

10

California permitting such cultivation.”2 (Id. ¶ 37.)

11

The Court finds that at least some of these allegations are non-conclusory, and thus

12

sufficient at this stage to plausibly suggest the existence of a municipal custom.

13

Specifically, Plaintiffs allege that the County of San Diego (1) fails “to properly train and

14

supervise deputies regarding the obligation of the deputies to follow the statutory scheme

15

created by the citizens of the State of California to allow cultivation of marijuana in

16

California for medical use”; and (2) “creat[es] and allow[s] an environment in which

17

deputies are encouraged and allowed to violate the guidelines of the Attorney General for

18

the State of California regarding the security and non-diversion of marijuana grown for

19

medical use in the State of California.” These allegations, taken as true, are sufficient to

20

give the County Defendants fair notice of the allegedly unlawful policies and practices in

21

///

22
23
24
25
26
27
28

2

The Court agrees with Defendants that this allegation is unintelligible. (See MTD 17 n.5, ECF No. 33.)
Perhaps Plaintiffs meant to say that the Sheriff’s Department’s position is that marijuana cultivation is not
permitted, despite contrary California law, which is what Plaintiffs appear to argue in their Opposition.
(See Opp’n 4, ECF No. 35.) But this allegation does not appear in the SAC. See Schneider v. Cal. Dep’t
of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6)
dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a
memorandum in opposition to a defendant’s motion to dismiss.”) (emphasis in original)). While Plaintiffs’
inattention to detail in their pleading, such as myriad spelling and grammatical errors, does not generally
affect the Court’s analysis, in this case, it does.
8
15-CV-854 JLS (MDD)

1

place. See, e.g., Johnson v. Shasta Cty., 83 F. Supp. 3d 918, 931 (E.D. Cal. 2015) (finding

2

similar allegations sufficient at the pleading stage).

3

Nevertheless, because Plaintiffs fail to adequately plead an underlying constitutional

4

violation, see Part II.B., infra, Plaintiffs’ Monell claim necessarily fails. Consequently, the

5

Court GRANTS Defendants’ MTD and DISMISSES WITHOUT PREJUDICE

6

Plaintiffs’ first cause of action.

7
8

B. Second Cause of Action: Conspiracy to Violate Civil Rights (Section 1983)
Against All Individual Defendants

9

With respect to their second cause of action for conspiracy to violate civil rights,

10

Plaintiffs similarly allege that “all individual named defendants herein acted in concert and

11

conspired to intentionally have plaintiffs subjected to false arrest, illegal police conduct

12

and illegal and false confiscation of legally grown medical marijuana.” (SAC ¶ 41, ECF

13

No. 32.) Plaintiffs further allege that “the conduct of all individual defendants herein was

14

motivated by evil motive and intent” (id. ¶ 43), and that “all individual defendants named

15

herein exhibited reckless and callous indifference to the plaintiffs[’] rights under the Fourth

16

and Fourteenth Amendments to the U.S. Constitution and the Constitution of the State of

17

California,” (id. ¶ 44).

18

The Ninth Circuit has explained that “[c]onspiracy is not itself a constitutional tort

19

under § 1983. . . . It does not enlarge the nature of the claims asserted by the plaintiff, as

20

there must always be an underlying constitutional violation.” Lacey v. Maricopa Cty., 693

21

F.3d 896, 935 (9th Cir. 2012) (citing Cassettari v. Nev. Cty., 824 F.2d 735, 739 (9th Cir.

22

1987) (“The insufficiency of these allegations to support a section 1983 violation precludes

23

a conspiracy claim predicated upon the same allegations.”)).

24

The Court again concludes that Plaintiffs have failed to sufficiently allege an

25

underlying constitutional violation and thus their conspiracy claim must fail. Specifically,

26

Plaintiffs allege that

27
28
9
15-CV-854 JLS (MDD)

1
2
3
4
5
6
7
8
9
10
11
12

Deputy Clark conspired with deputy Stevens to have an illegal
search warrant issued which was based upon a knowingly false
affidavit in support of the warrant. At all times mentioned herein,
both defendants Clark and Stevens were aware that the collective
members were operating legally. Defendants Clark and Stevens
conspired to have defendant Stevens willfully and intentionally
deceive the issuing magistrate by falsely swearing under oath
that the marijuana was being cultivated illegally, despite the
knowledge of both defendants Clark and Stevens that the
marijuana was being cultivated legally. Both defendants Clark
and Stevens were aware at all times that no probable cause
existed to issue the warrant or conduct the illegal search, that
plaintiffs had contacted defendant Clark and provided him with
proof of the legal nature of the cultivation site, that defendant
Clark had visited the site and indicated to attorney Callaway that
the plaintiffs were in compliance with the laws of the State of
California and that no legal action would be taken against the
plaintiffs.

13
14

(SAC ¶ 31, ECF No. 32.)

15

As before, this paragraph is a litany of conclusions. The crux of these allegations is

16

that Defendants Clark and Stevens “knew” that Plaintiffs’ collective was “legal.” But that

17

is simply a conclusion that the Court cannot credit. Plaintiffs’ conclusory statement that it

18

operates “a legally established medical marijuana collective” does not plausibly establish

19

that fact. (Id. ¶ 27.) And neither Plaintiffs’ “willingness . . . to ensure legal compliance,”

20

(id. ¶ 28), nor Plaintiffs’ communications with Defendant Clark “to ensure that the

21

collective cultivation operation was in full compliance with all applicable state laws,” (id.

22

¶¶ 29, 30), plausibly demonstrate that Plaintiffs were, in fact, compliant with applicable

23

state laws and thus in lawful possession of the marijuana.

24

To be sure, Plaintiffs allege that “Callaway provided copies of all valid

25

recommendations to deputy Clark to allow him to confirm the validity of said

26

recommendations.” (Id. ¶ 30.) But this does not plausibly establish that the collective was

27

legal; it does, however, plausibly establish that Plaintiffs believed it to be so and hoped

28

Defendant Clark would confirm the same. And Plaintiffs further allege that Defendant
10
15-CV-854 JLS (MDD)

1

Clark told attorney Callaway that Plaintiffs were in compliance with state law and that he

2

would not take any legal action against them. (Id.) But this alone does not plausibly

3

establish that the collective was legal or any wrongdoing on Defendant Clark’s part for

4

eventually “raiding” the collective; for instance, it is possible that, despite Defendant

5

Clark’s assurances, Plaintiffs were not in compliance with state law. It may well be, as

6

Plaintiffs suggest, that the collective was legally operated. However, without more factual

7

allegations supporting that conclusion, such as the documents Plaintiffs allegedly gave to

8

Defendant Clark, the Court finds implausible Plaintiffs’ conspiracy claim. Consequently,

9

the Court GRANTS the County Defendants’ MTD and DISMISSES WITHOUT

10
11
12
13
14
15
16
17
18
19
20
21

PREJUDICE Plaintiffs’ second cause of action.
C. Third Cause of Action: Violation of Civil Rights (Section 1983) Against
Defendants Clark and Stevens
With respect to their third cause of action, Plaintiffs allege that
Defendants knowingly, maliciously and without probable cause
caused an illegal search warrant affidavit to be sworn against
plaintiff in a deliberate effort to subvert the magistrate[’]s neutral
function in issuing warrants, executed the illegal warrant issued
upon said false affidavit and illegally confiscated and converted
plaintiffs’ legally grown medical marijuana. Defendants[’] lies
and false evidence were in violation of plaintiffs’ rights to due
process and to be free from illegal police conduct under the
Fourth and Fourteenth Amendments of the Constitution of the
United States.

22

(SAC ¶ 46, ECF No. 32.) Plaintiffs further allege that “the conduct of all individual

23

defendants herein was motivated by evil motive and intent.” (Id. ¶ 47.)

24

To establish liability under Section 1983, Plaintiffs must show (1) that they were

25

deprived of a right secured by the United States Constitution or a federal law and (2) that

26

the deprivation was effected “under color of state law.” Broam v. Bogan, 320 F.3d 1023,

27

1028 (9th Cir. 2003) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978))

28

(internal quotation marks omitted). Once again, because Plaintiffs nowhere plead that the
11
15-CV-854 JLS (MDD)

1

alleged deprivations were effected under color of state law, they have failed to state this

2

legal theory along with sufficient facts to support this claim. See Garcia v. City of Merced,

3

637 F. Supp. 2d 731, 763 (E.D. Cal. 2008) (“Plaintiff[,] however, does not plead . . . that

4

Defendants

5

from unreasonable search and seizure ‘under color of law.’” (citing Broam, 320 F.3d

6

1028)).

effected

the

deprivation

of

his

right

to

be

free

7

Even assuming the officers in question were acting under color of state law,

8

however, Plaintiffs again fail to “state a claim to relief that is plausible on its face” no

9

matter how their claim is construed. Twombly, 550 U.S. at 557. Plaintiffs have failed to

10

revise any part of their argument from their original Complaint, despite the Court’s two

11

previous admonitions that Plaintiffs’ theory of liability lacked clarity. (See Order Granting

12

MTD 13, ECF No. 22; FAC MTD Order 10, ECF No. 31.) Therefore, the Court presents a

13

similar analysis, although the Court will not address Plaintiffs’ Fourteenth Amendment

14

claim because Plaintiffs have “withdraw[n] that claim.”3 (Opp’n 8, ECF No. 35.)

15

Plaintiffs contend that Defendants are liable for “conspir[ing] to lie to the magistrate

16

and falsely [telling] the magistrate that illegal activity was taking place when they knew,

17

for fact, that it was not” in violation of the Fourth Amendment. (Id.) Although Plaintiffs

18

again do not explicitly allege that Defendants violated their right to be free from

19

unreasonable search and seizure, (see SAC ¶ 46, ECF No. 23), Plaintiffs do allege the

20

procurement and execution of an “illegal warrant” and the “illegal[] confiscat[ion]” of their

21

medical marijuana plants, (see id.). It is therefore possible that Plaintiffs are attempting to

22

state a claim under the Fourth Amendment. Nevertheless, the Court finds that Plaintiffs

23

have failed to invoke judicial deception under the Fourth Amendment:

24

A person who knowingly or with reckless disregard for the truth
includes material false statements or omits material facts in an
affidavit submitted in support of a warrant application may be

25
26
27
28

3

The Court notes that Plaintiffs similarly included—and withdrew—this claim in their FAC. (See FAC
MTD Order 10, ECF No. 31.) This may be another instance of Plaintiffs’ inattention to detail in revising
their pleadings.
12
15-CV-854 JLS (MDD)

1

liable under § 1983 for a Fourth Amendment violation. . . . . To
state a claim for judicial deception . . . , “a § 1983 plaintiff must
show that the investigator ‘made deliberately false statements or
recklessly disregarded the truth in the affidavit’ and that the
falsifications were ‘material’ to the finding of probable
cause.” . . . . Facts pled on “information and belief” are sufficient
as long as the other Iqbal-Twombly requirements are satisfied.

2
3
4
5
6
7

Johnson v. Shasta Cty., 83 F. Supp. 3d 918, 925–26 (E.D. Cal. 2015) (citations omitted);

8

see also KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004). Plaintiffs’ claim fails for at

9

least two reasons. First, Plaintiffs fail to allege that any statement was material to the

10

issuing of the warrant. 4 This alone is fatal to their claim. See Johnson, 83 F. Supp. 3d at

11

926 (“[Plaintiffs] have not sufficiently alleged the falsifications were ‘material’ to the

12

finding of probable cause. . . . . Accordingly, . . . defendants’ motion to dismiss . . . is

13

GRANTED . . . .” (emphasis in original) (citing Galbraith v. Cty. of Santa Clara, 307 F.3d

14

1119, 1126 (9th Cir. 2002))). Second, Plaintiffs allege that “Defendants Clark and

15

Stevens . . . falsely sw[ore] under oath that the marijuana was being cultivated illegally,

16

despite [knowing] . . . that the marijuana was being cultivated legally.” (SAC ¶ 31, ECF

17

No. 32.) While this statement might otherwise be sufficient, Plaintiffs, as discussed above,

18

supra Part II.B, fail to plausibly demonstrate either that (1) Plaintiffs’ collective was, in

19

fact, legally operated, and (2) Defendants Clark and Stevens knew the same. Plaintiffs

20

therefore fail to plead a Fourth Amendment cause of action arising under a theory of

21

judicial deception.

22

Furthermore, Plaintiffs fail to plead sufficient factual allegations to support any other

23

Fourth Amendment theory, such as the unlawful execution of a search warrant or unlawful

24

seizure of their property. The factual allegations here are similar to those rejected in Rocha

25
26
27
28

Plaintiffs appear to allege materiality in their Opposition. (See Opp’n 8, ECF No. 35.) But the Court
again reminds Plaintiffs that because these allegations only appear in Plaintiffs’ opposition brief, the Court
cannot consider them for purposes of the instant motion to dismiss for failure to state a claim. See
Schneider, 151 F.3d at 1197 n.1. In other words, to be considered on a motion to dismiss, such allegations
must appear in the operative complaint.
4

13
15-CV-854 JLS (MDD)

1

v. County of Tulare, No. CV F 13-0796 LJO GSA, 2013 WL 4046373 (E.D. Cal. Aug. 8,

2

2013), in which the district court dismissed plaintiff’s Fourth Amendment claim for failure

3

to state a claim:
The gist of the factual allegations are that given [plaintiff]’s
recommendation, Deputy [Defendant] and others illegally
searched [plaintiff]’s residence and seized marijuana . . . . The
[complaint] lacks facts to support that Deputy [Defendant] and
others made false affidavits, forcibly entered [plaintiff]’s
residence, were not entitled to execute the search warrant, and
mistreated [plaintiff] . . . . [Plaintiff]’s reliance on falsity of
statements to support the search warrant are inadequate
conclusions. Neither the [complaint] nor [plaintiff] identify the
false statements nor explain their falsity. Merely alleging the
search warrant is based on unidentified false statements is
insufficient . . . . An explanation as to falsity is necessary.

4
5
6
7
8
9
10
11
12
13

Rocha, 2013 WL 4046373, at *7. More fundamentally, as discussed above, supra Part II.B,

14

Plaintiffs fail to plausibly demonstrate that their collective was, in fact, legal, thus raising

15

the specter that the “raid” was somehow unlawful under the Fourth Amendment.

16

Accordingly, the Court finds that Plaintiffs have failed to plead sufficient facts that would

17

allow this claim to be plausible on its face, whether construed as a claim for violation of

18

the Fourth Amendment of the United States Constitution or violation of rights under the

19

California Constitution.5 Consequently, the Court GRANTS Defendants’ MTD and

20
21
22
23
24
25
26
27
28

Plaintiffs’ third cause of action also alleges “violation of plaintiffs’ rights to due process under . . . the
Constitution of the State of California.” (SAC ¶ 46, ECF No. 23.) The discussion of Plaintiffs’
federal claims resolves both the federal and state constitutional claims. See L.A. Cty. Bar Ass’n v. Eu, 979
F.2d 697, 705 n.4 (9th Cir. 1992) (“California Constitution provides the same ‘basic guarantee’ as
the Fourteenth Amendment.” (citing Payne v. Superior Court, 17 Cal. 3d 908, 914 n.3 (1976) (en banc)));
Arroyo v. Tilton, No. 1:11-CV-01186 DLB PC, 2012 WL 1551655, at *7 (E.D. Cal. Apr. 30, 2012) (“[T]he
Article I, Section 1 privacy clause of the California Constitution has not been held to establish a broader
protection than that provided by the Fourth Amendment of the United States Constitution.” (citing Quon
v. Arch Wireless Operating Co., 529 F.3d 892, 903 (9th Cir. 2008)); Sanchez v. Cty. of San Diego, 464
F.3d 916, 943 (9th Cir. 2006)); Barsamian v. City of Kingsburg, 597 F. Supp. 2d 1054, 1065 (E.D. Cal.
2009) (“California’s constitutional ban on unreasonable searches and seizures is ‘similar’ to the Fourth
Amendment’s . . . . Thus, it is appropriate to consider Fourth Amendment jurisprudence in analyzing a
5

14
15-CV-854 JLS (MDD)

1
2
3
4

DISMISSES WITHOUT PREJUDICE Plaintiffs’ third cause of action.
D. Fourth and Fifth Causes of Action: False Arrest/Malicious Prosecution (State
Law and Section 1983) Brought by Plaintiffs Sneller and Smith Against
Defendants Clark and Stevens

5

Regarding the state law claim, Plaintiffs Sneller and Smith re-allege that

6

“Defendants Clark and Stevens falsely, intentionally and maliciously arrested Plaintiffs

7

Smith and Sneller without probable cause and despite the fact that defendants Clark and

8

Stevens knew at all times that . . . plaintiffs were engaged in legal conduct under the laws

9

of the State of California.” (SAC ¶ 50, ECF No. 32.) Regarding the Section 1983 claim,

10

Plaintiffs similarly allege that “Defendants Clark and Stevens falsely, intentionally and

11

maliciously arrested plaintiffs Smith and Sneller without probable cause and recommended

12

that false criminal charges be filed against them, despite the fact that defendants Clark and

13

Stevens knew at all times that knew that defendant Clark had been contacted by attorney

14

Callaway and had assured attorney Callaway that plaintiffs were engaged in legal conduct

15

under the laws of the State of California.” (Id. ¶ 55.) Plaintiffs further allege that these

16

“illegal arrest[s]” “violated plaintiffs’ rights under the laws of the State of California” (id.

17

¶ 51), and “violat[ed] . . . plaintiffs’ rights to due process under the Fourth and Fourteenth

18

Amendments,” (id. ¶ 56).

19

False imprisonment “is the unlawful arrest or detention of a person without a

20

warrant, or by an illegal warrant, or a warrant illegally executed.” Garcia, 637 F. Supp. 2d

21

at 752 (quoting Donati v. Righetti, 9 Cal. App. 45, 48 (1908)); Mackie v. Ambassador Hotel

22

& Inv. Corp., 123 Cal. App. 215, 220 (1932)); see also Ross v. City of Ontario, 66 F. App’x

23

93, 95 (9th Cir. 2003) (“A claim for unlawful arrest is cognizable under § 1983 as a

24

violation of the Fourth Amendment, provided the arrest was without probable cause or

25

other justification.”) (quoting Dubner v. City of S.F., 266 F.3d 959, 964 (9th Cir. 2001)

26
27
28

claim that is based on a purported violation of California’s similar constitutional provision.” (citing People
v. Celis, 33 Cal. 4th 667, 673 (2004); Wood v. Emmerson, 155 Cal. App. 4th 1506, 1514, 1526 (2007))).
15
15-CV-854 JLS (MDD)

1

(internal quotation marks omitted)). Because Plaintiffs have failed to show in their third

2

cause of action that Defendants Clark and Stevens violated Plaintiffs’ civil rights by

3

illegally obtaining or executing the search warrant, Plaintiffs Sneller and Smith have also

4

failed to state specific facts giving rise to plausible Section 1983 and state law claims for

5

false arrest.6

6

After dropping their malicious prosecution claim in their FAC pursuant to the

7

Court’s first MTD order, (see FAC MTD Opp’n 5, ECF No. 27), Plaintiffs appear to have

8

re-alleged malicious prosecution in their SAC, (see SAC ¶¶ 49–53, ECF No. 32). However,

9

Plaintiffs have not argued against dismissing their malicious prosecution claim, (see

10

generally Opp’n, ECF No. 35), and thus the Court will not further elaborate on the issue

11

beyond what it explained in its Order granting dismissal of the original Complaint. (See

12

Order Granting MTD 17–19, ECF No. 22.) Accordingly, Plaintiffs fail to plead sufficient

13

facts to support a plausible claim for relief in their fourth and fifth causes of action under

14

both state law and Section 1983. Consequently, the Court GRANTS Defendants’ MTD

15

and DISMISSES WITHOUT PREJUDICE Plaintiffs’ fourth and fifth causes of action.

16

///

17

///

18

///

19

///

20
21

6

The Court further notes that

22
23
24
25

[t]he showing of probable cause is therefore a defense to [plaintiff]’s false
arrest claim under § 1983, as well as her common law claim for false arrest
and false imprisonment under California law. . . . . “Probable cause exists
when, under the totality of the circumstances known to the arresting officers
(or within the knowledge of the other officers at the scene), a prudent person
would believe the suspect had committed a crime.”

26
27
28

Ross, 66 F. App’x at 95 (citations omitted). Plaintiffs’ conclusory allegations fail to demonstrate that
Defendants Smith and Clark lacked probable cause. See Barrios v. Cty. of Tulare, No. 1:13-CV-1665 AWI
GSA, 2014 WL 2174746, at *7 (E.D. Cal. May 23, 2014) (“With respect to the allegation that the warrant
was issued without probable cause, the Complaint does not explain why probable cause is absent.”).
16
15-CV-854 JLS (MDD)

1

E. Sixth Cause of Action: Conversion (State Law Claim) Against Defendants
Clark and Stevens

2
3

In support of their sixth cause of action for conversion, Plaintiffs allege that “[a]ll

4

individual defendants at all times alleged herein owed a duty to plaintiffs to exercise due

5

care towards plaintiffs in the execution of their duties as sworn peace officers and to not

6

illegally confiscate plaintiffs’ property.” (SAC ¶ 59, ECF No. 32.) Plaintiffs’ SAC contains

7

the additional allegation that “[a]ll individual defendants knew, at all times, that the

8

Attorney General’s Guidelines in the State of California precluded them from confiscating

9

plaintiffs’ property but defendants, and each of them, proceeded to illegally confiscate

10

plaintiffs’ property despite the fact that defendants knew at all times that plaintiffs had the

11

full legal right to possess said property.” (Id. ¶ 61.)

12

“Conversion is the wrongful exercise of dominion over the property of another.”

13

Burlesci v. Petersen, 68 Cal. App. 4th 1062, 1066 (1998); see also Mindys Cosmetics, Inc.

14

v. Dakar, 611 F.3d 590, 601 (9th Cir. 2010). “The elements of a conversion claim are: (1)

15

the plaintiff’s ownership or right to possession of the property; (2) the defendant’s

16

conversion by a wrongful act or disposition of property rights; and (3) damages.” Burlesci,

17

68 Cal. App. 4th at 1066. “Conversion is a strict liability tort” and thus neither “the

18

knowledge nor the intent of the defendant” are generally relevant. Id.

19

The Court again agrees with Defendants that Plaintiffs have failed to show they were

20

in lawful possession of the confiscated marijuana. See supra Part II.B. And even assuming

21

Plaintiffs were in lawful possession of the marijuana, as discussed above, supra Part II.C,

22

Plaintiffs fail to plead that Defendants’ seizure of the marijuana was pursuant to a

23

“wrongful act,” such as executing an illegally obtained warrant. Consequently, the Court

24

GRANTS Defendants’ MTD and DISMISSES WITHOUT PREJUDICE Plaintiffs’

25

sixth cause of action.

26

///

27

///

28

///
17
15-CV-854 JLS (MDD)

1
2
3
4
5
6
7
8
9
10
11

F.

Seventh Cause of Action: Violation of Rights Under California Civil Code
Section 52.1 Against Defendants Clark and Stevens (State Law Claim)

Plaintiffs allege that Defendants
owed a duty to plaintiffs to not violate their rights under
California Civil Code Section 52.1. Defendants knew at all times
that plaintiffs were legally exercising their rights under
California law. Defendant Clark admitted that he knew plaintiffs’
conduct was lawful. Defendants breached their duty owed to
plaintiffs by, inter alia, conspiring to file a false search warrant
affidavit illegally lying that probable cause to search and arrest
existed when defendants, and each of them, knew that it did not
exist, illegally destroying plaintiffs’ property, illegally arresting
plaintiffs Sneller and Smith and illegally recommending that
false felony charges be brought against plaintiffs Sneller and
Smith.

12
13

(SAC ¶ 63, ECF No. 32.) Plaintiffs additionally allege “[a]s a proximate result of

14

defendants’ conduct[,] plaintiffs’ rights under the laws and Constitution of the State of

15

California were violated and plaintiffs damaged thereby.” (Id. ¶ 64.)

16

California Civil Code Section 52.1 “authorizes an action at law, a suit in equity, or

17

both, against anyone who interferes, or tries to do so, by threats, intimidation, or coercion,

18

with an individual’s exercise or enjoyment of rights secured by federal or state law.” Jones

19

v. Kmart Corp., 17 Cal. 4th 329, 331 (1998). “The word ‘interferes’ as used in [Section

20

52.1] means ‘violates.’” Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860,

21

883 (2007). “The essence” of a Section 52.1 claim is that the defendant, “by the specified

22

improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff

23

from doing something he or she had the right to do under the law or to force the plaintiff

24

to do something that he or she was not required to do under the law.” Id. (emphasis added).

25

The Court again finds that Plaintiffs have failed to plead sufficient facts to support a

26

plausible claim for relief under their seventh cause of action. In particular, and as discussed

27

above, supra Part II.B, Plaintiffs fail to allege that they were in lawful possession of the

28

marijuana such that their possession might qualify as a right secured by state law for
18
15-CV-854 JLS (MDD)

1

purposes of Section 52.1. And even if Plaintiffs had lawful possession of the marijuana,

2

Plaintiffs again fail to plead sufficient facts to support a plausible claim that Defendants

3

illegally procured or executed a search warrant, which might otherwise support a claim that

4

Defendants “interfered” with Plaintiffs’ possession through “coercion.” Nor do Plaintiffs

5

provide any other facts to support their claim that Defendants interfered with their rights—

6

whatever they may be—through “threats, intimidation or coercion.” Austin B., 149 Cal.

7

App. 4th at 883. Consequently, the Court GRANTS Defendants’ MTD and DISMISSES

8

WITHOUT PREJUDICE Plaintiffs’ seventh cause of action.

9

CONCLUSION

10

In light of the above, the Court GRANTS Defendants’ Motion to Dismiss (ECF No.

11

33). While the Court entertains serious doubts concerning Plaintiffs’ ability to adequately

12

re-plead their causes of action, especially since the Court has given Plaintiffs two

13

opportunities to do so, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ SAC.

14

Plaintiffs SHALL FILE an amended complaint, if any, on or before fourteen (14) days of

15

the date on which this Order is electronically docketed. Failure to file an amended

16

complaint on this date may result in a dismissal of this case with prejudice.

17
18

IT IS SO ORDERED.
Dated: April 18, 2017

19
20
21
22
23
24
25
26
27
28
19
15-CV-854 JLS (MDD)