Demoura et al v. Ford et al, No. 1:2009cv01344 - Document 66 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION Regarding 46 Motion to Dismiss, signed by Judge Oliver W. Wanger on 12/22/2010. (Gaumnitz, R)
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Demoura et al v. Ford et al Doc. 66 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 1:09-cv-01344-OWW-GSA ADDISON DEMOURA, JESSICA DEMOURA, AND JOHN DOE, Plaintiffs, 10 11 12 MEMORANDUM DECISION REGARDING MOTION TO DISMISS (Doc. 46) v. ANDREW J. FORD, et al., 13 Defendants. 14 I. INTRODUCTION. 15 16 Plaintiffs Addison Demoura, Jessica Demoura, and John Doe, a 17 minor, ("Plaintiffs") proceed with an action pursuant to 42 U.S.C. 18 § 1983 against Defendants Andrew Ford, the County of Tuolomne, and 19 others. 20 dismissed, with leave to amend. (Doc. 33). On July 2, 2010, Plaintiff's original complaint was Plaintiffs filed a first amended complaint ("FAC")on September 21 22 1, 2010. 23 the County of Tuolomne ("Defendants") filed a motion to dismiss the 24 FAC. 25 dismiss on October 25, 2010. 26 on November 4, 2010. 27 28 (Doc. 34). (Doc. 46). On September 2, 2010, Defendants Ford and Plaintiffs filed opposition to the motion to (Doc. 52). Defendants filed a reply (Doc. 59). The court heard Defendants’ motion on November 15, 2010. (Doc. 62). At the close of the hearing, the court granted 1 Dockets.Justia.com 1 counsel’s request to submit supplemental briefing on whether the 2 exhaustion requirement of the California Tort Claims Act applies to 3 claims brought against an individual. 4 supplemental brief on November 17, 2010. 5 filed a response to Defendants supplemental brief on November 22, 6 2010. (Doc. 63). (Id.). Defendants filed a (Doc. 61). Plaintiffs II. FACTUAL BACKGROUND. 7 8 On, July 25, 2007, Defendant Ford presented a Statement of 9 Probable Cause ("Statement") in support of a search warrant to a 10 magistrate for the search of Plaintiffs' residence and of Addison 11 Demoura's 12 name Oakdale Natural Choice Collective ("ONCC"). 13 FAC alleges that at all times relevant, ONCC was an association of 14 medical marijuana patients commonly known as a medical marijuana 15 collective 16 California Medical Marijuana Program Act, and that Plaintiffs and 17 ONCC were operating legally under relevant California law. (FAC at 18 10). 19 knowledge ONCC was operating lawfully within the provisions of the 20 California Medical Marijuana Program Act. place of business, which operated under the business that was established under the (FAC at 5). provisions of The the The FAC further alleges that all Defendants possessed (FAC at 12). 21 Ford's Statement detailed facts learned through surveillance 22 of Plaintiffs residence and of ONCC. Ford's Statement provided, in 23 pertinent part1: 24 1 25 26 27 28 The facts listed below are those that are material to the issue of whether Ford’s statement contained sufficient information to support a finding of probable cause regarding the unlawful sale of marijuana at ONCC. Plaintiffs submitted a copy of the Statement in connection with a request for judicial notice. (Doc. 53, Ex. 7). Although Ford’s Statement was not appended to the FAC, it is incorporated by reference therein, and the court may consider the Statement without converting the motion to dismiss into a motion for summary judgment. See, e.g., United States v. Ritchie, 342 F.3d 903, 910 (9th Cir. 2003). 2 1 2 3 I and other agents...are currently investigating the illege [sic] possession, possession for sales /and or sales of marijuana from a business identified as the “Oakdale Natural Choice Collective” (ONCC)...Assisting agents in this investigation is a confidential reliable informant, hereinafter referred to as CRI... 4 5 6 7 8 9 10 11 12 On 06/02/07 at approx. 1400 hours, Stanislaus Drug Enforcement Agency Sherriff’s Segeant William Pooley Walked by ONCC. Pooley observed three male subjects standing in front of the business. All were wearing hospital scrubs, appeared to be employees, and were letting customers in and out of the business. Pooley could smell a strong odor of marijuana coming from inside the business. On 06/04/07 Agent Gary Guffey and I were officially assigned the case to investigate. From approx. 1400-1500 hours we conducted surveillance at ONCC. We observed sic customers go in to the business empty handed, and then leave carrying small white paper bags. During the survelliance Agent Guffey walked by the front of ONCC. Guffey could smell a strong odor of marijuana coming from inside. 13 14 15 16 17 18 19 On 06/04/07 I obtained a copy of the City of Oakdale’s Business License for the [ONCC]. The license listed the owner as Addison Demoura, AKA: “Andrew”. The license listed Demoura’s residence...Demoura listed the ONCC business as “Retail Sales” and the products he sold as being soaps, lotions, and “natural therapeutic products.” On 06/06/07 Agents conducted surveillance at ONCC between 1700-1900 hours. During this time frame a total of twelve customers were seen going in and out of ONCC. All went in empty handed, and came out carrying small white paper bags. During the surveillance agents again saw male subjects work as door/security men... 20 27 On 07/10/07 Agents met with a CRI at a prearranged location for the purpose of conducting a controlled buy of marijuana from ONCC...The CRI entered ONCC and contacted a male subject...The CRI observed some props and displays of soaps and/or lotions in the front lobby area of the business. After completing paperwork the CRI was led into a second room where a third employee...was working behind a counter. The CRI was presented marijuana displayed in jars and located on top of the counter. The marijuana was individually named and colorcoded. The CRI estimated the marijuana...to be approx. two pounds in total weight. The CRI purchased marijuana with the provided funds from the employee working behind the counter, and then immediately exited the business... 28 On 07/16/07 Agents conducted surveillance at ONCC owner 21 22 23 24 25 26 3 1 2 3 4 5 6 7 8 9 10 11 12 Addison Demoura’s residnece...at approx. 1000 hours Demoura left his residence carrying a backpack and drove directly to ONCC. Within an hour, several customers were seen going into the business empty handed, and the leaving carrying white paper bags. On 07/18/06, Agent Jaston Tosta contacted Stanislaus County Counsel W. Dean Wright and requested insight regarding Stanislaus County’s policy and procedure regarding cannabis clubs and marijuana dispensaries. Attorney Wright advised Agent Tosta that Stanislaus county does not recognize or permit businesses engaged in the sale of “medical marijuana” within the County. On 07/18/07 I contacted Oakdale City Manager Steven Hallam via telephone and requested insight regarding The City of Oakdale’s policy and procedure regarding cannabis clubs and marijuana dispensaries. City Manager Hallam advised me that the City of Oakdale does not recognize or permit businesses engaged in the sale of “medical marijuana” within the County. Based on my conversation with City Manager Hallam, it is clear to me the business [ONCC] is operating illegally within the City of Oakdale. 13 Based on Ford’s statement, a magistrate judge issued a search 14 warrant for ONCC and for Addison Demoura’s residence. 15 Defendant Ford and others executed a search warrant at Plaintiffs' residence and at ONCC on July 31, 2007. (FAC at 6). In 16 17 addition to alleging that the search was unlawful, the FAC alleges 18 that the officers executing the search warrant employed excessive 19 force during the search. 20 III. LEGAL STANDARD. 21 Dismissal under Rule 12(b)(6) is appropriate where the 22 complaint lacks sufficient facts to support a cognizable legal 23 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 24 (9th Cir.1990). To sufficiently state a claim to relief and 25 survive a 12(b) (6) motion, the pleading “does not need detailed 26 factual allegations” but the “[f]actual allegations must be enough 27 to raise a right to relief above the speculative level.” Bell Atl. 28 4 1 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 2 929 3 recitation of the elements of a cause of action will not do.” Id. 4 Rather, there must be “enough facts to state a claim to relief that 5 is plausible on its face.” Id. at 570. In other words, the 6 “complaint must contain sufficient factual matter, accepted as 7 true, to state a claim to relief that is plausible on its face.” 8 Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 9 L.Ed.2d 868 (2009) (internal quotation marks omitted). (2007). Mere “labels and conclusions” or a “formulaic 10 The Ninth Circuit has summarized the governing standard, in 11 light of Twombly and Iqbal, as follows: “In sum, for a complaint to 12 survive a motion to dismiss, the nonconclusory factual content, and 13 reasonable 14 suggestive of a claim entitling the plaintiff to relief.” Moss v. 15 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 16 quotation marks omitted). Apart from factual insufficiency, a 17 complaint is also subject to dismissal under Rule 12(b)(6) where it 18 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 19 where the allegations on their face “show that relief is barred” 20 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 21 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 22 In deciding whether to grant a motion to dismiss, the court 23 must accept as true all “well-pleaded factual allegations” in the 24 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 25 however, “required to accept as true allegations that are merely 26 conclusory, 27 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 28 (9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss, unwarranted deductions 5 of fact, or unreasonable 1 if a district court considers evidence outside the pleadings, it 2 must normally convert the 12(b)(6) motion into a Rule 56 motion for 3 summary 4 opportunity to respond.” 5 907 (9th Cir. 2003). “A court may, however, consider certain 6 materials-documents 7 incorporated by reference in the complaint, or matters of judicial 8 notice-without converting the motion to dismiss into a motion for 9 summary judgment.” Id. at 908. judgment, and it give the nonmoving party an United States v. Ritchie, 342 F.3d 903, attached to the complaint, documents IV. DISCUSSION. 10 11 must A. Tuolumne County 12 1. Federal Claims 13 The complaint contains only two allegations pertaining to the 14 County of Tuolumne: 15 Tuolumne County Sheriff's Department at the time of the search, and 16 (2) that “Defendants acted under color of state law and under the 17 official 18 Sheriff's Department.” Neither of these allegations are sufficient 19 to state a claim against Tuolumne County under section 1983. There 20 is no respondeat superior liability under section 1983. Monell v. 21 Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). policy, (1) custom that and Defendant practice of Ford was the employed Tuolumne by County 22 The complaint fails to alleges facts sufficient to give rise 23 to a reasonable inference that the Tuolumne County Sheriff's 24 Department employed an official policy, custom, or practice of 25 countenancing materially misleading warrant applications or the use 26 of excessive force. 27 sufficient to give rise to a reasonable inference that Tuolumne 28 County employs a policy, custom, or practice of causing unlawful See id. Nor does the complaint allege facts 6 1 searches in violation of California's medical marijuana laws. In 2 short, the FAC is devoid of any colorable allegations of wrongdoing 3 by Tuolmne County; it states no more than a conclusion of law. 4 Plaintiffs’ federal claim against Tuolumne County is DISMISSED, 5 without prejudice. 6 2. State Law Claims 7 At oral argument, Plaintiffs counsel conceded that Plaintiffs 8 did not exhaust any claims against the County of Tuolumne County 9 and that Plaintiffs unexhausted state law claims are barred. 10 Plaintiffs’ unexhausted state law claims against Tuolumne County 11 are DISMISSED, with prejudice. 12 B. 13 Defendant Ford Defendants' motion to dismiss contends that Defendant Ford did 14 not violate Plaintiffs' constitutional rights. 15 Defendants 16 Defendants contend that state law claims alleged against Ford are 17 unexhausted. argue Ford is entitled to Alternatively, qualified immunity. 18 1. Constitutional Violation 19 To prevail on their section 1983 claim that Defendant Ford 20 violated Plaintiffs' Fourth Amendment rights by submitting a 21 misleading warrant application, Plaintiffs "must show that the 22 defendant deliberately or recklessly made false statements or 23 omissions that were material to the finding of probable cause." 24 E.g. Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 25 2009). 26 omissions, Plaintiff must demonstrate that the search warrant would 27 not 28 information. In order to establish the materiality of Ford's alleged have issued had Ford's Statement contained the omitted Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 7 1 (9th Cir. 1997). The FAC alleges facts sufficient to support an 2 inference that Ford intentionally omitted information from his 3 Statement. 4 material depends on the extent to which the omissions would have 5 implicated the magistrate's assessment of whether ONCC was engaged 6 in illegal marijuana sales. Whether Defendant Ford's alleged omissions were 7 California's Medical Marijuana Program Act ("MMPA") exempts 8 certain classes of persons from "criminal sanctions for possession 9 for sale, transportation or furnishing marijuana, maintaining a 10 location for unlawfully selling, giving away, or using controlled 11 substances, managing a location for the storage, distribution of 12 any controlled substance for sale, and the laws declaring the use 13 of property for these purposes a nuisance." 14 App. 4th 747, 785 (Cal. Ct. App. 2005) (discussing Cal. Health & 15 Safety Code § 11362.775). 16 17 18 19 Urziceanu, 132 Cal. The MMPA provides: Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions 20 Cal. Health & Saf. Code 11362.775 (emphasis added). According to 21 the "Guidelines for the Security and Non-Diversion of Marijuana 22 Grown for Medical Use" issued by California's Attorney General on 23 August 25, 2008: 24 25 26 27 28 a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law, but … dispensaries that do not substantially comply with the guidelines [covering collectives and cooperatives] are likely operating outside the protections of [the CUA] and the MMP[A], and … the individuals operating such entities may be subject to arrest and criminal prosecution under 8 1 California law. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver—and then offering marijuana in exchange for cash ‘donations'—are likely unlawful. 2 3 4 People v. Hochanadel, 176 Cal. App. 4th 997, 1009 (Cal. Ct. App. 5 2009) (citing A.G. Guidlines). 6 The FAC alleges that Ford intentionally omitted, inter alia, 7 the following information from his Statement: (1) when the 8 confidential informant applied for membership to the ONCC, the 9 informant was required to present valid identification and a valid 10 physician's recommendation, (2) the informant was required to agree 11 to a formal association with all other qualified members of the 12 ONCC to collectively cultivate marijuana for medical purposes under 13 section 11362.775; and (3) the marijuana the informant received was 14 labeled "for medical use only." (FAC at 12). In light of the 15 scant information presented in Ford's Statement, the information 16 omitted by Ford was material. 17 Ford's Statement recounts observations concerning marijuana 18 sales at ONCC. However, placed in context by the various steps 19 ONCC was taking in an attempt to comply with the MMPA, the facts 20 alleged in Ford’s Statement do not support a finding of probable 21 cause to believe that ONCC was selling marijuana in violation of 22 California law. By failing to present facts necessary to place 23 ONCC's conduct in context under the MMPA, Ford deprived the 24 magistrate of the information necessary to make a probable cause 25 determination. Allegations that ONCC was selling marijuana to 26 persons with valid physician’s recommendations who had formally 27 agreed to an association with ONCC for the collective cultivation 28 9 1 of marijuana for medical use under the MMPA, standing alone, would 2 have been insufficient to support a finding of probable cause. 3 Compare Hochanadel, 176 Cal. App. 4th at 1019 (warrant supported by 4 probable cause where officer’s statement indicated that purchasers 5 were 6 dispensary, that marijuana was being purchased by the dispensary 7 from at outside supplier, that there was a large volume of cash- 8 only transactions, and that the price of the marijuana suggested a 9 for profit enterprise). not in legitimate cooperative relationship with the The California Court of Appeal’s decision 10 in Hochandel is instructive regarding the type of information 11 necessary to establish probable cause for violation of the MMPA: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [O]ur analysis is confined to the facts as described in the search warrant affidavit. Those facts and application of relevant law, including the A.G. Guidelines, provide a reasonable suspicion to believe defendants were not operating within the CUA and MMPA. First, it appears that purchasers were merely required to “complete a form summarily designating the business owner as their primary caregiver … .” (A.G. Guidelines, supra, at p. 11.) There was no evidence purchasers had any other relationship with CannaHelp or that they were actual members of a cooperative or collective. These facts are a strong indication of unlawful activity. (Ibid.) Moreover, the evidence showed at least some of the marijuana CannaHelp offered for sale was purchased from an outside source, Silva, as opposed to from one or more of its own members. (Id. at p. 10.) Further, although it was determined after the fact that CannaHelp was operating at a loss, the large number of transactions, the price of the marijuana, and the cash-only nature of the business provided reasonable grounds for Detective Garcia to believe CannaHelp was not operating as a nonprofit enterprise, also a requirement for operation of cooperatives and collectives. (Id. at p. 9; § 11362.765, subd. (a).) Thus, even if facts discovered after the warrant was issued showed a lack of probable cause, Detective Garcia and the executing officers had reasonable grounds to believe they had probable cause at the time the search warrant issued, and the “good faith” exception to the exclusionary rule applies. (United States v. Leon, supra, 468 U.S. at pp. 922–923.) 28 10 1 176 Cal. App. 4 th at 1018. 2 types of facts identified in Hochanadel that supported a finding of 3 probable cause. 4 Even with the benefit Ford’s Statement was devoid of the of the A.G.'s guidelines, it is 5 difficult to determine whether ONCC was operating illegally based 6 on the facts contained in the instant record. 7 A.G. 8 substantially comply with guidelines may be subject to prosecution) 9 (emphasis added)). Guidelines, 2007, provide that entities that do not A fortiori, applying California law as it 10 existed 11 marijuana 12 recommendation and agreed to a formal association with ONCC for the 13 purpose 14 Urziceanu, 132 Cal. App. 4th at 785 (noting that the MMPA exempts 15 qualified 16 cooperatively cultivate marijuana from prosecution for the sale of 17 marijuana; such qualification depends on intent and performance). 18 Ford's failure to even mention facts implicating ONCC's compliance 19 with the MMPA rendered his Statement materially misleading. 20 in which See id. (discussing to of it persons would who cultivating persons who not had have been presented medical associate marijuana in order clear a valid was to that selling physician’s illegal. collectively See or Defendants contend that ONCC was not in compliance with the 21 MMPA. Defendants argument is misguided. First, whether ONCC was 22 actually in compliance has no bearing on whether Ford's Statement 23 was sufficient to establish probable cause absent the material 24 omissions. 25 probable cause challenge confined to facts stated in supporting 26 affidavit). 27 with the MMPA is a factual question that is inappropriate for 28 resolution on a motion to dismiss. See Qualified Patients Assn. v. Hochanadel, 176 Cal. App. 4th at 1018 (analysis of Second, whether ONCC was in substantial compliance 11 1 City of Anaheim, 187 Cal. App. 4th 734, 751 (Cal. Ct. App. 2010). 2 Defendants also contend that, because marijuana is illegal 3 under federal law, “this court cannot sanction the plaintiffs 4 attempt to invoke federal civil rights law to secure the right to 5 commit acts that amount to crimes under federal law.” (Motion to 6 Dismiss 7 underlying the Fourth Amendment, which tests the lawfulness of a 8 search and seizure under both state and federal law. 9 Const., Amend. IV. at 10). Defendants misapprehend the basic concepts See U.S. Although federal law does not recognize the 10 California scheme for medical marijuana coops, the search and 11 seizure were conducted under state law, not federal criminal law. 12 The FAC alleges facts sufficient to support a reasonable 13 inference that Defendant Ford knew ONCC was in substantial 14 compliance with the MMPA, and that Ford intentionally omitted 15 material information from his Statement in order to mislead the 16 magistrate. 17 Ford allegedly omitted from his Statement, a finding of probable 18 cause could not have been sustained on then known facts. 19 is sufficient to allege a claim under section 1983 for violation of 20 Plaintiffs’ Fourth Amendment rights. Had the magistrate been apprised of the information The FAC 21 2.Qualified Immunity 22 It is objectively unreasonable for a law enforcement officer 23 deliberately or recklessly to make material omissions in a search 24 warrant application. E.g. Lombardi v. City of El Cajon, 117 F.3d 25 1117 (9th Cir. 1997). Thus, whether Ford is entitled to qualified 26 immunity depends on the factual inquiry of whether a reasonable 27 officer in Ford’s position would have understood the information 28 omitted was plainly material to the probable cause determination. 12 1 See, e.g., id. at 1126.2 2 A reasonable officer in California in 2007 would not have 3 believed that omitting information that was plainly relevant to a 4 target’s compliance with the MMPA was appropriate in a search 5 warrant 6 marijuana. 7 decided that the MMPA provided exemptions from criminal prosecution 8 and municipal nuisance ordinances for the sale of marijuana under 9 statutorily prescribed circumstances. See Urziceanu, 132 Cal. App. application regarding the alleged unlawful sale of In 2005, the California Court of Appeal had clearly 10 4th at 785. Accordingly, Ford is not entitled to qualified 11 immunity at this time. If, however, evidence reveals that Ford was 12 not aware of the facts allegedly omitted from his Statement, the 13 analysis may change. 14 3. Conspiracy 15 Plaintiffs’ opposition to the motion to dismiss does not 16 address Defendants’ arguments regarding the FAC’s deficiencies 17 related to the conspiracy cause of action. 18 not clearly allege the facts showing who, when,where, and why to 19 support an inference that Ford conspired with another individual to 20 present 21 conspiracy claim is DISMISSED, without prejudice. a misleading search warrant Further, the FAC does affidavit. Plaintiffs’ 22 4. Exhaustion of State Tort Claims 23 Defendants contend that the state law claims alleged against 24 Ford may not proceed because Plaintiffs failed to exhaust their 25 claims pursuant to the requirements of California law. Defendant’s 26 2 27 28 Defendants advance an incorrect and speculative standard: “in this case, there is no binding or persuasive authority for the proposition that a person selling medicinal marijuana in California is entitled to conduct that business without fear of search warrants issuing.” (Motion to Dismiss at 14). 13 1 2 3 4 5 6 cite California Government Code § 950.2, which provides: “Except as provided in Section 950.41 , a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury. 7 Cal. Gov. Code § 950.2. 8 Plaintiffs respond that because they exhausted their state law 9 claims against the County of Stanislaus, and because Ford was 10 acting “under” Stanislaus County at all times relevant, Plaintiffs 11 have satisfied the exhaustion requirement. (Opposition at 11). 12 Plaintiffs contend that, at a minimum, exhaustion of their claims 13 against the County of Stanislaus constituted “substantial 14 compliance” sufficient to permit Plaintiffs to proceed with their 15 state law claims against Ford. The state law government claims 16 require identification of each party against whom a claim is 17 asserted. 18 The complaint does not allege that Ford was acting “under” the 19 authority of Stanislaus County, nor any facts sufficient to support 20 such an inference. To the contrary, the complaint alleges that 21 Ford was working under the authority of his employer, the Tuolumne 22 County Sheriffs Department. Plaintiffs’ state law claims must be 23 DISMISSED, without prejudice. 24 5. California Constitutional Claim 25 Defendants contend that the FAC fails to state a cause of 26 action for violations of the California Constitution because 27 damages are not recoverable for 28 14 alleged violations of the 1 California Constitution absent statutory or common law authority. 2 (Motion to Dismiss at 16). 3 Code section 52.1(b), which provides: 4 Plaintiffs point to California Civil Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured. 5 6 7 8 9 10 The FAC does not clearly allege a cause of action under section 11 52.1 predicated on the unlawful search Plaintiffs were subjected 12 to. The caption of Plaintiffs’ fifth cause of action identifies 13 only Article I, section 13 of the California Constitution as the 14 basis for Plaintiffs’ claim. Plaintiffs’ counsel conceded at oral 15 argument that their California constitutional claim should be re16 pled under section 52.1. Plaintiffs’ stand-alone cause of action 17 under the California Constitution is DISMISSED, with prejudice. 18 6. Unruh Act Claims 19 Defendants contend that the FAC fails to state a claim for 20 damages under California Civil Code section 52, California’s Unruh 21 Act, because the FAC does not allege that Plaintiff’s were members 22 of a protected class. See, e.g., Koebke v. Bernardo Heights 23 Country Club, 36 Cal. 4th 824, test for 840-41 (Cal. Ct. App. 2008) 24 (discussing three-part determining whether group is 25 subject to Unruh Act protections). The FAC fails to allege that 26 they were discriminated against on account of their membership in 27 a group protected under the Unruh 28 15 Act. At oral argument, 1 Plaintiffs’ counsel conceded that Plaintiff’s claim is properly 2 brought under the Bane Act, not the Unruh Act. 3 Act claim is DISMISSED, with prejudice. Plaintiffs’ Unruh ORDER 4 5 For the reasons stated, IT IS ORDERED: 6 1) Plaintiffs’ unexhausted state law claims against Tuolomne 7 County are DISMISSED, with prejudice; 8 2) Plaintiffs’ federal claims against Tuolumne County are 9 DISMISSED, without prejudice; 10 3) Plaintiffs’ federal conspiracy claim is DISMISSED, without 11 prejudice; 12 4) All state law claims against Defendant Ford are dismissed, 13 without prejudice, 14 5) Plaintiffs shall file an amended complaint within twenty 15 (20) days of service of the Memorandum Decision. 16 shall filed a response within ten (10) days of service of the 17 amended complaint; and 18 6) Defendants shall submit a form of order consistent with 19 this Memorandum Decision within fifteen (15) days following 20 electronic service of this decision. Defendants 21 22 IT IS SO ORDERED. 23 24 Dated: December 22, 2010 /s/ OLIVER W. WANGER United States District Judge 25 26 27 28 16
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