-SKO Demoura et al v. Ford et al, No. 1:2009cv01344 - Document 98 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION Regarding Motion to Dismiss Second Amended Complaint 78 and Motion For Sanctions 88 , signed by Judge Oliver W. Wanger on 5/23/2011. (Plaintiffs seventh cause of action is DISMISSED, without prejudice; Defendants motion for sanctions is DENIED; Plaintiffs shall file an amended complaint within thirty days of electronic service of this decision; Defendants shall file responsive pleading within thirty days of service of anamended complaint; and 4) Defendants shall submit a form of order consistent with this decision within five days of electronic service of this decision.) (Gaumnitz, R)

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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 SECOND AMENDED COMPLAINT (Doc. 78) AND MOTION FOR SANCTIONS (Doc. 88) 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 ( FAC )was dismissed, with leave to amend. (Doc. 68). 21 On January 14, 2011, Plaintiff's first amended complaint Plaintiffs filed a second amended complaint("SAC")on January 22 18, 2011. (Doc. 69). 23 a motion to dismiss the SAC. 24 opposition to the motion to dismiss on May 2, 2011. (Doc. 78). Plaintiffs filed (Doc. 91). II. FACTUAL BACKGROUND. 25 26 On February 22, 2011, Defendant Ford filed This action arises out of the execution of search warrants at 27 Plaintiffs residence by law enforcement 28 working on behalf of the Tuolomne County Sheriff s Office, the 1 officers purportedly 1 Stanislaus County Sheriff s Office, the City of Oakdale, and two 2 law 3 Intensity Drug Trafficking Area Task Force ( HIDTA ) and the 4 Stanislaus Drug Enforcement Agency ( SDEA ). local law enforcement agencies: the Central Valley High 5 On, July 25, 2007, Defendant Ford presented a Statement of 6 Probable Cause ("Statement") in support of a search warrant to a 7 magistrate to authorize the search of Plaintiffs' residence and of 8 Addison Demoura's 9 business name Oakdale Natural Choice Collective ("ONCC"). place of business, which operated under the (FAC at 10 5). The FAC alleges that at all times relevant, ONCC was an 11 association of medical marijuana patients commonly known as a 12 medical 13 provisions of the California Medical Marijuana Program Act, and 14 that Plaintiffs and ONCC were operating legally under relevant 15 California law. 16 Defendants possessed knowledge ONCC was operating lawfully 17 the provisions of the California Medical Marijuana Program Act. 18 (FAC at 12). marijuana collective (FAC at 10). that was established under the The FAC further alleges that all within 19 Ford's Statement detailed facts learned through surveillance 20 of Plaintiffs residence and of ONCC. Ford's Statement provided, in 21 pertinent part1: 22 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 23 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 4 5 6 Oakdale Natural Choice Collective (ONCC)...Assisting agents in this investigation is a confidential reliable informant, hereinafter referred to as CRI... 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. 7 8 9 10 11 12 13 14 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. 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. 15 16 17 18 19 20 21 22 23 24 25 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... 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... 26 27 28 On 07/16/07 Agents conducted surveillance at ONCC owner 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 3 1 seen going into the business empty handed, and the leaving carrying white paper bags. 2 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. 3 4 5 6 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. 7 8 9 10 11 12 Based on Ford s statement, a magistrate judge issued a search 13 warrant for ONCC and for Addison Demoura s residence. 14 Defendant Ford and others executed a search warrant at 15 Plaintiffs' residence and at ONCC on July 31, 2007. (FAC at 6). In 16 addition to alleging that the search was unlawful, the FAC alleges 17 that the officers executing the search warrant employed excessive 18 force during the search. III. LEGAL STANDARD. 19 20 Dismissal under Rule 12(b)(6) is appropriate where the 21 complaint lacks sufficient facts to support a cognizable legal 22 theory. 23 (9th Cir.1990). 24 survive a 12(b) (6) motion, the pleading does not need detailed 25 factual allegations but the [f]actual allegations must be enough 26 to raise a right to relief above the speculative level. Bell Atl. 27 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 28 929 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (2007). Mere To sufficiently state a claim to relief and labels and conclusions 4 or a formulaic 1 recitation of the elements of a cause of action will not do. Id. 2 Rather, there must be enough facts to state a claim to relief that 3 is plausible on its face. Id. at 570. In other words, the 4 complaint must contain sufficient factual matter, accepted as 5 true, to state a claim to relief that is plausible on its face. 6 Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 7 L.Ed.2d 868 (2009) (internal quotation marks omitted). 8 The Ninth Circuit has summarized the governing standard, in 9 light of Twombly and Iqbal, as follows: In sum, for a complaint to 10 survive a motion to dismiss, the nonconclusory factual content, and 11 reasonable 12 suggestive of a claim entitling the plaintiff to relief. Moss v. 13 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 14 quotation marks omitted). Apart from factual insufficiency, a 15 complaint is also subject to dismissal under Rule 12(b)(6) where it 16 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 17 where the allegations on their face show that relief is barred 18 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 19 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 20 In deciding whether to grant a motion to dismiss, the court 21 must accept as true all well-pleaded factual allegations in the 22 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 23 however, required to accept as true allegations that are merely 24 conclusory, 25 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 26 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 27 if a district court considers evidence outside the pleadings, it 28 must normally convert the 12(b)(6) motion into a Rule 56 motion for unwarranted deductions 5 of fact, or unreasonable 1 summary judgment, and it must give the nonmoving party an 2 opportunity to respond. 3 907 (9th Cir. 2003). A court may, however, consider certain 4 materials-documents 5 incorporated by reference in the complaint, or matters of judicial 6 notice-without converting the motion to dismiss into a motion for 7 summary judgment. Id. at 908. United States v. Ritchie, 342 F.3d 903, attached to the complaint, documents IV. DISCUSSION. 8 9 Defendant Ford contends that the SAC s seventh cause of action 10 pursuant to California Civil Code section 52 et seq. must be 11 dismissed for failure to comply with the California Tort Claims 12 Act. 13 against a public entity or its employees be presented to the 14 California Victim Compensation and Government Claims Board no more 15 than six months after the cause of action accrues. See Cal. Gov't 16 Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a 17 written claim, and action on or rejection of the claim, are 18 conditions precedent to suit. State v. Superior Court of Kings 19 County (Bodde), 32 Cal. 4th 1234, 1245, 13 Cal. Rptr. 3d 534, 90 20 P.3d 116 (2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 21 1470, 1477 (9th Cir. 1995). Where compliance with the California 22 Tort Claims Act is required, the plaintiff has the burden of 23 pleading and proving compliance with the California Government 24 Claims Act. Id. The California Tort Claims Act requires that a tort claim 25 The SAC alleges that Plaintiffs complied with the California 26 Tort Claims Act as to Stanislaus County, and that Defendant Ford 27 was employed by the SDEA and HIDTA agencies purportedly established 28 by Stanislaus County--and acting under their authority at the time 6 1 of the incident. Defendant Ford contends that the SAC s allegation 2 that he was employed by SDEA and HIDTA are false. 3 The California Tort Claims Act defines a public employee, 4 tautologically, as an employee of a public entity; an employee 5 may 6 compensated. Briggs v. Lawrence, 230 Cal. App. 3d 605, 613 (Cal. 7 Ct. App. 1991) (citing Cal. Gov. Code §§ 811.4, 8.10.2). 8 California Legislature intended for the word servant to be more 9 restrictive than the term agent. Townsend v. Cal., 191 Cal. App. 10 3d 1530, 1533 (Cal. Ct. App. 1987). California courts consider the 11 criteria 12 determining whether or not an individual is a servant within the 13 meaning of California Government Code section 8.10.2: 14 15 16 17 18 19 be an set officer...employee, forth in the or servant, Restatement whether Second of or Agency The Restatement defines a "servant" (generally equivalent to an employee) as "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control. . . In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; 20 21 22 23 (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; 24 (d) the skill required in the particular occupation; 25 26 (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; 27 (f) the length of time for which the person is employed; 28 7 not The in 1 (g) the method of payment, whether by the time or by the job; 2 3 (h) whether or not the work is a part of the regular business of the employer; 4 (i) whether or not the parties believe they are creating the relation of master and servant; and 5 (j) whether the principal is or is not in business. 6 See Briggs, 230 Cal. App. 3 d at 615-16 (relying on Rest.2d Agency, 7 § 220 in determining applicability of section 8.10.2); accord 8 Townsend, 191 Cal. App. 3d at 1534 (same). In addition to the 9 Restatement, California courts also turn to the statutory and 10 decisional law of California s workers compensation scheme in 11 determining the applicability of section 8.10.2. See Townsend, 191 12 Cal. App. 3d at 1535 ( Of course the statutory law is a primary 13 source of public policy declarations, and one of the most 14 significant modern adjuncts of the employer-employee relationship 15 is the workers compensation scheme. Hence, the Legislature's 16 definition of "employee" in that area is of great significance in 17 analyzing the issue confronting us. ). 18 The SAC contains a single factual allegation describing the 19 SDEA, which states only that SDEA is an agency formed under 20 Government Code Section 6508, which operates within the County of 21 Stanislaus. The SAC also contains the conclusory allegation that 22 Defendants Ford, Guffey, and Tosta were employed by SDEA, 23 however, the SAC does not contain sufficient factual allegations to 24 support this assertion. Inter alia, the SAC does not allege facts 25 establishing the extent to which SDEA exercised control over 26 officers employed by other jurisdictions, the nature of SDEA s 27 authority with respect to other law enforcement agencies, or what 28 8 1 SDEA s 2 Plaintiffs complain of. 3 operational role was in connection with the incident Defendant submits his own declaration, the declaration of the 4 Tulare County Undersheriff, 5 Administrative 6 Office, as evidence in support of his factual assertion that he was 7 not employed by SDEA or HIDTA at the time of the incident. 8 Defendant seeks dismissal with prejudice based on the evidence he 9 has presented. Sergeant with and the the declaration Stanislaus County of an Sheriff s None of the hearsay declarations is subject to 10 judicial notice and none may be considered in resolving Defendant s 11 motion to dismiss. 12 contention that, as a matter of law, he cannot be found to be an 13 employee of Stanislaus County because (1) he was employed by 14 Tuolomne County at the time of the incident; and (2) Stanislaus 15 County never paid him, are each incorrect. 16 Ford was employed by Tuolomne County does not establish that we was 17 not also an employee of another joint task force entity and acting 18 pursuant to his duties to that entity at the time of the incident. 19 See Brassinga v. City of Mountain View, 66 Cal. App. 4th 195, 209 20 (Cal. Ct. App. 1998) ( Where an employer sends an employee to do 21 work for another person, and both have the right to exercise 22 certain powers of control over the employee, that employee may be 23 held to have two employers--his original or general employer and 24 a second, the special employer. ).2 See Fed. R. Civ. P. 12. Further, Defendant s First, the fact that Second, lack of compensation 25 2 26 27 28 In Brassinga, it was undisputed that the defendant police officer was employed by the Palo Alto Police Department. At the time of the accident underlying the law suit, defendant was participating in an exercise carried out by a Regional Team comprised of several separate police departments. The Court held that defendant s employment with the Palo Alto Police Department did not preclude a finding that he was also an employee of another city s police department at the 9 1 from an entity does not establish the lack of an employee-employer 2 relationship. 3 4th 367, 371 (Cal. Ct. App. 1999) ( lack of compensation is not 4 dispositive of [] nonemployee status ). See, e.g., Munoz v. City of Palmdale, 75 Cal. App. 5 Nevertheless, because the SAC does not allege facts sufficient 6 to support an inference that Ford was an employee or servant of 7 either SDEA or HIDTA at the time of the incident, the SAC is 8 subject to dismissal without prejudice. V. MOTION FOR SANCTIONS. 9 As discussed above, Plaintiffs have a colorable legal basis 10 11 for asserting 12 Stanislaus County within the meaning of the California s Tort 13 Claims Act for the purposes of the incident. 14 are ultimately unable to plead sufficient facts to properly allege 15 that Ford was an employee or servant, there is sufficient 16 factual 17 nonfrivolous. and that legal Ford was basis an to employee render or servant of Even if Plaintiffs Plaintiffs position Rule 11 sanctions are inappropriate. ORDER 18 19 For the reasons stated, IT IS ORDERED: 20 1) Plaintiffs seventh cause of action is DISMISSED, without 21 prejudice; 22 2) Defendant s motion for sanctions is DENIED; 23 3) Plaintiffs shall file an amended complaint within thirty 24 days of electronic service of this decision; Defendants shall 25 file responsive pleading within thirty days of service of an 26 amended complaint; and 27 28 time of the incident. 10 1 4) Defendants shall submit a form of order consistent with 2 this decision within five days of electronic service of this 3 decision. 4 5 IT IS SO ORDERED. 6 Dated: hkh80h May 23, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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