232 Cal.App.4th 995, A138278, Pierce v. San Mateo County Sheriff's Department

Docket Nº:A138278
Citation:232 Cal.App.4th 995, __ Cal.Rptr.3d __
Opinion Judge:Banke, J.
Party Name:TREYANA PIERCE, Plaintiff and Appellant, v. SAN MATEO COUNTY SHERIFF’S DEPARTMENT et al., Defendants and Respondents.
Attorney:Paul McCarthy for Plaintiff and Appellant. John C. Beiers, County Counsel and David A. Levy, Deputy County Counsel for Defendants and Respondents.
Judge Panel:Humes, P. J., and Dondero, J., concurred.
Case Date:December 31, 2014
Court:California Court of Appeals

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232 Cal.App.4th 995

__ Cal.Rptr.3d __

TREYANA PIERCE, Plaintiff and Appellant,


SAN MATEO COUNTY SHERIFF’S DEPARTMENT et al., Defendants and Respondents.


California Court of Appeals, First District, First Division

December 31, 2014

San Mateo County Super. Ct. No. CIV508006 Honorable Joseph E. Bergeron Judge.

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Paul McCarthy for Plaintiff and Appellant.

John C. Beiers, County Counsel and David A. Levy, Deputy County Counsel for Defendants and Respondents.


Banke, J.

I. Introduction

After members of the San Mateo County Sheriff’s Gang Task Force allegedly conducted a warrantless search of her home, plaintiff and appellant Treyana Pierce filed this civil rights action under title 42 United States Code section 1983 (section 1983) against the San Mateo County Sheriff’s Department (Sheriffs Department) and individual members of the gang task force, sued as Does 1 through 12. San Mateo County (appearing for the Sheriffs department) successfully demurred to Pierce’s third amended complaint and procured a complete dismissal of the case.1 We agree the case was properly dismissed as to the County, although for reasons different than relied on by the trial court. We reverse, however, as to the individual Doe defendants, none of whom appeared, and who, apparently, have never been served.

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We publish this opinion in hopes of eliminating some of the confusion that has arisen in the California courts as to the interplay between the statutory language of section 1983 (which imposes liability only on “persons”) and the scope and import of the Eleventh Amendment to the United States Constitution. On appeal, the County has argued the Sheriff’s Department is not liable under section 1983 because “the Sheriff enjoys state immunity under the 11th Amendment of the U.S. Constitution from prosecution of section 1983 violations, ” citing Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 [11 Cal.Rptr.3d 692, 87 P.3d 1] (Venegas). Such “immunity” language, indeed, appears in Venegas and other Court of Appeal opinions, including opinions pre-dating Venegas. However, as we discuss, binding United States Supreme Court precedent, on both the scope of liability under section 1983 and the import of the Eleventh Amendment makes clear (a) the meaning of the term “person” as used in section 1983 and the reach of the Eleventh Amendment are separate issues, (b) the Eleventh Amendment applies only in federal court and not in state court, and (c) depending on state law, a county sheriff may not be subject to a suit for damages under section 1983 because he or she is not a “person” as that term is used in the statute, and not because he or she is “immune” from suit by virtue of the Eleventh Amendment or sovereign immunity. We therefore affirm the dismissal as to the County on the ground the Sheriff’s Department is not a “person” subject to a suit for damages under section 1983.

II. Background

In her third amended complaint, Pierce alleged that on August 26, 2009, officers of the Sheriff’s Department, and specifically, members of the gang task force, conducted a warrantless search of her home on the basis of a “supposed condition of probation for an individual named Darian Whetstone.”2 She further alleged that, on that date, Whetstone was neither a resident of her home nor on probation.

In August 2011, Pierce filed the instant civil rights action against the Sheriff’s Department. The operative third amended complaint alleged two causes of action under section 1983. The first was asserted against Does 1 through 12, allegedly individual members of the gang task force who were involved in the challenged search. The second cause of action was asserted against the Sheriff’s Department and alleged Pierce’s constitutional rights

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were violated as a result of Department “policies, customs, or practices.” Thus, as we will explain, the second cause of action was an attempt by Pierce to state a section 1983 claim against the Sheriff’s Department under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [56 L.Ed.2d 611, 98 S.Ct. 2018] (Monell).

The County (on behalf of the Sheriff’s Department) demurred to the third amended complaint on the ground Pierce failed to state a claim. The County maintained the amended complaint “reaffirmed” a “concession” a probationer with a search condition was living with Pierce at the time of the search and further maintained Pierce had “conceded” in prior pleadings that Whetstone resided in her home. The County additionally moved to strike the punitive damages allegations on the ground it is not subject to punitive damages under Government Code section 818.

The trial court sustained the County’s demurrer without leave to amend, ruling, among other things, that the complained-of search was a permissible probation search, and the amended complaint contained “insufficient factual allegations sufficient [sic] to establish that Whetstone was not a resident at 1016 Tilton Avenue” (italics added) and “thus fail[ed] to establish that the search was unlawful.” The court also granted the motion to strike the punitive damages claim and subsequently entered judgment dismissing the entire case.

III. Discussion

A. Pierce Adequately Alleged an Unlawful Search

We first consider whether the factual allegations of the amended complaint sufficiently stated a claim for an unlawful search, putting aside for the moment whether a section 1983 claim will lie against the Sheriff’s Department and the individual Doe defendants. The rules governing our review of Pierce’s amended complaint are well established. In reviewing a judgment of dismissal entered upon the sustaining of a demurrer, we accept as true all the material facts properly pleaded and generally do not go beyond the four corners of the complaint, though we may consider matters subject to judicial notice. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 335 [171 Cal.Rptr.3d 667].) We construe the complaint’s alleged facts liberally and give the complaint a reasonable interpretation, reading the complaint as a whole and reading its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal.Rptr.3d 205, 129 P.3d 394]; Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 254 [173 Cal.Rptr.3d 407].)

The County acknowledges the pleadings of a pro per civil rights litigant, such as Pierce, are to be read with particular liberality. We are to

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“ ‘ “apply federal law to determine whether [the] complaint [has pleaded] a cause of action... sufficient to survive a general demurrer.” [Citations.] According to federal law, “we are required to construe complaints under [section 1983] liberally.” [Citation.] “To uphold a dismissal [for failure to state a claim for relief, the federal counterpart of our general demurrer], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1471 [150 Cal.Rptr.3d 735] (Arce), quoting Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1088 [271 Cal.Rptr. 44].) “Therefore, dismissal is proper only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief.’ (Osborne v. District Attorney’s Office for Third Judicial Dist. (9th Cir.2005) 423 F.3d 1050, 1052; see Jensen v. City of Oxnard (9th Cir.1998) 145 F.3d 1078, 1082 (Jensen).)” (Arce, supra, at p. 1471.)

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” (U.S. Const., 4th Amend.) “A residence search conducted without a warrant is presumed unreasonable unless it comes within an exception to the warrant requirement. [Citation.] One such exception is the consent to search. [Citations.] In California, probationers consent in advance, as a condition of their probation, to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term.” (People v. Medina (2007) 158 Cal.App.4th 1571, 1575–1576 [70 Cal.Rptr.3d 413].) Thus, “[u]nder this state’s body of law, a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment.” (Id. at p. 1580.)

Accordingly, if Whetstone was on probation and subject to a valid search condition at the time of the challenged search, and if he resided in Pierce’s house at that time, the complained-of search was not unlawful and did not violate Pierce’s Fourth Amendment rights.

The amended complaint alleged Whetstone “was not on probation” on the day of the search. It also alleged, however, Whetstone was “remanded to the custody of the San Mateo County Sheriff to serve a 90 day jail sentence effective June 27, 2009 and his probation would terminate upon his release from custody.” The County maintains the latter allegation was a tacit admission Whetstone was on probation the day of the search—August 26, 2009—59 days after Whetstone was remanded. That is too stringent a reading of the amended complaint for purposes of a demurrer. What the complaint specifically alleged was that Whetstone’s probation would terminate “upon his release from custody, ” not on the 90th day following the date he began serving that term.

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In fact, at the hearing on the demurrer, Pierce asked the trial court to consider...

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