Garcia v. City of Merced

• Decision Date: 10 January 2008
• Docket Number: No. 1:07-CV-00867-OWW-DLB.,1:07-CV-00867-OWW-DLB.
• Parties: John GARCIA, Plaintiff, v. CITY OF MERCED, City of Merced Police Department, Bureau of Narcotics Enforcement Special Agent Supervisor Alfredo Cardwood, County of Merced, Merced County Sheriff's Department, Merced County Deputy Sheriff John Taylor, Merced County District Attorney's Office, District Attorney Gordon Spencer, Does 6 through 50, Defendants.
• Court: U.S. District Court — Eastern District of California

637 F.Supp.2d 731

John GARCIA, Plaintiff, v. CITY OF MERCED, City of Merced Police Department, Bureau of Narcotics Enforcement Special Agent Supervisor Alfredo Cardwood, County of Merced, Merced County Sheriff's Department, Merced County Deputy Sheriff John Taylor, Merced County District Attorney's Office, District Attorney Gordon Spencer, Does 6 through 50, Defendants.

No. 1:07-CV-00867-OWW-DLB.

United States District Court, E.D. California.

January 10, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Norman Charles Newhouse, Law Office of Nowman Newhouse, Redwood City, CA, for Plaintiff.

Dale Long Allen, Jr., Dirk Donald Larsen, Low Ball and Lynch, San Francisco, CA, Michael G. Woods, McCormick, Barstow, Sheppard, Wayte & Carruth, Fresno, CA, James Ethan Stone, Merced, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DOC. 8, 11, 13)

OLIVER W. WANGER, District Judge.

1. INTRODUCTION

Defendants City of Merced ("Merced") and City of Merced Police Department ("Merced Police") move to dismiss Plaintiff John Garcia's ("Garcia") complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Defendant Bureau of Narcotics Enforcement Special Agent Supervisor Alfredo Cardwood ("Cardwood") moves to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) and for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Defendants County of Merced ("Merced County"), Merced County Sheriff's Department ("Sheriff's Dept."), Merced County Deputy Sheriff John Taylor ("Taylor") and District Attorney Gordon Spencer ("Spencer") move to dismiss Plaintiff's complaint pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff's complaint alleges assault and battery, abuse of process, false arrest and imprisonment, defamation per se, violation of California Civil Code § 52.1 and a § 1983 claim for unreasonable search and seizure. Oral argument on this matter was heard on October 15, 2007.

2. PROCEDURAL BACKGROUND

The third amended complaint was filed on June 15, 2007. The action was previously removed to this Court pursuant to 28 U.S.C. Section 1441(b) from Merced County Superior Court. (Doc. 1, Third Amended Complaint ("TAC").) Defendants Merced and Merced Police moved to dismiss the TAC on June 19, 2007. (Doc. 8, Merced and Merced Police Motion to Dismiss TAC ("MTD I").) Defendants Merced County, Sheriff's Dept., Taylor and Spencer moved to dismiss the TAC on June 28, 2007. (Doc. 11 Merced County and DA Motion to Dismiss TAC ("MTD II").) Defendant Cardwood moved to dismiss and filed a motion for a more definite statement of the TAC on July 9, 2007. (Doc. 13, Cardwood Motion to Dismiss ("MTD III").) On August 20, 2007, Plaintiff filed a fourth amended complaint. (Doc. 15, Fourth Amended Complaint ("FAC" or "Complaint").) On August 28, 2007, Defendants Merced and Merced Police filed a memorandum/correspondence with the Court regarding the scheduled hearing on the TAC motion to dismiss, requesting to be heard on the motion to dismiss despite the recently filed FAC. (Doc. 16, Memorandum/Correspondence from Defendants ("Memo").) In response, a stipulation and order was entered by the Court and parties on August 31, 2007 setting the motion to dismiss hearing date on the TAC and the FAC and permitting supplemental briefings to be filed to address any alleged remaining deficiencies in the FAC¹ on the pending motions to dismiss. (Doc. 18, Order.) Defendants Merced County, Sheriff's Dept., Taylor and Spencer filed their supplemental brief on the motion to dismiss the FAC on September 4, 2007. (Doc. 19, Merced County and DA Supplemental Brief ("Suppl. I").) Defendant Cardwood filed his supplemental brief supporting the motion to dismiss the FAC on September 10, 2007. (Doc. 20, Cardwood Supplemental Brief ("Suppl. II").) Defendants Merced and Merced Police filed their supplemental brief on the motion to dismiss the FAC on September 10, 2007. (Doc. 21, City and Police Supplemental Brief ("Suppl. III").) Plaintiff filed his opposition to Defendants' Merced County, Sheriff's Dept., Taylor and Spencer MTD II and Suppl. I on October 2, 2007. (Doc. 23, Opposition to MTD II.) Plaintiff filed his opposition to Defendant Cardwood's MTD III and Supp. II on October 2, 2007. (Doc. 24, Opposition to MTD III.) Plaintiff filed his opposition to Defendants' Merced and Merced Police MTD I and Suppl. III on October 3, 2007. (Doc. 25, Opposition to MTD I.) Defendant Merced and Merced Police replied to Plaintiff's Opposition to MTD I on October 10, 2007. (Doc. 26, Reply I.)²

Defendant Merced County, Sheriff's Dept., Taylor and Spencer filed a Motion to Strike Plaintiff's Opposition (Doc. 23, Opposition to MTD II.) to Defendants' Motion to Dismiss Plaintiff's Third and Fourth Amended Complaint (Doc. 11, MTD II and Doc. 19, Suppl. I.) on October 11, 2007. (Doc. 27, Motion to Strike.) The Motion to Strike was scheduled for October 15, 2007. Local rule 78-230(b) requires that motions be set "not less than thirty-one (31) days after mailed or electronic service and filing of the motion." The motion is brought on the ground that Plaintiff filed his opposition papers on October 2, 2007, more than a week after the stipulated deadline of September 24, 2007. (Doc. 18, Order.) (Doc. 27, Motion to Strike, p. 2:14-20.) Defendants also argue that the caption to the FAC does not name as Defendants, Merced County, Sheriff's Dept., Taylor and Spencer. Those persons and entities however, are mentioned as defendants in the body of the FAC. (Doc. 27, Motion to Strike, p. 2:3-10.) Defendant Merced County, Sheriff's Dept., Taylor and Spencer did not file a reply to Plaintiff's opposition papers. Plaintiff filed a declaration by counsel in opposition to Defendant Merced County's Motion to Strike on October 12, 2007. (Doc. 28, Opposition to Motion to Strike.) In Plaintiff's declaration, counsel apologizes to the Court and Merced County for his oversight of the due dates.³

A. FOURTH AMENDED COMPLAINT (COMPARISON TO THIRD AMENDED COMPLAINT)

(a) This analysis addresses the most recently filed complaint, the FAC. Defendants motion to dismiss pleadings, including the supplemental motions to dismiss pleadings, addressing any remaining deficiencies in the FAC, will be taken into account in the motion to dismiss analysis on the FAC.

Plaintiff alleges an assault and battery in his first cause of action. In his previous TAC, Plaintiff did not specifically name any defendants, referring only to defendants generally in his cause of action. His amended complaint, the FAC, adds a specific reference to Defendant Cardwood. Plaintiff also alleges in his FAC that Plaintiff was:

apprehensive of harmful or offensive touching when he was pulled over while driving his car. The actual touching was unnecessary force by a police officer because the officers doing the touching, at the time of the touching, did not reasonably believe the warrant was valid, and instead, knew that the warrant was obtained on false information and did not include essential exculpatory information. Placing Plaintiff in apprehension of non-consensual touching and actually touching Plaintiff was excessive force because Defendants knew they had no actual right to arrest Plaintiff or search Plaintiff's office.

(Doc. 15, FAC, ¶ 39.)

(b) Plaintiff's second cause of action alleges abuse of process against all Defendants. Under his FAC, Plaintiff adds three additional allegations to his claim for abuse of process. Plaintiff specifically names Defendants Spencer as being involved in preparing the warrant, and claims Spencer knew the warrant was fraudulent and an abuse of process. (Doc. 15, FAC ¶ 43.) Plaintiff also claims that Spencer, Taylor and other Defendants do not have immunity, absolute nor investigative, for fabricating evidence, making false statements or withholding exculpatory evidence. (Doc. 15, FAC, ¶ 44.) Plaintiff also additionally alleges that Defendant Spencer was an authorized policymaker and implemented, created and approved the subordinate Defendant Merced County Sheriff's Department, Defendant Taylor and Defendant Merced Police's decisions and conduct in obtaining and executing the fraudulent warrant, using false evidence and concealing the exculpatory evidence used for obtaining the warrant. (Doc. 15, FAC, ¶ 46.) Plaintiff concludes that such ratification by Spencer is "chargeable to the State of California, the Merced County and the Merced Police Department." (Doc. 15, FAC, ¶ 46.)

(c) Plaintiff's third cause of action for false arrest and imprisonment with a warrant is largely unchanged from the TAC. However, Plaintiff no longer states that he will identify and designate other officers in place of Doe Defendants. Compare Doc. 1, TAC, ¶ 46 to Doc. 15, FAC, ¶ 49.

(d) Plaintiff's fourth cause of action for defamation per se against Defendant Cardwood is unchanged.

(e) Plaintiff's fifth cause of action under the TAC for civil conspiracy against all Defendants has been removed as a cause of action under the FAC and is now at the end of the complaint under a heading entitled "Prayer for Additional Recovery as Allowed by Law under the Legal Doctrine of Civil Conspiracy against All Defendants." Compare Doc. 1, TAC, ¶¶ 59-62 to Doc 15, FAC, ¶¶ 65-68.

(f) Plaintiff's sixth cause of action under the TAC, now the fifth cause of action under the FAC, alleges Defendants violated 42 U.S.C. § 1983, protecting him from unreasonable search and seizure. The only addition in the FAC to the sixth cause of action is a conclusory statement that Defendants are not entitled to absolute investigative or prosecutorial immunity. (Doc. 15, FAC, ¶ 61.)

(g) Plaintiff's seventh cause...