Opinion
Case No. 18-cv-06170-EMC
06-10-2019
PATRICK LEE, Plaintiff, v. COUNTY OF CONTRA COSTA, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Docket No. 16
I. INTRODUCTION
Plaintiff filed the original complaint in this matter on October 9, 2018. Docket No.1. At the hearing on the motion to dismiss the original complaint, Plaintiff did not argue the merits of his opposition to the motion to dismiss; instead, he conceded that the motion to dismiss should be granted and requested leave to amend. Docket No. 9. On January 24, 2018, he filed the first amended complaint ("FAC"), the operative complaint. First Amended Complaint ("FAC").
This case concerns the search of Plaintiff's houseboat to obtain evidence of domestic violence and a conspiracy to murder Contra Costa County prosecutors. The search was conducted pursuant to a warrant obtained by Defendant Garcia of the Contra Costa County District Attorney's Office. FAC, Exhibit A ("Exh. A").
For ease of reference, the Court uses the page numbers Docket No. 11-1 for reference to Exhibit A.
Plaintiff brings a 42 U.S.C. § 1983 civil rights claim as well as six state law claims based on the search of his houseboat and the subsequent failure to return his property. Currently pending before the Court is County of Contra Costa's motion to dismiss all claims for failure to state a claim on which relief may be granted. Defendants' Motion to Dismiss ("Mot."). Having considered the parties' briefs, as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the County of Contra Costa's motion to dismiss the FAC.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 2018, Defendant Garcia obtained a warrant to carry out a search of Plaintiff's houseboat. FAC ¶ 16. A. Warrant Affidavit: Informant's Statements
Below are the relevant facts as Defendant Garcia presented them in the warrant affidavit.
Defendant Garcia was asked by Lieutenant Medica, of the Contra Costa County District Attorney's Office, to help investigate potential death threats made against prosecutors who were handling the pending fraud case against Plaintiff and his wife Miglena Lee. Exh. A. at 8. The FBI contacted the District Attorney's Office with information from a witness, Mr. Coco, who claimed to be Mrs. Lee's boyfriend. Id. at 8. Mr. Coco claimed that Plaintiff assaulted Mrs. Lee and "had made threats to harm if not kill the prosecutor in his case." Id.
The Deputy District Attorney in Plaintiff's fraud case told Defendant Garcia that Plaintiff was a commercial pilot. Id. Defendant Garcia insinuated this was motive to murder his prosecuting attorneys because Plaintiff risked losing his pilot's license if he was found guilty of the pending fraud charge. Id. Defendant Garcia confirmed Plaintiff has a pilot license by checking the Federal Aviation Administration website. Id. Defendant Garcia contacted FBI Special Agent Steven Lee who actually spoke to Mr. Coco. Id. at 8.
Mr. Coco explained to Agent Lee that Mrs. Lee told him that Plaintiff told her that "he had $50,000 in cash in a safe on his motor yacht, that was set aside for paying a 'hitman', to kill the prosecutors involved" in his fraud case. Id. at 9. Later in a recorded interview with Inspector Swatman, the affidavit recalls that Mr. Coco "was told by Maggie that Patrick Lee told her that there was a safe full of money, assuming it was on the boat, that could be used to hit or kill the prosecutor in his case rather than deal with it." Id. at 10. Mr. Coco reiterated that Mrs. Lee told him that she "thought maybe he would be using" the $50,000 "to facilitate the hit." Id.
The warrant also details Plaintiff's violence against Mrs. Lee on their shared houseboat. Id. at 11. Mr. Coco told Defendant Garcia he received a call from Mrs. Lee on July 7, 2018. Id. During that call, he could hear Plaintiff screaming at her. Id. Mr. Coco texted Mrs. Lee to get off the boat. Id. Mrs. Lee later told Mr. Coco that Plaintiff took her cell phone and computer and threw it in the bay. Id. Mr. Coco said that Mrs. Lee later showed up at his house "bare foot, wearing shorts and a tee shirt with a bloody nose, with bruising and scratches all over her knees." Id. He said that she "fell into his entryway bloody, bruised, unable to talk and was shaking, and could not communicate with him." Id. Mr. Coco told Inspector Swatman that he made a call to the Alameda Police Department to report the incident around 9:30 p.m. Id. at 12. When Mr. Coco told Mrs. Lee that she needed to speak with the police, he claims she turned "white" and almost walked out. Id. at 11. Inspector Swatman confirmed with the Alameda Police Department that Mr. Coco called them on July 7, 2018 at 9:12 p.m. B. Warrant Affidavit: Follow-up Investigation to Corroborate Mr. Coco's Allegations
The affidavit explains that after the interview with Mr. Coco, he brought Mrs. Lee to speak with Inspector Swatman and Special Agent Walker. Id. at 12. The FBI tried to convince her to provide a statement, but she appeared scared and refused to speak. Id. She eventually walked away. Id.
The affidavit explains that he was able to confirm the location Plaintiff's houseboat. Id. at 13. Special Agent Carlson, went to the marina where the boat was docked, and the Harbor Master also confirmed Plaintiff lived in slip sixteen of the marina. Id. Defendant Garcia received the lease agreement for the boat, which further confirmed it belonged to Plaintiff. Id.
While at the marina, Defendant Garcia learned that an employee there had witnessed the aftermath of Mrs. Lee's assault. Id. The employee, Mr. McCool, said that he and his wife were summoned by a woman at slip sixteen whom they believed to be Mrs. Lee. Id. at 13. The woman asked the McCools to call the police because she had been assaulted. Id. She told them that her assaulter tossed her cell phone and laptop into the water. Id. Mr. McCool's wife gave the woman a ride and saw that her nose was bleeding. Id. at 14. The affidavit states that Agent Carlson "later saw Patrick Lee exit the boat in slip 16, where he was arrested for domestic violence charges." Id. C. Execution of the Search
The warrant was to search Plaintiff's houseboat for electronic devices, firearms, a safe, and U.S. currency. Id. Defendant Garcia also sought permission to search the iPhone seized from Plaintiff during his arrest. Id. He justified the scope of his search based on his "experience that person[s] engaged in criminal activity such as conspiring to commit murder and domestic violence cases will utilize[] electronic devices such as cell phones, computers, IPAD's [sic], laptop computers and any other electronic devices that have the capabilities to connect[] to the Internet to communicate with each other." Id. He does not, however, describe specifically how someone committing domestic violence would utilize electronic devices in furtherance of their crimes.
A judge approved a warrant to search Plaintiff's houseboat for evidence of domestic violence and a plot to murder Contra Costa County prosecutors. Defendant Garcia executed the warrant. Plaintiff alleges that during the raid of his houseboat, the officers seized personal effects and currency by breaking open his safe, which the FAC asserts contained around $25,000. FAC ¶ 17. Contra Costa County listed the seized items as: "$18,500.00 US Currency; Computers & Electronics: Seagate External Hard drive; Macbook Pro Modes AI398; IPAD Mini A1490; Dell Laptop Model PP182; HP Laptop Model DV7200; chargers for electronics; Toshiba External Hard Drive; Apple Mac Air A1534; Photos of Scene; Iphone." Id. ¶ 18. Plaintiff complains that approximately $6,500 has yet to be returned to him. Id. ¶ 19.
Pursuant to § 1983, Plaintiff alleges the following: (1) Defendants' search of Plaintiff's houseboat was unlawful, because it was conducted pursuant to a warrant that was unsupported by probable cause, see id. ¶ 50; (2) Defendants' destruction of Plaintiff's property and seizure of his personal effects exceeded the warrant and was unreasonable, see id. ¶ 42; see Opp'n at 6; and (3) Defendants' seizure of Plaintiff's money and failure to return the full amount seized was unlawful, FAC ¶ 51.
Based on the same facts, Plaintiff also pleads several state law claims: (1) trespass; (2) trespass to chattels; (3) intentional infliction of emotional distress; (4) negligence; (5) gross negligence; and (6) conversion.
Defendants in this matter are (1) County of Contra Costa, California; (2) Inspector John Garcia of the Contra Costa County District Attorney's Office; and (3) Does 1-20. The County of Contra Costa has moved to dismiss the FAC for failure to state a claim upon which relief may be granted.
III. DISCUSSION
A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). In considering such a motion, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. at 1067-68 (quoting Weber v. Dept' of Veterans Affairs, 521 F.3d 1061, 1065 n.5 (9th Cir. 2005)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than sheer possibility that a defendant acted unlawfully." Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
1. Section 1983
Section 1983 provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.
Every person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983.
Section 1983 "'is not itself a source of substantive rights,' but 'merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979)). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Pursuant to § 1983, Plaintiff's FAC challenges the validity of the search warrant, the execution of the search warrant, and the failure to return his property following the search.
The Court assumes that Defendants are state actors, as neither party has argued otherwise. Thus, the first question is whether Plaintiff has asserted a cognizable claim that Defendants violated a constitutional right. See id.
2. Violation of Constitutional Right: Lack of Probable Cause for the Warrant
Defendants contend that Plaintiff has failed to state a § 1983 claim. The Fourth Amendment makes clear that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV.
In challenging the validity of a search warrant, the reviewing court is tasked with determining whether the magistrate that issued the warrant "had a 'substantial basis' for the finding" that probable cause existed. Dougherty v. City of Covina, 654 F.3d 892, 898 (9th Cir. 2011) (quoting United States v. Weber, 923 F.2d 1338, 1343 (9th Cir. 1990)). "'Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.'" Id.
"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . [concluding]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960). Where probable cause is based on information provided by an informant, the Court looks for "'how the informant came by his or her knowledge.'" U.S. v. Bishop, 264 F.3d 919, 925 (9th Cir. 2001) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986)) (affirming the district court's decision which found that informant's information satisfied the basis of knowledge requirement because it was not based on hearsay, but rather came from first-hand knowledge from the informant's observations within the defendant's home). See U.S. v. Stanert, 762 F.2d 775, 779-80 (9th Cir. 1985) (explaining that although the tip came from a confidential informant who had demonstrated that he was reliable, "the information reported represents a bare conclusion which fails to reveal the informant's basis of knowledge, i.e., whether the informant was relying on something more substantial than casual rumor", but finding probable cause did exist because of officer's corroboration). "The courts may employ a number of methods to determine if an informant's information is reliable. It may be demonstrated through independent police corroboration of the information provided by an informant" or by a statement against one's penal interest. Bishop, 264 F.3d at 925. While "[i]ndependent police verification of an informant's information" has been "considered very important to the finding of probable cause" it is but one factor in the totality of the circumstances and its absence can be overcome by an informant providing "accurate and relatively detailed descriptions of illegality based on personal observation and corroboration "by information officers had received from other informants." United States v. Miller, 753 F.2d 1475, 1480-81 (9th Cir. 1985). The Ninth Circuit has rejected the idea "that merely because citizen witnesses are presumptively reliable," officers have "no duty to examine further the basis of the witness' knowledge or talk with any other witnesses." Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991).
The test for determining probable cause in a warrant which includes multiple layers of hearsay parallels the analysis when statements can support probable cause of an anonymous informant. The ultimate focus is on reliability. See U.S. v. Roth, 391 F.2d 507, 511 (7th Cir. 1967) (explaining that statements of a confidential informant are "'inherently defective hearsay on hearsay' (that is, hearsay on hearsay as to which there is absent any indication of the reliability of the anonymous hearsay source)" and therefore "can withstand attack only if the supporting circumstances related therein are sufficient in themselves to establish probable cause"). The hearsay must be supported through establishing veracity of the informant's statements, or some other indication of reliability. See e.g., Gates, 462 U.S. at 226-27.
"Multiple layers of hearsay may support a finding of probable cause for a search warrant." United States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004). However, when considering an affidavit with multiple layers of hearsay, a finding of probable cause must have "a 'substantial basis' for crediting the hearsay statements . . . for each level of hearsay, i.e., at the secondary source level as well as the primary source level." Farris v. Kernan, 2008 WL 906369, at *11 (E.D. Cal. Mar. 31, 2008), report and recommendation adopted, 2008 WL 1990451 (E.D. Cal. May 7, 2008) (quoting People v. Love, 168 Cal. App. 3d 104, 109-10 (1985)) (addressing probable cause in the context of a writ of habeas corpus); Eres v. Cty. of Alameda, 1999 U.S. Dist. LEXIS 1385, at *14 (N.D. Cal. Feb. 2, 1999) ("A magistrate may validly issue a warrant based on hearsay on hearsay if the veracity of each person in the chain is established").
In the instant case, the warrant permitting the search for evidence of the alleged conspiracy to murder the prosecutor was not supported by probable cause. Defendant Garcia's search warrant application regarding the conspiracy was based on double hearsay. See FAC ¶ 24. Mr. Coco was not a witness to the alleged criminal conduct nor did he describe to any officer his personal observations of any conduct related to the conspiracy allegation. See id. Rather, Mr. Coco's statement was based solely on a statement allegedly made to him by his girlfriend (i.e., Plaintiff's wife), and she refused to provide a statement to investigators. Moreover, the information Mr. Coco relayed to the officers wherein Mrs. Lee claimed the $50,000 "could be used to hit or kill the prosecutor[,]" Exh. A at 10, or that she "thought maybe he would be using" the $50,000 "to facilitate the hit," id., are not expressions of certainty made with confidence. This compounds the problem of double hearsay.
Plaintiff claims that the warrant "was invalid to support any probable cause for domestic violence" because it was issued by a magistrate in Contra Costa County, while the alleged domestic violence took place in Alameda County. FAC ¶ 27(a). A violation of state law alone is insufficient to constitute a claim of § 1983. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981) (holding that a violation of state law was insufficient to constitute a claim under § 1983). This challenge is based on California state jurisdictional rules, and for that reason cannot be the basis for a section 1983 claim.
Significantly, there was no evidence presented in the affidavit corroborating the double hearsay of Mr. Coco's statement that Plaintiff planned to murder Contra Costa County prosecutors. Apart from Mr. Coco's uncorroborated double hearsay, the only details that Defendant Garcia confirmed as to this accusation were that Plaintiff was a commercial pilot, that he had a pending fraud charge in Contra Costa County, he has guns registered to him (some of which may have been seized during a search for evidence in the fraud case), and that he lived on a houseboat at the Marina. But confirmation of such static details, does not corroborate Mr. Coco's statement about Plaintiff's plot to hire a hitman to murder Contra Costa County prosecutors. See U.S. v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (holding that mere confirmation of "innocent static details," like where the suspect lives or what car he drives, is insufficient corroboration for an anonymous tip). The nexus between Plaintiff's pilot license and the allegation of a conspiracy to murder the prosecutor is speculative. While the pendency of a prosecution that could lead to loss of Plaintiff's pilot license might provide a motive to stop the prosecution, murdering the prosecutor is not a common or logical way to accomplish that result.
Further, the officers noted that Mr. Coco is Mrs. Lee's boyfriend and thus his statement may be untrustworthy. See id. at 7. Mr. Coco could have a motive to impugn Plaintiff, his girlfriend's husband, who appears to have abused her. To be sure, when "an unquestionably honest citizen comes forward with a report of criminal activity - - which if fabricated would subject him to criminal liability . . . rigorous scrutiny of the basis of his knowledge [is] unnecessary." Gates, 462 U.S. at 233-34. But because Mr. Coco may have reason to lie, he is not an "unquestionably honest citizen." In any event, even if he were entitled to a presumption of trustworthiness, that presumption would not apply to the second level hearsay statement of Mrs. Lee. She was not subject to criminal liability for fabricating her statements to Mr. Coco; she refused to make a statement to law enforcement.
To be sure, Mr. Coco's spousal abuse allegation was corroborated by evidence from Alameda Police Department about the call Mr. Coco made to report the alleged assault, see Exh. A at 11, by Mr. Coco's firsthand observation of Ms. Lee's injuries, and by Inspector Swatman's interview with Mr. McCool and his wife at the docks regarding their observations close in time to the alleged assault against Mrs. Lee, id. at 13. But this allegation of spousal abuse had nothing to do with the murder conspiracy claim. They appear unrelated.
The Court recognizes that a magistrate's determination of probable cause for a search warrant "should be paid great deference." Gates, 462 U.S. at 236. The Court also recognizes that all factual allegations and inferences must be made in favor of the non-moving party. In U.S. v. McQuisten, the Ninth Circuit explained that:
A magistrate's determination . . . is not reviewed de novo. [The Court] may not reverse a magistrate's finding of probable cause unless it is clearly erroneous. [The Court] need only find that under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed. In doubtful cases, preference should be given to the validity of the warrant.795 F.2d 858, 861 (9th Cir. 1986) (citations omitted).
Even considering the deference given to the judge issuing the warrant, however, the affidavit clearly lacked probable cause to issue a search for evidence of conspiracy to commit murder. As to the search for evidence of a murder conspiracy, the state court's finding of probable cause was clearly erroneous.
Accordingly, Plaintiff has stated a cognizable § 1983 claim that Defendant Garcia violated Plaintiff's Fourth Amendment right by obtaining a warrant that lacked probable cause to search for evidence of a conspiracy to commit murder.
3. Execution of the Search Warrant
Plaintiff also argues that even if the warrant was valid, Defendants' (Defendant Garcia and Does 1-20) search exceeded the scope of the warrant. FAC ¶ 42. Specifically, Plaintiff alleges that the destruction of his safe and the seizure of his property was unreasonable. "The manner in which a warrant is executed is subject to later judicial review as to its reasonableness." Dalia v. U.S., 441 U.S. 238, 258 (1979). "[O]fficers executing search warrants on occasion must damage property in order to perform their duty." Id. Nevertheless, "unnecessarily destructive behavior, beyond that necessary to execute [the] warrant[s] effectively, violates the Fourth Amendment." San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 974 (9th Cir. 2005) (quoting Liston v. Cnty. of Riverside, 120 F.3d 965, 979 (9th Cir. 1997)).
Since the Court finds it cognizable that the warrant was issued without probable cause to search for evidence of conspiracy to commit murder, the scope of the search warrant should have been limited to evidence of spousal abuse. However, Defendants carried out a search for "US Currency, safe, any and all firearms, iPhone, computers, desktops, laptops, iPads . . . ." Exh. A at 5. Defendants also searched for evidence of "bloody clothes" and "evidence such as dried blood." Id. at 6. There is no mention in Mr. Coco's statements to law enforcement, or in the subsequent police investigation, of any evidence of an alleged assault on Mrs. Lee that could be found on inside the safe. There was no fair probability that evidence of spousal abuse would be found in the safe. Thus, Defendant Garcia improperly broke into the safe, searched and seized it along with its contents.
Accordingly, Plaintiff states a cognizable § 1983 claim for a violation of his Fourth Amendment rights for obtaining and unreasonably executing a warrant without probable cause. B. Qualified Immunity
Defendants also challenge the FAC by arguing that Defendant Garcia is entitled to qualified immunity for seeking and obtaining the warrant at issue. Mot. at 9. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow, 457 U.S. at 818). "In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct." Jessop v. City of Fresno, 918 F.3d 1031, 1034 (9th Cir. 2019) (quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)). The Supreme Court has "held that 'the same standard of objective reasonableness that we applied in the context of a suppression hearing . . . defines the qualified immunity accorded an officer' who obtained or relied on an allegedly invalid warrant." Messerschmidt v. Millender, 565 U.S. 535, 546 n.1 (2012) (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986).
Plaintiff contends that qualified immunity is a question of fact that is not appropriate at the pleading stage. Opp'n at 13. However, claims should be resolved "at the earliest possible stage in litigation" because one of the purposes of qualified immunity protects officers from "broad-ranging discovery" that can be "peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)); see also Daugherty v. City of Covina, 654 F.3d 892, 899-900 (9th Cir. 2011) (affirming dismissal of suit against police officer after finding qualified immunity within a Rule 12(b)(6) motion to dismiss).
As explained, Plaintiff states cognizable constitutional violations. Therefore, the Court must now turn to the question of whether Defendant Garcia violated a clearly established constitutional right. "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Anderson, 483 U.S. at 639 (citation omitted). Thus, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640. When determining whether the law is clearly established, the Court "may look at unpublished decisions and the law of other circuits, in addition to Ninth Circuit precedent." Jessop, 918 F.3d at 1035 (quoting Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005)). While the Supreme Court "'do[es] not require a case directly on point'" for a right to be clearly established, "'existing precedent must have placed the statutory or constitutional question beyond debate.'" White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). "The clearly established law must be 'particularized' to the facts of the case." Id. at 552 (quoting Anderson, 483 U.S. at 640). The Supreme Court in White stated that it is a "longstanding principle that 'clearly established law' should not be defined 'at a high level of generality.'" Id. Where an officer's "conduct did not amount to a 'run-of-the-mill' constitutional violation, a case with similar facts would be required to put the officer on notice that his conduct violated clearly established law." McKenney v. Mangino, 2017 WL 1365959, at *8 (D. Me. Apr. 12, 2017), aff'd in part, appeal dismissed in part, 873 F.3d 75 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018) (quoting White, 137 S. Ct. at 552) (citations omitted). See also Finkelstein v. San Mateo Cty. Dist. Attorney's Office, 2018 WL 6099959, at *8 (N.D. Cal. Nov. 21, 2018) (discussing White's distinction between obvious constitutional violations and cases with unique circumstances that require a case on point).
1. Qualified Immunity for Obtaining the Warrant
The constitutional question at issue here is whether Defendant Garcia violated Plaintiff's Fourth Amendment rights when he relied on hearsay in seeking a warrant to search for evidence of a crime without establishing the statement's veracity or the declarant's basis of knowledge.
Defendant Garcia is not entitled to qualified immunity for obtaining the search warrant because it is an obvious constitutional violation to rely on hearsay - indeed, double hearsay - to establish probable cause in the absence of independent corroboration, see Mendonsa, 989 F.2d at 369, or "a substantial basis for crediting the hearsay," Gates, 462 U.S. at 241-42. See Mendonsa, 989 F.2d at 369 (confirmation that a suspect lives at a particular location or drives a particular car, do not provide any indication of a "significant future activity").
"The threshold for establishing" an exception to qualified immunity "is high." Messerschmidt, 565 U.S. at 536. It is true that "'[i]n the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination' because '[i]t is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.'" Id. at 548 (quoting U.S. v. Leon, 468 U.S. 897, 921 (1984)). "In the context of a police officer obtaining a warrant, immunity will be lost only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994). The Supreme Court explained in Messerschmidt, 565 U.S. at 546 that "the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in objective good faith.". However, "the fact that a neutral magistrate has issued a warrant authorizing an allegedly unconstitutional suit does not end the inquiry into objective reasonableness." Id. at 547. An officer is not entitled to qualified immunity where "it is obvious that no reasonably competent officer would have concluded that a warrant should issue." Id. Here it was obvious that no reasonable officer could conclude the warrant to search for evidence of murder conspiracy should have issued. Uncorroborated double hearsay from a witness, whose potential unreliability about a crime which lacked any plausibility or motive or nexus to other known facts, cannot supply the probable cause. Cf. Mueller v. Tinkham, 162 F.3d 999, 1003 (8th Cir. 1998) ("The information provided by an informant is sufficient to support a probable cause finding if the person has provided reliable information in the past or if the information has been independently corroborated").
Accordingly, Defendant Garcia is not entitled to qualified immunity for obtaining the warrant.
2. Qualified Immunity for Failure to Return Property
Plaintiff also alleges that the failure to return his $6,500 was a violation of his rights. FAC ¶ 51. Defendants raise for the first time in their reply brief the defense of qualified immunity for the execution of the warrant. Reply at 6 n.2. As this argument was improperly raised for the first time in the reply, the Court rejects this argument without prejudice to raise it on summary judgment. C. Absolute Immunity
While the Court does not at this juncture grant qualified immunity based on the belatedly raised argument, it is worth noting that the Ninth Circuit has recognized that "[t]he Second, Sixth, Seventh, and Eleventh Circuits have held that the government's failure to return property seized pursuant to a warrant does not violate the Fourth Amendment. Some of these courts have reasoned that because 'the word "seizure" [has been] defined as a temporally limited act,' the Fourth Amendment provides protection only against the initial taking of property, not its continued retention." Jessop v. City of Fresno, 918 F.3d 1031, 1035 (9th Cir. 2019). On the other hand, the Fourth Circuit "reasoned that the Fourth Amendment 'regulates all [] interference' with an individual's possessory interests in property, 'not merely the initial acquisition of possession.'" Id. at 1036. This highlights an absence of clearly established law regarding whether a party is entitled to Fourth Amendment protection for the unlawful retention of property. The parties should meet and confer and discuss the possibility of dismissing this Fourth Amendment claim.
In addition to Defendant Garcia's invocation of qualified immunity, he also contends that pursuant to the Eleventh Amendment, he is entitled to absolute immunity. Mot. at 8. A prosecutor is entitled to absolute immunity from a civil action for damages when he or she performs a function that is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "While the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom," absolute prosecutorial immunity will be given "only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct[.]" al-Kidd v. Ashcroft, 580 F.3d 949, 958 (9th Cir. 2009), rev'd on other grounds, 563 U.S. 731 (2011) (citations omitted). Further, "the timing of the prosecutor's conduct informs our determination of the function performed, but it is not determinative." KRL v. Moore, 384 F.3d 1105, 1111 (9th Cir. 2004).
Defendant Garcia is an investigator for the Contra Costa County District Attorney's Office. FAC ¶ 8. His title, however, is not determinative of whether he is entitled to absolute immunity. Instead, the Court must look to his conduct. See Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (holding that prosecutors are fully protected by absolute immunity when "performing the traditional functions of an advocate"). In determining immunity, the "official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. 478, 486 (1991); see also Torres v. Goddard, 793 F.3d 1046, 1052-53 (9th Cir. 2015). A prosecutor does not enjoy absolute immunity where he is acting in an investigative capacity indistinguishable from that of a police officer. See Kalina, 522 U.S. at 125-26.
Defendant Garcia's actions occurred in the context of obtaining a search warrant for investigative purposes and are not entitled to absolute immunity. In Genzler v. Longanbach, 410 F.3d 630, 641 (9th Cir. 2005), the court held that prosecutors are not entitled to absolute immunity when "actively directing police-type investigative actions" before a preliminary hearing. See Malley, 475 U.S. at 342 (holding that an officer applying for a warrant was not entitled to absolute immunity because § 1983 only gives absolute immunity to functions "intimately associated with the judicial phase of the criminal process" such as seeking an indictment). Cf. Kalina, 522 U.S. at 655 (holding that "a prosecutor is not absolutely immune when preparing a declaration in support of an arrest warrant"); and KRL, 384 F.3d at 1112, 1114-15 (holding that a prosecutor was entitled to absolute immunity when he obtained a search warrant to "marshal evidence for trial" because the warrant "sought evidence to prosecute the crimes charged in the indictment" but was not entitled to absolute immunity for search warrants investigating collateral crimes).
Defendant Garcia relies on Burns, 500 U.S. at 485 to argue that he is entitled to absolute immunity. However, his reliance on Burns is misplaced. There, the Court granted absolute immunity to a prosecutor for his appearance and presentation of evidence in court in support of an officer seeking a warrant. Id. at 492. The Court discussed that "appearing before a judge and presenting evidence in support of a motion for a search warrant - - clearly involve the prosecutor's role as advocate for the State, rather than his role as administrator or investigative officer." Id. at 491 (internal citations and quotation marks omitted). The appearance at a probable cause hearing in Burns was prosecutorial. The Court also recognized the significance of the fact that the hearing occurred after the arrest. Id. at 492. Ultimately, the Supreme Court found that the prosecutor was immune from a suit for presenting false testimony as an advocate for the state. Id. at 487-92.
Here, however, the conduct at issue is not Defendant Garcia's advocacy before the court, but the presentation of facts as part of an investigation. More analogous to the conduct here is KRL where the Ninth Circuit held that the prosecutor was not entitled to absolute immunity where he sought a search warrant that "went beyond any legitimate preparation to prosecute" the plaintiff for the crimes charged and instead was part of a "collateral investigation into new crimes." Id. at 1113. The court treated the use of the warrant differently, not because the prosecutor's acts were different, but because the prosecutor sought the warrant for an investigative, not a prosecutorial, purpose. Id.
Because Defendant Garcia's conduct was in an investigative capacity, he is not entitled to absolute immunity for his conduct. See Kalina, 522 U.S. at 127. D. State Law Claims
Plaintiff also raises several state claims (Trespass, Trespass to Chattels, Intention Infliction of Emotional Distress, Negligence/Gross Negligence, and Conversion).
1. Government Tort Claims Act
As an initial matter, Defendants argue that Plaintiff failed comply with the Government Tort Claims Act because he filed his claim with Contra Costa County before some of his property was returned to him. It is Defendants' position that to comply with the Government Tort Claims Act, Plaintiff should have refiled his claim to only include the remaining $6,500 at issue.
Under section 911.2, "[a] claim relating to a cause of action for death or for injury to person or to personal property ... shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than six months after the accrual of the cause of action." Section 945.4 then provides that "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division." Thus, under these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.State of California v. Superior Court, 32 Cal. 4th 1234, 1239 (2004) (internal citations omitted).
A claim shall include, among other things, "[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known." Cal. Gov't Code § 910(e). "A plaintiff need not allege strict compliance with the statutory claim presentation requirement"; rather, the test to be applied is one of "substantial compliance." State of California, 32 Cal.4th at 1245; Wheeler v. County of San Bernardino, 76 Cal. App. 3d 841, 847 (1978). The purpose of the Tort Claims Act is to put the public entity and/or officials on notice and to allow for "the early investigation of the facts . . . ." State of California, 32 Cal.4th at 1245; Wheeler, 76 Cal. App. 3d. at 847.Adams v. Nocon, 2009 WL 799278, at *8 (E.D. Cal. Mar. 23, 2009).
The parties presented the Court with the claim filed with the Board of Supervisors of Contra Costa County. Docket No. 30-1, Exh. A. The claim was filed on August 16, 2018. Plaintiff listed damage to his safe worth $2,000, damage to his boat worth $2,000, seizure of his property including his computer worth $15,000, seizure of $25,000 cash, and emotional distress damages of $944,000.
It does appear that Plaintiff filed his claim before his property was returned to him. Thus, he did not file a separate claim for the remaining withheld cash, i.e., the $6,500. However, Plaintiff need only show substantial compliance with the Government Tort Claims Act. For this reason, he has filed a claim for the cash (even if some of it was returned) and has satisfied the requirements for the Government Tort Claims Act.
2. State Immunities
Defendant Garcia argues that several state immunity statutes apply to the present case.
Defendants invoke Government Code § 821.8. Section 821.8 provides: "A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law." Cal. Gov't Code § 821.8.
This section may serve as a bar to a claim for trespass when a valid search warrant authorized entry onto the property and the structures located thereon. Ogborn v. City of Lancaster, 101 Cal. App. 4th 448, 462 (2002). However, there is no immunity for claims arising out of the entry onto property or the seizure of property not authorized by law. See id. ("[T]his immunity provision does not bar the [plaintiffs'] claim for conversion of their belongings, which were
not within the scope of the warrant.").Adams, 2009 WL 799278, at *7.
In this case, the warrant issue was "valid" as to the search for evidence of domestic violence and therefore would protect the actual entrance onto Plaintiff's houseboat (i.e., his claim for trespass). However, "this immunity provision does not bar" a "claim for conversion of [] belongings, which were taken outside the scope of the warrant." Ogborn, 101 Cal. App. 4th at 462.
Because Defendants acted pursuant to a valid warrant to search for evidence of domestic violence, this immunity protects them from a claim of trespass. However, because the search of the safe was likely for purposes of searching for evidence of a plot to murder prosecutors, Plaintiff's claims of conversion, trespass to chattels, negligence, and gross negligence are not covered by this immunity statute. This denial of immunity is without prejudice to assert at a later point in litigation.
Thus, Defendants' motion to dismiss Plaintiff's claim for trespass is GRANTED.
Government Code section 820.4 states that "[a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law." The burden is on Defendants to show at the motion to dismiss stage that they acted with due care and are therefore entitled to protection from § 820.4 protection. See Mateos-Sandoval v. Cty. of Sonoma, 2013 U.S. Dist. LEXIS 104549, at *21 (N.D. Cal. July 24, 2013) (citing Cameron v. State of California, 7 Cal. 3d 318, 325 (1972) for the proposition that "Defendants have the burden of pleading and proving their entitlement to § 820.4 immunity"). Defendants have not pleaded nor proved that they are entitled to this immunity. Therefore, the Court rejects this argument without prejudice to reassert it at a later stage.
c. Government Code 821.6
Government Code 821.6 states: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Cal. Gov't Code § 821.6.
The Ninth Circuit has addressed application of this immunity.
The "prosecutorial" immunity under Cal. Gov. Code § 821.6 . . . is limited to malicious-prosecution claims. In 1974, the California Supreme Court held that § 821.6 immunity does not extend beyond malicious-prosecution claims. Sullivan v. Cty. of Los Angeles, 12 Cal. 3d 710 (1974). Since then, intermediate appellate courts have expanded the immunity to investigative steps taken prior to a judicial proceeding, including action by police officers. E.g., Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). But "[w]hen interpreting state law, a federal court is bound by the decision of the highest state court." Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (internal quotation marks omitted). Thus, because California's highest court has not extended § 821.6 immunity to actions outside of malicious prosecution, this immunity does not apply here.Sharp v. Cty. of Orange, 871 F.3d 901, 920-21 (9th Cir. 2017). In this case, the California Supreme Court has not applied this immunity to claims outside of malicious prosecution. The Court must follow the guidance of the Ninth Circuit and only apply § 821.6 to malicious prosecution claims. As malicious prosecution is not alleged here, this immunity does not apply.
d. Code of Civil Procedure § 262.1
Defendant invokes Code of Civil Procedure § 262.1. Section 262.1 states: "A sheriff or other ministerial officer is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued." Cal. Civ. Proc. Code § 262.1. "California Code of Civil Procedure § 262.1 immunizes the Sheriff from liability for executing 'process and orders' which are 'regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.'" Dang v. Oakland Police Dep't, 2014 WL 793613, at *8 (N.D. Cal. Feb. 26, 2014). "When we speak of process 'valid on its face,' in considering whether it is sufficient to protect an officer, we do not mean that its validity is to be determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in the light of facts outside its provisions which the officer may know. Unless there is a clear absence of jurisdiction on the part of the court or magistrate issuing the process, it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily intelligent and informed layman." Vallindras v. Massachusetts Bonding & Ins. Co., 42 Cal. 2d 149 (1954) (quoting Aetna Ins. Co. v. Blumenthal, 129 Conn. 545, 553 (Conn. 1943)). "What constitutes a warrant 'regular upon its face' has traditionally been described [as]: 'An officer whose duty it is to serve process is bound to serve the same when such process is regular on its face. Process is said to be regular on its face when it proceeds from a court, officer, or body having authority of law to issue process of that nature, and which is legal in form, and contains nothing to notify or fairly apprise any one that it is issued without authority.'" Allison v. Cty. of Ventura, 68 Cal. App. 3d 689 (1977) (quoting Pankewicz v. Jess, 27 Cal. App. 340, 342 (Dist. Ct. App. 1915)).
With respect to Does 1-20, it appears that they were simply executing what appeared to be a facially valid warrant. Thus, the protection of § 262.1 applies to them. However, Defendant Garcia was not simply executing a warrant that he had no discretionary decision-making power over. Quite the opposite, this entire investigation was led by him, and thus it does not follow that he should be entitled to immunity for blindly executing his own warrant. For this reason, this immunity protects Does 1-20 from suit for the state law claims but does not protect Defendant Garcia.
As the warrant appears valid on its face as to those to whom it was presented for execution, Defendants' motion to dismiss the FAC pursuant to § 262.1 is GRANTED as to Does 1-20. The motion is DENIED as to Defendant Garcia.
3. Failure to State a Claim
Defendant Garcia also challenges Plaintiff's state claims for failing to state a claim.
a. Conversion
"Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious." Burlesci v. Petersen, 68 Cal. App. 4th 1062, 1066, (1998).
Defendants challenge the conversion claim because they argue that the seizure was lawful as it was pursuant to a valid warrant. As the Court has previously made clear, the warrant was not valid. Defendants further allege that the FAC is not clear as to whom the conversion claim applies. However, the FAC states "As Against All Defendants and Does 1-20." Therefore, the Court does not agree that it is not clear against whom the claim is asserted. For the purposes of a motion to dismiss, Plaintiff has sufficiently alleged factual allegations that he has a plausible claim to relief for conversion against the remaining Defendant, Defendant Garcia.
For these reasons, Defendants' motion to dismiss Plaintiff's cause of action for conversion is DENIED.
b. Trespass to Chattels
For a claim of trespass to chattels, "[t]hough not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels 'lies where an intentional interference with the possession of personal property has proximately caused injury.'" Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350-51 (2003) (quoting Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566 (1996). "In cases of interference with possession of personal property not amounting to conversion, 'the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.'" Id. at 1351 (quoting Zaslow v. Kroenert, 29 Cal.2d 541, 551 (1946)). "In modern American law generally, '[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion. Id. (quoting Prosser & Keeton, Torts, § 15, p. 90) (alteration in original).
Defendants challenge the claim of trespass to chattels based on their belief that the interference with Plaintiff's property was not unlawful as it was pursuant to a valid warrant. Plaintiff alleged this claim against all defendants including Does 1-20. However, Does 1-20 have been dismissed pursuant to a finding of immunity, thus Defendant Garcia is the remaining Defendant. With respect to Defendant Garcia, it is not clear from the FAC that he is the actual person who broke the safe. Therefore, Plaintiff has failed to adequately plead this claim.
For these reasons, Defendants' motion to dismiss Plaintiff's cause of action for trespass to chattels is GRANTED.
c. Intentional Infliction of Emotional Distress ("IIED")
"The elements of the tort of intentional infliction of emotional distress are: '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. ...' Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991) (quoting Davidson v. City of Westminister, 32 Cal.3d 197, 209(1982)).
Plaintiff asserts that the extreme and outrageous conduct is: "the unauthorized/invalid entrance upon Plaintiffs [sic] Property, the unjustified and unreasonable taking of Plaintiffs [sic] personal property including monetary funds, the search of Plaintiffs [sic] personal property and/or computers, all under the guise of conspiracy to kill a prosecutor absent any reasonable probable cause while Plaintiff is being prosecuted for unrelated insurance fraud within Contra Costa County, constitutes extreme and outrageous conduct." FAC ¶ 84. Furthermore, Plaintiff contends that "withholding monetary funds that was to be used for his defense in the insurance fraud matter, were done with the intent to cause serious emotional distress or with reckless disregard of the probability of causing Plaintiff serious emotional distress." Id. ¶ 85. Finally, the continued withholding of the $6500 owed to Plaintiff further amounts to extreme and outrageous conduct, per Plaintiff.
Assuming all the factual allegations are true, Plaintiff still has not pled enough to establish that Defendant Garcia or any other Defendant's conduct has been extreme and outrageous. Plaintiff has not alleged specific factual allegations to infer that that the Defendant who withheld the money, knew the money was intended for his defense in the fraud case and withheld it for the purposes of hindering his criminal defense.
To the extent Plaintiff argues that the execution of a warrant without probable cause or the failure to return property alone amounts to extreme and outrageous conduct, the Court does not agree.
For these reasons, Defendants' motion to dismiss Plaintiff's cause of action for intentional infliction of emotional distress is GRANTED.
d. Negligence and Gross Negligence
"Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for gross negligence the plaintiff must also allege conduct by the defendant involving either want of even scant care or an extreme departure from the ordinary standard of conduct." Chavez v. 24 Hour Fitness USA, Inc., 238 Cal. App. 4th 632, 640 (2015) (internal quotations marks and citations omitted).
Defendants' only defense to this cause of action is the immunity statutes analyzed previously, and the fact that Defendants' believe that the warrant was valid; therefore, none of Defendants' conduct was unlawful. As explained previously, the immunity statutes do not apply to this claim at this stage for Defendant Garcia, and the warrant was clearly invalid.
For these reasons, Defendants' motion to dismiss Plaintiff's cause of action for negligence and gross negligence is DENIED as to Defendant Garcia.
IV. CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss is DENIED in part, and GRANTED in part. More specifically, the Intentional Infliction of Emotional Distress and the Trespass claims are dismissed without prejudice. The Conversion, Trespass to Chattels, Negligence, and Gross Negligence claims against Does 1-20 are dismissed without prejudice.
All other claims pleaded in the FAC survive.
This order disposes of Docket No. 16.
IT IS SO ORDERED. Dated: June 10, 2019
/s/_________
EDWARD M. CHEN
United States District Judge