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Theimer v. Orduno

February 25, 2009

DAVID THEIMER, SR., AN INDIVIDUAL, ET AL. PLAINTIFF,
v.
E. ORDUNO, AN INDIVIDUAL, GARY PENROD, AN INDIVIDUAL, IN HIS CAPACITY AS SHERIFF FOR THE COUNTY OF SAN BERNARDINO, THE COUNTY OF SAN BERNARDINO, A GOVERNMENTAL ENTITY, ROSEMARY MACHORRO, AN INDIVIDUAL, MICHAEL JENKS, AN INDIVIDUAL, THE CITY OF VICTORVILLE, A GOVERNMENTAL ENTITY, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motions filed on January 20 and January 30, 2009]

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE; DENYING SUMMARY JUDGMENT AS TO DEFENDANT MACHORRO; GRANTING SUMMARY JUDGMENT AS TO DEFENDANT JENKS; GRANTING SUMMARY JUDGMENT AS TO DEFENDANT CITY OF VICTORVILLE; DENYING MOTION FOR ADJUDICATION OF FACTS AS MOOT

On February 23, 2009, several motions filed by defendants Rosemary Machorro ("Machorro"), Michael Jenks ("Jenks"), and the City of Victorville came before the Court for a hearing. After reviewing and considering all papers filed in support of, and in opposition to, the Motions, as well as the arguments advanced by counsel at the hearings, the Court GRANTS IN PART and DENIES IN PART the Motion to Strike; DENIES Summary Judgment as to Machorro; GRANTS Summary Judgment in favor of Defendant Jenks; GRANTS Summary Judgment in favor of Defendant City of Victorville; and DENIES the Motion for Adjudication of Facts as Moot.

I. BACKGROUND

A. Procedural History

1. First Amended Complaint

The Court granted Machorro, Jenks, and the City of Victorville's (collectively "Moving Defendants") motion to dismiss plaintiff David Theimer, Sr.'s ("Plaintiff"*fn1

First Amended Complaint ("FAC") in an Order dated December 17, 2008 ("December 2008 Order"). The Court granted Plaintiff leave to amend on some claims.

2. Second Amended Complaint

Plaintiff timely filed a Second Amended Complaint ("SAC") naming "E." Orduno, Gary Penrod, the County of San Bernardino, Machorro, Jenks, and the City of Victorville as Defendants.

Plaintiff asserts all defendants, including those who do not move for summary judgment, acted together to conduct the March 2, 2007 warrantless search of kennels near Plaintiff's house and seizure of his 44 dogs. He also claims all defendants acted together to arrest and incarcerate him and to disclose the giardia infection of his dogs to a newspaper reporter. According to Plaintiff, these acts violated his rights under the Fourth Amendment and the "penumbral right to privacy" of the U.S. Constitution. (SAC ¶¶ 11-17.) Plaintiff includes no other constitutional claims in his SAC.

3. Motion to Strike, Motions for Summary Judgment, Motion for Adjudication of Facts

The Moving Defendants, separately or together, bring the four motions now before the Court:

! Motion for Summary Judgment as to Defendants Machorro and Jenks ("Machorro & Jenks Mot.");

! Motion for Summary Judgment as to the City of Victorville ("Victorville Mot.");

! Motion for an Order Specifying Facts Not Genuinely at Issue ("Mot. for Facts" or "Motion for Adjudication of Facts"), brought by Machorro, Jenks, and the City of Victorville; and

! Motion to Strike Portions of the SAC ("Mot. to Strike"), brought by Machorro, Jenks, and the City of Victorville.

The Moving Defendants filed the Motion to Strike on January 20, 2009 and the other Motions on January 30, 2009, all noticed for hearing on February 23, 2009. Plaintiff filed Opposition to all Motions on February 9, 2009. On February 13, 2009 Moving Defendants timely filed Replies in support of all Motions. On February 14, 2009, Plaintiffs filed three untimely Statements of Genuine Issues in opposition to the two Motions for Summary Judgment and the Motion for Adjudication of Facts. On February 17, 2009, Moving Defendants filed objections to Plaintiff's untimely documents. Pursuant to Local Rules 56-1 through 56-4 and 7-10, the Court disregards Plaintiff's untimely filings.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Facts

Moving Defendants offer nearly identical materials in support of, and Plaintiff offers very similar argument in opposition to, the Motion for Summary Judgment as to Machorro and Jenks and the Motion for Summary Judgment as to the City of Victorville.*fn2

Moving Defendants, pursuant to Local Rule 56-1, support each of their Motions for Summary Judgment with Statements of Undisputed Fact ("DSUF"). Plaintiff, in contravention of Local Rule 56-2, failed timely to "serve and file with the opposing papers a separate document containing a concise 'Statement of Genuine Issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated."

The consequence of Plaintiff's failure is that the Court, in accordance with Local Rule 56-3, "will assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy . . . ." In other words, the Court will grant summary judgment if Moving Defendants proffer evidence demonstrating they are entitled to judgment as a matter of law. Following the Local Rules does not amount, as Plaintiff contends, to granting summary judgment by default. See In re Rogstad, 126 F.3d 1224, 1227 (9th Cir. 1997).

1. Parties

a. Plaintiff

On March 2, 2007, Plaintiff conducted an unlicensed dog breeding enterprise at 15119 El Cariso Road, a residential address, in the City of Victorville, California. (Machorro & Jenks DSUF ¶ 1; Victorville Mot. DSUF ¶ 1.)

b. Moving Defendants

I. Machorro

On March 2, 2007 Machorro was an Animal Care and Control officer for the City of Victorville. (Declaration of Rosemary Machorro ΒΆ 3 in support of both Machorro & Jenks ...


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