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Demoura, and John Doe, Addison Demoura, Jessica v. andrew J. Ford

December 22, 2010

DEMOURA, AND JOHN DOE, ADDISON DEMOURA, JESSICA PLAINTIFFS,
v.
ANDREW J. FORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION REGARDING MOTION TO DISMISS (Doc. 46)

I. INTRODUCTION.

Plaintiffs Addison Demoura, Jessica Demoura, and John Doe, a minor, ("Plaintiffs") proceed with an action pursuant to 42 U.S.C. § 1983 against Defendants Andrew Ford, the County of Tuolomne, and others. On July 2, 2010, Plaintiff's original complaint was dismissed, with leave to amend. (Doc. 33).

Plaintiffs filed a first amended complaint ("FAC")on September 1, 2010. (Doc. 34). On September 2, 2010, Defendants Ford and the County of Tuolomne ("Defendants") filed a motion to dismiss the FAC. (Doc. 46). Plaintiffs filed opposition to the motion to dismiss on October 25, 2010. (Doc. 52). Defendants filed a reply on November 4, 2010. (Doc. 59).

The court heard Defendants' motion on November 15, 2010. (Doc. 62). At the close of the hearing, the court granted counsel's request to submit supplemental briefing on whether the exhaustion requirement of the California Tort Claims Act applies to claims brought against an individual. (Id.). Defendants filed a supplemental brief on November 17, 2010. (Doc. 61). Plaintiffs filed a response to Defendants supplemental brief on November 22, 2010. (Doc. 63).

II. FACTUAL BACKGROUND.

On, July 25, 2007, Defendant Ford presented a Statement of Probable Cause ("Statement") in support of a search warrant to a magistrate for the search of Plaintiffs' residence and of Addison Demoura's place of business, which operated under the business name Oakdale Natural Choice Collective ("ONCC"). (FAC at 5). The FAC alleges that at all times relevant, ONCC was an association of medical marijuana patients commonly known as a medical marijuana collective that was established under the provisions of the California Medical Marijuana Program Act, and that Plaintiffs and ONCC were operating legally under relevant California law. (FAC at 10). The FAC further alleges that all Defendants possessed knowledge ONCC was operating lawfully within the provisions of the California Medical Marijuana Program Act. (FAC at 12).

Ford's Statement detailed facts learned through surveillance of Plaintiffs residence and of ONCC. Ford's Statement provided, in pertinent part*fn1

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 "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.

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." 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 color-coded. 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... 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 seen going into the business empty handed, and the leaving carrying white paper bags.

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.

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.

Based on Ford's statement, a magistrate judge issued a search warrant for ONCC and for Addison Demoura's residence.

Defendant Ford and others executed a search warrant at Plaintiffs' residence and at ONCC on July 31, 2007. (FAC at 6). In addition to alleging that the search was unlawful, the FAC alleges that the officers executing the search warrant employed excessive force during the search.

III. LEGAL STANDARD.

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the ...


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