AND ORDER ON
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT OR
AND ORDER GRANTING
STAY AS TO PLAINTIFFS
MOTION FOR SUMMARY
JUDGMENT AS TO THEIR
CLAIMS AGAINST FRESNO
This is an action for damages by plaintiffs Tommy Allen, and his minor daughter, Brooke Allen (collectively, "Plaintiffs"), against Fresno City Police Officer Derik Kumagai, ("Kumagai") and Fresno County Sheriff Deputies Christian Curtice and Jared Williamson (collectively, the "individual County Defendants"); and the County of Fresno ("County"). Listed defendants Fresno Police Officer Valerie Dunn and Fresno Police Detective Robert Lincoln were dismissed from the action by stipulated agreement on January 14, 2011, as was Fresno County Sheriff Deputy Romeo Grajeda. The currently-operative Second Amended Complaint ("SAC") was filed on January 22, 2008. Following Defendants' challenges to the sufficiency of Plaintiffs' allegations by way of motions to dismiss and appeal and remand on those motions, the claims that remain in this action are claims pursuant to 42 U.S.C. § 1983 for unlawful search and arrest by Tommy Allen and for unlawful arrest by Brooke Allen. In the instant set of motions for summary judgment or summary adjudication, Plaintiffs seek summary adjudication of Tommy Allen's claim for unlawful search of his premises and seizure of his property pursuant to a facially invalid warrant in violation of his Fourth Amendment rights. As noted infra, Plaintiffs' motion for partial summary judgment will be stayed at the parties' request. Defendants seek summary judgment as to all claims set forth in the SAC or, in the alternative, summary adjudication. Again, at the parties' request, the court will stay decision on the portion of Defendants' motion for summary judgment as to Tommy Allen's claims against the City of Fresno Defendants. Federal question jurisdiction exists pursuant to 28 U.S.C., section 1331. Venue is proper in this court.
As noted, the SAC was filed on January 22, 2008. On January 30, 2008, Defendants moved to dismiss the SAC in its entirety as to all Defendants. On March 3, 2008, Defendants' motion to dismiss was granted. Plaintiffs filed a notice of appeal on April 18, 2008. On October 23, 2009, the Ninth Circuit Court of Appeals filed a memorandum opinion affirming in part and reversing in part this court's grant of Defendants' motion to dismiss. The Ninth Circuit's opinion affirmed this court's dismissal of Plaintiff's SAC to the extent it asserted "claims against the individual City and County defendants for malicious prosecution and against the County of Fresno for discriminatory, selective, arbitrary, and retaliatory enforcement of laws. . . ." Doc. # 69 at 2. The Ninth Circuit's opinion also affirmed this court's dismissal of Plaintiffs' second claim for relief for declaratory judgment. Id. The Ninth Circuit's opinion reversed this court's dismissal of Tommy and Brooke Allen's claims against the City and County individual Defendants for violation of their rights against unlawful arrest and unreasonable search and seizure under the Fourth Amendment.
The motions for summary judgment or summary adjudication were both filed on January 14, 2011. Both parties file oppositions to the others' motion on January 31, 2011. Tommy Allen filed his reply to Defendants' opposition on February 2. 2011, and Defendants filed their reply on February 7, 2011. The hearing on the parties' motions, which had been set for February 14, 2011, was vacated and the matter was taken under submission as of that date. On March 1, 2011, the parties filed a joint notice of possible settlement as to Tommy Allen's claims against Kumagai and the City of Fresno arising from the search of July 4, 2003. The parties have requested the court stay adjudication of the parties' cross-motions for summary judgment as to those claims.
UNDISPUTED AND DISPUTED MATERIAL FACTS
I. Jointly Submitted Material Facts
The following are the jointly submitted undisputed material facts pertaining to Plaintiffs' claims against the individual Fresno County Defendants and to the County of Fresno arising from the arrest of Brooke and Tommy Allen on October 29, 2004.
Defendant Curtice was a deputy sheriff with the Fresno County Sheriff's department and acting in his official capacity on October 29, 2004. Former Defendant Grajeda was a deputy sheriff with the Fresno county Sheriff's Department and acting in his official capacity on October 29, 2004. Tommy Allen was arrested by Curtice and charged with three counts:
(1) unlawfully using a minor to unlawfully transport, carry, sell, give away, or peddle marijuana in violation of Cal. Health and Safety Code § 11361(a); (2) child endangerment in violation of Penal Code § 273a(b); and (3) contributing to the delinquency of a minor in violation of Penal Code § 272(a)(1).
On August 30, 2005, Tommy Allen entered into a plea agreement whereby he pled no contest to an added count of possession of marijuana in violation of Health and Safety Code section 11357(r). Under that plea agreement, Tommy Allen waived time for sentencing for 12 months, and agreed to obey all laws. Pursuant to the plea agreement, Tommy Allen's motion to withdraw his plea agreement was granted at the end of 12 months, and all charges against him were dismissed. All juvenile charges against Brooke Allen were unconditionally dismissed on August 19, 2005.
II. Parties' Separate Proffered Undisputed Material Facts
A. Defendants' Proffered Undisputed Material Facts Pertaining to Tommy Allen and Brooke Allen's Claims Against County Defendants
Defendants allege a number of undisputed material facts that, together, are intended to establish probable cause for Brooke Allen's arrest by the County Defendants for possession of marijuana on school grounds on October 29, 2004. Defendant's proffer of facts ...