Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fresno Rock Taco LLC, A California Limited Liability v. Ben Rodriguez

August 9, 2011

FRESNO ROCK TACO LLC, A CALIFORNIA LIMITED LIABILITY CORPORATION; ZONE SPORTS CENTER, LLC, A CALIFORNIA LIMITED LIABILITY CORPORATION; THE FINE IRISHMAN, LLC, A CALIFORNIA LIMITED LIABILITY CORPORATION; MILTON BARBIS, AN INDIVIDUAL; HEIDI BARBIS, AN INDIVIDUAL; HEIDI BARBIS, AS GUARDIAN AT LITEM FOR CLAIRE BARBIS, A MINOR,
PLAINTIFFS,
v.
BEN RODRIGUEZ, AN INDIVIDUAL; BRENDAN RHAMES, AN INDIVIDUAL; GEORGEANE WHITE, AN INDIVIDUAL; THE CITY OF FRESNO, A CALIFORNIA MUNICIPALITY; AND DOES 1-100, INCLUSIVE,
DEFENDANTS.



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

MEMORANDUM DECISION REGARDING DEFENDANT RHAMES‟ AND DEFENDANT CITY OF FRESNO‟S MOTION TO DISMISS (DOC. 10) AND DEFENDANT RODRIGUEZ‟S MOTION TO DISMISS (DOC. 11) PLAINTIFF‟S FIRST AMENDED COMPLAINT (DOC. 9)

I.INTRODUCTION.

Plaintiffs Fresno Rock Taco LLC; Zone Sports Center, LLC; The Fine Irishman LLC; Milton Barbis, Heidi Barbis, and Heidi Barbis as guardian at litem for Claire Barbis ("Plaintiffs") are proceeding with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs filed a first amended complaint ("FAC") on May 18, 2011. (Doc. 9)

Defendants Brendan Rhames and the City of Fresno filed a motion to dismiss the FAC on June 1, 2011. (Doc. 10). Defendant Ben Rodriguez filed a separate motion to dismiss the FAC on June 30, 2011 (Doc. 11). Plaintiffs filed oppositions to both Defendants‟ motions on July 18, 2011. (Doc. 12).

II.BACKGROUND

Plaintiffs‟ FAC contains allegations regarding three defendants: State of California, Department of Insurance employee Paul Rodriguez ("Rodriguez"); Fresno Police Department Detective Brendan Rhames ("Rhames"), and the City of Fresno ("Fresno") relating to searches conducted on May 28, 2009.

All Plaintiffs allege, pursuant to 42 U.S.C. § 1983, an unreasonable search and seizure in violation of their Fourth Amendment rights against both Rodriguez and Rhames. (FAC at 9). Plaintiffs Milton, Heidi, and Claire Barbis also assert a violation of Plaintiffs‟ Fourteenth Amendment rights to due process against Defendants Rodriguez and Rhames. (FAC at 11). Finally, all Plaintiffs assert a Monell Claim for improper policies and practices against Defendant Fresno. (FAC at 12).

All Plaintiffs assert a Franks violation by Defendants Rodriguez and Rhames relating to the affidavit submitted in support of the search warrants executed on Plaintiffs‟ businesses and home. (FAC at 9). Plaintiffs claim that Rodriguez gave false information in support of the search warrant, and that Rhames provided false information and misrepresentations to the Affiant to use in the Statement of Probable Cause. (FAC at 9). In support of this claim, Plaintiffs point to denials, under penalty of perjury, by Mr. Alex Costa ("Costa") and Mr. Roger Brown ("Brown") that they ever told Defendants many of the statements contained in the Statement of Probable Cause. (FAC at 5-6). Plaintiffs further contend that Defendants Rodriguez and Rhames also seized items outside the scope of the search warrant and returned the items seized to Kirk Vartanian ("Vartanian"), who had no right to the items. (FAC 4-5).

Plaintiffs Milton, Heidi, and Claire Barbis also claim a violation of their Fourteenth Amendment right to due process. (FAC at 11). These Plaintiffs allege that during the search of their home they were threatened by Defendants (including a statement by one Defendant referring to his flashlight as his "Kill Stick"), confined for many hours, and were not free to leave. (FAC at 4-5). These Plaintiffs also claim that because of the disputed warrants, the search and seizures deprived them of their liberty and property without due process. (FAC at 11).

Finally, Plaintiffs allege a Monell Claim against the City of Fresno. (FAC at 12). Plaintiffs claim that Fresno failed to properly train Defendant Rhames in procedures for investigating insurance fraud crimes. (FAC at 13) Plaintiffs also contend that City of Fresno had a policy and procedure of not supervising officers who were assigned to insurance fraud crimes and had no procedure in place to check the validity of crime reports from such officers or to instruct officers as to the care and protection of children during a search and seizure of their home. (FAC at 13).

III.STANDARD OF DECISION

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). In deciding whether to grant a motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party. Rodriguez v. Panayiotou , 314 F.3d 979, 983 (9th Cir.2002). To survive a motion to dismiss, a complaint must "contain sufficient factual matters, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).

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. The plausibility standard is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with‟ a defendant‟s liability, it "stops short of the line between possibility and plausibility of entitlement to relief.‟

Id . (citing Twombly , 550 U.S. 556-57).

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose , 788 F.2d 638, 643 n.2 (9th Cir. 1986). While the standard does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal , 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555; Iqbal , 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hosp. , 844 F.2d 646, 649 (9th Cir. 1988).

IV.DISCUSSION

...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.