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Naiel Ammari and Turlock Rv Center, Inc., Dba Best Rv v. State of California

August 25, 2011

NAIEL AMMARI AND TURLOCK RV CENTER, INC., DBA BEST RV, PLAINTIFFS,
v.
STATE OF CALIFORNIA, EUGENE BRATHWAITE, SYLVIA C. THOMAS, AND DOES 1 - 20,
DEFENDANTS.



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

ORDER GRANTING DEFENDANTS‟ MOTION TO DISMISS COMPLAINT (DOC. 8)

I.INTRODUCTION.

Defendants State of California, by and through Department of Motor Vehicles ("DMV"); Sylvia C. Thomas ("Thomas") and Eugene Brathwaite ("Brathwaite"), collectively ("Defendants") move to dismiss Plaintiffs' complaint ("Complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Naiel Ammari and Turlock RV Center, INC., dba Best RV ("Plaintiffs") responded with a statement of non-opposition filed with a proposed First Amended Complaint ("Proposed FAC").

Defendants contend that Plaintiffs‟ Proposed FAC fails to cure most the defects of the Complaint: The Proposed FAC (1) continues to name the State of California as a defendant, although Defendants argue such a suit against the state is barred by the Eleventh Amendment (2) continues to request both equitable and declaratory relief, though no facts are alleged showing that the Ex Parte Young doctrine applies to allow such a claim for relief (3) continues to name Defendant Thomas in her individual capacity pursuant to a section 1983 claim, though the facts do not allege a sufficient connection between her and the alleged wrongful act, and (4) Plaintiffs attempt to allege a claim of a Fourteenth Amendment violation on facts concerning the execution of a search and accompanying seizure which only implicate the Fourth Amendment.

Defendants contend that in the interest of judicial economy, Plaintiff should not be allowed to file their Proposed FAC until a ruling is made on the pending motion to dismiss, and any FAC should be required to conform to that ruling. Otherwise, if Plaintiff is allowed to file their Proposed FAC "as is," Defendants will file a very similar motion to dismiss.

II.PROCEDURAL HISTORY.

Plaintiffs filed this action on May 27, 2011. (Doc. 1.) Defendants‟ filed a motion to dismiss Plaintiffs‟ Complaint on July 15, 2011. (Doc. 8.) In response, Plaintiffs filed a non-opposition with an attached Proposed FAC on August 8, 2011.

Defendants replied on August 12, 2011. (Doc. 10.)

III.BACKGROUND.

Plaintiff Ammari is the owner of an RV dealership licensed by Defendant State of California. Plaintiffs allege that on July 13, 2010, Defendant Braithwaite, a DMV employee, led a search of Plaintiffs‟ place of business. Plaintiffs contend that Defendant Thomas, Braithwaite‟s supervisor at the DMV, authorized the search, which was conducted pursuant to a "fraudulent" warrant. The search team allegedly seized, inter alia , Plaintiffs‟ business records, a computer, and a computer network server.

After the search, Plaintiffs moved in California Superior Court for an order to restore their seized property, pursuant to Cal. Penal Code section 1540. Plaintiffs‟ 1540 motion was granted based on a finding that the court would not have found probable cause to issue the warrant investigating alleged violations of Penal Code sections 487 and 532(a) had Brathwaite disclosed additional facts set out by Plaintiffs in their 1540 motion.

Plaintiffs allege that Brathwaite and Thomas fraudulently obtained a search warrant for Plaintiffs' business based on falsified evidence of probable cause. They also claim that Brathwaite, executed the fradulent search warrant with the knowledge that the search warrant was defective and lacked sufficient evidence of probable cause to justify the search and seizure.

Plaintiffs sue under 42 U.S.C. section 1983 for alleged unlawful search and seizures in violation of their Fourth and Fourteenth Amendment rights. They seek damages, declaratory and injunctive relief.

IV.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 matter, 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).

V.DISCUSSION

A.Original ...


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