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David Wise, An Individual; and v. Mr. Daniel Nordell

September 9, 2012


The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge


Presently before the Court are two motions to dismiss the complaint of Plaintiffs David Wise and Dr. Christina Wise ("Plaintiffs") brought by Defendants County of San Diego ("SD County") on behalf of itself and the San Diego District Attorney's Office ("SD DA"), District Attorney Bonnie Dumanis ("Dumanis"), Deputy District Attorney Jim Koerber ("Koerber"), and District Attorney Investigator Daniel Nordell ("Nordell") (collectively "the County Defendants") and Defendants the State of California ("the State") on behalf of the California Board of Medical Examiners ("CBME") and Angela Chang ("Chang") (collectively "the State Defendants"). For the reasons below, the Court GRANTS IN PART and DENIES IN PART the motions to dismiss.


The following allegations are taken from the complaint. Dr. Christina Wise ("Dr. Wise") is a licensed clinical psychologist and the owner of San Diego Family Services ("SDFS"), a psychological corporation in the state of California. [Doc. No. 1, Compl. ¶ 15.] David Wise ("Mr. Wise") is Dr. Wise's husband and assists her in managing SDFS. [Id. ¶ 16.]

Between July 2010 and September 2010, several interns and a book keeper, Star Patterson, were hired to work at SDFS. [Compl. ¶ 17.] On or about the week of October 12, 2010, Dr. Murray Rudenberg--another psychologist who worked at SDFS--and the three interns conspired to close SDFS by removing all its patients, sabotaging the inpatient contracts, and removing company patient and financial records without permission. [Id. ¶¶ 21-22.] Patterson also improperly removed $2,200 from the SDFS bank account. [Id. ¶ 27.] In response to these actions, the Plaintiffs filed a police report against Patterson, and Dr. Wise filed a complaint against each intern with the state governing board. [Id. ¶¶ 28, 35.]

Plaintiffs believe that in retaliation, the interns, Rudenberg, and Patterson filed a complaint against Dr. Wise with the California Board of Psychology, alleging medical billing fraud among other allegations. [Compl. ¶¶ 36.] This complaint led to an investigation by the SD DA's office, which placed Defendant Nordell as the lead investigator. [Id. ¶ 37.]

On or about April 5, 2011, Defendant Chang called Dr. Wise on her cell phone to inform her about an investigation interview she wanted to schedule to address the complaint that was filed. [Compl. ¶ 41.] Chang told Dr. Wise that her husband could not be present during the interview, but that she could have an attorney present. [Id. ¶¶ 42-43.] The interview was scheduled to take place on or about May 28, 2011. [Id. ¶ 44.] Later, Dr. Wise's attorney, Steven Frankel, requested to know the names of Dr. Wise's accusers, but Chang failed to provide this information. [Id. ¶¶ 45-47.]

A week prior to the scheduled interview, Chang showed up unannounced at Dr. Wise's office. [Compl. ¶ 48.] Chang knew that Dr. Wise was represented by an attorney at that time, but she did not contact Dr. Wise's attorney prior to the visit. [Id.] Chang went from the waiting room into Dr. Wise's office and began asking Dr. Wise questions without asking for permission to speak with her. [Id. ¶ 49-50.] Chang used this visit as an opportunity to search the office for evidence of computers and file cabinets. [Id. ¶ 50.]

On or about the last week of May 2011, Dr. Wise and her attorney attended the investigation interview at the offices of the CBME. [Compl. ¶¶ 53.] During the interview, Chang asked Dr. Wise questions about matters in the complaint filed against her. [Id. ¶ 58.] Chang also asked Dr. Wise about the location of her patient files and where she was currently residing. [Id. ¶ 61.] Plaintiffs provided Chang with their personal information for communication purposes. [Id. ¶ 65.] Chang then provided Nordell with Plaintiffs' personal information. [Id. ¶ 69.]

Nordell then began engaging in various surveillance tactics without first obtaining a search warrant, including wire tapping, video taping, photography, searching Plaintiffs' hotel room at the Country Inn & Suites, and searching Plaintiffs' vehicles. [Compl. ¶¶ 69, 71.] On June 7, 2011, Nordell along with numerous other officials executed a search warrant on Plaintiffs' home. [Id. ¶ 72.] Nordell served Mr. Wise with the search warrant and then gathered the Plaintiffs and their children in the living room of the house and questioned Plaintiffs and took photographs while other officers searched the house.*fn1 [Id. ¶¶ 72, 76-104.] During his questioning, Nordell accused Plaintiffs of committing billing fraud. [Id.] At some point, Mr. Wise asked if he could take his children to school, and his request was denied. [Id. ¶ 96.] At the conclusion of the search, the officers took several banker's boxes of evidence from Plaintiffs' home, including Mr. Wise's cell phone and a red laptop computer. [Id. ¶ 99.] Searches and seizures were later conducted on Dr. Wise's office and Plaintiffs' storage facility. [Id. ¶ 105.]

Nordell later contacted and questioned Plaintiffs' friends and business clients about the fraud allegations, revealing private and confidential information and causing injury to Plaintiffs' businesses. [Compl. ¶¶ 109-120, 128-40, 148, 158-77, 182-86.] Plaintiffs contacted Nordell in July 2011 and requested the return of some of the seized evidence that was needed for Dr. Wise's practice. [Id. ¶ 121.] Plaintiffs received this evidence along with the red laptop, but the computer did not work. [Id. ¶ 122.] Eventually, Plaintiffs wrote a letter to District Attorney Dumanis complaining about Nordell's actions, and Plaintiffs were informed that Nordell was being investigated by internal affairs. [Id. ¶¶ 179-80.]

On May 18, 2012, Plaintiffs filed a complaint against the Defendants alleging causes of action for (1) violations of Plaintiffs' civil rights pursuant to 42 U.S.C. § 1983; (2) civil rights conspiracy pursuant to 42 U.S.C. § 1985(3) and California Penal Code § 182(a)(1)(5); (3) Monell claims for unlawful policies customs, habits, and failure to train; (4) a § 1983 claim for failure to supervise; (5) violation of the California Medical Information Act; (6) violation of California Government Code § 6254(c); (7) violation of the Health Insurance Portability and Accountability Act, 42 U.S.C. §§ 1320 et seq.; (8) violation of Plaintiffs' Miranda rights; (9) abuse of power; (10) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") premised upon violation of 18 U.S.C. § 1503(a); (11) violation of RICO premised upon violation of 18 U.S.C. § 1513(e); (12) assault; (13) intentional infliction of emotional distress; (14) negligent infliction of emotional distress; (15) defamation; and (16) intentional interference with prospective economic relations. [Compl.] By the present motion, the County Defendants and the State Defendants move to dismiss the complaint in its entirety. [Doc. Nos. 10, 11.]


I. Legal Standards for a Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6);Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face."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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Iqbal, 556 U.S. at 678.

In addition, factual allegations asserted by pro se plaintiffs, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see alsoIleto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).

II. Analysis

A. The Case or Controversy Requirement

As an initial matter, the County Defendants argue that Plaintiffs' complaint should be dismissed for failure to satisfy Article III's case or controversy requirement, relying on O'Shea v. Littleton, 414 U.S. 488 (1974). [Doc. No. 10-1 at 8-10.] Under Article III, "those who seek to invoke the power of federal courts must allege an actual case or controversy." O'Shea, 414 U.S. at 493. Therefore, plaintiffs in federal court "must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973). "The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.'" O'Shea, 414 at 494. "Abstract injury is not enough." Id.

With respect to Plaintiffs' claims for damages, Plaintiffs have clearly alleged that they have suffered an actual injury in fact satisfying Article III's case or controversy requirement. However, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." O'Shea, 414 U.S. at 495. In the complaint, Plaintiffs seek various forms of injunctive relief. Specifically, Plaintiffs seek (1) an injunction suppressing the use of unlawfully obtained evidence; (2) an injunction ordering the return of any evidence obtained from Defendants' investigation; (3) an injunction against any further harassment, defamation, or the reissuance of a search warrant; and (4) an injunction preventing Defendants from taking any further action. [Compl. ¶¶ 233, 249-50, 260-61, at 77.] However, Plaintiffs do not allege that any criminal proceedings have been instituted against them.*fn2 Therefore, Plaintiff have failed to allege that there is any real or immediate threat that the allegedly unlawfully obtained evidence might be used against them in a criminal proceeding. Plaintiffs' injury at this time is merely hypothetical. Similarly, Plaintiffs do not allege that there is any real of immediate threat that a search warrant will be reissued against them or that the Defendants will engage in any future unlawful conduct. Therefore, based on the allegations in the complaint, these claims for injunctive relief fail to satisfy Article III's case or controversy requirement. See O'Shea, 414 at 494; City of Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983) ("[R]ecognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States' criminal laws in the absence of irreparable injury which is both great and immediate."). The only real and concrete injury that Plaintiffs allege in support of their claims for injunctive relief is that Defendants are currently in possession of Plaintiffs' property that was unlawfully seized and is needed for Dr. Wise's practice. [Compl. ¶¶ 121-22, 188, 255, 264.] Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs' claims for injunctive relief except for their claims related to the return of seized property that is currently in the possession of the Defendants.

B. Eleventh Amendment Immunity

As an another preliminary matter, the State Defendants argue that Plaintiffs' claims against the State and the CBME should be dismissed because they are entitled to immunity under the Eleventh Amendment. [Doc. No. 11-1 at 5-6.] "The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its ...

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