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M. Norman Hammerlord v. City of San Diego

November 2, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court are Defendants City of San Diego and San Diego Police Department's ("City Defendants") motion to dismiss (ECF No. 21), Defendant San Diego Housing Commission's motion to dismiss (ECF No. 23), Defendant Hendershaw and Associates' ("Hendershaw") motion to dismiss, or, in the alternative, to strike Plaintiff's SLAPP suit (ECF No. 24), and Defendant Carl Moccafiche's ("Moccafiche") motion to dismiss, or, in the alternative, to strike Plaintiff's SLAPP suit (ECF No. 25). Also before the Court are the parties' oppositions and replies. The hearing set for all motions on Thursday, November 1, 2012 was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court GRANTS Defendants' motions.


Plaintiff M. Norman Hammerlord ("Plaintiff"), proceeding pro se, brings this action against Defendants alleging violations of 18 U.S.C. § 1001, California Penal Code §118.1, 42 U.S.C. § 1983, the Freedom of Information Act ("FOIA"), the California Public Records Act ("CPRA"), and common law invasion of privacy. (FAC, ECF No. 10.) Plaintiff's claims arise from the following incident involving Defendant San Diego Police Department ("SDPD"). Plaintiff alleges that, on January 3, 2011, four officers from the SDPD acting on an anonymous tip entered his apartment, also described as the "Sanctuary," without a warrant or Plaintiff's consent. (FAC, ECF No. 10 ¶ 8.) The agents allegedly left without arresting or citing Plaintiff, and refused to reveal the source of their anonymous tip. (Id.)

On January 5, 2011, Plaintiff sent a letter to the SDPD requesting "a copy of all files, field notes, and any other document" pertaining to their investigation under the FOIA, specifically requesting the names of the individuals that had made the anonymous tip. (ECF No. 21-4 Exh. B at 4.) On January 10, 2011, Plaintiff received a response from the Deputy City Attorney indicating that the records he sought were "contained within an investigative file" and "exempt from disclosure," and that the SDPD therefore had no documents responsive to his request. (ECF No. 21-4 Exh. B at 5.)

During February 2011, Plaintiff alleges that he discovered that Defendant Moccafiche, the resident property manager for Plaintiff's apartment complex, was a source of the anonymous tip to the SDPD. (FAC, ECF No. 10 at 12-14.) Plaintiff alleges that Moccafiche described Plaintiff as a member of the mafia, a drug dealer, and in possession of drugs. (FAC, ECF No. 10 at ¶ 19.) Plaintiff had previously written a letter to Moccafiche on June 4, 2009, accusing Moccafiche of spreading rumors that Plaintiff was dealing drugs out of his apartment and demanding the names of any other individuals involved. (FAC, ECF No. 10 at ¶ 16.)

During this time, Plaintiff was sent various notices on February 23, 2011, July 11, 2011, and May 31, 2011 by Defendants Moccafiche and Hendershaw regarding the termination of Plaintiff's tenancy. (FAC, ECF No. 10 ¶¶ 17, 20-21.) Plaintiff alleges that Hendershaw, the property management company for Plaintiff's apartment complex, eventually brought a fraudulent unlawful detainer action against Plaintiff and evicted Plaintiff after obtaining a favorable judgment on November 7, 2011. (FAC, ECF No. 10 ¶¶ 22-31.)

Also during this time, Plaintiff alleges that the SDHC received two letters stating that Plaintiff was a mafia member, a drug dealer, and had pounds of drugs in his apartment. (FAC, ECF No. 10 ¶ 32.) Plaintiff alleges that SDHC refused to provide him information regarding those letters when requested. (Id.) Plaintiff further alleges that the SDHC terminated his participation in the Section 8 Rental Assistance Program on September 15, 2011, based on false reports provided by the SDPD. (FAC, ECF No. 10 ¶¶ 35-37.) Plaintiff alleges that the termination hearing was "a sham and a farce" and that the SDHC withheld several documents. (FAC, ECF No. 10 ¶ 38.)

Plaintiff alleges that, sometime later, he received a file from SDHC. (FAC, ECF No. 10 at 7.) With this file, Plaintiff allegedly received four fraudulent police reports related to the January 3, 2011 incident. (FAC, ECF No. 10 ¶ 9.) Plaintiff alleges that the reports falsely state that: (1) Plaintiff gave consent to entry; (2) that various witnesses for the Plaintiff are criminals; (3) that Plaintiff was dealing narcotics; (4) that the officers had identified themselves as police officers; and (5) that various people inside and around the apartment had been engaging in drug use. (FAC, ECF No. 10 at 7-9.)

Plaintiff alleges that Defendants' actions as a whole were part of a "plan of malicious conduct to annoy, harass, and obstruct Plaintiff's property rights." (FAC, ECF No. 10 at ¶ 19.) Based on these allegations, Plaintiff pursues the following federal claims against all Defendants: (1) fraudulent statements in violation of 18 U.S.C. § 1001 and (2) violation of the Civil Rights Act, 42 U.S.C. § 1983.*fn1 Plaintiff further alleges a federal claim against City Defendants and SDHC for violation of the FOIA, 5 U.S.C. § 552. Plaintiff also alleges state claims: (1) against all Defendants for invasion of privacy; (2) against City Defendants and SDHC for violation of the CPRA; and (3) against Defendant SDPD for violation of California Penal Code § 118.1.


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "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 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

"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.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 679 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotations omitted).

Relevant here, the Court has a duty to liberally construe a pro se's pleadings, see Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, a court may not "supply essential elements of the claim that was not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Pro se complaints are to be construed liberally and may be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of ...

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