United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [ECF No. 5]
M. JAMES LORENZ, District Judge.
Defendants City of San Diego and Shelly Zimmerman move to dismiss plaintiffs' complaint in its entirety. The motion has been fully briefed and is decided on the papers submitted under Civil Local Rule 7.1(d)(1).
San Diego Ordinance O-18885 places certain businesses and occupations under the direct regulatory authority of the police. SAN DIEGO MUN. CODE ("MC"), Ch. 3, Art. 3, Div. 1, § 33.0101 (2000). The ordinance states that the " Chief of Police shall make, or cause to be made, regular inspections of all police-regulated businesses." Id. § 33.0103(a). "Any police code compliance officer assigned by the Chief of Police to conduct inspections shall have free access to any police-regulated business during normal operating hours." Id. § 33.0103(b). Police-regulated businesses must acknowledge that the police have a right of reasonable inspection to enforce the ordinance at the time they apply for a police permit to operate their business. Id. § 33.0103(c). Further, it is "unlawful for any permittee or employee to prevent or hinder any police code compliance officer from conducting an inspection." Id. § 33.0103(b). The right of reasonable inspection "includes the right to require identification from responsible persons or employees on the premises, " and the refusal to allow inspection "upon reasonable demand or the refusal to show identification by responsible persons or employees is grounds for the suspension, revocation, or other regulatory action against the police permit. " Id.
One such police-regulated business is the "nude entertainment business, " which is further regulated under § 33.3601 et seq. of the Municipal Code. The purpose of this specific division of the Code is to protect the public by providing minimum standards, "including the prevention of prostitution, obscenity, lewd acts, money laundering, and the infiltration of organized crime and its associated problems." MC § 33.3601. The Municipal Code also explains that it is not enacted "to deny adults access to adult oriented materiels protected by the First Amendment, or to deny access by the distributors and exhibitors of adult oriented entertainment to their intended market." Id.
Plaintiffs are all adult entertainers at two San Diego adult entertainment establishments, Cheetahs Gentleman's Club ("Cheetahs") and Club Expose ("Expose"). According to the Complaint, on July 15, 2013, approximately 15 San Diego police officers conducted an inspection of Cheetahs; on March 6, 2014, approximately ten San Diego police officers again inspected Cheetahs; and a similar inspection was conducted at the same time at Expose in San Diego, with approximately five police officers involved. In each instance, the police officers were wearing sidearms and bullet proof vests. Some officers were stationed at the entrances and exits of each location. Other officers entered the entertainers' private dressing rooms. The plaintiff adult entertainers were not permitted to leave the establishment during the inspection.
While in the dressing rooms, officers questioned each of the entertainers; required the entertainers to provide their entertainer permits, drivers' licenses, and social security numbers; and inquired whether the entertainers had tattoos or body piercings. In addition, the police officers took photographs of different parts of the adult entertainers' semi-nude bodies, and certain officers made arrogant and demeaning remarks.
On July 17, 2014, plaintiffs initiated this action in the Superior Court of the State of California, in and for the County of San Diego against the City of San Diego, Chief of Police Shelly Zimmerman, and a number of Doe Defendants ("Defendants"). The Complaint alleges violation of California Civil Code § 1708.8(c); false imprisonment; violation of California Civil Code § 52.1; unreasonable search and seizure of person under 42 U.S.C. § 1983; negligence; failure to properly train under 42 U.S.C. § 1983; and ratification by an official with final policymaking authority under 42 U.S.C. § 1983. On August 20, 2014, Defendants removed the case to this Court and now move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6).
II. LEGAL STANDARD
The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement 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 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. Thus, "[t]o 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.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "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." Id. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).
Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, the court may consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Courts may also take judicial notice of "matters of public record.'" Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The court may consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
A. Initial Arguments
1. Use of Pseudonyms
As noted above, plaintiffs are using their first names and last initials to identify themselves. Prior to removal to this court, the Superior Court granted plaintiffs' ex parte application to proceed as pseudonymous plaintiffs. Nevertheless, defendants assert that plaintiffs cannot proceed using a pseudonym because they have not received leave from this Court to do so. Defendants further contend that the use of pseudonyms should only be granted "in an unusual case, where there is a need for the cloak of anonymity." U.S. v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008)
"All injunctions, orders, and other proceedings in an action prior to its removal remain in full force and effect until dissolved or modified by the federal court." 28 U.S.C. § 1450. In other words, "[w]hen a case is removed the federal court takes it as though everything done in the state court had in fact been done in the federal court." Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996) (quoting Savell v. Southern Ry Co., 93 F.2d 377, 379 (5th Cir. 1937).
Here, because the state court granted plaintiffs' request for anonymity prior to removal, and this Court has no reason to dissolve or modify the state court's decision, plaintiffs may properly proceed under the pseudonym "Jane Doe" and "shall hereafter be referred to only by a first name and last initial in all pleadings and correspondence, at all hearings and in any other matters before the Court in this action." (Notice of Removal, Exh. A, July 18, 2014 Order.)
2. Use of Doe Defendants
Defendants contend that plaintiffs cannot use "Doe Defendants" to vicariously impose liability because a federal cause of action that fails to name or identify a defendant is insufficient for liability. According to defendants, the use of "John Doe" defendants is simply not cognizable in federal courts under the Federal Rules of Civil Procedure. However, as plaintiffs correctly note, the use of "John Doe" defendants is proper in federal court where, if "the identity of the alleged defendants will not be known prior to the filing of a complaint[, ]... the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
Plaintiffs cannot always be expected to know the identities of the unnamed officers involved in the complained of inspection without the assistance of discovery. Additionally, it is likely that discovery will uncover the identity of the unnamed officers. Accordingly, plaintiffs are permitted to use "Doe defendants" in their complaint. However, plaintiffs are admonished to promptly name and serve the Doe defendants once their identity is obtained.
"If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. The 120-day period for service of the summons and complaint applies to Doe defendants. See Morris v. Barra, 2012 WL 1059908, at *2 (S.D. Cal. Mar.28, 2012). Further, the filing of an amended complaint does not toll the service period, i.e., the filing of an amended complaint does not provide an additional 120 days for service. See Wright & Miller, Federal Practice and Procedure: Civil ...