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Occhionero v. Salinas

United States District Court, E.D. California

June 23, 2016

GREGORY OCCHIONERO, Plaintiff,
v.
RICHARD SALINAS, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT AND MOTION FOR A MORE DEFINITE STATEMENT; GRANTING MOTION TO STRIKE (DOC. NO. 9)

         This matter came before the court on defendant's motion to dismiss plaintiff's first amended complaint for failure to state a claim, motion for a more definite statement, and motion to strike portions of the first amended complaint. (Doc. No. 9.) A hearing on these motions was held on May 17, 2016. Attorney Joseph D. Rubin appeared on behalf of defendant. Attorney Bryan C. Leighton appeared on behalf of plaintiff. The court has considered the parties' briefs and oral arguments, and for the reasons set forth below, denies defendant's motion to dismiss and motion for a more definite statement, and grants defendant's motion to strike.

         BACKGROUND

         A. Factual Background

         This action arises from defendant's declaration allegedly submitted in support of an inspection and abatement warrant and execution thereof. According to his first amended complaint, plaintiff Gregory Occhionero operated a storage facility, owned by his parents, for recyclable material in the City of Fresno. (Doc. No. 7 ¶¶ 5-6.) Pursuant to a revised site plan approved by the city's planning commission in October 2011, plaintiff was subject to several requirements relating to the operation of and storage of materials at his storage facility site. (Id. ¶¶ 6-11.)

         1. The Inspection and Abatement Warrant

         On December 5, 2013, defendant Richard Salinas, a specialist with the city's code enforcement division, submitted a declaration in support of a request for an inspection and abatement warrant to the Fresno County Superior Court. Therein, defendant allegedly stated that materials were improperly stored in violation of the revised site plan and also made false statements about the condition of materials stored at the site. (Id. ¶¶ 14-15.) That same day, the state court issued the inspection and abatement warrant, authorizing defendant

[t]o enter and (1) inspect the premises of the Subject Property including an area enclosed by a locked fence; (2) abate the conditions constituting the violations listed above, including removal of any rubbish or junk located throughout the property; and (3) situate and store the commodities currently on the Subject Property that do not comply with the approved Site Plans S-96-76 and S-11-057 in a similar manner as they are stored on the Subject Project including, but not limited to, containers and bins for a period of up to ninety days.

(Id. ¶¶ 12, 16.)

         From December 16 to 18, 2013, defendant Salinas, and others under his supervision, executed the inspection and abatement warrant. Defendant removed over seventy percent of the material located on plaintiff's property. Defendant and others also allegedly transported and stored the materials in a manner that rendered them useless for recycling purposes. (Id. ¶¶ 17- 18.)

         2. The August 2014 Mandamus Action

         On August 15, 2014, plaintiff and his parents filed a state court petition for mandamus relief, pursuant to California Code of Civil Procedure §§ 1094.5 and 1094.6, against the City of Fresno ("City") and its planning commission. (Doc. No. 9-3.) Petitioners challenged the planning commission's procedures and actions taken thereunder regarding their storage facility. (Id. at 1.) Specifically, petitioners challenged two notices issued by the City: (1) an October 24, 2013 notice and order stating that materials stored on the property were out of compliance with the applicable site plan, and (2) a January 2, 2014 notice seeking costs of the abatement of materials from the property during the December 16-18, 2013 period. (Id. at 2-4.) Petitioners asserted that the December 5, 2013 inspection and abatement warrant amounted to a general warrant prohibited by the Fourth Amendment. (Id. at 17-18.) Regarding the December 5, 2013 inspection and abatement warrant, petitioners alleged that the warrant issued by the state court was drafted by the City, and that the City failed to comply with the court's order in executing the warrant. (Id.)

         On August 7, 2015, the state court issued an order granting in part the mandamus petition. Regarding petitioners' Fourth Amendment cause of action, however, the state court declined to grant relief and noted "petitioners never raised this issue before the hearing officer" when they appealed the City's notices to the City's hearing officer. (Doc. No. 9-6 at 53-54.)

         B. Procedural Background

         Plaintiff commenced this action in state court on December 17, 2015. (See Doc. No. 1-1.) On March 7, 2016, defendant removed the action to this court. (Doc. No. 1.) On March 29, 2016, plaintiff filed a first amended complaint alleging two claims against defendant Salinas pursuant to 42 U.S.C. § 1983. (Doc. No. 7.) First, plaintiff alleges defendant Salinas violated the Fourth Amendment in making false statements to secure the inspection and abatement warrant from the state court. Second, plaintiff alleges defendant Salinas violated the Fourth Amendment in failing to properly execute the state court warrant.[1] On April 11, 2016, defendant filed the instant motions to dismiss, for a more definite statement, and to strike the first amended complaint. (Doc. No. 9.) On April 29, 2016, plaintiff filed his opposition. (Doc. No. 10.) On May 9, 2016, defendant filed his reply. (Doc. No. 11.)

         DISCUSSION

         A. Judicial Notice

         As an initial matter, the court grants defendant's request for judicial notice of state court records. See Fed. R. Evid. 201; Lee v. City of Los Angeles,250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman,803 F.2d 500, 504 (9th Cir. 1986) (on a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings). Accordingly, as discussed further below, the court will take judicial notice of Exhibits A and G to ...


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