United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FIRST
AMENDED COMPLAINT AND MOTION FOR A MORE DEFINITE STATEMENT;
GRANTING MOTION TO STRIKE (DOC. NO. 9)
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
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.
The Inspection and Abatement Warrant
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.)
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.)
The August 2014 Mandamus Action
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.)
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.)
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. 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.)
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 ...