Fortune Players Group, Inc. v. Quint

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

          THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

         This matter came before the Court on June 20, 2016 for a hearing on Defendants’ motion to dismiss. Having carefully considered the parties’ written and oral arguments, the Court now GRANTS IN PART AND DENIES IN PART Defendants’ motion for the reasons set forth below.

         FACTUAL BACKGROUND ^[1]

         Plaintiff Fortune Players Group, Inc. (“Fortune Players Group”) is a California corporation engaged in the business of third party propositional player services. Compl. ¶ 3 (Docket No. 1). Plaintiffs Angelita De Los Reyes and Vanessa Parungao are employees of Fortune Players Group and perform clerical and administrative functions. Id. ¶ 4. Defendant Wayne Quint, Jr. is the Bureau Chief for the Bureau of Gambling Control (the “Bureau”) for the State of California, and is responsible for all investigatory functions as required under the Gambling Control Act, as set forth in California Business and Professions Code Section 19800 et seq. Id. ¶ 5. The individual defendants are Special Agents and Licensing Unit Employees for the Bureau. Id. ¶¶ 6-7.

         Beginning in 2010, Fortune Players Group contracted with Lucky Chances Casino, a licensed gambling establishment located in Colma, California. Id. ¶ 11. Both Fortune Players Group and Lucky Chances Casino are regulated by the Bureau. Id. ¶ 12. Rene Medina, who is not a party to this lawsuit, previously owned an interest in Lucky Chances Casino, but sold his interest in 2007. Id. ¶ 16. Medina’s license prohibits him from entering, being present in, or in any way patronizing (a) the areas within Lucky Chances Casino in which controlled gambling is conducted or (b) any other areas related to the gambling operation. Id. These licensing conditions do not apply to Fortune Players Group, and Medina has never owned an interest in Fortune Players Group. Id. On July 1, 2014 the Department of Fair Employment and Housing filed a lawsuit in San Mateo County Superior Court on behalf of Fortune Players Group employee Maria Escueta, alleging she was denied a promotion because of discrimination and retaliation. Id. ¶ 13. During testimony at trial, a witness indicated that Medina somehow controlled the operations of both Fortune Players Group and Lucky Chances Casino. Id. ¶ 14.

         On October 15, 2015, six Special Agents of the Bureau of Gambling Control and two licensing unit employees entered the offices of Fortune Players Group without an appointment or warrant. Id. ¶ 19. Plaintiffs Parungao and De Los Reyes were present at the office, and were photographed and questioned while the Fortune Players Group offices were searched. Id. ¶¶ 20-23. During the search, neither Parungao nor De Los Reyes were permitted to leave or to answer ringing business phones, and they were only permitted to use the restroom upon request and with an escort. Id. ¶¶ 24-26. Defendant Special Agent Yolanda Sanchez instructed De Los Reyes to open her cell phone, then Sanchez, along with Defendant Special Agent Aaron Wong, copied and forwarded some of De Los Reyes’ private messages. Id. ¶ 27. The search and seizure lasted nearly 5 hours. Id. ¶ 29. Plaintiffs contend that Defendants seized not only the property of Fortune Players Group but also the personal property of Parungao and De Los Reyes. Id. ¶ 23.

         LEGAL STANDARD

         Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff’s allegations fail “to state a claim upon which relief can be granted.” To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 547, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. Such a showing “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 545, 555.

         In ruling on a motion to dismiss, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007). Courts are not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (citation omitted). Any dismissal should be with leave to amend, unless it is clear that amendment could not possibly cure the complaint’s deficiencies. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296, 1298 (9th Cir. 1998).

         DISCUSSION

         Defendants filed the instant motion to dismiss on April 12, 2016. Docket No. 16. Plaintiffs timely opposed (Docket No. 20), and Defendants timely replied (Docket No. 21). Defendants move to dismiss all remaining claims in the Complaint.^[2] The Court will address each remaining claim in turn.

         I.FACIAL CHALLENGES TO SECTION 19827

         At the outset, the Court notes that it may consider a constitutional challenge to a statute on a motion to dismiss, so long as the consideration does not go beyond the four corners of the Complaint, or any documents attached thereto or incorporated by reference therein. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The statute at issue provides in pertinent part:

(a) The department has all powers necessary and proper to enable it to carry out fully and effectually the duties and responsibilities of the department specified in this chapter. The investigatory powers of the department include, but are not limited to, all of the following:

(1) Upon approval of the chief, and without notice or warrant, the department may take any of the following actions:

[…]

(D) Summarily seize, remove, and impound any equipment, supplies, documents, or records from any licensed premises for the purpose of examination and inspection. However, upon reasonable demand by the licensee or the licensee's authorized representative, a copy of all documents and records seized shall be made and left on the premises.

[…]

(b) (1) Subdivision (a) shall not be construed to limit warrantless inspections except as required by the California Constitution ...