United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING ING IN PART
DEFENDANTS' MOTION TO DISMISS [DOC. 10]
Thomas J. Whelan United States District Judge.
California Department of Justice Special Agent Richard Sotelo
and Special Agent Supervisor Ernesto Limon move to dismiss
the Complaint under Federal Rule of Civil Procedure 12(b)(6).
Court decides the matter on the papers submitted and without
oral argument. See Civ. L.R. 7.1(d.1). For the reasons that
follow, the Court GRANTS Defendants' motion [Doc. 10]
with regard to Defendant Limon as to the first cause of
action, and GRANTS the motion as to Plaintiff's fourth
cause of action for conversion. The Court DENIES
Defendants' motion to dismiss all other causes of action.
James Adams is an Immigration and Customs Enforcement
(“ICE”) Agent. (First Amended Complaint
(“FAC”) [Doc. 3] ¶ 15.) Defendant Richard
Sotelo is an agent with the California Department of
Justice's (“DOJ”) Bureau of Firearms, and
Defendant Ernest Limon is Sotelo's supervisor.
(Id. ¶ 11.)
lived with his girlfriend, Mary Beltran, and her three
children. (FAC ¶ 16.) On March 20, 2015, Adams,
Ms. Beltran and her son, Roman, had an argument.
(Id. ¶ 17.) Ms. Beltran called the police and
Roman effected a citizen's arrest of Adams for battery.
(Id. ¶¶17-18.) Adams was subsequently
charged with battery under California Penal Code § 242.
(Id. ¶ 19.)
later admitted that his statements to police were not true,
that he was angry at the time, and did not realize how much
trouble he could cause Mr. Adams. (FAC ¶ 20.)
On June 8, 2015, he completed a form dropping the charges.
(Id. ¶ 21.) At a hearing the same day, San
Diego Superior Court Judge Matthew C. Braner issued an order
specifying that there be “no negative contact”
between Adams and the Beltrans (the “Order”), but
the Judge allowed Adams to retain his service weapon and
personal firearms. (Id. ¶¶ 23, 24.) Judge
Braner also declined to issue a protective order or a
restraining order against Adams. (Id. ¶¶
25, 33.) Four days later, Ms. Beltran filled out a
non-prosecution form. (Id. ¶ 22.)
13, 2015, Agent Sotelo received a referral from the DOJ's
Armed Prohibited Persons System (“APPS”)
identifying Adams as the subject of a domestic violence
(“DV”) restraining order and corresponding
prohibition of firearms and ammunition. (FAC
¶¶ 31, 32.) After receiving the referral, Sotelo
visited Adams' home and spoke with Ms. Beltran.
(Id. ¶ 35.) She informed Sotelo that there was
no outstanding DV order against Adams, nor any prohibition on
his firearms. (Id. ¶¶ 35, 41;
Opp'n [Doc. 11] 3:12-13.)
that evening, Agent Sotelo obtained a search warrant for
Adams' residence from San Diego Superior Court Judge
William Dato. (FAC ¶¶ 29, 30, 35.)
Sotelo's sworn telephonic declaration stated that he
received the APPS referral, which identified Adams as being
prohibited from possessing firearms or ammunition, pursuant
to a domestic violence restraining order. (Id.
¶¶ 31, 32.) Sotelo did not disclose his
conversation with Ms. Beltran to Judge Dato. (Id.
approximately 3:00 a.m. the next morning, Sotelo, Supervisor
Limon, and other unknown DOJ Agents executed the search
warrant at Adams' home. (FAC ¶ 47.) Adams
presented Sotelo with a copy of Judge Braner's Order and
insisted that no restraining order existed; however, Adams
alleges, “[d]espite seeing the document, Sotelo
insisted on executing the warrant.” (Id.
¶¶ 42-44.) Adams also contends that Sotelo refused
his requests to contact the prosecutor or the court to verify
the information. (Id. ¶ 45.) Instead,
Defendants detained Adams, Ms. Beltran and her children at
gunpoint. (Id. ¶¶ 53-56.) Adams also
alleges that Defendants aggressively handcuffed and detained
him for approximately three hours until they transported him
to the San Diego Central Jail, and that Defendants handcuffed
Ms. Beltran for approximately one hour until Adams revealed
the combination to his gun safe. (Id. ¶¶
47, 49-54, 64-66, 69, 85-90.)
January 14, 2016, Adams filed an administrative claim with
the California Victim Compensation and Government Claims
Board against Sotelo, Limon and others. (See Def.'s
RJN [Doc. 10-2] Exhibit 1.) Presumably the claim was
August 26, 2016, Adams filed this lawsuit against Defendants,
the County of San Diego, the California DOJ, and Deputy
District Attorney Myers, alleging that the warrant was
obtained in violation of Franks v. Delaware, 438
U.S. 154 (1978), and asserting claims for wrongful detention,
refusal to return seized property and excessive force under
42 U.S.C. § 1983, and a state-law negligence claim.
(Complaint [Doc. 1].) On September 19, 2016, Adams
filed the FAC, removing all defendants except for Sotelo and
Limon, and adding state-law conversion, battery, and Bane Act
claims. Defendants now seek to dismiss the FAC arguing it
fails to allege sufficient facts to support Adams'
claims, and that qualified immunity applies to the
Franks' violation and wrongful-detention claims.
(P&A [Doc. 10-1].) Adams opposes the motion.
(Opp'n [Doc. 11].)
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. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). 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. Balisteri v. Pacifica
Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In
ruling on the motion, 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. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has
interpreted this rule to mean that “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555 (2007). The allegations in
the complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
allegations in the complaint are assumed true, but a court is
not required to accept legal conclusions couched as facts,
unwarranted deductions, or unreasonable inferences. See
Papasan v. Allain, 478 U.S. 265, 286 (1986);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
The FAC's factual allegations support a Franks'
first cause of action alleges a claim for violation of
Franks v. Delaware, 438 U.S. 154 (1978), based on
the contention that the search warrant was invalid because it
was “obtained by the inclusion of false statements,
known to be false, or made with reckless
disregard….” (FAC ¶ 95.)
Defendants dispute this contention, and argue the cause of
action must be dismissed because Adams fails to
“identify any statement by Sotelo that was not derived
from the APPS database information he, or any other law
enforcement officer, would rely upon….”
central problem with Defendants' argument is it ignores
the information Sotelo received from Ms. Beltran-one of the
victims of Adams' alleged crime. The FAC alleges that
before Sotelo obtained the search warrant, he talked to Ms.
Beltran, who informed him that “there was no domestic
violence order, and that Mr. Adams was not prohibited from
possessing firearms.” (FAC ¶¶ 35,
41; Opp'n 3:12-13.) In applying for the search
warrant later that evening, Sotelo failed to disclose this
information to Judge Dato. (Id. ¶¶ 29-33.)
Based on these facts, the issue is not-as Defendants suggest-
whether the law required “some sort of ‘further
investigation' before” Sotelo obtained the search
warrant. Rather, the issue is whether Sotelo was obligated to
provide Judge Dato with the information obtained from the
alleged victim of the crime, which likely negated probable
cause for the search warrant.
to a search there is an obligation to bring to the attention
of an issuing magistrate any change of circumstance based
upon additional or corrective information known to government
agents, if the new information could reasonably have affected
the judicial officer's decision had it been made known to
him before issuance of the warrant.” United States
v. Morales, 568 F.Supp. 646, 649 (E.D.N.Y. 1983). For
example, in U.S. v. Bowling, 900 F.2d 926 (6th Cir.
1990), while one group of officers was obtaining a warrant, a
second group was waiting outside the defendants' home. At
some point, defendants consented to a search by the second
group of officers, which was performed hastily and revealed
nothing incriminating. When the first group of officers later
arrived with ...