United States District Court, S.D. California
ORDER GRANTING IN PART MOTION TO DISMISS
Larry Alan Burns United States District Judge.
City of San Diego removed this action from state court, then
moved to dismiss for failure to state a claim.
motion to dismiss challenges the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). The Court must accept all factual allegations as
true and construe them in the light most favorable to
Plaintiffs. Cedars Sinai Med. Ctr. v. Nat'l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
pleading standard is governed by Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Although
Plaintiff's opposition cites the “any set of
facts” (or “no set of facts”) standard,
Twombly rejected this. 550 U.S. at 561-62.
well-pleaded facts must do more than permit the Court to
infer “the mere possibility of misconduct”; they
must show that the pleader is entitled to relief.
Iqbal, 556 U.S. at 679. To defeat the motions to
dismiss, the factual allegations need not be detailed, but
they must be sufficient to “raise a right to relief
above the speculative level . . . .” Twombly,
550 U.S. at 555. A plaintiff must plead facts, not mere
“labels and conclusions.” Id. Legal
conclusions, unlike facts, are not presumed to be
true and the Court need not accept them as such or rely on
them even if they are cast in the form of factual
allegations. Warren v. Fox Family Worldwide, Inc.,
328 F.3d 1136, 1139 (9th Cir. 2003).
assessing the adequacy of a complaint, the Court must look at
the complaint itself, and not to explanations provided in the
opposition. New or expanded allegations in opposition to a
motion to dismiss are considered when deciding whether to
grant leave to amend, but are not considered when ruling on a
12(b)(6) motion. See Schneider v. Cal. Dep't of Corr.
& Rehab., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
See also Broam v. Bogan, 320 F.3d 1023, 1026 n.2
(9th Cir. 2003).
complaint is dismissed for failure to state a claim,
ordinarily leave to amend is granted. See Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003) (per curiam). But leave to amend will be denied
where it is clear the complaint cannot be saved by amendment.
the complaint was filed in state court, where federal
pleading standards do not apply, it is not surprising that
the complaint does not meet federal pleading standards. That
being said, it clearly does not.
claims stem from property damage to a house by the City's
peace officers during a search or investigation. The
complaint conclusorily alleges that, although the house and
its occupants were not reasonably connected with any criminal
investigation, the officers damaged it. (Compl., & 6.)
The circumstances of the search or investigation are not
alleged. Whether the officers were executing a warrant is not
alleged. No facts are alleged that explain why there was no
connection between the house and any investigation, and why
damaging the house was unreasonable.
is alleged to be the property owner's subrogee, because
it paid for damaged to the home. As to ordinary tort claims
for property damage, this does not appear to present a
standing problem. But the Complaint also brings ' 1983
claims for alleged “rights, privileges and
immunities” under, “inter alia, the Fourth and
Fourteenth Amendments” without rights were violated, or
what constituted violations of those rights, or alleging that
Plaintiff paid its insured for those violations. Nor does the
Complaint allege facts showing that Plaintiff's insured
has standing to sue for violations of his constitutional
Complaint also does not spell out the relationship between
the insured property, the property's owner (or former
owner), and Plaintiff. It does not, for example, allege that
the property's owner owned the house at the time of the
search, or that he had an insurance policy with Plaintiff.
be that Plaintiff can successfully amend to correct these
defects. If it believes it can do so, it may file an amended
complaint by April 19, 2018. If
Plaintiff does not amend, or if its amended complaint does
not correct these defects, it may be dismissed in whole or in