Dahlin v. Frieborn

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JAMES DAHLIN, et al., No. 2:17-cv-02585-MCE-AC 12 Plaintiffs, 13 v. MEMORANDUM AND ORDER 14 ROSEMARY FRIEBORN, et al., 15 Defendants. [16] 17 By way of this action, Plaintiffs James and Kimberly Dahlin (the “Dahlins”), and 18 Toby and Martina Tippets (the “Tippets,” and collectively with the Dahlins, “Plaintiffs”) 19 assert 11 federal and state causes of action against various municipal and non20 municipal Defendants stemming from the seizure of various items and 57 dogs from the 21 Dahlins’ property, where they own and operate a dog breeding business.1 22 Presently before the Court are three individually briefed Motions to Dismiss 23 Plaintiffs’ First Amended Complaint (“FAC”), ECF No. 71, filed by the following groups of 24 Defendants: (1) City of Auburn, Auburn Police Department, Community Service Officer 25 Debby Nelson, Police Officer Phillip Isetta, Police Officer Angela McCollough, and Police 26 Sergeant Huey Tucker (hereinafter collectively “City Defendants”), ECF No. 80 (“City 27 Mot.”); (2) Rosemary Frieborn, Curt Ransom, the Humane Society of the Sierra Foothills, 28 1 The Tippets rent a home on the Dahlins’ property. 1 Inc. (“HSSF”), Marilyn Jasper, Cassie Reeves, Katie Newman, Sherry Couzens, Michael 2 Crosson, Friends of Auburn/Tahoe Vista-Placer County Animal Shelter, Inc. (“Friends of 3 the Animal Shelter”), Friends of Placer County Animal Shelter, Friends of Auburn/Tahoe 4 Vista Placer County Animal Shelter, Edward Fritz, and Shana Laursen (hereinafter 5 collectively “Non-Municipal Defendants”), ECF No. 81 (“Non-Municipal Mot.”); and 6 (3) Dr. Thomas Sheriff, DVM, ECF No. 86 (“Sheriff Mot.”). For the reasons that follow, 7 each Motion to Dismiss is GRANTED.2 [8] 9 BACKGROUND [10] 11 Plaintiffs started a Havanese dog breeding business in 1997. FAC ¶ 29. In 12 February 2001, Plaintiffs purchased a 35-acre property in Auburn, California, to expand 13 this business. FAC ¶ 45. 14 On October 28, 2016, an Auburn police officer contacted Plaintiffs regarding a 15 barking complaint, which led Plaintiffs to schedule bark softening surgery for twenty to 16 thirty dogs with Dr. Sheriff. FAC ¶¶ 54, 57. After several of these surgeries were 17 performed, Officer Nelson of the Auburn Police Department visited Plaintiffs’ property on 18 November 15, 2016, to investigate Plaintiffs’ mass scheduling of those surgeries. FAC 19 ¶¶ 59, 60. Nelson subsequently disclosed information on Plaintiffs’ dog breeding 20 operation to Humane Officer Frieborn. FAC ¶ 65. Apparently, Nelson and Frieborn had 21 concerns that the dogs at Plaintiffs’ property were being neglected. Non-Municipal Mot., 22 ECF No. 81, at 5. 23 Just over one week later, on November 23, 2016, Frieborn visited Dr. Sheriff to 24 request treatment records of Plaintiffs’ dogs, which Dr. Sheriff refused to provide without 25 a warrant. FAC ¶ 67. During the course of this visit, Frieborn also requested these 26 records from two of Dr. Sheriff’s veterinary technicians—both of whom similarly refused. [27] 2 Because oral argument would not be of material assistance, the Court ordered this matter 28 submitted on the briefs. E.D. Cal. Local Rule 78-230(h). 1 FAC ¶ 69. The veterinary technicians did, however, provide signed declarations 2 detailing the technicians’ suspicions that Plaintiffs’ dogs were being neglected. FAC 3 ¶ 113; City Mot., ECF No. 80-2 at 10–13.3 Conversely, Dr. Sheriff provided a declaration 4 stating Plaintiffs’ dogs were in good health. FAC ¶ 68. 5 Thereafter, Frieborn submitted the veterinary technicians’ affidavits to support the 6 issuance of a warrant to search Plaintiffs’ property. FAC ¶ 73. The search warrant 7 provided seven categories of items which could be seized during the search, one of 8 which included seizing any “animal . . . found in a neglected and/or abused condition and 9 all animals kept in such a way to be further subjected to neglect and/or abuse.” City 10 RJN, ECF No. 80-2, at 16. 11 After receipt of the warrant, Frieborn coordinated with the Auburn Police 12 Department and various Friends of the Humane Society to conduct a search, which 13 occurred on December 9, 2016. FAC ¶ 52. During the execution of the warrant, 14 Plaintiffs claim that they were told to remain in sight of the officers. FAC ¶ 95. However, 15 Plaintiffs were permitted to leave the property. Id. During the course of the 12-hour 16 search, 57 Havanese dogs and various documents belonging to Plaintiffs were seized. 17 FAC ¶ 96. 18 A hearing was subsequently held concerning the seizure of Plaintiffs’ animals. 19 This hearing outlined that, as a condition of returning the seized dogs, Plaintiffs were 20 required to pay the veterinary and boarding costs of the animals. Once the state court’s 21 /// [22] 3 City and Non-Municipal Defendants each request that the Court take judicial notice of five 23 documents, which include: (1) the Affidavit of Search Warrant (Ex. A to City RJN; Ex. A to Non-Mun. RJN); (2) the Search Warrant (Ex. B to City RJN; Ex. B to Non-Municipal RJN); (3) the Order for Release (Ex. C 24 to City RJN; Ex. C to Non-Mun. RJN); (4) the Order After Hearing (Ex. D to City RJN; Ex. D to Non-Mun. RJN); and (5) the Notice of Decline to Prosecution (Ex. E to City RJN; Ex. E to Non-Mun. RJN). See City 25 RJN, ECF No. 80-2; Non-Mun. RJN, ECF No. 82. Non-Municipal Defendants also ask that the Court take judicial notice of the letter to Judge Pineschi. Non-Mun. RJN, ECF No. 82, Ex. F, at 32-33. The Court may take judicial notice of documents in the public record if the facts are not “subject to reasonable [26] dispute.” Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), overruled on other grounds, Galbraith v. Cnty. of Santa Clara, 307 F. 3d 1119 , 1125 (9th Cir. 2002); see also Fed. R. Evid. 201(b). [27] City Defendants and Non-Municipal Defendants RJNs are GRANTED as to Exhibits A, B, C, and D. However, because the Court did not need to consider the County DA’s letter or the letter to Judge 28 Pineschi, the requests for judicial notice of these documents are DENIED. 1 fee deadline had passed with no payment, the dogs were released to the Humane 2 Society’s care. Thereafter, Plaintiffs filed the present action. [3] 4 STANDARD [5] 6 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 7 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 8 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 9 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain 10 statement of the claim showing that the pleader is entitled to relief” in order to “give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 12 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 , 13 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 14 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 15 his entitlement to relief requires more than labels and conclusions, and a formulaic 16 recitation of the elements of a cause of action will not do.” Id. (internal citations and 17 quotations omitted). A court is not required to accept as true a “legal conclusion 18 couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) 19 (quoting Twombly, 550 U.S. at 555 ). “Factual allegations must be enough to raise a right 20 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 21 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 22 that the pleading must contain something more than “a statement of facts that merely 23 creates a suspicion [of] a legally cognizable right of action.”)). 24 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 25 assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and 26 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 27 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 28 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles 1 Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough 2 facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . 3 have not nudged their claims across the line from conceivable to plausible, their 4 complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed 5 even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a 6 recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 7 232, 236 (1974)). 8 A court granting a motion to dismiss a complaint must then decide whether to 9 grant leave to amend. Leave to amend should be “freely given” where there is no 10 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 11 to the opposing party by virtue of allowance of the amendment, [or] futility of the 12 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 13 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 14 be considered when deciding whether to grant leave to amend). Not all of these factors 15 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 16 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183 , 17 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 18 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 19 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006 , 20 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 21 1989) (“Leave need not be granted where the amendment of the complaint . . . 22 constitutes an exercise in futility . . . .”)). [23] 24 ANALYSIS [25] 26 As an initial matter, the Court notes that Plaintiffs’ FAC suffers from a lack of 27 clarity and presents significant organizational deficiencies, which makes deciphering 28 /// 1 which facts apply to particular claims and specific Defendants difficult. When the Court 2 is unable to decipher Plaintiffs’ factual contentions, this inability is noted. 3 The FAC sets forth 11 Causes of Action (“COA”) arising under both federal and 4 state law: (1) violation of the Fourteenth Amendment; (2) violation of the Fourth 5 Amendment for unreasonable search and seizure; (3) violation of Veterinarian-Patient6 Client Confidentiality pursuant to California Business and Professions Code (“B&P”) 7 Section 4857; (4) Monell Claims; (5) Unreasonable Search and Seizure under Article 1 8 to Section 13 of the California Constitution; (6) False Imprisonment; (7) Intentional 9 Infliction of Emotional Distress (“IIED”); (8) Conversion; (9) Trespass; (10) Negligence; 10 and (11) Interference with Contract. The Court first addresses Plaintiffs’ federal COAs, 11 then turns to the state law claims. 12 A. Federal Claims 13 1. First COA (Fourteenth Amendment) 14 Plaintiffs bring a due process claim under the Fourteenth Amendment based on 15 the lack of a pre-seizure hearing.4 A § 1983 claim based upon procedural due process 16 requires both (1) a deprivation of a liberty or property interest protected by the 17 Constitution, and (2) a denial of adequate procedural protections. See Wilkinson v. 18 Austin, 545 U.S. 209, 221 (2005); see also Brewster v. Bd. of Educ. of the Lynwood 19 Unified Sch. Dist., 149 F.3d 971 , 982 (9th Cir. 1998). To have a property interest, a 20 person must have a legitimate claim of entitlement to the property. See Bd. of Regents 21 of State Colls. v. Roth, 408 U.S. 564, 577 (1972). “Property interests, of course, are not 22 created by the Constitution. Rather they are created and their dimensions are defined 23 by existing rules or understandings that stem from an independent source such as state [24] 25 4 The Court is unable to determine which Defendants that Plaintiffs claim violated their rights to due process. Under the caption to the First COA, Plaintiffs assert violations of the Fourteenth Amendment against “Defendants Frieborn, Fritz, Municipal Employees [Nelson and Isetta]”. FAC, ECF No. 71, at 16. [26] Yet, the First COA’s initial paragraph alleges that, “Defendants Frieborn, Ransom, Jasper, Doe 1-125, and Fritz conspired to harm Plaintiffs . . . .” FAC ¶ 77. Because the allegations within the FAC fail to state a [27] viable due process claim against any defendant, the Court need not struggle with this discrepancy here. Nevertheless, if Plaintiffs choose to amend these claims, they are advised to plead with clarity on the 28 pertinent defendants for each COA. 1 law—rules or understandings that secure certain benefits and that support claims of 2 entitlement to those benefits.” Id. 3 If a constitutionally protected property interest exists, the government must 4 provide the deprived individual due process in the form of notice and an opportunity to 5 respond. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). 6 Procedural Due Process has no technical definition and must be analyzed according to 7 the particular surrounding circumstances. See Cafeteria & Restaurant Workers v. 8 McElroy, 367 U.S. 886, 895 (1961). To determine what procedural due process is 9 constitutionally due under the Fifth or Fourteenth Amendments to the United States 10 Constitution, courts primarily look to whether two elements have been established: “(1) a 11 protectible liberty or property interest; and (2) a denial of adequate procedural 12 protections.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). Due 13 process in this context “is a flexible concept that varies with the particular situation.” 14 Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015). The fundamental requirement 15 is that the person to be deprived of a property interest “be given an opportunity to be 16 heard at a meaningful time and in a meaningful manner.” Buckingham v. Sec’y of the 17 USDA, 603 F.3d 1078, 1082 (9th Cir. 2010). 18 The Court first addresses Plaintiffs’ faulty premise that they were entitled to a pre19 seizure hearing, instead of only a post-seizure one. Plaintiffs point to California Penal 20 Code § 597.1(g), which requires “a hearing prior to any seizure or impoundment of the 21 animal.” FAC ¶ 125. However, a warrant provided the basis for the seizure of Plaintiffs’ 22 animals, thus it was not “authorized by [§ 597.1],” see § 597.1 (g). Accordingly, Plaintiffs 23 were not entitled to a pre-seizure hearing.5 Thus, the First COA is DISMISSED with 24 leave to amend. 25 /// [26] 5 While unclear in the FAC, it seems Plaintiffs were provided a hearing which outlined their options [27] to regain possession of their dogs, including paying boarding fees and veterinary costs. See City RJN, ECF 80-2, at 23. Thus, it would appear Plaintiffs were afforded due process in connection with this 28 hearing. 1 2. Second COA (Fourth Amendment) 2 Plaintiffs again name no specific Defendants for their Second COA for violations 3 of the Fourth Amendment but allege that “[t]he search party included Frieborn, Ransom, 4 Jasper, Fritz, Nelson, Huey and Isetta.” FAC ¶ 81. The Fourth Amendment provides 5 that “[t]he right of the people to be secure in their persons, houses, papers, and effects, 6 against unreasonable searches and seizures, shall not be violated . . . .” To establish a 7 viable Fourth Amendment claim, a plaintiff must show not only that there was a search 8 and seizure as contemplated by the Fourth Amendment, but also that said search and 9 seizure was unreasonable and conducted without consent. See Rakas v. Illinois, [10] 439 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786, 796-97 (9th Cir. 1983). 11 Governmental conduct can constitute a search for Fourth Amendment purposes 12 in two ways. First, a search can occur when “the person invoking [Fourth Amendment] 13 protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that 14 has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979). 15 Under this test, the plaintiff bears the burden of showing both a subjective and 16 objectively reasonable expectation of privacy. See United States v. Shryock, 342 F.3d 17 948, 978 (9th Cir. 2003); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Second, a 18 Fourth Amendment search can occur where the government unlawfully occupies private 19 property for the purpose of obtaining information without consent. United States v. 20 Jones, 565 U.S. 400, 404-05 (2012). A “seizure” occurs when there is some “meaningful 21 interference with an individual’s possessory interests in . . . property.” United States v. 22 Jacobsen, 466 U.S. 109, 113 (1984). [23] a. City Defendants [24] 25 According to Plaintiffs, City Defendants illegally searched and seized their 26 property without probable cause or a valid search warrant. FAC ¶ 81. Regarding the 27 warrant obtained to search Plaintiffs’ property, Plaintiffs allege that “[t]he pretense for 28 obtaining the warrant were suspect and unlawful.” FAC ¶ 92. However, apart from this 1 allegation being conclusory, it raises no fact showing that the search warrant was facially 2 invalid, and the City’s officers are not alleged to have participated in any alleged 3 deception in obtaining the warrant.6 The FAC alleges that the City Defendants executed 4 a warrant which was signed by a Magistrate Judge and no facts discredit the facial 5 validity of the warrant at the time of its execution. Accordingly, the Second COA against 6 the City Defendants is DISMISSED with leave to amend. [7] b. Non-Municipal Defendants [8] 9 According to Plaintiffs, all non-municipal parties participating in the search of their 10 property did so unlawfully, and thus are liable for violations of their Fourth Amendment 11 rights. FAC ¶ 88. Plaintiffs allege the Non-Municipal Private Defendants were “all state 12 actors acting within their duties” when they deprived Plaintiffs of their due process rights. 13 FAC ¶ 88.7 14 Plaintiffs, however, fail to describe how the Non-Municipal Private Defendants 15 acted as state actors during the search and seizure of Plaintiffs’ Property. Determining 16 whether a private party engaged in state action is a highly factual question. Howerton v. 17 Gabica, 708 F.2d 380, 383 (9th Cir. 1983) (citing Burton v. Wilmington Parking Auth., [18] 365 U.S. 715, 722 (1961)). The FAC is devoid of any meaningful factual allegations 19 concerning what actions the various Non-Municipal Private Defendants took during the 20 search. Absent sufficient facts to determine if the Non-Municipal Private Defendants 21 acted as state actors, this Court is unable to engage in the requisite fact-based analysis 22 on this COA. 23 /// 24 6 Plaintiffs’ contention that seizing the dogs exceeded the warrant’s scope is contrary to the express language of the warrant. See Non-Mun. Reply ISO Mot., ECF No. 97, at 5. [25] 7 Non-Municipal Defendants, Frieborn, Ransom, and HSSF concede they are state actors for 26 purposes of the present motions. See Non-Municipal Mot., ECF No. 81, at 8. In dispute, however, is whether the remaining Non-Municipal Defendants, Jasper, Reeves, Newman, Couzens, Crosson, Friends 27 of the Animal Shelter, Friends of Placer County Animal Shelter, Friends of Auburn/Tahoe Vista Placer County Animal Shelter, Fritz, and Laursen are likewise state actors—the Court refers to these remaining 28 Defendants collectively as the “Non-Municipal Private Defendants” as necessary in its analysis. 1 Additionally, similar to the City Defendants above, apart from the allegations 2 against Frieborn, the FAC shows that the remaining Non-Municipal Defendants searched 3 Plaintiffs’ property pursuant to a facially valid warrant. Plaintiffs only real supporting 4 allegation is that Frieborn obtained purportedly false and disparaging declarations from 5 the veterinary technicians by use of threats. FAC ¶ 72. These threats, Plaintiffs claim, 6 invalidated the warrant. FAC ¶ 77. However, Plaintiffs’ allegations on this point are 7 entirely conclusory. Indeed, no specification is offered on which portions of the 8 declarations were false. Furthermore, no facts show that Ransom, Jasper, or Fritz were 9 involved in this allegedly illicit activity.8 10 Thus, the Second COA is DISMISSED with leave to amend against both the Non11 Municipal Defendants and the Non-Municipal Private Defendants. 12 3. Fourth COA (Monell Claims) 13 Plaintiffs pleaded their Monell claims against the City of Auburn and the Auburn 14 Police Department for the actions of the City’s police officers during the seizure. FAC 15 ¶ 134. A municipality cannot be held liable solely because it employs a tortfeasor—or, in 16 other words, a municipality cannot be held liable under [§] 1983 on a respondeat 17 superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (holding a 18 local government may be held liable under § 1983 only for constitutional injuries inflicted 19 by edicts or acts that may be fairly said to represent official policy or custom). Thus, a 20 plaintiff may state a civil rights claim against a public entity under § 1983 by showing he 21 or she has suffered a deprivation of a constitutionally protected interest, and such 22 deprivation was caused by an official policy, custom, or usage of the municipality. 23 Monell, 436 U.S. at 690-91 ; Cornejo v. Cnty. of San Diego, 504 F.3d 853 , 855 n. 4 24 (9th Cir. 2007). 25 /// [26] 8 The Court notes that the moving papers tend to show that Frieborn may have omitted material [27] information in her warrant application to the Magistrate Judge. See City Def.’s Mot., ECF No. 80-2, Ex. E. However, as the FAC omits any mention of these allegations, the Court does not address these claims 28 here. 1 Monell therefore requires Plaintiffs prove: (1) they “[were] deprived of a 2 constitutional right;” (2) the municipality “had a policy;” (3) “the policy amounted to 3 deliberate indifference to her constitutional rights; and (4) the policy was the moving 4 force behind the constitutional violation.” Mabe v. San Bernardino, 237 F.3d 1101 , 5 1110-11 (2001). To impose § 1983 liability on a municipality for alleged constitutional 6 injuries, the Court must determine whether the operative complaint adequately 7 demonstrates that the government actors acted pursuant to a policy. The Ninth Circuit 8 has explained how this showing can be made: 9 [T]here are three ways to show a policy or custom of a municipality: (1) by showing a longstanding practice or custom 10 which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making 11 official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent 12 official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that 13 authority to, or ratified the decision of, a subordinate. 14 Rosenbaum v. City & Cnty. of S.F., 484 F.3d 1142 , 1155 (9th Cir. 2007) (citations and 15 internal quotation marks omitted); see City of Canton v. Harris, 489 U.S. 378 , 390-91 16 (1989) (“That a particular officer may be unsatisfactorily trained will not alone suffice to 17 fasten liability on the city, for the officer’s shortcomings may have resulted from factors 18 other than a faulty training program.”). 19 Here, the FAC provides insufficient facts to show any official policy, custom, or 20 other usage of municipality caused Plaintiffs’ harm. While Plaintiffs claim inadequate 21 training and policies resulted in their deprivation of rights, no City policy or custom is 22 specifically identified, and Plaintiffs fail to address the training that the officers were 23 supposedly deficient. Additionally, Plaintiffs identify no other instances of the City’s 24 interaction with Humane Society officers such that a “custom” with regard to their 25 interactions could be established. As such, the Fourth COA is DISMISSED with leave to 26 amend. 27 /// 28 /// 1 B. State Claims 2 1. Third COA (Violation of Patient/Veterinarian Confidentiality) 3 Plaintiffs name no specific Defendants for this cause of action, but Plaintiffs allege 4 that “Dr. Sheriff is responsible for the breach of confidentiality by his employees, Dorer 5 and Widmann.” FAC ¶ 113. This cause of action arises under B&P Code § 4857 which 6 provides that licensed veterinarians “shall not disclose any information concerning an 7 animal receiving veterinary services, the client responsible for the animal receiving 8 veterinary services, or the veterinary care provided to an animal.” Cal. Bus. & Prof. 9 Code § 4857(a). However, the statute also provides “[n]othing in this section is intended 10 to prevent the sharing of veterinary medical information between veterinarians and 11 peace officers, humane society officers, or animal control officers who are acting to 12 protect the welfare of animals.” Id. § 4857(d). 13 The allegations within the FAC undermine Plaintiffs’ contentions of liability as to 14 Dr. Sheriff. While unclear, the Court interprets Plaintiffs’ arguments in the FAC to state 15 that when asked by Frieborn about the health and safety of Plaintiffs’ dogs, Dr. Sheriff 16 refused to provide any medical records without a warrant. FAC ¶¶ 67-68. Additionally, 17 the information provided by Dr. Sheriff fell within the expressly permitted exceptions 18 under § 4857, which enables the sharing of veterinary medical information to an 19 investigating humane society officer acting to protect the welfare of animals. As such, 20 the Third COA is DISMISSED with leave to amend.9 21 2. Fifth COA (Unreasonable Search and Seizure) 22 Plaintiffs name no specific Defendants for this cause of action but allege that they 23 “were damage[d] and injured by the deprivation of their rights under Article 1, § 13 of the 24 California Constitution.” FAC, ¶ 151. Comparable to Fourth Amendment, Article 1, 25 Section 13 of the California Constitution provides an individual the right “to be secure in [26] 9 Plaintiffs allege several COAs in the FAC against “all defendants.” However, in their single-page [27] Opposition to Dr. Sheriff’s Motion, Plaintiffs made no attempt to address how any of the other COAs relate to Dr. Sheriff. Opp. to Sheriff Mot., ECF No. 92. Therefore, to the extent that any other COA within the 28 FAC relates to Dr. Sheriff, they are DISMISSED with prejudice. 1 their persons, houses, papers, and effects against unreasonable seizures and searches 2 may not be violated ….” Cal. Const., Art. I § 13. Further, the California Constitution 3 provides, “a warrant may not issue except on probable cause, supported by oath or 4 affirmation, particularly describing the place to be searched and the persons and things 5 to be seized.” Id. In analyzing the lawfulness of a search or seizure, the analysis under 6 Article 1, Section 13 of the California Constitution parallels that of the Fourth 7 Amendment. Lyall v. City of Los Angeles, 807 F.3d 1178 , 1186 n.7 (9th Cir. 2015). 8 As discussed above, the allegations of the FAC establish that, acting on a facially 9 valid warrant describing the places to be searched and items to be seized, the City 10 Defendants, Non-Municipal Defendants, and Non-Municipal Private Defendants 11 searched and seized property belonging to the Plaintiffs. As discussed above, this Court 12 is unable to further analyze the potential liability of the Defendants on account of 13 Plaintiffs’ conclusory allegations. Thus, the Fifth COA is DISMISSED with leave to 14 amend. 15 3. Sixth COA (False Imprisonment) 16 Again, no specific Defendants are named regarding this claim and the FAC fails to 17 specifically identity how each of the Defendants falsely imprisoned them. Plaintiffs 18 simply allege that, “[t]he Municipal Employees and Doe defendants and Frieborn, 19 Ransom, Jasper, and the other Frieborn Defendants and Doe defendants were acting 20 within the course and scope of their employment when they deprived Plaintiffs of their 21 civil rights and property.” FAC ¶ 153. Thus, it appears that Plaintiffs assert this COA 22 against only Non-Municipal Defendants. Under California law, the elements of a claim 23 for false imprisonment are: “(1) the nonconsensual, intentional confinement of a person, 24 (2) without lawful privilege, and (3) for an appreciable period of time, however 25 brief.” See Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000); Young v. 26 Cnty. of L.A., 655 F.3d 1156, 1169 (9th Cir. 2011). 27 No facts raised in the FAC suggest that Plaintiffs were not free to leave during the 28 search. In fact, Plaintiffs admit that they were permitted to leave to attend their sons’ 1 graduations. FAC ¶ 95. Plaintiffs make conclusory allegations stating “[t]he search team 2 members intentionally subjected” Plaintiffs to “false arrest and imprisonment” by 3 confining them. FAC ¶ 154. However, the execution of a search warrant permits officers 4 to require parties present during a search to remain in sight of officers for safety 5 purposes. Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006). That 6 Plaintiffs were told to remain within visible range of the officers during the search as a 7 safety precaution does not amount to the tort of false imprisonment. Accordingly, the 8 Sixth COA is DISMISSED with leave to amend. 9 4. Seventh COA (Intentional Infliction of Emotional Distress) 10 Plaintiffs contend that “[t]he conduct of each defendant was extreme and 11 outrageous,” FAC ¶ 158, such that an IIED claim is established. To state a claim for 12 IIED, Plaintiffs must show (1) Defendants’ conduct was extreme and outrageous with the 13 intention of causing, or reckless disregard of the probability of causing, emotional 14 distress; (2) Plaintiffs suffered severe or extreme emotional distress; and (3) Defendants’ 15 outrageous conduct was the actual and proximate cause of the emotional distress. 16 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993). Extreme and 17 outrageous conduct is “so extreme as to exceed all bounds of that usually tolerated in a 18 civilized community.” Id. “California courts have set a high bar for emotional distress 19 claims, requiring ‘emotional distress of such substantial quality or enduring quality that 20 no reasonable [person] in civilized society should be expected to endure it.’” Lust v. 21 State Farm Mut. Auto. Ins. Co., No. 2:11-CV-02051-MCE, 2012 WL 592060 , at *3 (E.D. 22 Cal. Feb. 22, 2012) (quoting Kelley v. Conco Cos., 196 Cal. App. 4th 191 , 215-16 23 (2011)). 24 Here, Plaintiffs fail to meet the high bar set for emotional distress claims. The 25 conclusory statement that “[t]he conduct of each defendant was extreme and 26 outrageous” provides no indication of individuals engaging in extreme or outrageous 27 conduct during the course of the search. FAC ¶ 158. Nothing in the FAC raises to an 28 /// 1 extreme or outrageous level such that an IIED claim is warranted. As such, the Seventh 2 COA is DISMISSED with leave to amend. 3 5. Eighth COA (Conversion) 4 Plaintiffs bring their Eighth COA for Conversion against all Defendants. FAC 5 ¶ 164. To establish conversion, a plaintiff must show: (1) plaintiffs’ ownership or right to 6 possession of the property at the time of the conversion; (2) defendants’ conversion by a 7 wrongful act or disposition of plaintiffs' property rights; and (3) damages. Tyrone Pac. 8 Intern., Inc. v. MV Eurychili, 658 F.2d 664 , 666 (9th Cir. 1981). Because conversion is a 9 strict liability tort, a defendant’s “good faith, lack of knowledge, motive, or intent are not 10 relevant” in establishing a claim. Joe Hand Promotions, Inc. v. Roseville Lodge 11 No. 1293, 161 F. Supp. 3d 910, 916 (E.D. Cal. 2016). 12 While unclear, the Court interprets Plaintiffs’ allegation to be that dogs were taken 13 by Defendants Nelson and Laursen specifically. FAC ¶¶ 101, 110. Plaintiffs, however, 14 fail to provide details on when these Defendants allegedly took possession of the dogs. 15 After being seized, the FAC established that Plaintiffs were given the opportunity to 16 reclaim their dogs during a state proceeding via the payment of the required veterinary 17 care and boarding costs. ECF No. 80-2, at 23.10 After the non-payment, the Magistrate 18 Judge “released” the dogs to the Humane Society to be rehomed; this release resulted 19 in the termination of Plaintiffs’ property interests in the dogs. ECF No. 80-2, at 26. 20 As pleaded, the Court is unable to determine if conversion has taken place, as it 21 is unclear when Defendants Nelson and Laursen allegedly took possession of the dogs. 22 If Defendants’ possession took place after the termination of Plaintiffs’ property interests, 23 Plaintiffs’ COA fails as a matter of law. Thus, the Eighth COA is DISMISSED with leave 24 to amend. 25 6. Ninth COA (Trespass) 26 Plaintiffs “bring this claim against all defendants.” FAC ¶ 170. Trespass is the 27 “unlawful interference” with the possession of property. 5 Witkin, Summary of Cal. Law 28 10 Notably, the bill for the 57 seized dogs amounted to approximately $41,282. 1 (10 ed. 2005), Torts, § 693, p. 1018. To bring a cause of action for trespass of property, 2 Plaintiffs must show “1. Plaintiff owned the property; 2. Defendant intentionally, 3 recklessly or negligently entered plaintiff’s property; 3. Plaintiff did not give permission for 4 the entry; 4. Plaintiff was actually harmed; and 5. Defendant’s entry was a substantial 5 factor in causing plaintiff's harm.” Vega v. JP Morgan Chase Bank, N.A., [6] 654 F. Supp. 2d 1104, 1119 (E.D. Cal. 2009) (citing CACI 2000, p. 1159 (2009)). 7 A police officer may enter a plaintiff’s home without committing trespass while 8 executing a valid search warrant. Brunette v. Humane Soc’y, 294 F.3d 1205 , 1210 9 (9th Cir. 2002). Additionally, Humane Society officers engage in quasi-public functions 10 and are “invested with authority to investigate reports of animal cruelty, impound 11 animals, place liens on property, and bring criminal charges against citizens.” Cal. Corp. 12 Code § 14502; Brunette, 294 F.3d at 1208. 13 As City Defendants and Non-Municipal Defendants acted under a warrant to 14 search and seize Plaintiffs’ property, no trespass occurred. Regarding the Non15 Municipal Private Defendants, absent clearly pleaded facts establishing that these 16 Defendants were state actors during the search of Plaintiffs’ property, this Court is 17 unable to determine if these Defendants committed trespass. Therefore, the Ninth COA 18 is DISMISSED with leave to amend. 19 7. Tenth COA (Negligence) 20 To establish a claim of negligence, Plaintiffs must show (1) the existence of a duty 21 to exercise due care, (2) breach of that duty, (3) causation, and (4) damages. See 22 Merrill v. Navegar, Inc., 26 Cal. 4th 465, 500 (2001). 23 Plaintiffs name no specific Defendant as to this COA and provide a merely 24 conclusory reiteration of the elements of the tort of negligence in the FAC. Thus, 25 Plaintiffs have failed to allege any facts to support this cause of action against any 26 Defendant. See Twombly, 550 U.S. at 570 . As such, the Tenth COA is DISMISSED 27 with leave to amend. 28 /// 1 8. Eleventh COA (Interference with Contract) 2 Plaintiffs assert a claim for Interference with Contract against unspecified 3 Defendants. Under California law, the elements of intentional interference with 4 contractual relations are: “(1) a valid contract between plaintiff and a third party; 5 (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to 6 induce a breach or disruption of the contractual relationship; (4) actual breach or 7 disruption of the contractual relationship; and (5) resulting damage.” Pac. Gas & Elect. 8 Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990). 9 Plaintiffs allege all Defendants “permanently deprived” them of “all of their dogs 10 including those they had under contract for sale.” FAC ¶ 76. Plaintiffs further allege 23 11 of the 30 puppies seized were under contract and “sold to private customers.” FAC 12 ¶ 182. However, apart from these allegations, the FAC contains no facts establishing 13 that any specific Defendant had “knowledge” of Plaintiffs’ contracts to sell their 14 Havanese dogs. Additionally, the pleaded facts show that some Defendants coordinated 15 to fulfill at least 13 of Plaintiffs’ purchase contracts with third-party purchasers. FAC 16 ¶ 182. While Plaintiffs allege that at least 10 puppies were “under contract for sale [and] 17 were never returned,” no information is pleaded as to which dog contract was interfered 18 with, or which Defendant caused the interference. Accordingly, the Eleventh COA is 19 DISMISSED with leave to amend. [20] 21 CONCLUSION [22] 23 For the reasons stated above, the City Defendants’ Motion to Dismiss (ECF No. 24 80) is GRANTED with leave to amend. The Non-Municipal Defendants’ Motion to 25 Dismiss (ECF No. 81) is also GRANTED with leave to amend. Dr. Sheriff’s Motion to 26 Dismiss Plaintiffs’ Third Cause of Action (ECF No. 86) is GRANTED with leave to 27 amend. Dr. Sheriff’s Motion to Dismiss Plaintiffs’ remaining Causes of Action is 28 GRANTED without leave to amend. As to the causes of action where the Court grants 1 | leave to amend, Plaintiffs may, but are not required to, file an amended complaint not 2 | later than twenty (20) days after the date this Memorandum and Order is filed 3 | electronically. If no amended complaint is filed within said twenty (20)-day period, 4 | Plaintiffs’ claims will be dismissed without leave to amend upon no further notice to the 5 | parties. 6 IT IS SO ORDERED. 7 | Dated: September 30, 2019 [8] UNITED STATES DISTRI