Edwards v. City of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAMERON EDWARDS, Case No.: 3:24-cv-01118-JAH-SBC

12 Plaintiff, ORDER GRANTING DEFENDANTS 13 v. MINELLA’S AND BLUMBERG’S MOTION TO DISMISS 14 CITY OF SAN DIEGO, et al., PLAINTIFF’S FIRST AMENDED 15 Defendants. COMPLAINT [ECF No. 23] 16 17 INTRODUCTION 18 Pending before the Court is Defendant Kathy Minella and Stephanie Blumberg’s 19 (“Defendants” or “Attorney Defendants”) Motion to Dismiss pursuant to Federal Rule of 20 Civil Procedure 12(b)(6). ECF No. 23.1 Plaintiff Cameron Edwards opposes the motion. 21 After a thorough review of the parties’ submissions and for the reasons discussed below, 22 the Court GRANTS Defendants’ Motion to Dismiss with leave to amend. 23 BACKGROUND 24 On June 27, 2024, Plaintiff Cameron Edwards, a licensed attorney proceeding pro 25 se, filed a Complaint against the City of San Diego, numerous San Diego Police 26

27 1 City of San Diego, David Nisleit, Matthew Jorge, Joel Chavez, Kameron Chase, Travis Shihadeh also 28 1 Department (“SDPD”) Officers, and attorneys Kathy Minella and Stephanie Blumberg 2 under 42 U.S.C. section 1983. The City of San Diego filed a motion to dismiss on August 3 1, 2024, Attorney Defendants filed a motion to dismiss on November 8, 2024, and the 4 SDPD officers filed a motion to dismiss on November 19, 2024. This Court granted the 5 City of San Diego’s motion to dismiss and provided Plaintiff leave to file an amended 6 complaint. On December 27, 2024, Plaintiff filed a First Amended Complaint (“FAC”) 7 against the City of San Diego, David Nisleit, Matthew Jorge, Joel Chavez, Kameron Chase, 8 Travis Shihadeh, John Doe, and Attorney Defendants, seeking relief under 42 U.S.C. 9 section 1983, California Civil Code sections 52.1 and 51.7, and California Government 10 Code section 815.6.2 11 Plaintiff alleges his then wife, her attorneys, and SDPD officers participated in a 12 conspiracy to unlawfully enter his home, seize him without justification, and pursue 13 protective orders for retaliatory purposes. Plaintiff specifically alleges Attorney 14 Defendants, who represented Plaintiff’s wife in divorce proceedings, conspired with SDPD 15 officers to interfere with Plaintiff’s property rights. FAC ¶¶ 32, 33, 37-44, 91, 159. He 16 asserts two causes of actions against Attorney Defendants under section 1983 alleging they 17 participated in a conspiracy to violate Plaintiff’s Fourth Amendment rights to be free from 18 unreasonable search and seizure. 19 On January 13, 2025, Attorney Defendants moved to dismiss the FAC for failure to 20 state a claim. ECF No. 23. Plaintiff filed an opposition and Defendants filed a reply. ECF 21 Nos. 26, 27. Finding the motion suitable for disposition on the briefs, this Court took the 22 matter under submission without oral argument. ECF No. 30. 23 LEGAL STANDARD 24 Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for 25 failure to state a claim. Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. 26

27 2 Thereafter, the Court denied Attorney Defendants and SDPD Officers’ motions to dismiss the original 28 1 Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) 2 where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, 3 Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) 4 (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of 5 law.”). Alternatively, a complaint may be dismissed where it presents a cognizable legal 6 theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. 7 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain 8 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 9 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 10 550 U.S. 544, 570 (2007)). A claim is facially plausible when the factual allegations permit 11 “the court to draw the reasonable inference that the defendant is liable for the misconduct 12 alleged.” Id. In other words, “the non-conclusory ‘factual content,’ and reasonable 13 inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff 14 to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “Determining 15 whether a complaint states a plausible claim for relief will ... be a context-specific task that 16 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 17 556 U.S. at 679. 18 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 19 truth of all factual allegations and must construe all inferences from them in the light most 20 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 21 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal 22 conclusions need not be taken as true merely because they are cast in the form of factual 23 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining 24 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). While pro se pleadings are construed 25 liberally, a pro se litigant who is also a licensed attorney is not entitled to special solicitude. 26 See Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023). 27 /// 28 /// 1 DISCUSSION 2 Attorney Defendants seek dismissal of Plaintiff’s Complaint arguing they are 3 immune from liability under the Noerr-Pennington doctrine, and Plaintiff fails to state a 4 claim because he fails to establish causation, fails to allege their conduct constituted state 5 action, and fails to sufficiently allege facts to establish a Fourth Amendment violation. 6 I. Noerr-Pennington Doctrine 7 Attorney Defendants argue their conduct, drafting and filing requests for protective 8 orders and other related court documents on behalf of their client, constitutes protected 9 petitioning activity under the First Amendment and they are, therefore, immune from suit 10 under the Noerr-Pennington Doctrine. They contend Plaintiff fails to plausibly allege the 11 filings were objectively baseless or that they were submitted with the intent to harass, as 12 required to trigger the “sham litigation” exception. 13 In opposition, Plaintiff argues that the defense is premature at the pleading stage 14 because material facts remain in dispute. He contends that the protective orders were part 15 of a coordinated effort between Defendants and SDPD to violate his constitutional rights, 16 and that the “sham exception” applies because the litigation lacked a legitimate basis and 17 was pursued to facilitate harassment. 18 The Noerr-Pennington doctrine, rooted in the First Amendment, provides 19 individuals who petition the government immunity from liability for their petitioning 20 conduct. See BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524-25 (2002); see also Sosa v. 21 DIRECTV, Inc., 437 F.3d 923, 929-30 (9th Cir. 2006). “Though the Noerr- 22 Pennington doctrine first arose in the antitrust context, [the Ninth Circuit] ha[s] extended 23 its application, including to § 1983 claims.” B&G Foods N. Am., Inc. v. Embry, 29 F.4th 24 527, 535 (9th Cir. 2022) (citing Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 25 1092 (9th Cir. 2000)). This protection extends to private actors who file legal pleadings, 26 advocate for judicial relief, or otherwise participate in litigation. See Sosa 437 F.3d at 929. 27 A three-step analysis is used to determine whether a defendant is entitled to immunity 28 under the Noerr-Pennington doctrine. B&G Foods, 29 F.4th at 535. The court must 1 determine “(1) whether the lawsuit imposes a burden on petitioning rights; (2) whether the 2 alleged activities constitute protected petitioning activity; and (3) whether the statute at 3 issue may be construed to avoid that burden.” Id. (citing Kearney v. Foley & Lardner, 4 LLP, 590 F.3d 638, 644 (9th Cir. 2009)). The defendant’s conduct is immunized if the 5 answer to each question is yes, unless the “sham litigation” exception applies. Id. 6 Applicability of the sham exception is determined at step two of the three step analysis. Id. 7 As an initial matter, Plaintiff argues the motion is premature while the facts are 8 disputed. Because Defendants’ motion is brought pursuant to Rule 12(b)(6) which requires 9 the Court to assume the truth of his allegations, there are no disputed facts to prevent the 10 Court from considering the motion. 11 In the FAC, Plaintiff alleges he obtained a domestic violence restraining order 12 (“DVRO”) protecting him from his then wife. FAC ¶ 26-31. He further alleges his wife 13 hired Attorney Defendants to represent her in divorce proceedings and to file a request for 14 a DVRO. Id. ¶ 32. Plaintiff asserts her application for the DVRO included falsehoods and 15 misrepresentations regarding their shared dog. Id. ¶¶ 33-35. Plaintiff also alleges his wife 16 contacted Attorney Defendants after he informed her of his intent to return to the home 17 which prompted them to contact a SDPD sergeant3 and report misleading facts about the 18 history of domestic violence between Plaintiff and his then wife, and they agreed that 19 Plaintiff should be excluded from his home based on a claim of abandonment. Id. ¶¶ 36- 20 41. Plaintiff asserts he believes Attorney Defendants contacted the sergeant pursuant to a 21 SDPD procedure directing that a sergeant be called when domestic violence incidents 22 involve a victim or suspect who is employed by the City of San Diego.4 Id. ¶ 45. Plaintiff 23 alleges, on the morning of April 16, 2024, he called 911 when he returned to the home. Id. 24 ¶ 48. After arriving and contacting Defendant Doe, SDPD officers Jorge and Chavez 25 explained to Plaintiff they would not enforce his DVRO because they believed his wife 26

27 3 The sergeant is named as Defendant “John Doe” in the FAC. See FAC ¶ 8. 28 1 had the right to be in the home but would allow him to enter the home to collect his 2 belongings. Id. ¶¶ 49-63. However, once inside the home, Plaintiff refused to leave and 3 repeatedly ask them to take his wife away from the home. Id. ¶ 64-66. He alleges the 4 officers became frustrated and after conferring with the sergeant, they were told to use 5 intimidation and threatening language to get Plaintiff to leave the home. Id. ¶ 64-72. 6 Plaintiff remained inside and while Defendant Jorge was speaking to his wife at her car as 7 she left the home, Defendant Chavez remained in the home and did not allow Plaintiff to 8 shut the door when he asked to do so. Id. ¶¶ 76-80. After both officers left the home, 9 Plaintiff slammed the door and yelled insults at them. Id. ¶ 85. 10 Plaintiff also alleges Attorney Defendants called the sergeant a second time and they 11 agreed on a plan to serve Plaintiff with his wife’s DVRO and remove Plaintiff from the 12 home. Id. ¶¶ 125-26. He asserts during the late night on April 16, 2024, Defendants Doe, 13 Chase and Shihadeh met with his wife outside the home and concluded Plaintiff was the 14 dominant aggressor without considering the history of abuse alleged in Plaintiff’s request 15 for a restraining order. Id. ¶¶ 127-130. After Defendant Chase and Shihadeh 16 unsuccessfully attempted to reach him by telephone and ringing his doorbell, they obtained 17 a key from Plaintiff’s wife, unlocked and opened the doors despite encountering resistance 18 from weights placed against the door. Id. ¶¶ 131-142. Plaintiff was awakened by the loud 19 noise, saw the officers in their uniforms and yelled at them to come back with a warrant. 20 Id. ¶¶ 143-45. He further alleges the officers retreated from the door but returned because 21 the Doe sergeant told them to try again. Id. ¶ 148. He heard one of them say “we just want 22 to talk,” to which he responded with expletives and yelled at them to get away from his 23 house. Id. ¶¶ 149-51. Thereafter, the officers left. Id. ¶ 151. 24 A. Step One – Penalize for Exercising Petitioning Rights 25 Under the first prong of the Noerr-Pennington analysis, the Court must determine 26 whether success on Plaintiff’s claims would necessarily penalize Defendants for exercising 27 their petition rights. Kearney, 590 F.3d at 645. Attorney Defendants contend Plaintiff’s 28 claims against them arise entirely out of conduct undertaken as counsel in family law 1 litigation. As such, they argue, holding them liable would burden their petition rights. 2 Plaintiff does not address this argument. 3 According to the Plaintiff’s allegations, he seeks to hold Attorney Defendants liable 4 for their communications to the SDPD sergeant regarding the DVROs. Attorney 5 Defendants’ communications were incidental to the divorce and restraining order 6 proceedings. See Id. Plaintiff’s theory of liability directly challenges Defendants’ efforts 7 to obtain judicial relief in the form of protective orders and seeks to impose civil liability 8 based on the content and consequences of those filings. If successful, Plaintiff’s action 9 would prevent Attorney Defendants from participating in the restraining order proceedings 10 and, therefore, would penalize them for exercising their petition rights. 11 B. Step Two – Protected Petitioning Activity 12 Step two of the Noerr-Pennington analysis requires the Court to determine whether 13 the activities constitute protected petitioning activity. Attempts to seek redress through the 14 judicial system, including filings made in family law and domestic violence proceedings, 15 fall squarely within protected First Amendment petitioning conduct and conduct incidental 16 to the prosecution of legal proceedings is similarly protected. See Id.; Fidelman v. Polis, 17 2023 WL 9471992, *14 (S.D. Cal. December 12, 2023) (Determining a petition for a 18 DVRO undisputedly represents a petition to the government.). Additionally, “the Noerr- 19 Pennington doctrine applies to citizen communications with the police.” Forro Precision, 20 Inc. v. Int’l Bus. Machines Corp., 673 F.2d 1045, 1060 (9th Cir. 1982). 21 Plaintiff argues the sham exception applies because his wife’s DVRO request was 22 baseless. The Ninth Circuit identified three circumstances in which the sham exception 23 may apply: 24 First, where the lawsuit is objectively baseless and the defendant’s motive in bringing it was unlawful; second, where the conduct involves a series of lawsuits 25 brought pursuant to a policy of starting legal proceedings without regard to the 26 merits and for an unlawful purpose; and third, if the allegedly unlawful conduct consists of making intentional misrepresentations to the court, litigation can be 27 deemed a sham if a party’s knowing fraud upon, or its intentional misrepresentations 28 to, the court deprive the litigation of its legitimacy. 1 B&G Foods, 29 F.4th at 537-38 (citing Sosa, 437 F.3d at 938). 2 Here, Plaintiff argues his wife’s DVRO request was objectively baseless because her 3 request for sole custody of the dog could only be granted if the court found good cause for 4 granting the request and her asserted cause is refuted by the FAC. He further argues it was 5 objectively baseless for her to believe the court would determine they were mutual 6 aggressors in light of her pattern of abuse versus his self-defense. Additionally, he 7 contends Attorney Defendants facilitation of indirect contact between Plaintiff and his wife 8 violated his DVRO. 9 In response, Defendants argues none of these assertions are alleged as a basis of his 10 claims against them and his arguments regarding the dog have nothing to do with Attorney 11 Defendants’ conduct. They further argue the wife’s DVRO was not objectively baseless 12 as a matter of law because she successfully obtained her DVRO. Additionally, they argue 13 the FAC fails to allege any misstatement by Attorney Defendants to the court and Plaintiff 14 makes no argument that any misstatements undermined the legitimacy of the litigation. 15 Under the first prong, the litigation must be objectively baseless, such that “no 16 reasonable litigant could realistically expect success on the merits.” Prof’l Real Estate 17 Inv., Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60 (1993). Only when this threshold 18 is met may a court consider the litigant’s subjective intent. Id. Because Plaintiff’s wife 19 successfully obtained her DVRO, her litigation was not objectively baseless. Id. at 60, n.5 20 (“A winning lawsuit is by definition a reasonable effort at petitioning for redress and 21 therefore not a sham.”). Additionally, Plaintiff does not argue and there are no allegations 22 regarding a series of lawsuits to support a sham litigation under the second prong. 23 Plaintiff also fails to demonstrate any fraud or misrepresentations by Attorney 24 Defendants to overcome the protection of the Noerr-Pennington doctrine. He alleges the 25 DVRO included “falsehoods and misrepresentations, including a false claim that the 26 parties’ shared dog was an emotional support animal.” FAC ¶ 33. However, Plaintiff fails 27 to explain how this information regarding the dog deprives the DVRO of its legitimacy. 28 Plaintiff also alleges Attorney Defendants provided untrue and misleading facts about him 1 and the history of domestic abuse to the SDPD sergeant. Id. 38. Again, he fails to explain 2 how this misleading information provided to the sergeant after Plaintiff’s wife obtained the 3 DVRO deprived the DVRO of its legitimacy. Additionally, this vague allegation does not 4 meet the heightened pleading standard for allegations of fraud to the court. Kottle v. Nw. 5 Kidney Centers, 146 F.3d 1056, 1063 (9th Cir. 1998) (Explaining a heightened pleading 6 standard is employed when determining whether fraud or misrepresentations deprived 7 court proceedings of their legitimacy.). He similarly fails to demonstrate how Attorney 8 Defendants’ alleged facilitation of indirect contact between him and his wife deprived the 9 DVRO of its legitimacy. 10 Therefore, the sham exception is not applicable and does not strip Defendants’ 11 petitioning conduct of its protection. 12 C. Step Three – Statute Construed to Avoid Burden 13 At the third step, the Court considers whether the statute at issue can be construed to 14 avoid burdening protected petitioning conduct. The Ninth Circuit concluded “the Noerr- 15 Pennington doctrine stands for a generic rule of statutory construction, applicable to any 16 statutory interpretation that could implicate the rights protected by the Petition Clause.” 17 Sosa, 437 F.3d at 931. As such, courts must interpret statutes “so as to avoid burdening 18 conduct that implicates the protections afforded by the Petition Clause unless the statute 19 clearly provides otherwise.” Id. The Ninth Circuit has held that section 1983 cannot 20 burden petitioning conduct. B&G Foods, 29 F.4th at 540. 21 Accordingly, Plaintiff’s claims against Attorney Defendants are barred under the 22 Noerr-Pennington doctrine as alleged. 23 II. Leave to Amend 24 In the event the Court grants the motion to dismiss, Plaintiff requests leave to amend. 25 Attorney Defendants argue Plaintiff is unable to state a viable section 1983 claim against 26 them as a matter of law because the claims are barred and request the Court deny leave to 27 amend. They contend amendment is futile because Plaintiff cannot allege facts sufficient 28 to overcome the fatal deficiencies. Additionally, they contend Plaintiff, a licensed attorney, 1 was informed of the deficiencies in the original complaint and failed to state a viable claim 2 in his amended pleading. 3 Leave to amend is freely granted “when justice so requires.” FED. R. CIV. P. 15(a); 4 Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). This matter is at 5 an early stage and the Court finds the claims are barred as alleged. As such, the Court finds 6 it appropriate to provide Plaintiff one final opportunity to amend to set forth allegations 7 that state a claim. 8 Because the Court will provide Plaintiff one final opportunity to amend, it will 9 address the Attorney Defendants’ arguments regarding the sufficiency of the allegations. 10 III. Failure to State a Claim 11 To state a claim under Section 1983, a plaintiff must allege: (1) the deprivation of a 12 right secured by the Constitution and federal laws, and (2) “the alleged deprivation was 13 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 14 (1988). 15 A. Causation 16 Attorney Defendants argue Plaintiff fails to allege their conduct proximately caused 17 the alleged violations of his federal rights. They contend Plaintiff’s allegations that they 18 gave the SDPD sergeant misleading facts causing the sergeant to determine Plaintiff was 19 the dominant aggressor and that he should be excluded from his home are insufficient 20 because he fails to show they exerted any control over the sergeant or officers’ conduct. 21 In opposition, Plaintiff argues Attorney Defendants had some control over the 22 officers’ and his wife. Specifically, he contends the FAC alleges his wife would not have 23 made the decision to stay in the home absent assurances from Attorney Defendants she 24 would not be arrested. Additionally, he contends his former wife would not have met with 25 the officers who unlawfully searched his home without the Attorney Defendants exerting 26 control over her. 27 28 1 In reply, Attorney Defendants argue Plaintiff fails to cite to any authority to support 2 his assertion that alleged control over a private person, in this case his wife, is sufficient to 3 establish causation. 4 Causation is an implicit requirement of a section 1983 action and requires a plaintiff 5 to “establish proximate or legal causation.” Arnold v. Int’l Bus. Machines Corp., 637 F.2d 6 1350, 1355 (9th Cir. 1981). The plaintiff must show that an individual defendant 7 “[performed] an affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to 8 perform an act which he is legally required to do that causes the deprivation of which 9 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “The requisite 10 causal connection can be established not only by some kind of direct personal participation 11 in the deprivation, but also by setting in motion a series of acts by others which the actor 12 knows or reasonably should know would cause others to inflict the constitutional injury.” 13 Id. at 743-44. 14 According to Plaintiff’s allegations, Attorney Defendants violated his rights to be 15 free from unreasonable seizure when his liberty was restrained by SDPD officers “through 16 coercion or a show of authority” when he sat in an isolated place in his home and was 17 unable to close his front door despite wanting to and wanting to access other parts of his 18 home. FAC ¶¶ 87-89. He further alleges Attorney Defendants violated his right to be free 19 from an unreasonable search when SDPD officers attempted to enter his home during the 20 late night of April 16, 2024. Id. ¶¶ 125-153. He asserts Attorney Defendants spoke to a 21 SDPD sergeant and provided misleading information regarding the history of domestic 22 violence and agreed to a plan to have Plaintiff’s wife meet outside the home so she could 23 reside in the home after Plaintiff was served with her DVRO. Id. ¶¶ 37-38, 125-26. There 24 are no facts demonstrating Attorney Defendants directly participated in the alleged 25 violations of his Fourth Amendment rights or had control or power over the officers in their 26 decision to allegedly seize Plaintiff or search his home. See Arnold, 637 F.2d at 1356-57; 27 see also King v. Massarweh, 782 F.2d 825 (9th Cir. 1986). Additionally, as noted by 28 Defendants, Plaintiff provides no authority for his contention that Attorney Defendants 1 influence and control over his wife, a private party, demonstrates their control over the 2 officers who prevented him from moving about his house and closing his front door and 3 attempted to enter his home later that night. As alleged, Plaintiff fails to demonstrate 4 causation. 5 B. State Action 6 Attorney Defendants argue Plaintiff’s allegation that they supposedly told the 7 sergeant false information is insufficient to establish state action. They contend Plaintiff 8 fails to sufficiently allege a conspiracy because there are no allegations that the sergeant 9 knew the information purportedly shared by Attorney Defendants was false. They further 10 contend the FAC lacks allegations to establish the alleged conspirators’ allegedly shared 11 common objectives of locating the dog, removing Plaintiff from his home, and interfering 12 with his property rights in connection with the parties’ competing DVROs would constitute 13 a violation of Plaintiff’s constitutional rights. 14 Plaintiff argues a conspiracy can be inferred because his wife’s action of staying in 15 the home was unlikely to be undertaken without an agreement. Specifically, he contends 16 the fact she packed her belongings in her car but remained in the home, supports the 17 inference she intended to leave the home but stayed only as a result of the SDPD officers’ 18 agreement not to enforce the DVRO against her, which she learned from Attorney 19 Defendants. 20 In reply, Defendants argue the FAC lacks any allegations to show an agreement to 21 violate his rights. 22 Generally, private parties do not act under color of state law. See Price v. Hawai’i, 23 939 F.2d 702, 707-08 (9th Cir. 1991). To hold a private party liable under section 1983, a 24 plaintiff must show the private actor’s conduct is “fairly attributable” to the government. 25 Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). Plaintiff alleges Attorney Defendants 26 conspired with SDPD officers. In order to plausibly allege a conspiracy claim, “a plaintiff 27 must ‘demonstrate the existence of an agreement or meeting of the minds’ to violate 28 constitutional rights.” Crowe v. City of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) 1 (quoting Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999). 2 The existence of an agreement can be inferred from circumstantial evidence, such as 3 actions by the defendants. Id. “To be liable, each participant in the conspiracy need not 4 know the exact details of the plan, but each participant must at least share the common 5 objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 6 1539, 1541 (9th Cir. 1989) (citing Fonda v. Gray, 707 F.2d 435, 437 (9th Cir.1983)). 7 At most, Plaintiff’s allegations demonstrate an agreement to serve Plaintiff with the 8 DVRO and escort his wife into the home. There are no allegations Attorney Defendants 9 conspired with the state actors to unlawfully seize Plaintiff or search his home. As alleged 10 the FAC does not plausibly show Attorney Defendants were engaged in a conspiracy to 11 violate Plaintiff’s rights. 12 C. Deprivation of Rights 13 Attorney Defendants argue Plaintiff fails to allege facts that establish the claimed 14 Fourth Amendment violations for an unreasonable search or seizure. To state a claim under 15 section 1983 for violation of the Fourth Amendment right to be free from unreasonable 16 searches and seizures, a plaintiff must allege sufficient facts to show that a search or seizure 17 occurred and the search or seizure was unreasonable. See Brower v. County of Inyo, 489 18 U.S. 593, 599 (1989). 19 1. Seizure 20 Attorney Defendants contend Plaintiff’s allegations fail to establish a reasonable 21 person would have believed he was not free to leave to support his claim for unlawful 22 seizure. Attorney Defendants maintain the allegations demonstrate Plaintiff refused to 23 leave when the officers encouraged him to obtain his belongings and depart the residence. 24 Because the officers did not engage in any conduct restraining Plaintiff’s freedom of 25 movement, Attorney Defendants contend, no seizure occurred. Even if the interaction 26 amounted to a seizure, they argue Plaintiff fails to allege any facts illustrating an 27 unreasonable seizure, such as being put in handcuffs, placed in a squad car, or verbally 28 advised that he was being detained. They contend the allegations demonstrate the officers 1 conduct was consistent with their function as keepers of the peace and, therefore, if he was 2 seized, it was reasonable. 3 Plaintiff argues the circumstances surrounding the encounter demonstrate a 4 reasonable person would not have felt free to ignore the police presence or feel free to 5 decline the officers’ request or otherwise terminate the encounter. He contends there were 6 two officers, they implied they would use physical force by putting on latex gloves, it was 7 a nonpublic setting, and the officers’ authoritative manner implied compliance would be 8 compelled. 9 Not all encounters with a police officer involve a seizure. Florida v. Bostick, 501 10 U.S. 429, 434 (1991). A seizure occurs when an officer, through physical force or show 11 of authority, restrains one’s liberty. Id. (quoting Terry v. Ohio, 329 U.S. 1, 19, n.16 12 (1968)). “A seizure by show of authority, such as an order for a suspect to halt, does not 13 constitute a ‘seizure’ within the meaning of the Fourth Amendment unless and until the 14 arrestee complies with the demand. Puente v. City of Phoenix, 123 F.4th 1035, 1051 (9th 15 Cir. 2024) (internal citation and quotation omitted). 16 The allegations demonstrate Plaintiff was free to leave. Officers attempted to get 17 him to leave. He did not comply. There are no allegations that he was told not to move 18 around his home. However, Plaintiff alleges when he asked to close the door, one officer 19 prevented him from doing so. When a person does not desire to leave, the appropriate 20 inquiry is whether a reasonable person would feel free to decline the officers’ requests or 21 otherwise terminate the encounter. Bostick, 501 U.S. at 436. At this stage of the 22 proceedings, Plaintiff’s allegations state a plausible violation of his Fourth Amendment 23 right to be free from unreasonable seizure. 24 2. Search 25 Attorney Defendants maintain the allegations show the officers opened the front 26 door with the wife’s, a co-occupant’s, consent. They also contend Plaintiff fails to allege 27 the officers moved further into the home or otherwise continued any purported search after 28 Plaintiff expressed his refusal of consent to their entry of the home. Furthermore, they 1 argue the officers’ brief presence on the porch to request to talk and departure when 2 Plaintiff yelled at them to leave fails to evidence any invasion of a reasonable expectation 3 of privacy, such that no search occurred. 4 Plaintiff argues his wife’s purported consent to a search of the home was ineffective 5 because she had an inferior privacy interest and had no authority to provide consent. 6 Plaintiff further argues the officers’ mistaken belief that his wife had authority to consent 7 is a mistake of law which prevents the application of the apparent authority doctrine. He 8 also argues, even if the Court finds his wife had authority to consent, her consent was no 9 longer valid after he expressly refused entry. 10 In reply, Attorney Defendants maintain the facts demonstrate that prior to attempting 11 to open the door, the officers attempted to contact Plaintiff by phone and by ringing the 12 doorbell, and after observing a doormat reading “come back with a warrant” and weights 13 leaned against the inside of the door. They argue the allegations, at best, show an implicit 14 refusal to consent to allow the officers to search the residence. Because the refusal must 15 be express, not implicit, to override the wife’s consent, Defendants contend Plaintiff did 16 not expressly object to the officers opening the door until he yelled at them to come back 17 with a warrant. They further argue the knock-and talk exception to the warrant requirement 18 “permits law enforcement officers to encroach upon the curtilage of a home for the purpose 19 of asking questions of the occupants.” Reply at 10-11 (citing United States v. Lundin, 817 20 F.3d 1151 (9th Cir. 2016). They maintain the FAC lacks any allegations suggesting the 21 officers’ presence on the porch requesting to speak with Plaintiff was inconsistent with an 22 attempt to initiate consensual contact with Plaintiff. 23 “A ‘search’ occurs when an expectation of privacy that society is prepared to 24 consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984)). 25 Plaintiff clearly had a reasonable expectation of privacy in his home. See Silverman v. 26 United States, 365 U.S. 505, 511 (1961). (“At the very core [of the Fourth Amendment], 27 stands the right of a man to retreat into his own home and be free from unreasonable 28 governmental intrusion.”). 1 Defendants, argue Plaintiff’s wife, a co-occupant, provided consent. Officers may 2 search a jointly occupied home if one of the occupants consents to the search. Fernandez 3 v. California, 571 U.S. 292, 294 (2014). However, if another occupant is physically present 4 and objects to the search, the search is unreasonable as to him. Georgia v Randolph, 547 5 U.S. 103 (2006). Plaintiff argues his wife did not have apparent authority to consent to a 6 search and, even if she did, her consent was invalidated by his express objections. 7 According to Plaintiff’s allegation, the officers, Defendants Chase and Shihadeh, 8 who arrived at the home to serve him with his wife’s DVRO, were aware Plaintiff also had 9 a DVRO but concluded he was the dominant aggressor. FAC ¶¶ 127-129. He further 10 alleges the officers attempted to contact him via telephone and by ringing his doorbell but 11 he did not respond to either. Id. ¶¶ 131, 132, 133, 137. The officers obtained a key from 12 Plaintiff’s wife and attempted to open the door and because they encountered resistance, 13 they used force to attempt to open the door completely. Id. ¶¶ 137-142. Plaintiff, from 14 inside the house, yelled, “no, come back with a warrant!” Id. ¶ 145. He alleges the officers 15 walked away from the porch but returned saying they just wanted to talk and left when he 16 yelled at them to “[g]et the fuck away from my house!” Id. ¶ 149. 17 Plaintiff relies on United States v. Schram, 901 F.3d 1042 (9th Cir. 2018) to support 18 his argument that his wife had an inferior expectation of privacy. Schram does not address 19 the issue of consent by one subject to a restraining order. Rather, the Ninth Circuit held, 20 in Schram, that an individual whose presence at the home in violation of a no-contact order 21 has no expectation of privacy in that property and may not challenge its search on Fourth 22 Amendment grounds. 901 F.3d at 1046. The court specifically stated it was addressing 23 whether the Fourth Amendment right of the person claiming a constitutional violation was 24 infringed. Id. at 1044. Here, it is not Plaintiff’s wife’s privacy expectation in the home, 25 but rather Plaintiff’s privacy expectation, that is alleged to have been violated. Plaintiff 26 provides no authority for his contention that the competing DVROs deprived his wife of 27 the authority to provide consent. Therefore, the officers had consent from someone with 28 1 apparent authority to search the home when they attempted to open the door with Plaintiff’s 2 wife’s key. 3 Prior to attempting to open the door with Plaintiff’s wife’s consent, the officers 4 attempted to contact Plaintiff by ringing the doorbell and calling him and they received no 5 response. When Plaintiff yelled at them to get a warrant, thereby explicitly objecting to 6 the search, the officers retreated. Accordingly, as alleged Plaintiff fails to establish an 7 unreasonable search based on the officer’s attempt to open the door after unlocking it with 8 Plaintiff’s wife’s key. 9 However, the officers returned after Plaintiff yelled at them to get a warrant and 10 knocked on his door, saying they wanted to talk. The curtilage of a home, including a 11 porch or front door area, are treated as part of the home for Fourth Amendment purposes. 12 Lundin, 817 F.3d at 1158 (9th Cir. 2016) (citing Oliver v. United States, 466 U.S. 170, 180 13 (1984). Defendants argue the officer’s conduct of knocking on the door after Plaintiff told 14 them to come back with a warrant was consistent with an attempt to initiate consensual 15 contact which is permissible under the “knock and talk” exception to the warrant 16 requirement. Pursuant to the “knock and talk” exception, law enforcement officers can 17 “encroach upon the curtilage of a home for the purpose of asking questions of the 18 occupants.” United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th Cir. 2012). The 19 exception is based on the implied consent “from the custom of treating the ‘knocker on the 20 front door” as an invitation (i.e., license) to approach the home and knock.” Lundin, 817 21 F.3d at 1158 (citing Florida v. Jardines, 569 U.S. 1, 8 (2013)). 22 Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a 23 condemned invasion of the person’s right of privacy, for anyone openly and 24 peaceably, at high noon, to walk up the steps and knock on the front door of any man's “castle” with the honest intent of asking questions of the occupant there of 25 whether the questioner be a pollster, a salesman, or an officer of the law. 26 27 28 United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (quoting Davis v. 2 || United States, 327 F.2d 301, 303 (9th Cir 1964)). The exception is limited to the purpose 3 || of asking the occupants questions. Perea-Rey, 680 F.3d at 1187. 4 Any implied consent to knock on his door was revoked when Plaintiff yelled at the 5 || officers to get a warrant, and the alleged Fourth Amendment intrusion did not occur at or 6 ||near “high noon” or at a time “unexpected visitors are customarily expected to knock on 7 \|the front door of a home”. Cormier, 220 F.3d at 1109; Lundin, 817 F.3d at 1159. 8 || Accordingly, Plaintiff sufficiently alleges an unreasonable search. 9 CONCLUSION AND ORDER 10 || For the foregoing reasons, IT IS HEREBY ORDERED: 11 1. Attorney Defendants Kathy Minella and Stephanie Blumberg’s Motion to Dismiss 12 Plaintiff's First Amended Complaint (ECF No. 23) is GRANTED; 13 2. Plaintiff's First and Seventh Causes of Action against Defendant Minella and 14 Blumberg are DISMISSED without prejudice. 15 3. Plaintiff may file a Second Amended Complaint no later than October 10, 2025. 16 DATED: — September 10, 2025 17 nik A. bls 18 UMITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28