1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 MATTHEW D. RIFAT & TRACY M. Case No.: 21-cv-1667-L-KSC RIFAT, 5 ORDER GRANTING MOTION TO Plaintiffs, 6 DISMISS THIRD AMENDED v. COMPLAINT AND DENYING 7 MOTION TO STRIKE AS MOOT DAVE JONES, DAVID STEELE, and 8 DOES 1–10, [ECF No. 36] 9 Defendants. 10 11 Pending before the Court is Defendant David Steele’s (“Defendant”) motion to 12 dismiss Plaintiff Matthew D. Rifat and Plaintiff Tracy M. Rifat’s (collectively, 13 “Plaintiffs”) third amended complaint (“TAC”) and motion to strike. (ECF No. 36.) 14 Plaintiffs opposed, (ECF No. 38), and Defendant replied, (ECF No. 39). For the reasons 15 stated below, the Court GRANTS the motion to dismiss and DENIES the motion to 16 strike as moot. 17 1. BACKGROUND 18 While the parties are familiar with the facts of this case from previous pleadings, 19 the Court provides a relevant summary. Plaintiff Matthew D. Rifat (“Matthew”) is an 20 attorney in San Diego who runs companies that provide administrative services to 21 healthcare clients. (ECF No. 35, at 2.) Those services have included processing payroll, 22 bookkeeping, and vendor management. (Id.) One of his clients was Blue Oak Medical 23 Group, Inc., a medical practice. (Id.) Blue Oak had been the subject of criminal 24 investigations. (Id.) Matthew alleges he had no knowledge about that investigation. 25 (Id.) 26 Defendant David Steele, a San Bernardino District Attorney Investigator, obtained 27 a search warrant for Matthew’s email account from the San Bernardino County Superior 28 Court on January 22, 2018. (Id. at 7.) The search warrant asked the court to authorize 1 the search and seizure of all account activity from October 2015 to January 2018. (Id.) 2 The court authorized the warrant and Defendant received the Gmail returns in early 3 February of 2018. (Id.) Plaintiff attached the search warrant and supporting affidavit to 4 the third amended complaint. (See ECF No. 35-2.) Defendant Steele signed the 5 supporting affidavit under penalty of perjury. (Id. at 13.) 6 Matthew and his wife, Plaintiff Tracy M. Rifat, now assert one claim against 7 Defendant Steele in their sixth cause of action for unlawful seizure and search based on 8 an overbroad warrant without probable cause. (ECF No. 35, at 28.) Defendant moves to 9 dismiss the single claim against him. (ECF No. 36.) 10 2. LEGAL STANDARD 11 a. Motion to Dismiss 12 A 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. 13 Block,

(9th Cir. 2001). A pleading must contain, in part, “a short and 14 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 15 8(a)(2). But plaintiffs must also plead “enough facts to state a claim to relief that is 16 plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007); see also 17 Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than “a formulaic 18 recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further 19 factual enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Twombly, 20

). In reviewing a 12(b)(6) motion to dismiss, “[a]ll allegations of material 21 fact are taken as true and construed in the light most favorable to the nonmoving party.” 22 Cahill v. Liberty Mut. Ins. Co.,

, 337–38 (9th Cir. 1996). 23 “Generally, district courts may not consider material outside the pleadings when 24 assessing the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen 25 Therapeutics, Inc.,

(9th Cir. 2018). When “matters outside the 26 pleading are presented to and not excluded by the court,” the 12(b)(6) motion converts 27 into a motion for summary judgment. Fed. R. Civ. P. 12(d). “A court may, however, 28 consider certain materials—documents attached to the complaint, documents 1 incorporated by reference in the complaint, or matters of judicial notice—without 2 converting the motion to dismiss into a motion for summary judgment.” United States v. 3 Ritchie,

(9th Cir. 2003). Accordingly, the Court only considers the 4 pleadings and the documents attached to the TAC. 5 b. Qualified Immunity 6 “A plaintiff may sue for damages under § 1983 when an official causes the 7 plaintiff to be subjected to an unconstitutional search by presenting a search warrant 8 application that fails to establish probable cause.” Hupp v. San Diego Cnty. Dist. Att'y, 9 No. 12-CV-0492-GPC-RBB,

, at *3 (S.D. Cal. Nov. 9, 2015) (citing 10 Greenstreet v. County of San Bernardino,

(9th Cir. 1994)). In such 11 cases, qualified immunity shields the official from liability unless “a reasonably well- 12 trained officer in [the defendant’s] position would have known that his affidavit failed to 13 establish probable cause and that he should not have applied for the warrant.” Malley v. 14 Briggs,

(1986). “[T]he threshold for establishing this exception is a 15 high one.” Messerschmidt v. Millender,

(2012). After all, “in the 16 ordinary case, an officer cannot be expected to question the magistrate’s probable-cause 17 determination because it is the magistrate’s responsibility to determine whether the 18 officer’s allegations establish probable cause and, if so, to issue a warrant comporting in 19 form with the requirements of the Fourth Amendment.”

(quotations omitted). 20 In sum, the validity of the warrant is not presently before the Court. See 21 Messerschmidt,

. “The question instead is whether [the defendant] [is] 22 entitled to immunity from damages, even assuming that the warrant should not have been 23 issued.”

24 3. DISCUSSION 25 The Court finds that Defendant is entitled to qualified immunity. The TAC 26 provides multiple grounds for finding that the affidavit is wanting of probable cause but 27 fails to demonstrate that it lacked an “indicia of probable cause as to render official belief 28 in its existence entirely unreasonable.” Messerschmidt,

. On the contrary, 1 || the affidavit names the places to be searched and lists the specific property sought. (ECF 2 || No. 35-2, at 2-3.) The affidavit also states that Defendant identified Plaintiff through 3 ||emails between Plaintiff and a previously identified co-conspirator. Ud. at 9.) Despite 4 || suffering from clear deficiencies, the affidavit is not so utterly lacking such that “‘it is 5 || obvious that no reasonably competent officer would have concluded that a warrant should 6 ||issue.” Malley,

; accord Groh v. Ramirez,

(2004) 7 (holding an affiant is not entitled to qualified immunity where “the warrant did not 8 || describe the items to be seized at all’). In light of the Court’s finding, Plaintiff cannot 9 || state a plausible claim and Defendant’s motion to dismiss is granted. 10 4. CONCLUSION 11 For the reasons stated above, Defendant’s motion to dismiss is GRANTED. 12 || Additionally, the Court dismisses Plaintiff's claim against Defendant Steele WITHOUT 13 || LEAVE TO AMEND. Foman v. Davis,

(1962) (holding that 14 || “repeated failure to cure deficiencies by amendments previously allowed” is proper 15 || grounds to deny leave to amend); Lund v. Cowan,

, 973 (9th Cir. 2021) 16 || (“Dismissal without leave to amend is proper if it is clear that the complaint could not be 17 ||saved by amendment.”). Plaintiff's motion to strike is DENIED as moot. 18 IT IS SO ORDERED. 19 20 || Dated: February 15, 2023 fp ep? 27 H . James Lorenz, United States District Judge 23 24 25 26 27 28