Rivas v. California Franchise Tax Board

619 F. Supp. 2d 994 (2008)

Michelle RIVAS and Thomas Kaschak, et al., Plaintiffs,
v.
CALIFORNIA FRANCHISE TAX BOARD, et al., Defendants.

No. 1:08-CV-00942 OWW SMS.

United States District Court, E.D. California.

December 23, 2008.

James R. Rowe, PHV, The Law Firm of Rowe & Associates, Chicago, IL, Lori R. Mayfield, Myers & Mayfield, Fresno, CA, for Plaintiffs.

Stephen Charles Pass, State of California, Office of the Attorney General, Sacramento, CA, for Defendants.

MEMORANDUM DECISION RE: DEFENDANTS' MOTION TO DISMISS.

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case arises out of a February 23, 2006 search of Plaintiffs' Michelle Rivas' ("Rivas") and Thomas Kaschak's ("Kaschak") residence, conducted by California Franchise tax Board ("FTB") agents on February 23, 2006, and Kaschak's January 9, 2007 arrest on charges of tax evasion. Plaintiffs allege that Defendants FTB, John Chiang, the California State Controller and Chairman of the FTB, and Slue Railsback, a FTB Senior Special Agent, are liable for damages under 42 U.S.C. § 1983 for violating Plaintiffs' constitutional rights and under state law for causing them emotional distress. (Doc. 1, Compl., filed July 2, 2008.)

Defendants move to dismiss the allegations, arguing: (1) the two-year statute of limitations for claims brought under section 1983 has passed; (2) Plaintiffs' first cause of action alleging that Defendants violated their Fourteenth Amendment rights by misrepresenting evidence to prosecutors resulting in Kaschak's wrongful arrest and prosecution does not state a claim upon which relief may be granted; (3) Eleventh Amendment immunity bars Plaintiffs' claims against Defendants Chiang and Railsback in their official capacities; (4) Plaintiffs' claims against Chiang in his individual capacity are not cognizable; and (5) Plaintiffs' state law claims must be dismissed because Plaintiffs failed to comply with California's tort claim presentation procedure. (Doc. 13-2 at 2, filed Sept. 8, 2008). Alternatively, Defendants maintain that any claims that survive the motion to dismiss should be stayed pending resolution of the pending criminal proceedings against Kaschak. (Id. at 3.)

Plaintiffs oppose dismissal, arguing: (1) the discovery rule requires tolling of the section 1983 statute of limitations; (2) the first cause of action alleges sufficient facts to sustain a claim for pretrial deprivation of liberty; (3) the Complaint properly alleges a 1983 claim against Chiang in his individual capacity; and (4) non-compliance with California's tort claim presentation procedure does not require dismissal. (Doc. 17 at 2-3, filed Nov. 6, 2008.)

II. BACKGROUND

Plaintiffs allege that on February 23, 2006, in the early morning hours, approximately 20 FTB agents "stormed" Plaintiffs' residence at 2400 Van Pelt, in Modesto, California, pursuant to a search warrant that was "obtained under false pretenses," based in part on false allegations that Kaschak evaded his tax obligations to the State of California. (Compl. ¶¶ 8-9.)

During the course of the search, the Complaint alleges that Plaintiffs were "held for several hours, denied use of their telephone or contact with any attorney or counsel, denied use of the washroom, and denied basic food and water." (Id. at ¶ 10.)

Prior to the search, Kaschak, who is an orthopedic trauma surgeon, had been on call in the emergency room for eight consecutive days, with little or no sleep. (Id. at ¶ 11.) He allegedly informed the FTB agents that he was sleep deprived. (Id. at ¶ 12.) The Complaint allege that, despite Kaschak's state of sleep deprivation, FTB agents "interrogat[ed]" Kaschak and Rivas for over two hours. (Id.) Allegedly, Kaschak requested permission to contact an attorney, but FTB agents denied this request. (Id.) FTB agents did not inform Plaintiffs of the subject or nature of their search, nor of the accusations against them, despite Plaintiffs' "repeated requests for such information." (Id. at ¶ 13.)

On January 9, 2007, Kaschak was arrested by FTB agents and charged with multiple felony counts of tax evasion for alleged failure to file state income tax returns for the years 2000-2004. (Id. at ¶ 14.) At the time of his arrest, Kaschak allegedly inquired as to the charges against him, but the arresting agents claimed to have no knowledge of the charges. (Id. at ¶ 15.)

Kaschak later learned that FTB had issued a press release earlier that day, detailing the charges against him. (Id.) The bail request filed by FTB also outlined the charges. (Id.) Bail was set at $250,000. (Id. at ¶ 16.)

Kaschak's arrest concluded a four and a half year investigation by the FTB. (Id. at ¶ 17.) Plaintiffs allege that at no point during that investigation, until service of the search warrant on February 23, 2006, were Plaintiffs notified of the nature of the investigation, nor of any tax liability for the years in question. (Id.)

Prior to his arrest, Kaschak attempted to satisfy his tax liability with the FTB. (Id. at ¶ 19.) Railsback allegedly responded to Kaschak's inquiry in a May 3, 2006 letter, stating that she had never solicited any tax payments from Kaschak and had no intention of doing so. (Id.) Plaintiffs assert that this violates FTB procedures, which provide that "it is the responsibility of [ ]FTB representatives to ... [m]ake every reasonable attempt to resolve the collection issues with the designated representative." (Id. at ¶ 19.)

Plaintiffs allege that the investigation report prepared by Railsback, which led to the arrest of Kaschak, contains "lies, material omissions, and/or misleading statements." (Id. at ¶ 18.)

Plaintiffs' First Cause of Action, for "Denial of Due Process Under 42 U.S.C. § 1983," alleges Defendants conspired to (a) deny Plaintiffs their right to counsel during the "interrogation," (b) write false complaints, (c) misinform prosecutors of the bases for charges against Kaschak, (d) institute criminal proceedings against him without lawful bases, and (e) prosecute him without required notices and/or statements of tax deficiency. (Id. ¶¶ 23-32.) The Second Cause of Action alleges that FTB agents used excessive force when they (a) searched Plaintiffs' residence on February 23, 2006, and (b) affected Kaschak's arrest on January 9, 2007. (Id. at ¶¶ 33-41.) The Complaint also contains state law causes of action for Negligent (Third Cause of Action) and Intentional (Fourth Cause of Action) Infliction of Emotional Distress, as well as a Conspiracy claim (Fifth Cause of Action).

III. STANDARD OF DECISION

Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." In deciding whether to grant a motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir.2002). "To avoid a Rule(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dept. of Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)) (rejecting interpretation of Rule 8 that permits dismissal only when plaintiff can prove "no set of facts" in support of his claim). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).^[1]

The defendant bears the initial burden of demonstrating that the statute of limitations has run in 1983 cases. Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007). If the complaint pleads facts that show a suit is time-barred, dismissal may be appropriate, unless the statute of limitations can be tolled. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.1999). Plaintiff bears the burden of establishing the applicability of tolling doctrines. Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir.1993).

IV. DISCUSSION

A. Motion to Dismiss.

1. Statute of Limitations.

A two year statute of limitations applies to Plaintiffs' section 1983 claims. Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir.2004) (applicable statute of limitations for § 1983 actions is drawn from forums state's limitations period for personal injury actions; in California, a two year limitations period was made effective as of January 1, 2003). The accrual date of a section 1983 cause of action is a question of federal law. Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 1095, 166 L. Ed. 2d 973 (2007). The standard rule is that accrual occurs "when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief." Id. (internal citations and quotations omitted).

Defendants argue that to the extent Plaintiffs' First and Second Causes of Action arise out of the February 23, 2006 search of Plaintiffs' residence, the applicable accrual date was February 23, 2006, the date of the search, more than two years before the filing of the complaint on July 2, 2008. (Doc. 13-2 at 5.)

The First Cause of Action contains a mixture of allegations:

FIRST CAUSE OF ACTION

DENIAL OF DUE PROCESS UNDER 42 U.S.C. § 1983

* * *

24) Under 42 U.S.C. § 1983, a person who, acting under color of state law, deprives another person of his federal constitutional rights is liable to the injured party.

25) The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall deprive any person of life, liberty, or property, without due process of law.

26) The individual Defendants' conduct as alleged herein violated Plaintiffs' rights to due process.

27) Defendants' conspired, each of them and amongst themselves, to write false complaints and to misinform prosecutors of the basis for charges against Plaintiff Thomas. In so doing, Defendants instituted criminal proceedings against Plaintiff Thomas without a lawful basis, in violation of Thomas' due process rights.

28) Defendants conspired, each, of them and amongst themselves, to create circumstances to construct allege criminal conduct in furtherance of its goal to prosecute Thomas, all in violation of Thomas' due process rights and the CAFTB's own Franchise Tax Board Collection Procedures Manual, wherein Defendant's [sic] did not provide Thomas with the required notices and/or statements of tax deficiency, as alleged herein.

29) Defendants conspired, each of them and amongst themselves, to deny Thomas and Michelle their right to counsel during their interrogation on February 23, 2006, despite Plaintiffs' repeated requests for same.

30) The rights of Plaintiffs that Defendants have violated are clearly established statutory or constitutional rights of which a reasonable person would have known.

* * *

(Id. at ¶¶ 24-30.) The First Cause of Action does not allege that an unlawful search took place, per se. Rather, the only allegation arising directly out of the search is that Defendants denied Plaintiffs their right to counsel during the "interrogation." (Id. at ¶ 29.)

The Second Cause of Action, alleges, among other things that FTB agents used excessive force when they searched Plaintiffs' residence on February 23, 2006, by (a) storming the residence with guns drawn without basis, (b) interrogated Plaintiffs for hours, unlawfully restricting Plaintiffs' movement, and (c) denied Plaintiffs the right to speak to an attorney. (Id. at ¶¶ 36.)

Two types of claims relate directly to the search: (1) the use of excessive force by FTB agents in executing the search warrant; and (2) the agents' refusal to grant Plaintiffs access to counsel during an interrogation.

a. Inapplicability of Heck v. Humphrey.

As a threshold matter, these claims raise an issue not addressed by either party. Federal courts will not entertain claims seeking money damages under section 1983 if doing so will require the court to rule on issues in dispute in a state court criminal proceeding. See Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Under the Supreme Court's holding in Heck, a section 1983 action "that would call into question the lawfulness of a plaintiff's conviction or confinement is not cognizable, and does not, therefore, accrue until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal." Harvey v. Waldron, 210 F.3d 1008, 1014-16 (9th Cir.2000) (citing Heck, 512 at 486-87, 114 S. Ct. 2364). The Ninth Circuit suggested in Harvey that Heck rule applies to pending as well as outstanding convictions, id. at 1014, but this application of Heck has been explicitly overruled by the Supreme Court in Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 1097-98, 166 L. Ed. 2d 973 (2007), which held that Heck only bars 1983 claims that would impugn criminal convictions that have actually been obtained and are outstanding.^[2] Nevertheless, the Wallace court noted that a district court may be empowered to stay the civil action until the criminal proceedings have completed under other doctrines, id. at 1098, an issue discussed elsewhere in this decision.

b. California Government Code § 945.3.

Plaintiffs suggest that the statute of limitations for the search-related claims should be tolled under section 945.3 of the California Government Code, which prohibits the filing of a civil action for damages against a peace officer or the public entity employing that peace officer while related criminal charges are pending against the potential plaintiff:

No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.

Cal. Gov.Code § 945.3. The section also tolls the statute of limitations for filing and prosecuting any such civil claim "during the period that the charges are pending before a superior court." Id.

The Ninth Circuit refused to allow section 945.3 to bar a potential plaintiff from bringing a section 1983 claim against a peace officer while criminal actions are pending, but held that the section's tolling provision "still appl[ies] to toll the limitations period while criminal actions are pending against the potential plaintiff." Harding v. Galceran, 889 F.2d 906, 907-08 (9th Cir.1989).

Section 945.3 does not apply to the claims brought by Rivas, as she is not the subject of criminal charges pending before a superior court. Her claims are not tolled by § 945.3.

Defendants do not respond directly to Plaintiffs' assertion that California Government Code section 945.3 tolls Kaschak's federal claims against any Defendants who are peace officers and the agencies for whom they work. Defendant Railsback, as special agent of the FTB, is a peace officer under California law, Cal.Penal Code § 830.37(s). Pursuant to section 945.3's tolling provision, the statute of limitations is tolled for Kaschak's section 1983 claims against Railsback and the FTB while his criminal case is pending before the superior court.

Defendants point out, however, that Plaintiffs fail to allege a factual basis for tolling any claims against Defendant Chiang, who is the California State Controller and Chairman of the FTB, under section 945.3.^[3]

c. Continuing Violation Theory.

Plaintiffs argue that the statute of limitations for the search-related claims against Chiang should be tolled pursuant to a "continuing violation" theory:

In the case at bar, such an extension is warranted where the surreptitious investigation from which the search arose was ongoing for over 4 years without Plaintiffs' knowledge, and despite the fact that Defendants conducted a search on February 23, 2006, the investigation did not conclude until Kaschak was arrested on January 9, 2007. Certainly, where the search was part and parcel to Defendants' investigation and Defendants' investigation continued until January 9, 2007 concluding with Kaschak's arrest, the search, arrest and investigation are sufficiently (if not wholly) related to justify an extension of the limitations period. Further, Plaintiffs, despite their requests, were refused information from the Defendants regarding the subject or nature of the February 23, 2006 search until Kaschak's arrest on January 9, 2007. For each of these reasons, this Court should extend the limitations period, if even if should be an issue.

(Doc. 17 at 5.) Essentially, Plaintiffs argue that because the investigation was ongoing through January 9, 2007, the statute of limitations for claims arising out of any aspect of the investigation, including the search, should be tolled until at least January 9, 2007, when Plaintiffs became aware of the nature of the investigation.

The U.S. Supreme Court substantially limited the applicability of the continuing violation doctrine in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), holding that "discrete . . . acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 122, 122 S. Ct. 2061. Instead "[e]ach discrete ... act starts a new clock for filing charges alleging that act." Id.^[4] Although Morgan concerned a Title VII employment discrimination claim, the Ninth Circuit applies Morgan's discrete act rule to section 1983 claims. See Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 829 (9th Cir.2003).

Morgan counsels against application of the continuing violation doctrine in this case, because the search (which gave rise to the excessive force and denial of counsel claims) constituted a discrete act. Moreover, Plaintiffs were aware of the nature of the search and the fact that they were denied counsel on February 23, 2006. This awareness did not depend on their knowledge of the underlying investigation nor upon the future arrest of Kaschak. There is no series of acts that could possibly constitute a continuing violation. Plaintiffs offer no basis for applying the continuing violation theory to their search-related claims. As Plaintiffs offer no other basis for tolling the statute of limitations for the search-related claims against Chiang, these claim against him must be dismissed as time-barred.

d. Conclusion Re: Statute of Limitations.

The Heck line of cases does not bar hearing Plaintiffs' claims at this time, as the criminal charges are ongoing.

Neither section 945.3 nor the continuing violation theory toll Rivas' search-related claims, which accrued on February 23, 2006, more than two years before the filing of the complaint on July 7, 2008. Rivas brings no other federal claims.

Section 945.3 tolls the statute of limitations as to the search-related claims against Railsback and the FTB, but does not apply to the search-related claims against Chiang, who is not a peace officer. The continuing violation doctrine does not apply to the search-related claims against Chiang, which accrued on February 23, 2006.

Defendants' motion to dismiss Plaintiffs claims arising out of the February 23, 2006 search is GRANTED as to all of Rivas' federal claims, and all of Kaschak's federal search-related claims against Chiang, but is DENIED as to Kaschak's federal search-related claims against Railsback and the FTB.

2. First Cause of Action for Violation of Fourteenth Amendment Rights.

The First Cause of Action contains a somewhat confusing mixture of allegations, focusing on the Fourteenth Amendment right to due process. (Compl. at ¶¶ 24-30.) Substantively, the First Cause of Action alleges:

27) Defendants' conspired, each of them and amongst themselves, to write false complaints and to misinform prosecutors of the basis for charges against Plaintiff Thomas. In so doing, Defendants instituted criminal proceedings against Plaintiff Thomas without a lawful basis, in violation of Thomas' due process rights.

28) Defendants conspired, each of them and amongst themselves, to create circumstances to construct allege criminal conduct in furtherance of its goal to prosecute Thomas, all in violation of Thomas' due process rights and the CAFTB's own Franchise Tax Board Collection Procedures Manual, wherein Defendant's [sic] did not provide Thomas with the required notices and/or statements of tax deficiency, as alleged herein.

29) Defendants conspired, each of them and amongst themselves, to deny Thomas and Michelle their right to counsel during their interrogation on February 23, 2006, despite Plaintiffs' repeated requests for same.

(Emphasis added.)

Defendants argue that the Due Process Clause of the Fourteenth Amendment does not provide a substantive right to be free from criminal prosecution except upon probable cause. Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). In Albright, a college student was arrested for selling what was thought to be cocaine, but was actually baking soda. Id. at 268, 114 S. Ct. 807. The charges were later dropped because selling baking soda did not constitute an offense under state law. Id. The student sued the detective whose testimony before the grand jury resulted in his arrest, claiming that the detective violated his Fourteenth Amendment due process rights. Id. at 268-69, 114 S. Ct. 807. The Supreme Court affirmed the dismissal of the complaint, reasoning that it was the Fourth, not the Fourteenth Amendment that provided a basis for Plaintiffs' claim. Id. at 271, 275, 114 S. Ct. 807.

The Albright Court specifically noted that plaintiff limited his claim to denial of substantive due process under the Fourteenth Amendment, and did not allege violations either of his procedural due process or Fourth Amendment rights. Id. at 271, 114 S. Ct. 807. Because substantive due process rights have "for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity," plaintiffs' claim to be free from prosecution except on the basis of probable cause did not fit within the substantive due process framework. Id. at 271-72, 114 S. Ct. 807. Although a number of the procedural protections afforded by the Bill of Rights have been applied to the States by way of the Fourteenth Amendment, "it is the Fourth Amendment, not substantive due process" that protects plaintiff against pretrial deprivations of liberty. Id. at 273-74, 114 S. Ct. 807. The Court expressed no view as to whether plaintiffs situation would present a valid Fourth Amendment claim because no such claim had been presented.

Plaintiffs' First Cause of Action presents a similar situation. It makes no mention of the Fourth Amendment. Plaintiffs argue that because the claims arise from the allegedly "unlawful search and arrest, conducted without probable cause," the motion to dismiss should be denied because Defendants are on notice of the nature of Plaintiffs' claims. Plaintiffs cite no authority for this proposition, which conflicts Albright.

Defendants' motion to dismiss the First Cause of Action is GRANTED WITH LEAVE TO AMEND.

3. Federal Claims Brought Against Chiang and Railsback in Their Official Capacities.

The Complaint names Defendants Chiang and Railsback in both their official and individual capacities. The Eleventh Amendment bars claims against a state or state entity unless that immunity has been specifically abrogated by federal statute. See, e.g., United States v. Georgia, 546 U.S. 151, 158-59, 126 S. Ct. 877, 163 L. Ed. 2d 650 (2006) (Eleventh Amendment bar abrogated by Title II of the Americans with Disabilities Act). A state is not a "person" against whom a claim for money damages may be asserted under section 1983.^[5]Will v. Mich. Dept. of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). The same rule applies to state entities and state officials acting in their official capacities. See id.^[6] Plaintiffs do not suggest otherwise. It is equally well established that in this Circuit, a claim against a public official in his official capacity is redundant when brought alongside a claim against the entity. See Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 799 (9th Cir.2008). Defendants' motion to dismiss the federal claims against Chiang and Railsback in their official capacities is GRANTED.

4. Federal Claims Brought Against Chiang in his Individual Capacity.

Plaintiffs also name Chiang as a defendant in his individual capacity. There is no respondeat superior liability under section 1983. Monell v. Dept. of Social Serv., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). To state a cause of action against a defendant in his individual capacity, Plaintiffs must allege that the defendants knew of or participated in activities connected to the alleged § 1983 violations. Ortez v. Wash. County, 88 F.3d 804, 809 (9th Cir.1996). A supervisor may be liable under section 1983 if he or she "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir.2007) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989)).

Defendants argue that Plaintiffs claim should be dismissed because it "fails to allege any direct participation by Chiang in the allegedly wrongful acts, other than that FTB agents involved in the search were acting under his direction." (Doc. 13-2 at 10.) But, Plaintiffs correctly rejoin that an allegation that Chiang directed the agents' actions is sufficient. Specifically, Plaintiffs allege that unconstitutional actions were taken by Railsback and other agents "at the direction of [FTB's] Chairman," Chiang. (Compl. at ¶ 22.) Defendants point to no authority suggesting that this is insufficient to meet the liberal pleading requirements of Federal Rule of Civil Procedure 8. Defendants' motion to dismiss any remaining individual-capacity claims against Chiang is DENIED.

5. Non-Compliance with the California Tort Claim Act's Claim Presentation Requirement.

The California Tort Claims Act ("CTCA"), Cal. Gov.Code §§ 900 et seq., establishes conditions precedent to the filing of a lawsuit against a public entity, including the requirement that a plaintiff timely file a claim for damages with the public entity defendant. § 911.2. Failure to comply with this requirement bars a plaintiff from bringing suit against that entity. § 945.4. "[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to demurrer" in state court, California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1239, 13 Cal. Rptr. 3d 534, 90 P.3d 116 (2004), or dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) in federal court, see, e.g., Hendon v. Ramsey, 528 F. Supp. 2d 1058, 1069-70 (S.D.Cal.2007). Plaintiffs do not suggest otherwise, nor does their complaint allege facts demonstrating or excusing compliance with the CTCA.^[7] Defendants' motion to dismiss the state tort claims is GRANTED WITH LEAVE TO AMEND.

B. Alternative Request for a Stay.

Defendant alternatively requests that any claims that survive the motion to dismiss should be stayed until the criminal case against Kaschak has been resolved, citing Wallace, 127 S.Ct. at 1098, which, after holding that Heck did not automatically require dismissal of potentially impugning 1983 claims while criminal charges were pending, noted that other authorities existed for staying such claims pending completion of pending criminal proceedings. Wallace cited footnote 8 of Heck, which reasoned "if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings," citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Wallace also referenced, Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-717, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996), which held:

We have [ ] held that federal courts have the power to refrain from hearing cases that would interfere with a pending state criminal proceeding, see Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) ...

(parallel citations omitted)

A district court should abstain under Younger when: "(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) the state proceedings provide the plaintiff with an adequate opportunity to raise federal claims." Meredith v. Oregon, 321 F.3d 807, 816-17 (9th Cir.2003) (applying test set forth in Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982)). "Younger abstention is proper only when the federal relief sought would interfere in some manner in the state court litigation." Id. The Ninth Circuit applies Younger abstention principles to claims for damages under section 1983. Gilbertson v. Albright, 381 F.3d 965 (9th Cir.2004).

Here, there are ongoing state judicial proceedings, and the enforcement of criminal laws has been deemed an important state interest, see Younger, 401 U.S. 37, 91 S. Ct. 746. Moreover, for some of Plaintiffs' claims, the state criminal proceeding will offer Plaintiffs an opportunity to raise their federal constitutional claims. For example, if evidence was gained through an unlawful search or through an interrogation where access to counsel was unlawfully denied, a state court may suppress the evidence. However, Kaschak's excessive force claims present a different question. They have no bearing on his state criminal proceeding. He has not been charged with resisting arrest or any related offense. See Voychuk v. California, 2006 WL 738796, *2 (E.D.Cal.2006). Younger does not warrant a stay of those claims. See Scheuerman v. City of Huntsville, 373 F. Supp. 2d 1251, 1257 (N.D.Al. 2005) (declining to stay under Younger a 1983 excessive force claim brought against city and police officer who attempted murder suspect while affecting arrest).

Younger supports the imposition of a stay of all but the excessive force claims.

V. CONCLUSION

For the reasons set forth above,

(1) Defendants' Motion to Dismiss is

(a) GRANTED as to all of Rivas' federal claims on statute of limitations grounds.

(b) GRANTED as to all of Kaschak's federal search-related claims against Defendant Chiang on statute of limitations grounds, but DENIED as to the federal search-related claims against Railsback and the FTB.

(c) GRANTED as to the federal official-capacity claims against Chiang and Railsback.

(d) DENIED as to the federal individual-capacity claims against Chiang.

(e) GRANTED as to the state tort claims because Plaintiffs failed to allege facts demonstrating or excusing compliance with the CTCA claim presentation requirement.

(2) Defendants' alternative motion for a stay is GRANTED as to all but the excessive force claims.

(3) Plaintiffs shall have 30 days from entry of this order to file an amended complaint consistent with this decision.

SO ORDERED.

NOTES

[1] Plaintiffs incorrectly assert that motions to dismiss should be granted only in "extraordinary cases," citing Barker v. United States, 903 F. Supp. 31, 32 (S.D.Cal.1995). Barker relied on Ninth Circuit cases applying the "no set of facts" formulation, e.g., Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990), that was explicitly rejected by the Supreme Court in Twombly, 127 S.Ct. at 1969-70.

[2] If Kaschak had already been convicted, Heck would apply and might bar his claims for denial of access to counsel. Although no published opinions addressing the applicability of Heck to claims of denial of access to counsel have been located, the logic of Heck extends to such claims, because evidence obtained during an interrogation conducted in the absence of requested counsel might impugn the integrity of the criminal investigation. See Batchelor v. Village of Evergreen Park, 2004 WL 2057262, *4 (N.D.Ill.2004). In contrast, ordinarily, Heck would not bar a court from hearing a claim for excessive force because such claims do not ordinarily impugn the underlying conviction. Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir.1996).

[3] Defendants also point out that the necessary implication of section 945.3 is that all of the state law claims against Railsback and the FTB must be stayed. Those claims must be dismissed on other grounds, so the entry of a stay is not necessary.

[4] The Morgan Court created an exception for claims based on a hostile work environment, emphasizing that such claims, by their very nature, involve repeated conduct. Id. at 127, 122 S. Ct. 2061. But no such claim is alleged here.

[5] Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (emphasis added).

[6] "A state official [acting] in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." Will, 491 U.S. at 71 n. 10, 109 S. Ct. 2304. But, Plaintiffs seek damages, not injunctive relief here.

[7] Plaintiffs do cite the appellate court opinion, California v. Superior Court (Bodde), 105 Cal. App. 4th 1008, 130 Cal. Rptr. 2d 94 (2003), which was overruled by the supreme court, 32 Cal. 4th 1234, 13 Cal. Rptr. 3d 534, 90 P.3d 116. Plaintiffs acknowledge that this decision is no longer good law in a footnote, but nevertheless cited the appellate decision, and argue "that such reversal was inappropriate so as to preserve their right on appeal." (Doc. 17 at 10 n. 9.) This is improper, as the Supreme Court decision is the only citeable case authority.