1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARY SWAN LEWIS, et al., Case No. 2:23-cv-3319-WLH-RAO

12 Plaintiffs,

13 v. ORDER ACCEPTING REPORT

AND RECOMMENDATION OF

14 CITY OF MANHATTAN BEACH, UNITED STATES MAGISTRATE et al., JUDGE 15 Defendants. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiffs’ First 19 Amended Complaint (“FAC”) (Docket No. 26), the Magistrate Judge’s Report and 20 Recommendation issued on November 27, 2024 (“Report”) (Docket No. 62), 21 Plaintiffs’ Objections to the Report (Docket. No. 64), Defendants’ Reply to 22 Plaintiffs’ Objections (Docket Nos. 65–66), and the other records and files herein. 23 The Court has further engaged in a de novo review of those portions of the Report 24 to which Plaintiffs have objected and does not find Plaintiffs’ objections have 25 merit. 26 27 28 1 I. PLAINTIFFS OBJECT TO DISMISSAL OF THE JUDICIAL 2 DECEPTION CLAIM AGAINST DETECTIVE THOMPSON 3 Plaintiffs argue that the Magistrate Judge incorrectly applied the Franks 4 standard, such that it should have been determined that Detective Thompson’s 5 affidavit failed to support a finding of probable cause. (Objections, Docket No. 64 6 at 6). Further, according to Plaintiffs, the Magistrate Judge “considered evidence 7 and information” not contained in the affidavit when evaluating whether it 8 sufficiently established the existence of probable cause, even seeking to “justify” 9 alleged false claims within the affidavit. (Id. at 4, 8, 9). Plaintiffs allege that 10 correctly purging any “misstatements” results in a complete lack of probable cause. 11 (Id. at 17). The Court disagrees. 12 “To support a § 1983 claim of judicial deception, a plaintiff must show that 13 the defendant deliberately or recklessly made false statements or omissions that 14 were material to the finding of probable cause.” KRL v. Moore, 384 F.3d 1105, 15 1117 (9th Cir. 2004). “Omissions or misstatements resulting from negligence or 16 good faith mistakes will not invalidate an affidavit which on its face establishes 17 probable cause.” United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978). Any 18 false statements submitted must be purged by the court, which then determines if 19 what is left is sufficient to justify issuance of the warrant. Ewing v. City of 20 Stockholm, 588 F.3d 1218, 1224 (9th Cir. 2009). 21 To determine whether any statements in the affidavit was false or misleading, 22 and whether those inclusions were made “deliberately or recklessly,” this 23 necessarily requires examining the surrounding context in which the affidavit was 24 made. It is also through that exercise that a court may determine whether 25 misrepresentations or omissions bear on probable cause. See, e.g., Ewing, 588 F.3d 26 at 1224-28 (affirming district court’s finding that the misstatements or problematic 27 representations were not critical to the finding of probable cause by examining the 28 underlying events behind the affidavit). 1 The Magistrate Judge took each alleged misstatement or omission and 2 assessed both whether it was properly considered a misrepresentation or omission, 3 as well as its potential materiality to the ultimate finding probable cause. She 4 addressed the alleged misstatement around Plaintiffs’ son’s identification in the 5 bathroom;1 the alleged mischaracterization of the surveillance footage;2 and the 6 photographic lineup.3 (Report, Docket No. 62 at 15-17). In each instance, she 7 either determined the misrepresentation was not truly a misrepresentation or that it 8 was not material. (Id.). The Magistrate Judge’s analysis is sound. 9 Plaintiffs also argue that the affidavit contained misstatements relating to 10 their son’s potential possession of child pornography which the Magistrate Judge 11 incorrectly deemed immaterial. (Objections at 17). The Magistrate Judge, 12 however, correctly emphasized that the “probable cause to search Plaintiffs’ 13 residence for child pornography could rest only on [Plaintiffs’ son’s] surreptitious 14 photographing or videoing of [the victim] in the bathroom stall. The search warrant 15 affidavit does not refer to any other evidence . . .” (Report at 19). It is undisputed 16 that the victim indicated that he had been sitting on the toilet with his pants down 17 for about five minutes before noticing the camera lens pointed into the stall. (Id. at 18 20). Therefore, “Defendant Thompson could reasonably believe that [Plaintiffs’

19 1 The slight difference in language – exiting the stall rather than exiting the bathroom 20 – is not material to the determination that the man in question was Plaintiffs’ son, nor was it misleading. 21 2 The characterization of the person in the footage as hurriedly walking was not a 22 misrepresentation where he can be seen walking quickly. This is more aptly a semantic disagreement. 23 3 The claim that the affidavit misleadingly states that the witness was able to 24 positively identify their son was not a misrepresentation – even if hesitation was expressed, as it was ultimately a positive identification. There was no 25 misrepresentation. Further, any allegations of a tainted line-up area improper attempt 26 to expand or reframe arguments. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (“[A] district court has discretion, but is not required, to consider evidence 27 presented for the first time in a party’s objection to a magistrate judge’s 28 recommendation”). 1 son] had photographed or videoed Jack on the toilet, and that an image taken under 2 these circumstances would be ‘lewd and lascivious’ regardless of the non-sexual 3 nature of the activity from Jack’s point of view.” (Id.). The Magistrate Judge cites 4 to a host of cases demonstrating that photographs taken under such situations can 5 be considered lewd and lascivious, such that child pornography would be 6 implicated. Accordingly, in her determination “Defendant Thompson’s search 7 warrant affidavit established a fair probability that [Plaintiffs’ son] photographed or 8 videoed a child using the toilet in a neighboring bathroom stall and that the image 9 potentially constituted child pornography within the meaning of § 311.4(d)(1).” 10 (Id. at 21). As such, inclusion of references to child pornography were not 11 misleading, nor were they material for establishing probable cause. 12 The Court, therefore, disagrees that the Magistrate Judge misapplied the law, 13 improperly considered evidence and information or actively sought to justify any 14 alleged misstatements within the affidavit. The Court, therefore, overrules 15 Plaintiffs’ objections. 16 II. PLAINTIFFS OBJECT TO THE COURT DECLINING TO 17 EXERCISE SUPPLEMENTAL JURISDICTION 18 Plaintiff objects to the Court’s declining to exercise supplemental jurisdiction 19 over the state law claims. Plaintiff argues that because the judicial deception claim 20 should have survived summary judgment, that the Court should “sustain the state 21 claims.” (Objections at 27). This, however, is conclusory and insufficient to 22 warrant rejecting the Report. This Court on de novo review concurs with the 23 Magistrate Judge’s recommendation declining supplemental jurisdiction over the 24 remaining state law claims. 25 Considering the forgoing, the Court hereby accepts and adopts the findings, 26 conclusions, and recommendations of the Magistrate Judge. Accordingly, IT IS 27 ORDERED that Claims One and Two of the FAC are dismissed with prejudice, 28 1 || Claims Three and Four are dismissed without prejudice, and this action is 2 || dismissed. 3 4 | DATED: 3/11/2025 45 QD 5 HON. WESLEY L. HSU

UNITED STATES DISTRICT JUDGE

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