NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES DAHLIN; KIMBERLY DAHLIN, No. 20-16083

Plaintiffs-Appellants, D.C. No. 2:17-cv-02585-MCE-AC v.

ROSEMARY FRIEBORN; CURT MEMORANDUM*

RANSOM; MARILYN JASPER; CASSIE

REEVES; KATIE NEWMAN; SHERRY

COUZENS; HUMANE SOCIETY OF THE

SIERRA FOOTHILLS; FRIENDS OF

PLACER COUNTY ANIMAL SHELTER;

FRIENDS OF AUBURN/TAHOE VISTA

PLACER COUNTY ANIMAL SHELTER;

CITY OF AUBURN; AUBURN POLICE

DEPARTMENT; DEBBIE NELSON;

PHILLIP ISETTA; MICHAEL CROSSON;

EDWARD J. FRITZ; THOMAS SHERIFF,

DVM; SHANA LAURSEN; ANGELA

MCCOLLOUGH, Officer; TUCKER HUEY, Sergeant,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted May 11, 2021 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,** Judge.

Kimberly and James Dahlin appeal from the district court’s dismissal of

their complaint asserting claims based on the seizure of their dogs and various

personal effects. We have jurisdiction under 28 U.S.C. § 1291 and “review de novo

a district court’s decision to grant a motion to dismiss.” Pasadena Republican Club

v. Western Just. Ctr., 985 F.3d 1161, 1166 (9th Cir. 2021). We affirm in part and

reverse in part.

1. To state a claim under 42 U.S.C. § 1983 against the non-municipal

defendants, the Dahlins must allege that they acted under color of state law. See

Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010).

The Humane Society and its officers concede that they are state actors for purposes

of this analysis. But the district court held that the Dahlins failed to plausibly allege

that the remaining non-municipal defendants—Cassie Reeves, Katie Newman,

Sherry Couzens, Michael Crosson, Shana Laursen, Marilyn Jasper, Dr. Edward

Fritz, and the Friends Animal Shelter entities—acted under color of state law. The

Dahlins did not raise this issue in their opening brief and therefore forfeited it.

Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

2. The district court erred in dismissing the judicial-deception claim

** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

2 against Rosemary Frieborn based on her omission of material facts from the

warrant affidavit. To prevail on a claim for judicial deception, “the plaintiff must

(1) establish that the warrant affidavit contained misrepresentations or omissions

material to the finding of probable cause, and (2) make a ‘substantial showing’ that

the misrepresentations or omissions were made intentionally or with reckless

disregard for the truth.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th

Cir. 2011) (quoting Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir.

2009)). We review the district court’s finding on materiality de novo and ask

“whether the affidavit, once corrected and supplemented, establishes probable

cause.” Id. at 1083–84 (quoting Ewing, 588 F.3d at 1224).

The Dahlins plausibly allege that the omission of Dr. Sheriff’s account of the

dogs’ condition was material to the finding of probable cause. Including the

opinion of the dogs’ treating veterinarian that the dogs were healthy and did not

appear neglected or abused would have cast serious doubt on the contrary and less

authoritative accounts of the veterinary technicians, and on Frieborn’s opinion that

she was likely to find evidence of animal cruelty within the meaning of California

Penal Code § 597. Indeed, the Placer County District Attorney declined to

prosecute the Dahlins because, in his view, “any evidence collected in the

execution of the search warrant would be excluded based on the intentional

omission of relevant evidence.” The Dahlins have sufficiently pleaded that, had the

3 warrant affidavit included the omitted information, the affidavit would not have

established “a fair probability that contraband or evidence of a crime [would] be

found.” United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) (alteration in

original) (quoting United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992)).

Because the Dahlins plausibly allege that Frieborn intentionally omitted

material facts from the warrant affidavit, dismissal on the basis of qualified

immunity is inappropriate at this stage. See Chism v. Washington State, 661 F.3d

380, 393 (9th Cir. 2011); Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (per

curiam).

3. The district court also erred in dismissing the Dahlins’ section 1983

claim against Frieborn, Ransom, and Auburn Police Officers Nelson, Isetta,

McCollough, and Huey based on the seizure of property outside the scope of the

warrant. See Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1210 (9th

Cir. 2002). To prevail, the Dahlins will eventually need to demonstrate the

defendants’ precise roles in the alleged constitutional violation. See Blankenhorn v.

City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007). But they plausibly allege

that each of these defendants were “integral participant[s]” in the search. See Boyd

v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004).

The Dahlins plausibly allege that the dogs seized were not abused or

neglected or kept in conditions that would lead to further abuse or neglect. If that is

4 true, the dogs’ seizure was not authorized by the warrant. The Dahlins also allege

with specificity that other items outside the scope of the warrant were seized. See

San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d

962, 972–74 (9th Cir. 2005) (seizure of excessive quantity of “indicia” evidence

was unreasonable, even if technically within the scope of the warrant).

Because “the law is clearly established that a search may not exceed the

scope of the search warrant,” defendants are not entitled to qualified immunity at

this stage. KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004).

4. The district court correctly dismissed the Dahlins’ claim challenging

the search’s duration. We agree with the district court that the Dahlins did not

explain why spending 12 hours searching the 35-acre, multi-structure property was

unreasonable under the circumstances.

5. The Dahlins fail to state a claim based on the search warrant’s

breadth, to the extent the Dahlins raised that claim before the district court. They

do not explain how the search warrant, which identifies seven specific categories

of property, is overbroad. The complaint merely alleges, without elaboration, that

the warrant is a “general warrant” and does not address the pertinent factors for

assessing a warrant’s scope. See Ewing, 588 F.3d at 1228 (listing factors).

6. The Dahlins forfeited any challenge to the district court’s dismissal of

their section 1983 claims premised on a violation of the Fourteenth Amendment by

5 failing to raise that issue in their opening brief. Independent Towers, 350 F.3d at

929.

7. The district court correctly dismissed the Dahlins’ section 1983 claims

against the City of Auburn, the Auburn Police Department, and the Humane

Society, brought under Monell v. Department of Social Services, 436 U.S. 658

(1978). The Dahlins waived those claims against the City of Auburn and the

Auburn Police Department by conceding before the district court that the

complaint “does not expressly allege . . . a Monell violation.” See Walker v.

American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1068 (9th Cir.

1999). Regardless, the complaint fails to state a claim for municipal liability

against any entity, including the Humane Society, because it identifies no “policy

or custom” that led to the alleged constitutional violations. City of Canton v.

Harris, 489 U.S. 378, 385 (1989); see Castro v. County of Los Angeles, 833 F.3d

1060, 1073 (9th Cir. 2016) (en banc); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

1996).

8. The district court erred in dismissing the claim under California

Business & Professions Code § 4857(a) against Dr. Sheriff based on his staff’s

disclosure of confidential information to a UPS courier. The complaint identifies

three specific employees with whom the courier spoke, the approximate timing of

those conversations, and the nature of the protected information disclosed, which

6 included information regarding the dogs’ surgeries and contact information for the

dogs’ owners. It is undisputed that the search warrant issued based in part on what

the courier learned. These allegations, taken together, “nudge[] the[] claim[] across

the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007).

Contrary to the district court’s determination, the information allegedly

disclosed was not limited to “public observations.” The staff allegedly provided

information to the courier about the dogs’ owners, and, in any event, the statute

contains no exception that would permit a veterinarian to disclose confidential

medical information so long as it is observable.

Still, Dr. Sheriff argues that his employees acted outside the scope of their

employment—a “question of fact.” Mary M. v. City of Los Angeles, 814 P.2d 1341,

1347 (Cal. 1991). But the employees allegedly obtained the confidential

information from work, and the information concerned a client and animals the

employees encountered at work. The employees also disclosed the information to a

courier visiting the clinic, presumably during work hours. Based on the allegations

in the complaint, the alleged tort is “engendered by or arise[s] from the

[employees’] work.” Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358,

362 (Cal. 1995); see generally Farmers Ins. Grp. v. County of Santa Clara, 906

P.2d 440, 448 (Cal. 1995).

7 We note that no California court has construed section 4857(a) in a

published opinion. The district court may consider the “paucity of state law

authority on the precise topic at issue” in determining whether it will continue to

exercise supplemental jurisdiction over this claim. Brigham v. Eugene Water &

Elec. Bd., 357 F.3d 931, 942 n.19 (9th Cir. 2004).

9. For those claims that it correctly dismissed, the district court did not

abuse its discretion in denying leave to amend the second amended complaint. See

AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). The

district court gave the Dahlins multiple opportunities to amend the complaint, yet

they failed to address many of its deficiencies and proffered no amendment to

remedy them. See Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013).

AFFIRMED in part, REVERSED in part, and REMANDED.

The parties shall bear their own costs on appeal.

8