Diaz
Diaz v. Gates
Opinion
Lead Opinion
Brunetti, J.
ORDER
The opinion filed January 20, 2004, is amended. The amended opinion and Judge Silverman’s dissent have been sent for filing.
No subsequent petitions for rehearing and petitions for rehearing en banc may be filed in response to the amended opinion.
*482 OPINION
David Diaz appeals the district court’s dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Diaz brought suit under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 , alleging wrongful conviction and incarceration. The district court determined that Diaz failed sufficiently to plead injury to “business or property” as required to proceed under RICO. We agree and affirm.
FACTS AND PROCEEDINGS BELOW
The facts generally arise from alleged misconduct of various Los Angeles Police Department (LAPD) officers and other officials as part of the LAPD Rampart scandal. According to plaintiffs complaint, on or about July 13, 1998, Los Angeles Police Officers Armando Rodriguiz, Juan Parga, and Jose Ramirez fabricated evidence to the effect that plaintiff had committed assault with a deadly weapon, tampered with witnesses, and conspired to obtain the false…
Dissenting Opinion
Silverman, J.
dissenting:
I respectfully dissent.
Diaz alleged that as a result of a predicate RICO act, he “lost employment.” 1 I fail to see why this isn’t enough to allege injury to his “business.or property” and, therefore, to state a RICO claim.
This case is quite unlike Oscar v. University Students Co-op. Ass’n, 965 F.2d 783 (9th Cir.1992), in which tenants in a student housing complex brought a RICO action complaining of various forms of “un-neighborly behavior” by the people next door. Id. at 784 . Oscar did not allege any direct financial loss or out of pocket expense. “The only injury she has alleged is a ‘decrease in the value of her property’ due to racketeering activity next door. We do not believe that such a decrease entails financial loss to Oscar.” Id. at 786 . We pointed out that the owner of the property might have been able to claim a diminution in the fair market value of the property, but that Oscar was a mere tenant. Id. at 786-87 . The only way she
could suffer tangible financial loss, we said, was if she tried to sublet the apartment, which she never alleged. Id. at 787 .
The Oscar scenario is in sharp contrast to the present complaint. Diaz alleges that as a…