This is the final round on the motion before the judge ruled. The ruling is attached. ---Keith Henson KINKEL, RODIGER & SPRIGGS BRUCE DISENHOUSE 3393 Fourteenth Street Riverside, CAlifornia 92501 (714) 683-2410 GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210-5215 (213) 859-7811 Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. Case No. SA CV 90-021 JSL (RwRx) REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES Date: May 14, 1990 Time: 1:00 p.m. Courtroom: No. 2 Trial Date: None set MEMORANDUM OF POINTS AND AUTHORITIES Contrary to plaintiff's assertions, the complaint must be dismissed as to all of the named defendants because plaintiffs have failed to state a claim for relief pursuant to the Electronic Communications Privacy Act and, in any event, defendants are shielded from liability by the good-faith immunity provided by the statute. This court will recall that in their motion to dismiss the complaint, defendants asserted that from a review of the search warrant attached thereto (Attachment A to complaint), they did not violate or exceed the specific terms of the search warrant order obtained by them prior to its execution at Alcor's premises and even if it were otherwise, the named defendants were entitled to dismissal on the basis of their good-faith reliance on the facially valid Riverside County Superior Court search warrant. In seeking to oppose defendants' motion to dismiss, plaintiffs, rather than focusing on the specific allegations of their complaint and the specific statutory and case authority supporting their action, attempt to establish the invalidity of defendants' conduct and their lack of good faith in executing a search warrant, relying instead on materials not incorporated by reference in their complaint or alleged therein. It would appear that in order to oppose the instant motion to dismiss, plaintiffs quite improperly attempt to convert defendants' motion to dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6), to a motion for summary judgment pursuant to Federal Rules of Civil Procedure, Rule 56. This they may not do. Plaintiffs improperly attempt to shift their focus in opposition to the otion to dismiss by arguing that defendants had a purported duty to supply this court with evidentiary materials consisting of the affidavit in support of search warrant and then proceed to contend that defendants would have to demonstrate to this court that they had supplied the court issuing the warrant with tehse materials, thus permitting that court to find "that there is reason to believe that the contents of a wire or electronic communication...are relevant to a legitimate law enforcement inquiry." Opposition, pp. 2-3. Having made this baldface assertion, plaintiffs then proceed to improperly put before this court the purported affidavit which they claim was utilized to obtain the search warrant in this case. However, plaintiffs have cited no authority and, indeed, defendants are aware of no proper authority which would permit plaintiffs to bring before this court a document purporting to be the affidavit n support of search warrant, since, again, plaintiffs are not faced with opposing a motion for summary judgment, but rather a motion to dismiss complaint based on the lack of supporting allegations in their complaint to proceed to trial. Once this court makes a determination that the materials placed in plaintiffs' opposition have no proper place in that document, we are left with an opposition which is barren of any relevant authority to establish that defendants in fact violated the specific terms of said warrant at the time of its execution. Moreover, plaintiffs have made no proper argument to establish that defendants failed to act in good faith in executing what defendants contend was a facially valid warrant. While defendants do not quarrel wilth the concept that a search warrant issuing from a court is inseparable from and must be read in connection with the underlying affidavits which are attached to it (see United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the instant case the specific terms of the search warrant affidavit having not been alleged or incorporated by reference in plaintiffs' compalint, cannot now be utilized by plaintiffs to suggest that the search warrant in this case was overbroad, thus somehow negating defendants' assertion of good-faith immunity. Contrary to plaintiffs' assertion, the search warrant in the instant case did not declare open season on all books and records at the property where the search and seizure occurred. Neither the allegations of the plaintiffs' complaint, nor the search warrant attached thereto, established that defendants were involved in a search of unlimited scope. In sum, based on the arguments contained in defendants' trial motion to dismiss and this reply, this court should find that the search involved in the instant case violated neither Fourth Amendment requirements or the specific terms of the Electronic Communications Privacy Act or, in the alternative, that the defendants were, in fact, acting in good faith at the time of the search and seizure at the Alcor premises. CONCLUSION For all of the foregoing reasons, defendants respectfully submit that this court should grant their motion to dismiss plaintiffs' action for violation of the Electronic Communications Privacy Act since it is now obvious that they have failed to plead an appropriate federal claim under this statute. Rather, plaintiffs' last-minute attempt to shift their position to establish illegality by virtue of materials never put before the court properly by way of allegation in the complaint and/or by way of an incorporation by reference, must be summarily rejected. Since plaintiffs do not seek leave to amend to attempt to state a proper cause of action under the federal statute, this court should appropriately enter a dismissal. [signed/boilerplate] UNITED STATES DISCTRICT COURT MOTION TO DISMISS H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. SA CV 90-021 JSL ORDER DENYING DEFENDANTS' MOTION TO DISMISS The Motion of defendants to dismiss plaintiffs' complaint for came on for hearing regularly on May 14, 1990. Defendants moved to dismiss on the grounds that the complaint failed to state a claim pursuant to Federal Rule of Civil Procedure 12(b)6. Defendants asserted that, as a matter of law, no violation of the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701, et seq. occurred, or, alternately, that defendants are entitled to dismissal due to their good faith reliance on a facially valid search warrant. Having reviewed the papers filed in connection with this matter, having heard oral argument, and being fully apprised of the relevant facts and law, IT IS HEREBY ORDERED that the Motion of defendants to dismiss the complaint is DENIED. Said denial shall be without prejudice should defendants wish to raise these same issues later in these proceeding. IT IS SO ORDERED. DATED: May 18, 1990 [signed] J. Spencer Letts United States District Judge