Majority
Opinion
I. Introduction
After members of the San Mateo County Sheriff’s Gang Task Force allegedly conducted a warrantless search of her home, plaintiff and appellant Treyana Pierce filed this civil rights action under title 42 United States Code section 1983 (section 1983) against the San Mateo County Sheriff’s Department (Sheriff’s Department) and individual members of the gang task force, sued as Does 1 through 12. San Mateo County (appearing for the Sheriff’s department) successfully demurred to Pierce’s third amended complaint and procured a complete dismissal of the case.[1] We agree the case was properly dismissed as to the County, although for reasons different than relied on by the trial court. We reverse, however, as to the individual Doe defendants, none of whom appeared, and who, apparently, have never been served.
1 The Sheriff’s Department is not a separate governmental entity, but is a department of San Mateo County (County).
II. Background
In
her third amended complaint, Pierce alleged that on August 26, 2009, officers of the Sheriff’s Department, and specifically, members of the gang task force, conducted a warrantless search of her home on the basis of a “supposed condition of probation for an individual named Darían Whetstone.”[2] She further alleged that, on that date, Whetstone was neither a resident of her home nor on probation.
In August 2011, Pierce filed the instant civil rights action against the Sheriff’s Department. The operative third amended complaint alleged two causes of action under section 1983. The first was asserted against Does 1 through 12, allegedly individual members of the gang task force who were involved in the challenged search. The second cause of action was asserted against the Sheriff’s Department and alleged Pierce’s constitutional rights
2 The County maintains no Sheriff’s Department officers participated in the search, but acknowledges that for purposes of demurrer, it generally must accept the factual allegations of the complaint as true. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743 , 751 [ 154 Cal.Rptr.3d 394 ] [in reviewing dismissal following a demurrer, court must “assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law”].)
III. Discussion
The County (on behalf of the Sheriff’s Department) demurred to the third amended complaint on the ground Pierce failed to state a claim. The County maintained the amended complaint “reaffirmed” a “concession” a probationer with a search condition was living with Pierce at the time of the search and further maintained Pierce had “conceded” in prior pleadings that Whetstone resided in her home. The County additionally moved to strike the punitive damages allegations on the ground it is not subject to punitive damages under Government Code section 818.
The trial court sustained the County’s demurrer without leave to amend, ruling, among other things, that the complained-of search was a permissible probation search, and the amended complaint contained “insufficient factual allegations sufficient [sic] to establish that Whetstone was not a resident at 1016 Tilton Avenue” (italics added) and “thus fail[ed] to establish that the search was unlawful.” The court also granted the motion to strike the punitive damages claim and subsequently entered judgment dismissing the entire case.
A. Pierce Adequately Alleged an Unlawful Search
We first consider whether the factual allegations of the amended complaint sufficiently stated a claim for an unlawful search, putting aside for the moment whether a section 1983 claim will lie against the Sheriff’s Department and the individual Doe defendants. The rules governing our review of Pierce’s amended complaint are well established. In reviewing a judgment of dismissal entered upon the sustaining of a demurrer, we accept as true all the material facts properly pleaded and generally do not go beyond the four comers of the complaint, though we may consider matters subject to judicial notice. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331 , 335 [ 171 Cal.Rptr.3d 667 ].) We construe the complaint’s alleged facts liberally and give the complaint a reasonable interpretation, reading the complaint as a whole and reading its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1 , 6 [ 40 Cal.Rptr.3d 205 , 129 P.3d 394 ]; Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250 , 254 [ 173 Cal.Rptr.3d 407 ].)
The County acknowledges the pleadings of a proprio persona civil rights litigant, such as Pierce, are to be read with particular liberality. We are to
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” (U.S. Const., 4th Amend.) “A residence search conducted without a warrant is presumed unreasonable unless it comes within an exception to the warrant requirement. [Citation.] One such exception is the consent to search. [Citations.] In California, probationers consent in advance, as a condition of their probation, to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term.” (People v. Medina (2007) 158 Cal.App.4th 1571 , 1575-1576 [ 70 Cal.Rptr.3d 413 ].) Thus, “[u]nder this state’s body of law, a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment.” (Id. at p. 1580.)
Accordingly, if Whetstone was on probation and subject to a valid search condition at the time of the challenged search, and if he resided in Pierce’s house at that time, the complained-of search was not unlawful and did not violate Pierce’s Fourth Amendment rights.
The amended complaint alleged Whetstone “was not on probation” on the day of the search. It also alleged, however, Whetstone was “remanded to the custody of the San Mateo County Sheriff to serve a 90 day jail sentence effective June 27, 2009 and his probation would terminate upon his release from custody.” The County maintains the latter allegation was a tacit admission Whetstone was on probation the day of the search — August 26, 2009 — 59 days after Whetstone was remanded. That is too stringent a reading of the amended complaint for purposes of a demurrer. What the complaint specifically alleged was that Whetstone’s probation would terminate “upon his release from custody,” not on the 90th day following the date he began serving that term.
At the next hearing, the County provided the court with an “inmate record” that counsel represented was a “printout” of a “confidential” document generated by the Sheriff’s Department and indicated Whetstone was residing at Pierce’s address. Counsel further represented the address had been obtained from Department of Motor Vehicles (DMV) records. Pierce claimed she had no knowledge Whetstone had provided her address to the DMV and continued to deny it had been his residence.
As for Whetstone’s custody status, the inmate record stated: “schedule[d] release date 10/24/09.” As the trial court pointed out, this date was beyond the release date for a 90-day commitment commencing June 27th. Counsel for the County had no explanation for the discrepancy. Pierce, in turn, continued to assert Whetstone was, in fact, released in August, the day before the search, which she claimed was shown by a probation department letter.
The court then pressed the County for more booking detail, including whether Whetstone was serving multiple sentences and whether they were running concurrently or consecutively. At this point, counsel for the County observed the court was “going way outside the four corners of the complaint.”
The trial court nevertheless proceeded, sua sponte, to pull up records on its own computer. At this point, the court’s bailiff spoke up, stating the records showed Whetstone was booked three times during 2009. They also appeared to show, at least as to one matter, that Whetstone was released on August 25, 2009, the date Pierce claimed. After the court accessed additional records, the court clerk joined in the discussion, stating that after his release, Whetstone had remained on probation in another case. The court then apparently addressed Pierce, stating “it would appear” Whetstone was still on probation on the day of the search. In response, Pierce asked if she was “allowed” to see the files to examine the terms and conditions of the probation. The court replied it did not have “that file.”
Towards the end of the hearing, Pierce again asked, without success, for an opportunity to review the files. The court clerk, who had apparently been continuing to look at the computer files, then announced the case that had remained pending against Whetstone was for driving under the influence. She
Ultimately, counsel for the County acknowledged “clearly, nothing [was] clear” as to Whetstone’s probation status and residence on the day of the search.
At the end of the continued hearing, the trial court took the matter under submission, and on January 17, 2013, issued a written order sustaining the demurrer without leave to amend and granting the motion to strike. The court first ruled, apparently on the basis of the criminal records examined during the continued hearing, that the “search, as alleged, was a legitimate probation search” and thus “no civil rights violation occurred here.” The court secondly made a “finding,” apparently on the basis of these records, that during 2009 Whetstone gave two different addresses as his residence, one of which was Pierce’s house. This, reasoned the court, meant the complaint contained “insufficient factual allegations” to “establish that Whetstone was not a resident” (italics added) of Pierce’s house.
This detailed recitation of what occurred at the demurrer hearings confirms that the County was right on the money in raising concerns about the trial court’s lengthy excursion beyond the four comers of the amended complaint in ruling on the demurrer. What the court effectively did was transform the demurrer hearings into a summary judgment proceeding. Moreover, it did so without notice to Pierce and without giving her an opportunity to review and respond to either the Sheriff’s Department record the County provided at the court’s request, or the court records the court pulled up on its own. None of this material was properly put before the court, let alone proffered with an adequate foundational showing. Furthermore, the best that can be said about this material is that it raised questions about Whetstone’s probation and residence status on the date of the search.
The County nevertheless continues to maintain on appeal, as it did in the trial court, that “as a . . . matter of law” Whetstone’s legal residence was not the county jail, but Pierce’s home. The County points to Pierce’s allegation that on the day of the search “Whetstone’s residence was the county jail.” But as we have discussed, Pierce also generally alleged that on the day of the search, Whetstone “was not residing at” her address and “was not on probation.” Given the great liberality with which the allegations of her proprio persona civil rights complaint must be read, Pierce’s allegations are, in their totality, minimally sufficient to state a Fourth Amendment claim.
We now turn to the new argument the County has advanced on appeal— that the Sheriff’s Department is not liable under section 1983 “because the Sheriff enjoys state immunity under the 11th Amendment of the U.S. Constitution from prosecution of section 1983 violations.” Since the County’s argument presents a pure question of law, it is one that can be advanced and considered for the first time on appeal. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356 , 1396 [ 89 Cal.Rptr.3d 659 ]; B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949 , 959 [ 230 Cal.Rptr. 192 ].) As we discuss, the County is correct that, in this case, the Sheriff’s Department is not subject to a damages suit under section 1983. But that is not because the sheriff is “immune” from suit under the Eleventh Amendment or sovereign immunity. Rather, it is because the sheriff, as a matter of statutory construction, is not a “person” as that term is used in section 1983.
1. “Person” Subject to Suit Under Section 1983
Section 1983 states, in pertinent part: “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 . . . .” ( 42 U.S.C. § 1983 , italics added.)
Because section 1983 is a federal statute, the meaning of the word “person” as used therein is ultimately a question of federal law, and specifically, one of federal statutory interpretation. (See Garcia v. Superior Court (1996) 42 Cal.App.4th 177 , 181 [ 49 Cal.Rptr.2d 580 ] (Garcia) [interpretation of § 1983 is a matter of federal substantive law]; Baughman v. State of California (1995) 38 Cal.App.4th 182 , 188 [ 45 Cal.Rptr.2d 82 ] [courts “look to federal law to interpret the language of section 1983”].)
The meaning of the term has been fleshed out in a series of United States Supreme Court decisions, three of which are particularly significant here and controlling authority in this area of the law. (See People v. Fletcher (1996) 13 Cal.4th 451 , 469, fn. 6 [ 53 Cal.Rptr.2d 572 , 917 P.2d 187 ] (Fletcher) [decisions of U.S. Supreme Court on questions of federal law “are binding on all state courts under the supremacy clause of the United States Constitution”]; Garcia, supra, 42 Cal.App.4th at p. 181.)
The first is Monell, supra, 436 U.S. at page 658, in which the Supreme Court held local governmental entities and local officials can be
The second significant decision is Will v. Michigan Dept. of State Police (1989) 491 U.S. 58 [ 105 L.Ed.2d 45 , 109 S.Ct. 2304 ] (Will), in which the Supreme Court held a state is not a “person” as that term is used in section 1983 and thus is not subject to a policy or custom section 1983 action under Monell. (Will, at p. 71.) The court began its analysis by observing the case had been brought in Michigan state court. This, explained the court, placed the “question whether a State is a person under § 1983 squarely before us since the Eleventh Amendment does not apply in state courts.” (Id. at pp. 63-64, italics added.) As the court observed, confusion as to whether a state is a “person” under section 1983 had arisen, in part, because federal courts had dismissed section 1983 cases against states on Eleventh Amendment grounds. (Will, at p. 63.)
The Supreme Court then turned to the language of the statute, pointing out that “ ‘ “in common usage” ’ ” the term “person” does not include the sovereign (such as a state). (Will, supra, 491 U.S. at p. 64.) Accordingly, statutes using the term “person” are not “ ‘ “ordinarily construed” ’ ” as including the sovereign. (Ibid.) The court next observed the language of section 1983 does not clearly evince any intent by Congress to “alter” the historic constitutional balance between the states and the federal government by subjecting the states to federally based liability. (Will, at p. 65.)
The court further explained state liability under section 1983 would be inconsistent with Congress’s intent that civil rights cases be brought in the federal courts. Indeed, Congress provided for federal court jurisdiction “precisely” to enable civil rights plaintiffs “to avoid” the state courts, many of
The Supreme Court then examined the legislative history of section 1983, concluding it also does not suggest Congress intended to subject the “States themselves to a damages suit under federal law.” (Will, supra, 491 U.S. at p. 68.) Finally, the court explained its decision in Monell is not at odds with the conclusion the term “person” as used in section 1983 does not include states. “[I]t does not follow that if municipalities are persons then so are States.” (Will, at p. 70.)
Thus, in Will, the Supreme Court did not hold states are “immune” from section 1983 liability under the Eleventh Amendment or sovereign immunity. Rather, the high court held, as a matter of statutory construction, that a state is not a “person” as that term is used in section 1983 — and it is for this reason that a civil rights claim for damages under section 1983 will not lie against a state. (See Arizonans for Official English v. Arizona (1997) 520 U.S. 43 , 69 [ 137 L.Ed.2d 170 , 117 S.Ct. 1055 ] (Arizonans) [“The barrier [to a § 1983 claim] was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that § 1983 creates no remedy against a State.”]; Hafer v. Melo (1991) 502 U.S. 21 , 30 [ 116 L.Ed.2d 301 , 112 S.Ct. 358 ] (Hafer) [court “considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction”]; Ngiraingas v. Sanchez (1990) 495 U.S. 182 , 192, fn. 12 [ 109 L.Ed.2d 163 , 110 S.Ct. 1737 ] (Ngiraingas) [having held the territory was not a “person” under § 1983, it was “unnecessary to consider Guam’s claim of immunity under the Eleventh Amendment”].)
3 As discussed, post, at pages 1011-1014, sovereign immunity is neither established by, nor coextensive with, the Eleventh Amendment. Rather, sovereign immunity is a historic doctrine of the common law, secured against intrusion by the federal courts by the Eleventh Amendment.
The third decision significant to the instant case is McMillian v. Monroe County (1997) 520 U.S. 781 [ 138 L.Ed.2d 1 , 117 S.Ct. 1734 ] (McMillian), in which the Supreme Court held the Monroe County Sheriff “represents] the State of Alabama” in performing law enforcement functions. (Id. at p. 793.) Accordingly, the sheriff was not acting as a county policymaker during the murder investigation at issue and, thus, was not subject to a policy or custom section 1983 action under Monell. (McMillian, at p. 783.)
The Supreme Court began its analysis in McMillian by summarizing its holding in Monell — “that a local government is liable under § 1983 for its policies that cause constitutional torts.” (McMillian, supra, 520 U.S. at p. 784, italics added.) Thus, the issue before the high court was “whether Alabama sheriffs are policymakers for the State or for the county when they act in a law enforcement capacity.” (Id. at p. 785.) This, said the court was a “ ‘federal question’ ” (id. at p. 786, quoting Regents of Univ. of Cal. v. Doe (1997) 519-U.S. 425, 429, fn. 5 [ 137 L.Ed.2d 55 , 117 S.Ct. 900 ]), although one “dependent on an analysis of state law” (McMillian, at p. 786; see Howlett v. Rose (1990) 496 U.S. 356 , 366 [ 110 L.Ed.2d 332 , 110 S.Ct. 2430 ] (Howletf) [“[t]he adequacy of the state law ground to support a judgment precluding litigation of the [section 1983] claim is itself a federal question . . .” subject to de nova review]).
4 The Supreme Court distinguished section 1983 cases seeking only injunctive relief. (Will, supra, 491 U.S. at p. 71, fn. 10.) Such cases, whether brought against a state, an arm of a state, or against a state official in his or her official capacity, “are not treated as actions against the State” (ibid.) and thus may be pursued in federal court (and despite the 11th Amend.) under what is commonly referred to as the Ex parte Young doctrine. (See, e.g., Virginia Office for Protection and Advocacy v. Stewart (2011) 563 U.S. _,_ [ 179 L.Ed.2d 675 , 131 S.Ct. 1632 , 1638] (Stewart); Ex parte Young (1908) 209 U.S. 123 [ 52 L.Ed. 714 , 28 S.Ct. 441 ].) Will also does not apply to individual state defendants sued in their personal capacities. (See Arizonans, supra, 520 U.S. at p. 69, fn. 24 [“State officers are subject to § 1983 liability for damages in their personal capacities . . . even when the conduct in question relates to their official duties.”]; see Hafer, supra, 502 U.S. at pp. 25-27.)
The Supreme Court next examined the Alabama Code, concluding its provisions also demonstrate county sheriffs are acting as the state in performing law enforcement duties. (McMillian, supra, 520 U.S. at pp. 789-791.) The court therefore concluded “the weight of the evidence is strongly on the side of the conclusion reached by the Court of Appeals: Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties.” (Id. at p. 793.)
The Supreme Court acknowledged a state-specific inquiry as to the proper characterization of county sheriffs can result in law enforcement officials being “characterized differently in different States.” (McMillian, supra, 520 U.S. at p. 795.) But that is no reason, said the court, to adopt a “uniform, national characterization for all sheriffs.” (Ibid.) “[S]uch a blunderbuss approach would ignore a crucial axiom of our government: the States have wide authority to set up their state and local governments as they wish.” (Ibid.) “Thus, since it is entirely natural that both the role of sheriffs and the importance of counties vary from State to State, there is no inconsistency created by court decisions that declare sheriffs to be county officers in one State, and not in another.” (Ibid.)
Once the Supreme Court concluded in McMillian that Alabama county sheriffs represent the state in executing their law enforcement duties, it followed, of course, under Will, that the Monroe County Sheriff was not a “person” as that term is used in section 1983 when executing law enforcement duties and therefore was not subject to a suit for damages under that statute based on the execution of such duties. The Supreme Court made no mention of “Eleventh Amendment immunity” in McMillian. Nor would there have been any logic in doing so, given the court’s analysis and holding in
5 In a footnote, the Supreme Court further observed that as a result of (a) the Alabama Supreme Court’s holding that county sheriffs are arms of the state and (b) the Alabama Constitution’s sovereign immunity provisions barring suit against the state, the Alabama Supreme Court had held a county sheriff is “absolutely immune from all suits for damages based on his official acts.” (McMillian, supra, 520 U.S. at p. 789, fn. 5.) This footnote thus concerns the State of Alabama’s common law sovereign immunity as expressed in its state constitution, and has nothing to do with “Eleventh Amendment sovereign immunity.”
The year after the United States Supreme Court decided McMillian our Supreme Court decided Pitts v. County of Kern (1998) 17 Cal.4th 340 [ 70 Cal.Rptr.2d 823 , 949 P.2d 920 ] (Pitts), holding a California district attorney acts on behalf of the state when preparing to prosecute and prosecuting violations of state laws. (Id. at p. 362.) The court followed the analytical template the United States Supreme Court employed in McMillian. (Pitts, at pp. 352-362.) Thus, the court first examined California’s constitutional provisions concerning which entity, the state or the county, supervises the work of the district attorney, and next reviewed state laws pertaining to the subject. (Id. at pp. 356-359.) It then observed “over 100 years ago,” the court had held a district attorney performs “ ‘two . . . distinct functions,’ ” as a law officer of the county and as “ ‘the public prosecutor,’ ” and in the latter capacity he acts “ ‘in the name of the people of the state.’ ” (Id. at p. 359.) Acknowledging there are some legal provisions suggesting a district attorney is a county officer, the court concluded, on balance, California law treats a district attorney as representing the state, and not as a policymaker of the county, in preparing to prosecute and when prosecuting criminal violations of state laws. (Id. at p. 362.) The court reached the same conclusion as to a district attorney’s training and supervision of staff in these areas. (Id. at pp. 362-366.)
Given the California Supreme Court’s holding in Pitts — that district attorneys represent the state in preparing to prosecute and when prosecuting criminal violations of state laws — it necessarily followed, under the United States Supreme Court’s decision in Will, that the Kern County District Attorney sued in Pitts was not a “person” as that term is used in section 1983 when executing his state law prosecutorial duties and thus was not subject to a suit for damages under that statute based on the execution of such duties. And just as the United States Supreme Court made no mention of “Eleventh Amendment immunity” in McMillian, our Supreme Court likewise made no mention of such in Pitts. Rather, the outcome in both cases was dictated by the holding in Will that states are not “persons” as that term is used in section 1983. (See Arizonans, supra, 520 U.S. at p. 69; Howlett, supra, 496 U.S. at p. 376; Ngiraingas, supra, 495 U.S. at p. 192, fn. 12.)
2. The Eleventh Amendment Does Not Apply in State Court
The scope and import of the Eleventh Amendment to the United States Constitution has also been discussed many times by the United States
With respect to the Eleventh Amendment, the Supreme Court in Alden made two salient observations. It first explained that because “[t]he Eleventh Amendment makes explicit reference to the States’ immunity from suits ‘commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State,” the court had, “as a result, sometimes referred to the States’ immunity from suit as ‘Eleventh Amendment immunity.’ ”[7] (Alden, supra, 527 U.S. at pp. 712-713.) Although a “convenient shorthand,” the phrase is, said the court, “something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.” (Id. at p. 713.)
In other words, the Eleventh Amendment acknowledges and preserves, as against federal judicial intrusion, the states’ historic sovereign immunity rooted in the common law. (See Stewart, supra, 563 U.S. at p._ [131 S.Ct. at p. 1637] [“we have understood the Eleventh Amendment to confirm the structural understanding that States entered the Union with then-sovereign immunity intact . . .”].)
The Supreme Court secondly discussed “isolated statements” made in some opinions, including Will, “suggesting that the Eleventh Amendment is inapplicable in state courts.” (Alden, supra, 527 U.S. at p. 735.) “This,” said the court, “of course, is a truism as to the literal terms of the Eleventh Amendment.” (Id. at pp. 735-736; see id. at p. 742 [“the Eleventh Amendment by its terms addresses only ‘the Judicial power of the United States . . .’”].) The court went on to explain it has also stated many times “the bare text of the [Eleventh] Amendment is not an exhaustive description of the States’
6 Title 29 United States Code section 201 et seq.
7 The Eleventh Amendment reads in its entirety: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State.” (U.S. Const., 11th Amend.)
The Supreme Court further observed the historically recognized “ ‘doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign’s own courts and the other to suits in the courts of another sovereign.’ ” (Alden, supra, 527 U.S. at p. 738, quoting Nevada v. Hall (1979) 440 U.S. 410 , 414 [ 59 L.Ed.2d 416 , 99 S.Ct. 1182 ].) Moreover, “the distinction drawn between a sovereign’s immunity in its own courts and its immunity in the courts of another sovereign, as well as the reasoning on which this distinction was based” supports the view “the Constitution reserves to the States a constitutional immunity from private suits in their own courts . . .” which cannot be abrogated by Congress. (Alden, supra, 527 U.S. at pp. 739-740; cf. id. at p. 746 [court has “relied on the States’ immunity in their own courts as a premise in our Eleventh Amendment rulings”].)
Thus, it is the entire constitutional construct — including, for example, the Tenth Amendment reserving to the states powers not expressly granted to the federal government, as well as the Eleventh Amendment — that charts the “constitutionally” recognized sovereign immunity of the states. (See Stewart, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1637]; Alden, supra, 527 U.S. at pp. 741-745, 748-754.)
Accordingly, for purposes of the instant case, Alden demonstrates the Eleventh Amendment is one of several aspects of the federal “constitutional compact” recognizing and preserving the states’ historic common law sovereign immunity. (See Alden, supra, 527 U.S. at pp. 713, 745-754; see also Stewart, supra, 563 U.S. at p. _ [131 S.Ct. at p. 1637].) And, specifically, this amendment recognizes and preserves the states’ common law immunity with respect to suits brought in the federal courts. The
3. The California Supreme Court’s Decision in Venegas
Because the United States Supreme Court decisions discussed above on (a) the meaning of “person” as that term is used in section 1983 and (b) the scope and import of the Eleventh Amendment are binding on these two federal issues, they necessarily inform our reading of the California Supreme Court’s decision in Venegas, which the County cites in support of its argument that the Sheriff’s Department is “immune” from liability under section 1983.
In Venegas, the California Supreme Court considered the following question; “Does a sheriff act on behalf of the state or county when conducting a criminal investigation, including detaining suspects and searching their home and vehicle?” (Venegas, supra, 32 Cal.4th at p. 826.) Utilizing the analytical framework the United States Supreme Court employed in McMillian in concluding Alabama county sheriffs are representatives of the state when executing law enforcement duties (and which the Cal. court, itself, used in Pitts in concluding district attorneys act on behalf of the state when preparing to prosecute and in prosecuting criminal violations of state law), the court concluded “. . . California sheriffs act as state officers while performing state law enforcement duties . . . .” (Venegas, at p. 839.) We view this as the holding of Venegas.
It is a holding wholly consistent with, and, indeed, largely predicated on, the pronouncements of the United States Supreme Court in McMillian. (See, e.g., Venegas, supra, 32 Cal.4th at pp. 831-834, 838-839.) It is also a holding that necessarily means, under the United States Supreme Court’s decision in Will, that California sheriffs are not “persons” as that term is used in section 1983 when performing state law enforcement duties and
8 Although “sweeping,” the states’ common law sovereign immunity is not immutable. (Alden, supra, 527 U.S. at p. 755 [“certain limits are implicit in the constitutional principle of state sovereign immunity”].) The states may consent to suit, for example, as many have by allowing certain claims to be asserted against state agencies and state officials. States have also consented “to some suits pursuant to the plan of the [constitutional] Convention or to subsequent constitutional Amendments.” (Ibid.; see Stewart, supra, 563 U.S. at pp. _-_ [131 S.Ct. at pp. 1637-1638].) Among these is the Fourteenth Amendment, which required the states to surrender their sovereign immunity as to federal legislation properly enacted under the amendment’s enforcement provision. (Alden, at p. 756.) Whether Congress could have extended the application of section 1983 to the states under the enforcement provision, however, is not a question the courts need to ponder, since, as a matter of statutory construction, states are not “persons” as that term is used in the statute.
While the court in Venegas cited to Will, it did not focus on the United States Supreme Court’s holding in that case that states (including state agencies and state officials sued in their official capacity) are not “persons” as that term is used in section 1983. (Venegas, supra, 32 Cal.4th at pp. 829-839.) Rather, the California court folded the Eleventh Amendment into its discussion, stating, for example, “states and state officers sued in their official capacity are not considered persons under section 1983 and are immune from liability under the statute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.” (32 Cal.4th at p. 829; see id. at p. 826 [“Under the Eleventh Amendment to the United States Constitution, and the doctrine of sovereign immunity, the state is absolutely immune from tort liability under the federal civil rights act ( 42 U.S.C. § 1983 . . .).”]); id. at p. 829 [defendants “claim they are immune from liability under the Eleventh Amendment”]; id., at p. 839 [parties “correctly assumed” deputy sheriffs “would not be shielded by the sheriff’s own state agent immunity”].)
We consider the references to the Eleventh Amendment in Venegas to be nonbinding dicta, since that federal constitutional provision was not pertinent to the specific issue before the court, namely whether a California sheriff acts on behalf of the state or a county when conducting a state law criminal investigation. (See Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266 , 297 [ 262 Cal.Rptr. 754 ] [observation unnecessary to Supreme Court’s decision does not constitute binding precedent]; People v. Powell (1986) 180 Cal.App.3d 469 , 479 [ 225 Cal.Rptr. 703 ] [incidental statements and conclusions not necessary to Supreme Court’s decision are dicta and “not to be regarded as authority”].)
But even if the California court’s reference to the Eleventh Amendment were considered a holding of Venegas, it cannot be viewed as binding in the face of contrary United States Supreme Court authority. As discussed above, the United States Supreme Court has made it explicitly clear that the Eleventh Amendment, in and of itself, does not apply in state court actions, such as Venegas. (E.g., Alden, supra, 527 U.S. at pp. 735-736, 742; Will, supra, 491 U.S. at p. 63.) Rather, the Eleventh Amendment speaks only to the right of the states to assert their historic, common law sovereign immunity in the federal courts. (E.g., Alden, at pp. 742-743.)
The United States Supreme Court has also stated explicitly that the meaning of the term “person” as used in section 1983 and the scope of the Eleventh Amendment are separate issues. (Will, supra, 491 U.S. at p. 68.)
To the extent Venegas's immunity language could be read as suggesting California’s own common law sovereign immunity bars a state court section 1983 action against a county sheriff, that is also at odds with United States Supreme Court authority making clear states are not subject to suit under section 1983 because they are not “persons” as that term is used in the statute, not because they retain their historic, common law sovereign immunity. (Arizonans, supra, 520 U.S. at p. 69; Hafer, supra, 502 U.S. at pp. 25-26; Will, supra, 491 U.S. at pp. 63-70; Ngiraingas, supra, 495 U.S. at p. 192, fn. 12.) Indeed, the United States Supreme Court has held that, under the supremacy clause, states cannot enlarge their historic common law sovereign immunity to include lower levels of government in order to render these entities not “persons” and thus not subject to liability for damages under section 1983. “[A]s to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage.”[10] (Howlett, supra, 496 U.S. at p. 383.)
9 In Venegas, the court appears to have inadvertently rephrased, and thus mischaracterized, language from Howlett. Citing Howlett, the court stated in Venegas: “[States and state officers sued in their official capacity are not considered persons under section 1983 and are immune from liability under the statute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.” (Venegas, supra, 32 Cal.4th at p. 829.) What the United States Supreme Court said in Howlett, however, was: “As we held last Term in Will..., an entity with Eleventh Amendment immunity is not a ‘person’ within the meaning of § 1983.” (Howlett, supra, 496 U.S. at p. 365.) This is not a statement that states are not “persons” under section 1983 because they are “immune from liability” under the Eleventh Amendment. On the contrary, the statement simply recognizes that entities with “Eleventh Amendment immunity” — namely states, state agencies and state officials sued in their official capacity — are not “persons" under section 1983, and that is so as a matter of statutory construction. (Will, supra, 491 U.S. at pp. 63-70; see Arizonans, supra, 520 U.S. at p. 69; Hafer, supra, 502 U.S. at pp. 25-26; Ngiraingas, supra, 495 U.S. at p. 192, fn. 12.)
10 We are aware that a number of Court of Appeal opinions have recited Venegas’s “Eleventh amendment immunity” and “sovereign immunity” language in affirming dismissals against state departments and officials. (E.g., Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856 , 892 [ 104 Cal.Rptr.3d 352 ] [“Because the CHP [as an instrumentality of the state] is absolutely immune from liability under section 1983, plaintiffs have failed to plead a viable section 1983 cause of action against it.”]; County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218 , 234 [ 104 Cal.Rptr.3d 230 ] [district attorney not a person under § 1983 and may not be found liable under that statute “by virtue of the Eleventh Amendment and the doctrine of sovereign immunity”]; Bougere v. County of Los Angeles *1017 (2006) 141 Cal.App.4th 237 , 242 [ 45 Cal.Rptr.3d 711 ] [“It is well established that states and state officers sued in their official capacity are not considered ‘persons’ for purposes of section 1983 and are immune from liability under that statute by virtue of the Eleventh Amendment . . . and the doctrine of sovereign immunity.”]; Brunius v. Parrish (2005) 132 Cal.App.4th 838 , 859 [ 34 Cal.Rptr.3d 55 ] [concluding State Mining and Geology Board and individual employees acted as arms of state and therefore were “immune” from § 1983 claims]; see Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098 , 1100 [ 100 Cal.Rptr.2d 289 ] [predating Venegas and concluding school district could invoke 11th Amend, if sued in federal court and therefore district was not a “person” subject to a § 1983 claim in state court]; Lynch v. San Francisco Housing Authority (1997) 55 Cal.App.4th 527 , 531-542 [ 65 Cal.Rptr.2d 620 ] [predating Venegas and concluding housing authority would not be entitled to “Eleventh Amendment immunity” if sued in federal court and therefore authority was a “person” subject to a § 1983 claim in state court].) However, none of these cases examined Venegas’s immunity language in light of the binding United States Supreme Court authority we have discussed above. We therefore decline to follow the analytical road these cases have trod, having concluded it is a mistaken detour and the correct basis for dismissal is that a state is not a “person” as that term is used in section 1983, as a matter of statutory interpretation.
Whether an individually named state defendant is a “person” within the meaning of section 1983 and thus subject to suit under that statute, depends on whether he or she is sued in his or her “official capacity” or “personal capacity,” not on his or her particular rank in a state’s governmental hierarchy. (See Hafer, supra, 502 U.S. at pp. 25-31; Ngiraingas, supra, 495 U.S. at pp. 184-185, 192 & fn. 3 [holding territory of Guam not a “person” under § 1983 and affirming dismissal of official capacity claims against individual police officers who arrested and interrogated the plaintiffs; personal capacity claims remanded to determine whether officers were entitled to qualified immunity]; Will, supra, 491 U.S. at p. 71; Brandon v. Holt (1985) 469 U.S. 464 , 471 [ 83 L.Ed.2d 878 , 105 S.Ct. 873 ] [in prior opinions, court “plainly implied” a judgment against “a public servant ‘in his official capacity’ imposes liability on the entity that he represents”]; see also Baughman v. State of California (1995) 38 Cal.App.4th 182 , 188-189 [ 45 Cal.Rptr.2d 82 ] [because university is an arm of the state, § 1983 claims against university police officers in their official capacities were properly dismissed].)
“By contrast, officers sued in their personal capacity come to court as individuals” and are “persons” subject to suit under section 1983. (Hafer, supra, 502 U.S. at p. 27.) In fact, in McMillian, the United States Supreme Court observed there were numerous individual defendants. But only two, the sheriff and an investigator, were sued in their “official capacity,” and only these official capacity claims were before the high court. (McMillian, supra, 520 U.S. at p. 784.) All of the individual defendants, including the sheriff and investigator, however, were also sued in their personal capacities, and these claims continued to proceed independently through the lower federal courts. (Ibid.; McMillian v. Johnson (M.D.Ala. 1995) 878 F.Supp. 1473 .)
This does not mean an individual state defendant sued in his or her personal capacity, such as a police officer or deputy sheriff, must always defend against the substantive merits of a section 1983 claim. “[A]n official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses . . . ,” such as “absolute immunity” (Graham, supra, 473 U.S. at pp. 166-167) (available to a “very limited class,” including “the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions” (Hafer, supra, 502 U.S. at p. 29)) or “qualified immunity” (Graham, at p. 167; see, e.g., Lane v. Franks (2014) 573 U.S. _, - [ 189 L.Ed.2d 312 , 134 S.Ct. 2369 , 2381-2383] (Lane) [defendant entitled to qualified immunity to extent he was sued in his personal capacity; court did not reach claims asserted against defendant in his official capacity]).
The personal immunity most often raised by law enforcement officers sued in their personal capacities, of course, is “qualified immunity,” which the
11 Whether a section 1983 claim against an individual defendant is properly characterized as an official capacity or personal capacity claim has also been a matter of considerable discussion by the United States Supreme Court. (E.g., Hafer, supra, 502 U.S. at pp. 25-29; Graham, supra, 473 U.S. at pp. 165-167; see McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198 , 1207-1213 [ 157 Cal.Rptr.3d 720 ] [plaintiff’s official-capacity claim against superintendent properly dismissed on ground state official not a “person,” and allegations did not state a personal-capacity claim].)
In sum, the California Supreme Court’s decision in Venegas is significant and binding on lower California courts with respect to its holding that county sheriffs are arms of the state while performing state law enforcement activities for purposes of damages liability under section 1983. Its immunity dicta, however, should be left to fade into history.
In this case, the holding of Venegas and the United States Supreme Court’s decision in Will, conclusively establish that, as to the law enforcement actions alleged, the Sheriff’s Department is not a “person” under section 1983 and therefore not subject to a suit for damages under that federal statutory provision. (Will, supra, 491 U.S. at pp. 64-70; see Arizonans, supra, 520 U.S. at p. 69; Howlett, supra, 496 U.S. at p. 376; Ngiraingas, supra, 495 U.S. at p. 192, fn. 12.) Accordingly, the County’s demurrer on behalf of the Sheriff’s Department was correctly sustained without leave to amend.
4. The Doe Defendants
We lastly consider whether the case should have been dismissed in “its entirety” — an issue that arises because Pierce named not only the Sheriff’s Department as a defendant, but also Does 1 through 12 as individual defendants.
The status of the Doe defendants is not readily discernible from the record on appeal. The County first appeared in response to Pierce’s original complaint, which was asserted only against the “Gang Intelligence Task Force Unit in San Mateo County Sheriff’s Department.” She subsequently made a correction by amendment to name, instead, the “San Mateo County Sheriff’s Department (Gang Intelligence Task Force).”
12 Saucier v. Katz (2001) 533 U.S. 194 [ 150 L.Ed.2d 272 , 121 S.Ct. 2151 ] (Saucier).
In her third amended complaint, Pierce reduced the number of Doe defendants to 12 and alleged the two section 1983 claims discussed above, the first against the Doe defendants, and the second against the Sheriff’s Department alleging a policy or custom under Monell. The County again interposed a demurrer as to both causes of action, even though the first was asserted only against the individual Doe defendants. While the County argued the factual allegations foreclosed any claim for a wrongful search, it also argued Pierce had “only one claim” — under Monell (applicable only to a local governmental entity or local policymaking official sued in his or her official capacity) — that was insufficiently pied. This, again, indicates the County was appearing solely for itself (sued as the Sheriff’s Department). And, indeed, it asserted in the conclusion of its memorandum of points and authorities in support of its demurrer, that the third amended complaint “fails to state any cause of action against the County.” However, the County again asked that the amended complaint “be dismissed in its entirety” without leave to amend.
The most reasonable conclusion that can be drawn from this record is that neither the County nor the trial court paid any attention to the fact Pierce included Doe defendants. However, “Doe practice” is permitted by statute (Code Civ. Proc., § 474), and a plaintiff may use such a fictitious name if “ignorant of the name of a defendant.” (Ibid.; see Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50 , 56 [ 242 Cal.Rptr. 676 ] (Clark).) In fact, a complaint can be asserted against only Doe defendants. (See Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005 , 1010 [ 90 Cal.Rptr.2d 787 ].)
In some cases, it may be appropriate to dismiss an action even as to Doe defendants after a successful demurrer by a named defendant, for example,
IV. Disposition
Furthermore, as discussed above, the third amended complaint minimally alleges a Fourth Amendment violation. Accordingly, the dismissal as to the Does cannot be affirmed on the ground the complaint fails to state a constitutional claim. This does not mean the civil rights claim can, in fact, be successfully prosecuted against the Does. There may be procedural defenses, such as failure to timely name the individual defendants or lack of diligence in serving the Does. (See, e.g., Clark, supra, 197 Cal.App.3d at pp. 57-58.) And even if Pierce were to survive such procedural challenges, the individual deputies might be entitled to qualified immunity under section 1983 or to summary judgment on the merits. No such issues, however, are before us at this time, and we conclude only that the trial court erred in dismissing the case in its “entirety” given the Doe defendant allegations.
The judgment of dismissal is affirmed as to the County (sued as the San Mateo County Sheriff’s Department). In all other respects, the judgment is reversed. Each party to bear its own costs on appeal.
Humes, P. 1, and Dondero, J., concurred.
Cases cited
- Venegas v. County of Los Angeles 32 Cal.4th 820 p. 1001
- Monell v. Department of Social Services 436 U.S. 658 p. 1002
- Worsham v. O'Connor Hospital 226 Cal.App.4th 331 at 335 p. 1002
- Evans v. City of Berkeley 38 Cal.4th 1 at 6 p. 1002
- Delon Hampton & Associates, Chartered v. Superior Court 227 Cal.App.4th 250 at 254 p. 1002
- Arce v. Childrens Hospital Los Angeles 211 Cal.App.4th 1455 at 1471 p. 1003
- Bullock v. City & County of San Francisco 221 Cal.App.3d 1072 at 1088 p. 1003
- People v. Medina 158 Cal.App.4th 1571 at 1575-1576 p. 1003
- Alfaro v. Community Housing Improvement System & Planning Ass'n 171 Cal.App.4th 1356 at 1396 p. 1006
- B & P Development Corp. v. City of Saratoga 185 Cal.App.3d 949 at 959 p. 1006
- Garcia v. Superior Court 42 Cal.App.4th 177 at 181 p. 1006
- Baughman v. State 38 Cal.App.4th 182 at 188, at 188-189 p. 1006, p. 1017
- People v. Fletcher 13 Cal.4th 451 at 469 p. 1006
- Will v. Michigan Department of State Police 491 U.S. 58 p. 1007
- Arizonans for Official English v. Arizona 520 U.S. 43 at 69 p. 1008
- Hafer v. Melo 502 U.S. 21 at 30 p. 1008
- Ngiraingas v. Sanchez 495 U.S. 182 at 192 p. 1008
- McMillian v. Monroe County 520 U.S. 781 p. 1009
- Regents of University of California v. Doe 137 L.Ed.2d 55 p. 1009
- Howlett ex rel. Howlett v. Rose 496 U.S. 356 at 366 p. 1009
- Pitts v. County of Kern 17 Cal.4th 340 p. 1011
- Alden v. Maine 527 U.S. 706 p. 1012
- Blatchford v. Native Village 501 U.S. 775 at 781 p. 1013
- Nevada v. Hall 440 U.S. 410 at 414 p. 1013
- Smith v. County of Los Angeles 214 Cal.App.3d 266 at 297 p. 1015
- People v. Powell 180 Cal.App.3d 469 at 479 p. 1015
- Brandon v. Holt 469 U.S. 464 at 471 p. 1017
- Kentucky v. Graham 473 U.S. 159 at 166 p. 1018
- Plumhoff v. Rickard 188 L.Ed.2d 1056 at 2020, 2023-2024 p. 1019
- Pearson v. Callahan 555 U.S. 223 at 231-245 p. 1019
- Brosseau v. Haugen 543 U.S. 194 at 198-201 p. 1019
- Clark v. Stabond Corp. 197 Cal.App.3d 50 at 56 p. 1020
- Pearlson v. Does 1 to 646 76 Cal.App.4th 1005 at 1010 p. 1020