1

Filed 12/31 /14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

TREYANA PIERCE, Plaintiff and Appellant,

v. SAN MATEO COUNTY SHERIFF’S DEPARTMENT et al., Defendants and Respondents. A138278
(San Mateo County Super. Ct. No. CIV508006)

I. I NTRODUCTION After members of the San Mateo County Sheriff’s Gang Task Force allegedly conducted a warrantless search of her home, p laintiff and appellant Treyana Pierce filed
this civil rights action under title 42 U nited S tates C ode s ection 1983 (section 1983)

a gainst the San Mateo County Sheriff’s Department and individual members of the Gang
Task F orce, sued as D oes 1

– 12

. San Mateo County (appearing for the Sheriff’s Depart ment) successfully demurred to Pierce’s third amended complaint and procured a complete dismissal of the case. 1 W e agree the case was properly dismissed as to t he County, although for reason s different than relied on by the trial court. We reverse,
howev er, as to the individual D oe defendants
, none of whom appeared , and who
, apparently, have never been served. We publish this opinion in hopes of eliminat ing some of the confusion that has
arisen in the California courts a s to the interplay between the sta tutory language of
section 1983 ( which imposes liability only on “persons” ) and the scope and import of the
Eleventh Amendment to the United States Constitution. On appeal, the County has

1 The Sheriff’s Department is not a separate governmental entity, but is a department of San Mateo County (County).2

argued the Sheriff’s Department is not liable under section 1983 be cause “the Sheriff enjoys state i mmunity under the 11th Amendment of the U.S. Constitution from prosecution of section 1983 violations,” citing Venegas v. County of Los Angeles (2004)
32 Cal.4 th 820 [11 Cal.Rptr.3d 692, 87 P.3d 1] ( Venegas ). S uch “immunit y” language
, indeed, appears in Venegas and other Court of Appeal opinions , including opinions pre

dating Venegas

. However, as we discuss, binding United States Supreme Court precedent, on both the scope of liability under section 1983 and the import of t he
Eleventh Amendment make s clear (a) the meaning of the term “person” as used in section
1983 and the reach of the Eleventh Amendment are separate issues
, (b) the Eleventh
Amendment applies only in federal court and not in state court , and (c) depending o n state law, a c ounty s heriff may not be subject to a suit for damages under section 1983 because he or she is not a “ person ” as that term is used in the statute , and not because he or she is “immune” from suit by virtue of the Eleventh Amendment or sovere ign immunity. We therefore affirm the dismissal as to the County on the ground the Sheriff’s Department is not a “person” subject to a suit for damages under section 1983.
II. B ACKGROUND In her third amended complaint, Pierce alleged that o n Augu st 26, 2009 , officers of the Sheriff’s Department , and specifically, members of the Gang Task Force,
conducted a warrantless search of her ho me on the basis of a “supposed condition of probation for an individual named Darian Whetstone.” 2 She further alle ged that, on that date, Whetstone was n either a resident of her home nor on probation.
I n August 2011, Pierce filed the instant civil rights action against the San Mateo County Sheriff’s Department. The operative third amended complaint allege d two caus es

2 The County maintains no Sheriff Department officers participated in the search, but acknowledges t hat 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” ].)3

of action under section 1983. The first was asserted against D oes 1

– 12, allegedly
individual members of the Gang Task Force who were involved in th e challenged search.
The second cause of action was asserted against the Sheriff’s Department and allege d Pierce’s constitutional rights were violated as a result of Department “policies, cus toms, or practices.” Thus, as we will explain, the second cause of action was an attempt by
Pierce to state a section 1983 claim against the Sheriff’s Department under Monell v. Dept. of Soc. Servs. (1978) 436 U.S. 658 [56 L.Ed.2d 611, 98 S.Ct. 2018] ( Monell )

. T he 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

t h e 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 W hetstone resided in her home. The County
additiona lly moved to strike the punitive damages allegations on the ground it is not subject to punitive damages under Govern ment Code section 818.
The trial court sustain ed the County’s demurrer without leave to amend, ruling
, among other things, that the compl ained

- of search was a permissible probation search,
and the amended complaint contain ed “ insufficient factual allegations sufficient [ sic ] to establish that W h etstone 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 j udgment
dismiss ing the entire case

. III. D ISCUSSION A. Pierce Adequately Alleged a n Unlawful Search
We first consider whet her the factual allegations of the amended complaint
sufficient ly state d 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 D oe defendants. The rules gover ning our review of Pierce’s amended co mplaint 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 not4

go beyond the four corners o f 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 inte rpretation, 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 pro per civil rights litigant , such as Pierce, are to be read with particular liberality . W e are to “ ‘ “ apply federal law to determine whether [the] complaint [has pleaded] a cause o f action .

. . sufficient to survive a general demurrer.” [Citation s .] According to federal law, “ we are required to construe complaints under [section 1983] liberally.” [Citation.] “ To uphold a dismissal [ for failure to state a claim for relief, the f ederal counte rpart of our general demurrer ], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved. ” [Citation.] ’ ” ( Arc e v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455 , 1471 [150 Cal.Rptr.3d 735] ( Arce ) , quoting Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1088 [ 271 Cal.Rptr. 44 ] .)

“ Therefore, dismissal is proper only where ‘ it appears beyond d oubt that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief. ’ ( Osborne v. District Attorney’ s Office for Third Judicial Dist. (9th Cir.2005) 423 F.3d 1050, 1052;

see Jensen v. City of Oxnard (9th Cir.1998) 145 F.3d 1078, 1082 ( Jensen ).) ” ( Arc e,
supra, at p . 1471.) 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 warra ntless searches and seizures in exchange for the opportunity to avoid serving a state prison term.” ( People v. Medina5

(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 t o 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 allege d Whetstone “was not on probation” on the day of
the search. It also allege d , 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 probati on 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 allege d was that Whetstone’s probation would terminate “up on his release from custody,” not on the 90th day following the date he began serving that term.
In fact
, at the hearing on the demurrer, Pierce asked the trial court to consider “paperwork” purportedly showing Whetstone was released the day before the search

. This prompted the court to put the case over for a week to “see the paperwork” and also
to consider “information” it had earlier in the hearing asked the County to “bring in” to show why the probation department had believed Whetstone was residing at Pierce’s
home. 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 a ddress

. Counsel
further represented the address had been obtained from Department of Motor Vehicle (DMV) records. Pierce claimed she had no knowledge Whetstone had provided her
address to the DMV and continued to deny it had been hi s residence.6

As for Whetstone’s custody status, the inmate record s tated: “schedule 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 c onsecutively. At this point, counsel for the County observed the court was “going way outside the four corners of th e complaint.”
The trial court neverthel ess proceeded
, sua sponte , to pull up records on its own

c omputer. At this point, t he 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 P ierce 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 . Th e
court then apparent ly 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 h a ve “that file.” Towards the end of the hearing, Pierce again asked , without success, for an opportunity to review the file s

. Th e court clerk, who had apparently been continuing to look at the computer files, then announced the case that had remained p ending against
Whetstone was for driving under the influence . She further announced that a search
condition is not normally part of the terms and conditions of probation in such a case.
This comment ary drew no response from the court. Ultimately, counse l for the County acknowledged “clearly, nothing [was] clear” as to Whetstone’s probation status and residence on the day of the search.7

At the end of the continued hearing, t he trial court took the matter under
submission
, and on January 17, 2013
, issue d 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 legitimat e probation search” and thus “no civil rights
viol ation occurred here.” The court secondly made a “finding,” apparently on the basis
of the se records , t hat during 2009 Whetstone gave two different addresses as his residence, one of which was Pierce’s hous e. 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.
T his detailed recitation of what occurred at the demurrer hearings confirm s that

t he County was right on the money in raising concern s about the trial court ’s lengthy
excursion beyond the four corners of the amended complaint in ruling on the demurrer

. W hat the court effectively did was transform the demurrer hearing s into a su mmary judgment proceeding. Moreover, i t 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 foundation al showing. Furthermore, the best that can be said about th is material
i s that it raise d questions about Whetstone’s probation and res iden ce status on the date of
the search.
T he 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

. T h e 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 “w as not on probation.” Given the great liberality with which the allegations of her pro per civil rights complaint must be read, Pie r ce’s allegations are, in their totality
, minimally sufficient to state a Fourth Amendment claim

.8

B

. As t

o The Matters Alleged, t he Sheriff’s Dep artment Is Not a “Person” Subject

t o a Damages Suit Under Section 1983
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 11 th A mendment of the U.S. C onstitution from prosecution of section 1983 violations.” Since the County’s argument presents a pure question of law , it
is one t hat can be advanced and considered for the first time on appeal. (See Alfaro v. Community Housing Imp rovement System & Planning Ass n

. , 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.Rtpr. 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

construct ion, is not a “person” as that term is used in section 1983

. 1. “Person” Subject t o S uit 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 o r 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, o ne of federal statutory interpretation. (See Garcia v. Superior Court (1996) 42 Cal.App.4 th 177, 181 [49 Cal.Rptr.2d 580] ( Garcia ) [interpretation of section 1983 is a matter of federal substantive law]; Baughman v. State of California (1995) 38 Cal.App.4 th 182, 188 [45 Cal.Rtpr.2d 82] [courts “look to federal law to interpret the language of section 1983”].)9

The meaning of the term has been fleshed out in a series of United States Supreme Court decisions, three of which are particularly significant her e and controlling authority in this area of the law. (See People v. Fletcher (1996) 13 Cal.4th 451, 469 , f n. 6 [53 Cal.Rtpr.2d 572, 917 P.2d 187] ( Fletcher ) [decisions of United States Supreme Court on questions of federal law “are binding on all state co urts under the supremacy clause of the United States Constitution”]; Garcia, supra , 42 Cal.App.4 th at p. 181.)
The first is Monell

, supra, 436 U.S. at p age 658 , in which the Supreme Court held
local governmental entities and local officials can be liabl e under the statute when a n official policy or custom leads to the violation of a federally secured civil right. ( Id. at pp. 690

– 691.) The High Court reached th is conclusion after an exhaustive examination of the legislative history of section 1983 (enac ted as section 1 of the 1871 Civil Rights Act) and the statutory language. ( Monell, at pp. 665

– 695.) “Our analysis of the legislative history of the Civil Rights Act . . . compels the conclusion that Congress did intend municipalities and other local gov ernment units to be included among those persons to whom § 1983 applies.” ( Id. at p. 690.) However, “a local government may
not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government ’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” ( Id. at
p. 694.) Monell thus foreclose d respondeat superior liability and gave rise to what are commonly referred to as “ policy or custom” section 1983 cases against local governmental entities and local officials acting in their official capacity. The second significant decision is Will v. M ichigan 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

s tate 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 c ourt began its analysis by observing the case had been brought in Michigan state court. This, explained
the c ourt, placed the “question whether a State is a person under § 1983 squarely before

us since the Eleventh Amendm ent does not apply in state courts. ” ( Id. at pp. 63

– 64,10

italics added.) As the Court observed, confusion as to whether a s tate is a “person” under section 1983 had arisen, in part, because federal courts had dismissed section 1983 cases against s tates 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)

. Accordingly, statutes using the term “ person” are not “ordinarily construed” as including the sovereign. ( Will, supra , 491 U.S

. at p. 64.) The c ourt next observed the language of section 1983 does not clearly evince any intent by Congress to “alter” the historic
constitutional balance betwee n the s tates and the f ederal g overnment by subjecting the

s tates to federally

- based liability. ( Will
, at p. 65.)
The c ourt further explained s tate liability under section 1983 would be inconsistent with Congress’ intent that civil rights cases be brough t in the federal courts. Indeed, Congress provided for federal court jurisdiction “precisely” to enable civil rights plaintiffs “to avoid” the state courts, many of which were, at the time, balking at enforcing federally

- secured civil rights. ( Will, supr a , 491 U.S

. at p. 66.) However, s tates are entitled to invoke their sovereign immunity from suit, including in the federal courts as recognized by the Eleventh Amendment. Congress, therefore, could not have viewed the term “person” under section 1983 as including the s tates, since, absent their consent to suit, they cannot be sued in the very courts Congress intended would be the principal forum for civil rights suits under the statute. ( Will
, at p p. 66

– 67.) Notably, in discussing this point, the c ourt explicitly observed the meaning of the term “person” under
section 1983 and the scope of the Eleventh Amendment are “ separate issues. ” ( Will
, at
p. 66.) The c ourt similarly observed there is no evidence Congress intended to “override
well

- established imm unities or defenses under the common law,” one of which is sovereign immunity. 3 ( Will
, at p. 67.)

3 As discussed
, infra at pages 15

– 18, 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.11

The Supreme Court then examined the legislative history of section 1983, concluding it also does not suggest Congress intended to subject the “States themse lves to a damages suit under federal law.” ( Will, supra , 491 U.S

. at p. 68.) Finally, the c ourt explained its decision in Monell i s not at odds with the conclusion the t erm “person” as
used in section 1983 does not include s tates. “[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 s tat es 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 s tate 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 s tate. (See also Arizonans for Official Engl ish 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) [c ourt “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 , f n. 12 ( Ngiraingas ) [having held the territory was not a “person” under section 1983, it was “unnecessary to consider Guam’s claim of immunity under the Eleventh Amen dment”].) The Supreme Court also made clear its “person” holding applies not only to a

s tate, vel non
, but also to an arm of the s tate , such as the Michigan Department of State
Police sued in Will . It additionally applies to a state official sued in hi s or her official capacity, such as the Director of State Police sued in Will , because such a suit is “not a suit against the official but rather is a suit against the official’s office.” ( Will, supra
, 491 U.S. at p. 71; see also Arizonans, supra, 520 U.S . at p. 69 , f n. 24 [“S tate officers in their official capacity, like States themselves, are not amenable to suit for damages under § 1983

. ”]; Hafer, supra, 503 U.S. at p. 27 [“State officers sued for damages in their12

official capacities are not ‘persons’ f or purposes of suit because they assume the identity of the government that employs them.”].) 4 The third decision significant to the instant case is McM illian v. Monroe County (1997) 520 U.S. 781 ( McMillian ), in which the Supreme Court held the Monroe Co unty Sheriff “represent [ s ] 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.” ( M

cMill i an, supra , 520 U.S. at p. 784, italics added.) Thus, the
issue before the h igh c ourt 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 c ourt was a “ ‘federal question’ ” ( id . at p. 786, quoting Regents of Univ. of Cal.
v. Doe (1997) 519 U.S. 425, 429 , f n. 5 [ 137 L.Ed.2d 55, 117 S.Ct. 900 ] ), although one “dependent on an analysis of state law.” ( McMillian
, at p. 786; see also Howlett v. Rose ( 1990) 496 U.S. 356, 366 [110 L.E.2d 332, 110 S.Ct. 2430] ( Howlett ) [“ [ 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 novo review].)

4 The Supreme Court distinguished section 1983 cases seeking only injunctive relief . ( Will, supra, 491 U.S. at p. 71 , f n. 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 thu s may be pursued in federal court (and despite the Eleventh Amendment) under what is commonly referred to as the Ex parte Young doctrine . (See, e.g., Virginia Office for Protection and Advocacy v. Stewart (2011) __ U.S. __ [ 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 liabilit y for damages in their personal capacities . . . even when the conduct in question relates to their official duties.”]; Hafer, supra, 502 U.S. at pp. 25

– 27.)13

S tating it was d eferring “considerably” to the “expertise” of the Eleventh Circuit Court of Appeals in interpreting Alabama law ( McMill i an, supra , 520 U.S . at p p

. 786

– 787), the Supreme Court turned to the Alabama Constitution, examining its provisions pertaining to law en forcement and county sheriffs. ( Id. at pp. 787

– 788.) The c ourt also viewed the Alabama Supreme Court’s interpretation of these provisions as “ [ c ] ritically” important. ( Id. at p. 789 [the state court “has held unequivocally that sheriffs are state
office rs” and that “tort claims” against sheriffs based on their official acts “therefore constitute suits against the State”] 5 .) The Supreme Court next examined the Alabama Code, concluding its provisions also demonstrate county sheriffs are acting as the Sta te in performing law enforcement duties. ( McMillan, supra , 520 U.S

. at pp. 789

– 791.) The c ourt 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 th eir 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.” ( McMillan, supra , 520 U.S

. at p. 795.)
B ut that is no reason, said the c ourt, to adopt a “uniform, national characterization for all sheriffs.” ( Ibid. ) “[S]uch a blunderbuss approach would ignore a crucia l 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, ther e is no inconsistency created by court

5 In a footnote, t he Supreme Court further observed that as a result of (a) the Alabam a 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 s tate, the Alabama Supreme Court had held a county sheriff is “absolutely immune from all suits f or damages based on his official acts.” ( McMillan, supra , 520 U.S

. at p. 789 , f n. 5.) This footnote thus concern s the State of Alabama’s common law sovereign immunity as expressed in its s tate constitution
, and ha s nothing to do with “ Eleventh Am endment sovereign immunity.”14

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 s tate 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 th erefore was not subject to a suit for damages under that statute base d on the execution of such duties. The Supreme Court made no mention of “Eleventh Amendment immunity” in McMillian . Nor would
there have been an y logic in doing so, given the c ourt’s analysis and holding in Will. (See Arizonans, supra, 520 U.S. at p. 6 9; Howlett, supra, 496 U.S. at p. 376 [“ [ s ] ince this Court has construed the word ‘person’ in § 1983 to exclude States, neither a federal court [ n ] or a state court may entertain a § 1983 claim against such a defendant.”]; Ngiraingas,

supra, 495 U.S. at p. 12.) The year after the United States Supreme Court decided McMillian our Supreme
Court decided Pitts v. County of Kern (1998) 17 Cal.4 th 340 [70 Cal.Rptr.2d 823,
949 P.2d 920] ( Pitts ), holding a California district attorney acts on behalf of the s tate wh en preparing to prosecute and prosecuting violations of state laws. ( Id. at p. 362.) The

c ourt followed the analytical template the United States Supreme Court employed in
McMillian . ( Pitts , at pp. 352

– 362.) Thus, the c ourt first examined California’s constitutional provisions concerning which entity, the s tate 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 obse rved “over 100 years ago,” the c ourt had h eld 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

s tate. ’ ” ( Id. at p. 359.) Acknowledging there are so me legal provisions suggesting a
district att orney is a county officer, the c ourt concluded, on balance, California law treats a district attorney as representing the s tate, and not as a policymaker of the county, in preparing to prosecute and when prosecu ting criminal violations of state laws. ( Id. at15

p. 362.) The c ourt 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

— tha t district attorneys represent the s tate 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 Pitt s 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 Cour t 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 s tates are not “persons” as that term is used in sect ion 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 , f n. 12.)
2. The Eleventh Amendment Does Not Apply i n State Court The scope and import of the Eleventh Amendment to the United States
Constitution ha s also been discussed many times by the United States Supreme Court. These decisions by the high c ourt are, again, binding authority in this area of the law. (See Fletcher, supra, 13 Cal.4 th at p. 469 , f n. 6; Garcia, supra , 42 Cal. App.4 th at p. 181.) One case of particular note here is Alden v. Maine (1999) 527 U.S. 706 [144 L.Ed.2d 636,
119 S.Ct. 2240] (

Alden ), in which the c ourt held Maine’s common law sovereign immunity precluded a state court action by state employees under the federal Fair Labor
Standards Act. 6 (

Alden
, at pp. 759

– 760.) With respect to the Eleventh Amendment, the Supreme Court in Alden made two salient observations. It first explained that because the “Eleventh Amendment makes explicit reference to the States ’ immunity from suits ‘commenced or prosecuted against one of the United States by Ci tizens of another State, or by Citizens or Subjects of any
F oreign State,” the c ourt had, “as a result, sometimes referred to the States’ immunity

6 Title 29 United States Code section 201 et seq.16

from suit as ‘Eleventh A mendment immunity.’ ” 7 ( Alden, supra , 527 U.S. at pp. 712

– 713.) Although a “convenient short hand,” the phrase is, said the c ourt, “something of a
misnomer
, for the sovereign immunity of the States neither derives from nor is limited by
the terms of the E leventh 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
ratifica tion 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 ju dicial intrusion, the s tates’ historic sovereign immunity rooted in the common law. (See also Stewart, supra, 131 S.Ct. at p. 1637 [“we have understood the Eleventh Amendment to confirm the structural understanding that States entered the Union with
their 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 t he c ourt, “of course, is a
truism as to the literal terms of the Eleventh Amendment .” ( Id. 735

– 736 ; see also id. at p. 742 [“the Eleventh Amendment by its terms addresses only ‘the Judicial power of the
United States’ ”].) The c ourt went on to explain i t has also stated many times “the bare
text of the [ Eleventh ] Amendment is not an exhaustive description of the States’ constitutional immunity from suit.” ( Id. at p. 736.) The full extent to which the s tates’
historic sovereign immunity remains intact d epends on an analysis of “history, practice, precedent, and the structure of the Constitution”

— the question, ultimately, being whether there is “ ‘compelling evidence’ ” of “derogation of the States’ sovereignty . . . ‘inherent in the constitutional compac t.’ ” ( Id. at p. 741, quoting Blatchford v. Native Village of

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 agai nst one of the United States by Citizens of another State, or by Citizens of Su bjects of any Foreign State.” (U.S. Const. Amend XI.)17

Noatak (1991) 501 U.S. 775, 781 [115 L.Ed.2d 686, 111 S.Ct. 2578] ; see also Stewart,

supra, 131 S.Ct. at p. 1637 [“Our cases hold that the States have retained their traditional immunity from suit, ‘except as altered by the plan of the Convention or certain constitutional amendments.’”].) The Supreme Court further observed the historically recognized “ ‘doctrine of sovereign immunity is an amalgam of two 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 distinc tion drawn betwee n a sovereign’s immunity in its own courts and its immunity in the court’s 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

p p . 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, i t 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 immuni ty of the s tates. (See Stewart, supra, 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 s tates’ historic common law sovereign immunity. ( Alden, supra,
527 U.S. at pp. 713, 745

– 754; see also Stewart, supra, 131 S.Ct. at p. 1637.) And, specifically, th is amendment recognizes and preserves the s tates’ c ommon law immunity with respect to suits brought in the federal courts . The amendment does not, itself, apply18

to actions brought in the state courts. 8 ( Alden, at p. 742 ; see also Stewart, supra,
131 S.Ct. at p. 1637.)
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 c onsidered 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.4 th at p. 826.) Utilizing the an alytical framework the United States Supreme Court employed in McMillian in concluding Alabama county sheriffs are representatives of the state when executing law enforcement du ties (and which the
California c ourt, itself, used in Pitts in concluding d istr ict a ttorneys act on behalf of the

s tate when preparing to prosecute and in prosecuting criminal violations of state law), t he

c ourt 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

.

8 Although “ sweeping, ” the s tates’ common law sovereign immunity is not immutable. (

Alden, supra, 527 U.S. at p. 755 [“c ertain limits are implicit in the constitutional principle of state sovereign immunity”].) The s tates 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 co nsented “to some suits pursuant to the plan of the [constitutional] Convention or to subsequent constitutional Amendments.” ( I bi d. ; see also Stewart, supra, 131 S.Ct. at pp. 1637

– 1638.) Among these is the Fourteenth Amendment, which required the states t o 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 prov ision, 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.19

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.4 th 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 therefore are not subject to damages s uits under that statute based on their execution of such duties. (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 , f n. 12.)
While the court i n Venegas cited to Will
, it did not focus on the United States Supreme Court’s holding in that case that s tates (including s tate agencies and s tate 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.) Rat her, the California c ourt 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 st atute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.” ( Id. at p. 829 ; see also id. at p. 826 [“Under the
Eleventh Amendment to the United States C onstitution, and the doctrine of sovereign immunity, the state is absolutely imm une from tort liability under t he federal civil rights

a ct (42 U.S.C. § 1983 . . .).”]); p. 829 [defendants “claim they are immune from liability under the Eleventh Amendment”]; p. 839 [parties “correctly assumed” deputy sheriffs “would not be shielded by the sheriff’s own state agent immunity”].)
We consider t he reference s to the Eleventh Amendment in Venegas to be non

binding dicta , since that federal constitutional provision was not pertinent to the specific
issue before the c ourt, namely whether a Calif ornia s heriff acts on behalf of the s tate 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 and20

conclusions not necessary to Supreme Court’s decision are dicta and “not to be regarded as authority”].)
But e ven if the Califor nia c ourt’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 th e s tates 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.) The court has further unequivocally
held that a section 1983 claim for damages will not lie against a s tate, in either federal or state court, because a sovereign is not a “person” as that term is used in section 1983, and

not because s tates are “immune” from liability under the Eleventh Amendment or common law sovereign immunity . ( Will, supra, 491 U.S. at pp. 64

– 70; see also Arizonans, supra, 520 U.S. at p. 69; Howlett, su pra, 496 U.S. at p. 376 9 ; Ngiraingas,

supra, 495 U.S. at p. 192 , f n. 12).

9 In Venegas , the court appears to have inadvertently rephrased, and thus mischaracter ized, language from Howlett

. Citing Howlett, the court stated in Venegas :

“ [ S ] tates 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.4 th 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 ‘pe rson’ 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 sim ply recognizes that entities with “Eleventh Amendment immunity”

— namely s tate s , s tate agenc ies and s tate offic ials sued in their official capacit y

— are not “persons” under section 1983, and that is so as a matter of statutory construction . ( Will, supra, 491 U.S.21

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 sherif

f, th at is also at odds with United States Supreme Court authority making clear s tates 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 soverei gn 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 , f n. 12.) In deed, the United States Supreme Court has held that
, under the Supremacy Clause, s tates 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 subj ected 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.)

at pp. 63

– 70; see also 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 instru mentality 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 23 0] [district attorney not a person under section 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 (2006) 141 Cal.App.4th 237, 242 [45 Cal.Rpt r.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 d octrine of sovereign immunity.”]; Brunius v. Parrish (2005) 132 Cal.App.4th 838, 859 [34 Cal.Rptr.3d 55] [concluding Mining Board and individual employees acted as arms of State and therefore were “immune” from section 1983 claims]; see also Kirchmann v. L ake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1100 [100 Cal.Rptr.2d 289] [predating Venegas and concluding school district could invoke Eleventh Amendment if sued in22

The c ourt in Venegas also commented the parties “correctly assumed that the
she riff’s deputies would not be shielded by the sheriff’s own state agent immunity, and are ‘persons’ who may be held liable for damages under section 1983 for violating someone’s constitutional rights.” ( Venegas, supra, 32 Cal. 4 th at p. 839.) We have
alre ady discussed t he suggestion it is state “immunity” that precludes a section 1983
claim against a county sheriff. To the extent this comment further suggests deputy sheriffs are not subject to section 1983 claims because they are lower level officers, it is

a lso at odds with United States Supreme Court authority.
W hether an individually named s tate 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 “of

ficial capacity” or “personal capacity,” not on his or her particular
rank in a s tate’s governmental hierarchy. ( See Hafer, supra, 502 U.S. at pp. 25

– 31; Ngiraingas, supra, 495 U.S. at pp. 184

– 185 , 192 & f n. 3 [holding territory of Guam not a “person” und er section 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; Brando n v. Holt (1985) 469 U.S. 464, 471 [83 L.Ed.2d 878, 105 S.Ct. 873] [in prior opinions, c ourt “plainly implied” a judgment against “a public servant ‘in his official capacity’ imposes liability on the entity that he represen ts”];
see also Baughman v. State of California (1995) 38 Cal.App.4 th 182, 188

– 189

federal court and therefore district was not a “person” subject to a secti on 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 co urt and therefore Authority was a “person” subject to a section 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 theref ore 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.23

[45 Cal.Rptr.2d 82] [because university is an arm of the s tate, section 1983 claims against university police officers in their official capacities were properly dismissed].) “State officers sued for damages in their official capacity are not ‘persons’ for purposes of [a section 1983] suit because they assume the identity of the government that employs them.” ( Hafer, supra, 502 U.S. at p. 27, italics added; see also Kentucky v. Graham (1985) 473 U.S. 159, 166 [87 L.Ed.2d 114, 105 S.Ct. 3099] ( Graham ) [“an
official

- capacity suit is, in all respects other than name, to be treated as a suit against the entity”].) Official

- capacity suits are therefore “treated as suits against th e State

. ” 11 ( Hafer, supra, 502 U.S. at p. 25 ; see also Graham , supra , 473 U.S. at p. 167 [“[t]he only
immunities that can be claimed in an official

- capacity action are forms of sovereign immunity that the entity, qua entity, may possess”].) “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

- c apacity claims were before the high c ourt. ( McMillian, supra, 520 U.S. at p. 784.) All of the individual defendants, including t he 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 s tate 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

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; Grah a m, supra , 473 U.S. at pp. 165

– 167; see also McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207

– 1213 [157 Cal.Rptr.3d 720] [the plaintiff’s official

- capacity claim against superintendent pro perly dismissed on ground state official not a “person,” and allegations did not state a personal

- capacity claim].)24

may, depending on his posi tion, be able to assert personal immunity defenses,” such as “absolute immunity” (available to a “very limited class,” including “the President of the United States, legislators carrying out their legislative functions
, and judges carrying out their judici al functions” ( Hafer, supra, 502 U.S. at p. 29)) or “qualified immunity.” ( Graham , supra , 473 U.S. at p p

. 166

– 167; see, e.g., Lane v. Franks (2014) __ U.S.___ [ 189 L.Ed2d 312, 134 S.Ct. 2369, 2381

– 2383 ] ( Lane ) [defendant entitled to qualified immunity to extent he was sued in his personal capacity; c ourt did not reach claims asserted against the defendant in his official capacity].) The personal immunity most often raised by law enforcement officers sued in their personal capacities, of course, is “quali fied immunity,” which the United States Supreme Court has also explored in a wealth of decisions. (E.g., Carroll v. Carman (2014)

__ U.S.__ [ 190 L.Ed.2d 311, 135 S.Ct. 348 , 349

– 350 ] [officer who entered backyard entitled to qualified immunity]; Plumhoff v . Rickard (2014) __U.S. __ [ 188 L.Ed.2d 1056, 134 S.Ct. 2012, 2020, 2023

– 2024 ] [even if officer’s use of deadly force was excessive, officer entitled to qualified immunity]; Pearson v. Callahan (2009) 555 U.S. 223, 231

– 245 [ 172 L.Ed.2d 565, 129 S.Ct. 808 ] [officers who entered home without warrant entitled to qualified immunity; c ourt overrules its decision in Saucier 12 to extent it required courts assessing qualified immunity claim to first determine whether constitutional violation was alleged or had occur red]; Brosseau v. Haugen (2004) 543
U.S . 194, 198

– 201 [160 L.Ed.2d 583, 125 S.Ct. 596] [officer who shot fleeing felon entitled to qualified immunity]; Saucier , supra , 533 U.S. at pp. 203

– 209 [arresting officer entitled to qualified immunity].) In sum, the California Supreme Court’s decision in Venegas is significant and binding on lower California courts with respect to i ts holding that county sheriffs are arms of the state while performing state law enforcement activities for purposes of damages liabilit y under section 1983 . I ts immunity dicta , however, should be left to fade into history.

12 Saucier v. Katz (2001) 533 U.S. 194 [150 L.Ed.2d 272, 121 S.Ct. 2151] ( Saucier ).25

I n 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 San Mateo County 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 also Arizonans, supra, 520 U.S. at p. 69; Howle tt,
supra, 496 U.S. at p. 376; Ngiraingas, supra, 495 U.S. at p. 192 , f n. 12.) Accordingly, the County’s demurrer on behalf of the Sheriff’s Department was correctly sustained
without leave to amend. The “Doe” Defendants
We lastly consider wh ether 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

– 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 amen dment to name, instead, the “San Mateo County Sheriff’s Department (Gang Intelligence Task F orce).”
P ierce did not add Doe defendants until she filed her second amended c omplaint, wherein she named as defendants “San Mateo County and the Individual Memb e rs of the San Mateo Gang Task F orce sued as Does 1 to 99.” The amended complaint alleged two causes of action, against both San Mateo County and the Does for violation of her Fourth Amendment rights. The County demurred to the entire second amended c ompl aint without specifying on whose behalf it was appearing and sought dismissal of the complai nt “in its entirety.” However, one of the grounds on which it did so was that
Pierce had not alleged any policy, custom or practice sufficient to state section 198 3 claim against a local governmental entity under Monell

— an assertion that pertains only to a claim against a local governmental entity or local policymaking official sued in his or her official capacity, not to a local law enforcement officer sued in his or her personal capacity for committing a constitutional tort. This indicates the County was appearing26

solely for itself (sued as the Sheriff’s Department) and was not appearing on behalf of any unnamed individual Doe defendants.
In her third amended c omp laint, 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 ag ain interposed a demurrer as to both causes o f 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 “on ly 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 pled. This, again, indicates the County was appearing solely for itself (sued as the Sh eriff’s Department) . A nd, indeed, it asserted in the conclusion of its memorandum of points and authorities in sup port of its demurrer, that the third amended complaint “ fails to state any cause of action against the County.” However, the County again as ked that the amended complaint “be dismissed in its entirety” w ithout 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
defe ndants. However, “Doe practice” is permitted by statute (Civ. Proc. Code
, § 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.4 th 1005, 1010 [90 Cal.Rptr.2d 787] .) In some cases, it may be appropriate to dismiss an action even as to Doe
defendants afte r a successful demurrer by a named defendant, for example, where the basis for the successful demurrer applies equally to the Doe defendants. However, that is not the case here. As discussed above, the law that precludes Pierce’s section 1983 claim again st the Sheriff’s Department

— namely the law establishing that a s tate is not a “person” as that term is used in section 1983 ( Will, supra, 491 U.S. at p. 71) and the law27

establishing that a California s heriff represents the s tate in performing state law
enf orcement duties ( Venegas, supra , 32 Cal.4 th at p. 839)

— applies only to the Department (and any deputies sued in their official capacity) and does not apply to deputies sued in their personal capacity. While the third amended c omplaint contained no allegat ions either way (i.e., that the Does were sued in their official capacity or in their personal capacity), it is at least theoretically possible the complaint could be amended to allege a section 1983 claim against the Does in their personal capacity.
F urthermore, as discussed above, the third a mende d c omplaint 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 alleged civil rights claim can, in fact, be successfully prosecuted against the
Does. T here 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 e ven if Pierce were to survive such procedural challenge s , the individual deputies m ight be entitled to q ualified immunity under
section 1983 or to summary judgment on the merits

. N o such issues , however, are before
us at th is time , and we conclude only that the trial court erred in dismissing the case in its “entirety” given the Doe defendant allegations.

IV. D ISPOSITION The judgment of dismissal is affirmed as to the County (sued as the San Mateo County Sheriff’s De partment )

. In all other respects
, the judgment is reversed. Each party
to bear their o wn costs on appeal.28 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Dondero, J.

A138278, People v. Pierce29

Trial Judge: Honorable Joseph E. Bergeron

Trial Court: San Mateo Superior Court

Paul McCarthy for plaintiff and appellant.
John C. Beiers, County Counsel and David A. Levy, Deputy County Coun sel for defendants and respondents.