Anselmo et al v. Mull et al

Filing 144

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 10/28/2013 ORDERING 134 that plaintiffs' motion for summary judgment be, and the same hereby is, DENIED, and that defendants' 133 motion for summary judgment be, and the same hereby is, GRANTED. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REVERGE ANSELMO and SEVEN HILLS
LAND AND CATTLE COMPANY, LLC,

CIV. NO. 2:12-01422 WBS EFB
MEMORANDUM & ORDER RE: MOTIONS
FOR SUMMARY JUDGMENT

Plaintiffs,

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v.
RUSS MULL, LESLIE MORGAN,
Shasta County AssessorRecorder, COUNTY OF SHASTA,
BOARD OF SUPERVISORS OF THE
COUNTY OF SHASTA, LES BAUGH,
and GLENN HAWES,
Defendants.

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Plaintiffs Reverge Anselmo and Seven Hills Land and

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Cattle Company, LLC brought this action against defendants County

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of Shasta, California (“the County”), the Board of Supervisors of

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Shasta County (“the Board”), Leslie Morgan, Russ Mull, Les Baugh,

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and Glenn Hawes arising out of a series of land use disputes

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beginning in 2007.

Plaintiffs seek damages and injunctive relief
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under 42 U.S.C. § 1983, as well as a writ of mandate compelling

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defendants to award plaintiffs a land conservation contract

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pursuant to the California Land Conservation Act of 1965 (“the

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Williamson Act”), Cal. Gov’t Code § 51200 et seq.

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both move for summary judgment pursuant to Federal Rule of Civil

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Procedure 56.

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I.

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The parties

Factual & Procedural History
Plaintiffs own and operate two properties in Shasta

County that are at issue in this action.

Since at least 2006,

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plaintiffs have owned and operated Home Ranch, a 1200-acre

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property located in the Inwood Valley.

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(Docket No. 139-5).)

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Ranch, a 670-acre property located three miles away from Home

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Ranch, which they planned to utilize for raising cattle.

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2.)

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(See Anselmo Decl. ¶ 27

In 2007, plaintiffs purchased Bear Creek

(Id. ¶

After purchasing Bear Creek Ranch, plaintiffs began

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clearing the property of weeds, vines, bushes, and dead or dying

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trees in order to replant the pasture areas of the property.

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(Id. ¶¶ 2-3.)

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employee Andrew Jensen received a report in October 2007 of

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potential violations of state and federal water quality laws at

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Bear Creek Ranch.

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Summ. J. (“Jensen Decl.”) ¶ 3 (Docket No. 133-1).)

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initiated an investigation of the alleged violations and visited

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Bear Creek Ranch several times.

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Jensen directed Garrett Glauzer, a construction foreman at Bear

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Creek Ranch, to cease operations.

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reiterated this direction to Anselmo the next day, (id.), and

California Regional Water Quality Control Board

(Decl. of Andrew Jensen in Supp. of Mot. for

(Id.)

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Jensen

On October 15, 2007,

(Id. Ex. 2.)

Jensen

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prepared a report documenting his findings and a Cleanup and

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Abatement Order, which he issued to the County.

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3, 6.)

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(Jensen Decl. ¶¶

On October 30, 2007, plaintiffs received a letter from

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James Smith, an Environmental Health Division Manager with the

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County, stating that plaintiffs had violated the County’s grading

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ordinance by engaging in grading activities without a valid

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grading permit.

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Minasian, an attorney for plaintiffs, sent Smith a letter on

(Pls.’ Mem. Ex. B. (Docket No. 134-9).)

Paul

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November 12, 2007, disputing the finding of a grading violation

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and contending that plaintiffs’ activities were exempt under the

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County’s grading ordinance.

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letter dated December 20, 2007, that the alleged grading

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activities were not exempt because they had occurred in and

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adjacent to a drainage way.

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response on January 2, 2008, in which he reiterated plaintiffs’

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position that they had not violated the grading ordinance.

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Ex. E.)

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(Id. Ex. C.)

(Id. Ex. D.)

Smith responded in a

Minasian sent Smith a

(Id.

In December 2007, Anselmo invited Glenn Hawes, a member

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of the Board, to Bear Creek Ranch to discuss the grading

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violation.

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saw the work that was being done on the property and stated that

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“he did not understand how it could be claimed that this was

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grading that required a permit.”

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advised him to buy mitigation credits and offer them to the

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County “in order to end the harassment” and that Hawes

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“explicitly mentioned his Stillwater Plains Mitigation Bank as a

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potential candidate for those mitigation credits.”

(Anselmo Decl. ¶ 16.)

Anselmo testified that Hawes

(Id.)

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Anselmo avers that Hawes

(Id.)

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Anselmo refused this offer.

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contest plaintiffs’ narration of these events, they concede that

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this meeting occurred, (see Hawes Decl. ¶¶ 7-10 (Docket No.

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135)), and that Hawes stated that Anselmo “might be able to

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resolve the violations” by purchasing a conservation easement for

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the Home Ranch property.

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Undisputed Facts (“Defs.’ SUF”) ¶ 47 (Docket No. 133-32).)

(Id. ¶ 16.1.)

Although defendants

(Id. ¶ 8; Defs.’ Statement of

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Anselmo then requested an additional meeting with

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Hawes, Supervisor Les Baugh, Russ Mull, the Director of the

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County’s Resource Management Department, and Larry Lees, the

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County Administrative officer.

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meeting took place on February 1, 2008, and was also attended by

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Willy Preston, the legislative aide for then-Assemblyman Doug

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LaMalfa.

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threatened to obstruct his application for a permit to operate a

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winery at the Home Ranch property if he did not obtain a grading

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permit.

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he “did not tell Mr. Anselmo that I would hold up his certificate

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of occupancy at the Winery Property,” he admits that he “told him

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that . . . a landowner may be denied future discretionary permits

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if there are outstanding violations on the property.”

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Russ Mull (“Mull Decl.”) ¶ 9 (Docket No. 135-2).)

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(Id.)

(Anselmo Decl. ¶ 17.)

This

Anselmo avers that at this meeting, Mull

(Anselmo Dep. at 181:12-16.)

Although Mull claims that

(Decl. of

After this meeting, Anselmo called Baugh and asked if

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there was any other way to cure the grading violation.

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Decl. ¶ 23; Baugh Decl. ¶ 11 (Docket No. 135-1).)

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contacted Mull and asked what could be done to resolve the

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grading violation.

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if plaintiffs obtained a hydroelectric permit for the Bear Creek

(Id.; Mull Decl. ¶ 10.)

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(Anselmo

Baugh then

Mull responded that

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Ranch property, it could encompass the grading violation.

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Baugh relayed this message to Anselmo, (Baugh Decl. ¶ 12), who

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interpreted it as a request for a “face-saving measure.”

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(Anselmo Decl. ¶ 24.)

(Id.)

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In the meantime, Bridget Dirks, an Associate Planner

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with the County, sent plaintiffs a letter on January 30, 2008,

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stating that plaintiffs would need to conduct a “botanical

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survey” on the Home Ranch property to determine whether a plant

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known as Ahart’s Paronychia was present.

(Defs.’ Request for

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Judicial Notice (“Defs.’ RJN”) Ex. 25 at 35 (Docket No. 133-29).)

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Anselmo avers that he had the Home Ranch property examined by Tom

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Benson, a botanist and Natural Resources Conservation Service

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engineer.

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Benson wrote a letter to the County’s resources management

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division indicating that plaintiffs’ property did not contain

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hydric soils that could serve as a habitat for Ahart’s

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Paronychia.

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conduct the plant study, which plaintiffs contend delayed the

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approval of their application for a permit for the proposed

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winery project by several months and cost an additional $5,000.

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(Id. at 207:2-14; Anselmo Decl. ¶ 26.)

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(Anselmo Dep. at 206:20-25.)

(Id.)

Anselmo avers that

Dirks nonetheless required plaintiffs to

On September 3, 2008, plaintiffs received a letter from

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Lio Salazar, an Associate Planner with the County, stating that

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their application for a land conservation contract for the Bear

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Creek Ranch property (“Williamson Act contract”) could not move

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forward until the grading violations were remedied.1

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(Pls.’ Mem.

The Williamson Act authorizes cities and counties in
California to offer a land conservation contract to owners of
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Ex. H.)

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October 8, 2008.

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Salazar reiterated this position in a letter sent on
(Id. Ex. J.)

Plaintiffs sent a letter to the Board, Mull, and

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Michael Ralston, the Shasta County Counsel, on October 14, 2008.

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(Id. Ex. L.)

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a grading violation, argued that the County failed to serve a

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Notice of Non-Compliance with the grading violation, claimed that

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they had been denied an opportunity to appeal the grading

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violation, and threatened further legal action if the Williamson

In this letter, plaintiffs contested the finding of

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Act contract was not approved.2

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the County Planning Commission unanimously recommended that the

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Board conduct a public hearing and grant plaintiffs’ application

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for a Williamson Act contract.

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(Id.)

Following this letter,

(Id. Exs. 2-3.)

On December 16, 2008, the Board held a meeting at which

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plaintiffs’ application for a Williamson Act was placed on the

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agenda.

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2008 (“Dec. 16 Minutes”) (Defs.’ RJN Ex. 7) (Docket No. 133-35).)

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Before the Board considered the contract, it considered the more

(See Minutes, Shasta Cnty Bd. of Supervisors, Dec. 16,

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agricultural land meeting certain statutory requirements. Cal.
Gov’t Code § 51240. In exchange for agreeing to maintain their
property as full-time agricultural land, the owner of land
subject to a Williamson Act contract receives favorable tax
treatment on that land. Cal. Rev. & Tax. Code § 423.3. The
State of California provides subvention payments to cities and
counties who enter into Williamson Act contracts in order to
offset the lost tax revenue. Cal. Gov’t Code § 16142.
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Shortly before mailing this letter, plaintiffs filed
the precursor to this lawsuit in Shasta County Superior Court on
October 2, 2008. (Defs.’ RJN Ex. 24.) Plaintiffs named the
County, Jensen, and Mull as defendants and also sued Hawes &
Baugh as Doe defendants. Id. Plaintiffs and Jensen agreed to a
stipulated dismissal of the state court action in June 2009.
(Docket No. 139-3.)
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general question of whether the County should place a moratorium

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on all new Williamson Act contracts in light of the possibility

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that the State of California would discontinue subvention

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payments.

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could lose as much as $125,000 per year if these payments ceased.

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(Id.)

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by a 4-1 margin.

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favor of the motion.

(Id. at 8.)

County staff estimated that the County

Although the Board put this issue up for a vote, it failed

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(Id.)

Only Supervisor David Kehoe voted in

(Id.)

The Board then considered plaintiffs’ application for a

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Williamson Act contract.

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themselves from this vote.

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contend that they recused themselves because they had been named

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as defendants in a suit brought by plaintiffs, (see Hawes Decl. ¶

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12; Baugh Decl. ¶ 15), plaintiffs argue that this “was a bad

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faith pretext to bring about what they believed would constitute

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a denial of Plaintiffs’ application.”

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¶ 55.0 (Docket No. 1-2).)

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considered plaintiffs’ application for a Williamson Act contract.

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(Dec. 16 Minutes at 10.)

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favor of awarding the contract, while Kehoe voted against it and

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reiterated his earlier concerns about discontinued subvention

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payments.

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Williamson Act contract for Bear Creek Ranch.

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(Id.)

(Id. at 9-10.)
(Id. at 9.)

Hawes and Baugh recused
While Hawes and Baugh

(Third Am. Compl. (“TAC”)

The remaining three Supervisors then

Supervisors Cibula and Hartman voted in

As a result, plaintiffs did not receive a
(Id.)

Plaintiffs amended their Complaint in February, May,

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and August 2009 to name Baugh, Hawes, the Board, and Leslie

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Morgan, the County Assessor-Recorder as defendants and to add

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allegations arising out of the Board’s decision to deny

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plaintiffs a Williamson Act contract.
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(See TAC 1.)

On May 11,

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2012, defendants filed a cross-complaint against plaintiffs for

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violation of the Unfair Competition Law, Cal. Bus. & Prof. Code §

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17200 et seq. and public nuisance, as well as third-party claims

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against Jensen, Nancy Haley, Matthew Rabbe, and Matthew Kelley

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for contribution and indemnity.

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States then removed the action to this court pursuant to 28

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U.S.C. § 1346(b) on the basis that Haley, Rabbe, and Kelley were

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federal employees sued for torts arising out of the scope of

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their employment.

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(Docket No. 1-1.)

The United

(Docket No. 1.)

The court dismissed defendants’ third-party claims

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against Haley, Rabbe, and Kelley on September 21, 2012, (Docket

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No. 58), and dismissed defendants’ third-party claims against

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Jensen on October 11, 2012.

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filed separate counterclaims against plaintiffs on December 5,

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2012 for public nuisance and violation of the Unfair Competition

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Law.

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defendants’ counterclaims to Shasta County Superior Court and

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retained jurisdiction over only plaintiffs’ § 1983 and writ of

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mandate claims.

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parties filed motions for summary judgment on those two claims.

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(Docket Nos. 133-134.)

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II.

(Docket No. 102.)

(Docket No. 91.)

Defendants then

On March 18, 2013, the court remanded

(Docket No. 117.)

On September 6, 2013, both

Legal Standard

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

Fed. R. Civ.

A material fact is one that could affect the outcome

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Id. at

To carry this burden,

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

Id. at

“Credibility determinations, the weighing of the evidence,

Id.
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III. Evidentiary Objections
On a motion for summary judgment, “[a] party may object

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that the material cited to support or dispute a fact cannot be

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presented in a form that would be admissible in evidence.”

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R. Civ. P. 56(c)(2).

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does not necessarily have to produce evidence in a form that

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would be admissible at trial, as long as the party satisfies the

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requirements of Federal Rules of Civil Procedure 56.”

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Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (quoting Block v.

Fed.

“[T]o survive summary judgment, a party

Fraser v.

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City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001))

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(internal quotation marks omitted).

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party’s evidence is presented in a form that is currently

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inadmissible, such evidence may be evaluated on a motion for

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summary judgment so long as the moving party’s objections could

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be cured at trial.

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433 F. Supp. 2d 1110, 1119–20 (E.D. Cal. 2006) (Shubb, J.).

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Even if the non-moving

See Burch v. Regents of the Univ. of Cal.,

Defendants raise dozens of objections to the evidence

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offered alongside plaintiffs’ Motion for Summary Judgment,

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(Docket No. 138-1), and the evidence offered alongside

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plaintiffs’ Opposition. (Docket No. 141-1).)

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objections based on compound phrasing are inappropriate because

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the evidence could be presented in an admissible form at trial,

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see Burch, 433 F. Supp. 2d. at 1119-20, and the court will

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overrule them.

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that defendants characterize as hearsay, and the court will

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therefore overrule these objections as moot.

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Defendants’

The court does not rely on any of the evidence

Defendants’ objections to evidence on the basis of lack
of foundation, speculation, or relevance are all duplicative of
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the summary judgment standard itself.

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summary judgment only when there is no genuine dispute of

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material fact.

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without personal knowledge are not facts and can only be

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considered as arguments, not as facts, on a motion for summary

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judgment.

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evidence, lawyers should challenge its sufficiency.

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on any of these grounds are superfluous, and the court will

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overrule them.

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See id.

A court can award

Statements based on improper legal conclusions or

Instead of challenging the admissibility of this
Objections

Defendants specifically object to paragraph 11 of

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Anselmo’s declaration, as well as plaintiffs’ Exhibit C,

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consisting of a letter sent by Paul Minasian on November 12,

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2007, on the basis that this evidence violates the “sham

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affidavit” rule.

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3.)

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letter as an “appeal” of the grading violation is a sham because

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it contradicts his earlier deposition testimony that this letter

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was not intended as an appeal of the County’s grading violation.

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(Id.)

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(Defs.’ Objections to Pls.’ Evidence in Opp’n ¶

Defendants argue that Anselmo’s characterization of this

The sham affidavit rule prohibits a party from creating

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a factual dispute by an affidavit contradicting his prior

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deposition testimony.

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927-28 (9th Cir. 2009).

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all instances when evidence conflicts with the party’s

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testimony.”

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elaborating upon, clarifying, or explaining prior testimony

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elicited by opposing counsel on deposition; minor inconsistencies

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that result from an honest discrepancy, a mistake, or newly

Nelson v. City of Davis, 571 F.3d 924,

Id. at 929.

The sham affidavit rule does not “cover

Nor does it prohibit a party “from

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discovered evidence afford no basis for excluding an opposition

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affidavit.”

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Cir. 1995).

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Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th

Defendants are correct that Anselmo’s affidavit is

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inconsistent with his prior deposition testimony that the letters

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sent by Minasian on November 12, 2007, and January 2, 2008, were

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“not the written appeals . . . sent on [Anselmo’s] behalf.”

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(Anselmo Dep. at 152:21-23.)

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affidavit accurately states that Minasian sent defendants a

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letter on November 12, 2007, and that this letter expressed

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plaintiffs’ position that their conduct did not require a grading

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permit.

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However, Paragraph 11 of Anselmo’s

(Anselmo Decl. ¶ 11.)
As this Order makes clear, whether or not Minasian’s

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letters constituted a formal appeal of the grading violation is

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immaterial; what is important is that those letters were received

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by defendants and that they disputed the County’s finding of a

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grading violation.

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caution–-the court will sustain defendants’ objection as to the

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words “appealing the determination . . . and” on line 3 of

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paragraph 11 and will overrule the objection as to the remainder

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of Anselmo’s affidavit and Minasian’s letter itself.

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IV.

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For this reason--and out of an abundance of

Discussion
A.

Claims Brought Under 42 U.S.C. § 1983
In relevant part, § 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . , subjects, or causes to be subjected, any
citizen of the United States . . . 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, suit in equity or
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other proper proceeding for redress . . . .
42 U.S.C. § 1983.

substantive rights, it provides a cause of action against any
person who, under color of state law, deprives an individual of
federal constitutional rights or limited federal statutory
rights.

Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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Plaintiffs bring four claims against all defendants
under § 1983 for: (1) deprivation of their property without just
compensation in violation of the Fifth Amendment; (2) violation
of the Fourteenth Amendment Equal Protection Clause; (3)
deprivation of procedural and substantive due process in
violation of the Fourteenth Amendment; and (4) retaliation for
conduct protected by the First Amendment.

to compel the award of a contract pursuant to the Williamson Act.
(Id.)

Defendants seek summary judgment on each of these claims.
1.

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(TAC ¶ 60.0.)

Plaintiffs seek damages, injunctive relief, and a writ of mandate

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While § 1983 is not itself a source of

Takings Clause

The Fifth Amendment prohibits the taking of private
property for public use without just compensation.
amend. V.

U.S. Const.

However, “if a state provides an adequate procedure

for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the
procedure and been denied just compensation.”

Williamson Cnty.

Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 195 (1985).

California allows landowners to pursue inverse

condemnation remedies in state court.

See Cal. Const. Art. I. §

19; San Diego Gas & Elec. Co. v. Superior Court, 13 Cal. 4th 893

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(1996).

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property without just compensation generally must pursue his

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claim through state inverse condemnation proceedings before

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bringing his claim in federal court.

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Cnty., 473 U.S. at 196-97; Guggenheim v. City of Goleta, 638 F.3d

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1111, 1117 (9th Cir. 2010).

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Consequently, a plaintiff alleging a taking of his

See, e.g., Williamson

Plaintiffs offer no evidence that they pursued state

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inverse condemnation remedies prior to bringing this action.

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Rather, plaintiffs assert that they are not required to bring an

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inverse condemnation action “as a condition of enforcing their

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rights to procedural due process and equal protection.” (Pls.’

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Opp’n at 31 (Docket No. 139).)

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dispute that they must resort to state inverse condemnation

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remedies prior to bringing a § 1983 claim premised on an

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unconstitutional taking of their property.

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as plaintiffs’ § 1983 claim is premised on a violation of the

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Takings Clause, the court must grant defendants’ motion for

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summary judgment.

Even so, plaintiffs do not

Accordingly, insofar

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2.

Equal Protection Clause

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Plaintiffs argue that defendants violated their rights

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under the Equal Protection Clause by refusing to grant plaintiffs

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a Williamson Act contract, even though defendants granted

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contracts to similarly situated landowners.

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15).

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shall . . . deny to any person within its jurisdiction the equal

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protection of the laws.”

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Supreme Court has recognized equal protection claims based the

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theory that the plaintiff “has been irrationally singled out as a

(Pls.’ Mem. at 9-

The Equal Protection Clause guarantees that “[n]o state

U.S. Const. amend. XIV, § 1.

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The

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so-called ‘class of one.’”

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U.S. 591, 601 (2008) (citing Village of Willowbrook v. Olech, 528

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U.S. 562, 564 (2000) (per curiam)).

Engquist v. Or. Dep’t of Agric., 553

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In order to succeed on their “class of one” claim,

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plaintiffs must show that defendants: “(1) intentionally (2)

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treated [plaintiffs] differently than other similarly situated

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property owners, (3) without a rational basis.”

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County, 637 F.3d 1013, 1022 (9th Cir. 2011) (citing Olech, 528

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U.S. at 564).

Gerhart v. Lake

For purposes of a “class of one” claim, a

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defendant’s conduct “comports with equal protection if there is

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any reasonably conceivable state of facts that could provide a

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rational basis for the classification.”

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Holdings v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (citations

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and internal quotation marks omitted); accord Vance v. Bradley,

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440 U.S. 93, 111 (1979) (holding that rational basis scrutiny

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requires a plaintiff to show that the “facts on which the

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classification is apparently based could not reasonably be

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conceived to be true by the governmental decisionmaker”).

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SeaRiver Mar. Fin.

Defendants have demonstrated a rational basis for the

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Board’s decision to deny it a Williamson Act contract.

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of the County’s Administrative Manual provides that “[a]n

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affirmative vote of three members is necessary for the Board to

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take action” on any item placed on the Board’s agenda.

(Admin.

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Policy 1-101 (Defs.’ RJN Ex. 5) (Docket No. 133-34).)

Rule 9(b)

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of the Administrative Manual states that a Supervisor may abstain

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from voting based on an actual or perceived conflict of interest

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and that, if he does so, the abstention “shall count as a non-

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vote.”

(Id.)

Rule 9(a)

Neither party disputes that Hawes and Baugh
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recused themselves from voting on whether to approve plaintiffs’

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application for a Williamson Act contract at the Board’s meeting

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on December 16, 2008.

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Board could only approve the Williamson Act contract if the

5

remaining three supervisors voted unanimously to do so.3

6

(Dec. 16 Minutes at 9.)

As a result, the

Plaintiffs’ application for a Williamson Act contract

7

failed to receive each of those three votes.

(Id. at 10.)

It is

8

undisputed that Supervisor David Kehoe voted “no” and that he

9

announced that he would prefer not to accept any new Williamson

10

Act contracts because it was unclear whether the State of

11

California would end subvention payments to local agencies for

12

lands covered by a Williamson Act contract.

13

rationale was consistent with his efforts earlier in the meeting

(Id.)

This

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

Plaintiffs argue that California law requires the
abstentions of Hawes and Baugh to be treated as affirmative votes
in favor of approving the Williamson Act contract, rather than as
non-votes. (Pls.’ Mem. at 27-28.) Although plaintiffs are
correct that some decisions have presumed that an abstention is
treated as an affirmative vote, the Board has adopted rules that
require three affirmative votes and treat an abstention as a
“non-vote.” (See Admin. Policy 1-101 (Defs.’ RJN Ex. 5).) These
provisions “alter[ed] the ordinary common law rule” by requiring
an affirmative vote of three Supervisors, rather than a simple
majority of those voting, in order to approve an agenda item.
County of Sonoma v. Superior Court, 173 Cal. App. 4th 322, 346
n.11 (1st Dist. 2009).
Plaintiffs’ reliance on Dry Creek Valley Ass’n v. Bd.
Of Supervisors, 67 Cal. App. 3d 839 (1st Dist. 1977), is
misplaced. There, the Board of Supervisors had adopted a rule
stating that, in the event that one less than the necessary
number of affirmative votes had been cast, an abstention could be
counted as a concurrence. Id. at 841. Here, the Board has
adopted no such rule; rather, Rule 9(a) specifically requires
three affirmative votes in order to take action and Rule 9(b)
provides that an abstention “shall count as a non-vote.” (See
Admin. Policy 1-101 (Defs.’ RJN Ex. 5).)
16

1

to place a moratorium on all new Williamson Act contracts because

2

of the possibility that subvention payments would be

3

discontinued.

4

County Director of Resource Management, avers that the State has

5

reduced subvention payments to “virtually zero,” and the County

6

has not approved any new Williamson Act contract since December

7

16, 2008. (Simon Decl. ¶ 13 (Docket No. 133-15).)

8
9

(Id. at 8.)

Indeed, Richard Simon, the current

Plaintiffs do not dispute that the State of California
had announced that it was considering ending subvention payments.

10

(Pls.’ Resp. to Defs.’ SUF ¶ 88.)

11

County staff had briefed the board about the status of subvention

12

payments and advised the Board that the County could lose as much

13

as $125,000 per year if the state eliminated these payments.

14

(Id. ¶ 89.)

15

underlying defendants’ asserted rationale . . . to show that the

16

challenged classification could not reasonably be viewed to

17

further the asserted purpose.”

18

546 F.3d 580, 590-91 (9th Cir. 2008).

19

Nor do they dispute that

Plaintiffs have therefore not “rebut[ted] the facts

Lazy Y Ranch, Ltd. v. Behrens,

To the extent that the Board singled out plaintiffs for

20

disparate treatment at all, the evidence shows that Kehoe, whose

21

vote was decisive, failed to approve the application for a

22

Williamson Act contract because of its potential fiscal

23

consequences. (See Dec. 16 Minutes at 8, 10.)

24

determine whether this concern actually motivated Kehoe or the

25

Board so long as the evidence demonstrates that there was at

26

least a “theoretical connection” between this stated reason for

27

denying the contract and the Board’s ultimate decision.

28

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 (1981).
17

The court need not

1

Accordingly, to the extent that plaintiffs’ § 1983 claim is

2

premised on a violation of the Equal Protection Clause, the court

3

must grant defendants’ motion for summary judgment.

4

3.

Due Process Clause

5

The Fourteenth Amendment provides that no state shall

6

deprive any person of life, liberty, or property without due

7

process of law.

8

a procedural or substantive due process claim, a plaintiff must

9

make a threshold “showing of a liberty or property interest

U.S. Const. amend. XIV, § 1.

In order to bring

10

protected by the Constitution.”

11

City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (citing Bd. of

12

Regents v. Roth, 408 U.S. 564, 577 (1972)).

13

Wedges/Ledges of Cal., Inc. v.

“Property interests are not created by the Constitution

14

but ‘by existing rules or understandings that stem from an

15

independent source such as state law . . . .’”

16

of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting Roth,

17

408 U.S. at 577).

18

constitutionally protected property interest in a government

19

benefit, such as a license or permit.”

20

(citing Roth, 408 U.S. at 577).

21

property interest in a permit or other government benefit cannot

22

simply demonstrate that he had a “unilateral expectation” or an

23

“abstract need or desire” for that benefit; rather, he must

24

demonstrate “a legitimate claim of entitlement to it.”

25

U.S. at 577 (emphasis in original).

Thornton v. City

“In some instances, a person can have a

Gerhart, 637 F.3d at 1019

But a plaintiff who asserts a

Roth, 408

26

Whether plaintiffs have an “expectation of entitlement

27

sufficient to create a property interest . . . depend[s] largely

28

upon the extent to which the statute contains mandatory language
18

1

that restricts the discretion of the decisionmaker.”

2

City of Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (quoting

3

Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980)).

4

entitlement to a government permit exists when a state law or

5

regulation requires that the permit be issued once certain

6

requirements are satisfied.”

7

Groten v. California, 251 F.3d 844, 850 (9th Cir. 2001)).

8

contrast, if the decision to grant a permit or other benefit is

9

discretionary, plaintiffs have no property interest in that

Allen v.

“[A]n

Gerhart, 637 F.3d at 1019 (citing

10

benefit.

11

By

2010) (citing Jacobson, 627 F.3d at 180).

12

Doyle v. City of Medford, 606 F.3d 667, 672 (9th Cir.

Plaintiffs have no property interest in a conditional

13

use permit for a winery at the Home Ranch property.

14

law provides that “[t]he decision whether to issue a conditional

15

use permit is ‘discretionary by definition.’”

16

Rancho Palos Verdes, 504 F.3d 803, 810 (9th Cir. 2007) (quoting

17

Breakzone Billiards v. City of Torrance, 81 Cal. App. 4th 1205,

18

1224 (2d Dist. 2000)).

19

“no[t] a federally protected property interest on which to base a

20

. . . due process claim.”

21

Cal. App. 4th 1152, 1183 (2d Dist. 1996).

22

California

Kay v. City of

Plaintiffs’ winery permit is therefore

Clark v. City of Hermosa Beach, 48

Plaintiffs also have no property interest in a

23

Williamson Act contract.

The Williamson Act states that “[a]ny

24

city or county may by contract limit the use of agricultural

25

land.”

26

Williamson Act contract to land located within a designated

27

“agricultural preserve” and cannot offer a contract if the land

28

is not so designated.

Cal. Gov’t Code § 51240.

A city or county must offer a

Cal. Gov’t Code §§ 51241-51242.
19

Although

1

these provisions are not discretionary, the Williamson Act

2

nonetheless commits ultimate discretion to cities and counties by

3

providing that “any city or county . . . may establish an

4

agricultural preserve.”

5

added).

6

Cal. Gov’t Code § 51230 (emphasis

Although plaintiffs concede that the Bear Creek Ranch

7

property is not located within an agricultural preserve, they

8

contend that defendants lacked discretion not to designate the

9

property as an agricultural preserve.

(Pls.’ Opp’n 13-14.)

This

10

argument is inconsistent with the statutory text, as the

11

Williamson Act’s use of “[t]he word ‘may’ . . . implies some

12

degree of discretion.”

13

706 (1983).

14

that emphasizes the Williamson Act’s “discretionary language” and

15

characterizes it as “permissive, not mandatory, legislation.”

16

Kelsey v. Colwell, 30 Cal. App. 3d 590, 595 (5th Dist. 1973); see

17

also Sierra Club v. City of Hayward, 28 Cal. 3d 840, 851 (1981)

18

(noting that the Williamson Act “empowers local governments to

19

establish ‘agricultural preserves’” and that a “locality may

20

offer to owners . . . the opportunity to enter into . . .

21

contracts that restrict the land to open space”).

22

United States v. Rodgers, 461 U.S. 677,

It is also inconsistent with longstanding precedent

Plaintiffs contend that even if the Williamson Act

23

itself does not entitle them to a contract, they are nonetheless

24

entitled to one pursuant to the terms of the County’s General

25

Plan.

26

Plan states that “[a]ll lands classified as full-time

27

agricultural lands shall be placed in a corresponding

28

agricultural zone district and shall be eligible to enter into a

(Pls.’ Opp’n 13-14.)

Section 6.1.4, AG-f of the General

20

1

contract, as provided by the Williamson Act . . . .”

2

Opp’n Ex. X.)

3

Plan could give rise to any protected property interest because

4

“[a] general plan is not a law, but a tentative plan, subject to

5

change.”

6

1327 (C.D. Cal. 1992) (emphasis in original) (citation omitted);

7

cf. Friends of Lagoon Valley v. City of Vacaville, 154 Cal. App.

8

4th 807, 816 (1st Dist. 2007) (“Because policies in a general

9

plan reflect a range of competing interests, the governmental

10

agency . . . has broad discretion to construe its policies in

11

light of the plan’s purposes.”)

12

(Pls.’

However, it is far from clear that the General

Kawaoka v. City of Arroyo Grande, 796 F. Supp. 1320,

Even if the General Plan could theoretically create a

13

protected property interest, Section AG-f of the General Plan

14

does not show that plaintiffs were entitled to a Williamson Act

15

contract because it applies only to properties that are

16

“classified as full-time agricultural lands.”

17

Ex. X.)

18

Williamson Act itself: although the decision to award a contract

19

is not discretionary once the land has been classified, the

20

underlying decision to classify property as full-time

21

agricultural land is a zoning decision that is ultimately

22

discretionary.

23

of San Diego, 543 F.3d 571, 580 (9th Cir. 2008) (“A certain level

24

of discretion is involved in evaluating any application for a

25

zoning permit.”).

26

property as full-time agricultural land is discretionary,

27

plaintiffs do not have a “right to a particular zoning

28

designation,” i.e., as an agricultural preserve, that is

(See Pls.’ Opp’n

The structure of this provision mirrors that of the

See, e.g., Sprint Telephony PCS, L.P. v. County

Because the decision to classify plaintiffs’

21

1

protected by the Due Process Clause.

2

920 F. Supp. 1054, 1061 (N.D. Cal. 1996).

3

Tyson v. City of Sunnyvale,

Plaintiffs also contend that defendants have routinely

4

declined to require a separate determination of “agricultural

5

preserve” status prior to granting a Williamson Act contract.

6

(Pls.’ Opp’n 14:16-18.)

7

“treated ‘ag[ricultural] preserve’ as a status that accompanies

8

the granting of a Williamson Act Contract.”

9

Even so, defendants are not entitled to similar treatment “merely

Instead, they note, defendants have

(Id. at 14:13-15.)

10

because a wholly and expressly discretionary state privilege has

11

been granted generously in the past.”

12

Dumschat, 452 U.S. 458, 465 (1981) (emphasis in original); see

13

also, e.g., Cassidy v. Hawaii, 915 F.2d 528, 531 (rejecting the

14

argument that, because a government agency “generally renews

15

permits,” a particular individual has “a legal entitlement to

16

have his permit renewed”).

17

Williamson Act contract or to designate land as an agricultural

18

preserve is ultimately discretionary, plaintiffs cannot have a

19

property interest in a Williamson Act contract.

20

F.3d 672.

21

Conn. Bd. of Pardons v.

Because the decision to grant a

See Doyle, 606

Absent an entitlement to a Williamson Act Contract or a

22

conditional use permit, plaintiffs have not shown that the mere

23

notification of a grading violation deprived them of any liberty

24

or property interest.

25

the grading violation deprived them of property and liberty

26

interests in their reputation because it “labeled [them] as

27

polluters.”

28

not sufficient to satisfy the requirement that a constitutionally

Plaintiffs contend that the issuance of

(Pls.’ Opp’n at 10:19.)

22

But this sort of stigma “is

1

protected . . . interest be at stake.”

2

Miller, 197 F.3d 367, 376 (9th Cir. 1999) (en banc).

3

plaintiffs assert that the Due Process Clause safeguards “a

4

person’s reputation in the community,” (Pls.’ Opp’n at 10:1-2),

5

the authority they cite stands for exactly the opposite

6

proposition.

7

(denying that “reputation alone, apart from some more tangible

8

interests such as employment, is either ‘liberty’ or ‘property’

9

by itself sufficient to invoke the procedural protection of the

10

WMX Techs., Inc. v.
While

See Paul v. Davis, 424 U.S. 693, 701 (1976)

Due Process Clause”).4

11

In short, plaintiffs have not identified any liberty or

12

property interest of which they were deprived.5

13

plaintiffs insist that they were nonetheless entitled to a

Although

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4

In addition to Paul v. Davis, plaintiffs cite Wisconsin
v. Constantineau, 400 U.S. 433 (1971), in support of the
proposition that the Due Process Clause “extends . . . to claims
affecting a [party’s] reputation or character.” (Pls. Opp’n
10:9.) However, Paul v. Davis clarified that this holding in
Constantineau applies only insofar as that reputational harm
deprived the plaintiff of some other liberty or property
interest. 424 U.S. at 709-10. Plaintiffs’ contention that bare
reputational injury is cognizable under the Due Process Clause is
therefore incorrect.
5

Plaintiffs argue that even if they had not suffered any
adverse action as a result of the alleged grading violation,
defendants’ failure to record or enforce the grading violation
left them in “limbo” and thereby deprived them of due process.
(Pls.’ Mem. at 24-25.) A lack of enforcement action does not
show that plaintiffs were in limbo. Instead, it shows that
plaintiffs had not suffered any cognizable injury as a result of
the grading violation. See Guatay Christian Fellowship v. County
of San Diego, 670 F.3d 957, 984 (9th Cir. 2011) (“[T]he County’s
[Notice of Violation] and cease-and-desist order did not
themselves deprive the Church of any interests. The County would
have had to bring an enforcement action in court to actually
enforce the zoning regulations . . . .”).
23

1

hearing to contest the alleged grading violation, their interest

2

in a hearing is not cognizable under the Due Process Clause

3

because it is an “entitlement to nothing but procedure.”

4

Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005).

5

to the extent that plaintiffs’ § 1983 claim is premised on a

6

violation of the Due Process Clause, the court must grant

7

defendants’ motion for summary judgment on that claim.

Town of

Accordingly,

8

4.

First Amendment

9

“The First Amendment forbids government officials from

10

retaliating against individuals for speaking out.”

11

Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010).

12

to succeed on their First Amendment retaliation claim, plaintiffs

13

must show that: (1) they engaged in constitutionally protected

14

activity; (2) as a result, defendants subjected plaintiffs to

15

adverse action that would chill a person of ordinary firmness

16

from continuing to engage in the protected activity; and (3) a

17

substantial causal relationship existed between plaintiffs’

18

constitutionally protected activity and defendants’ adverse

19

action.

20

In order

Id.
a.

21

Blair v.

Constitutionally Protected Activity

Plaintiffs contend that defendants obstructed their

22

applications for both a conditional use permit and a Williamson

23

Act contract in retaliation for plaintiffs’ refusal to obtain a

24

grading permit, attempt to appeal the grading violation, and

25

lawsuits against defendants.

26

conduct is “protected by [plaintiffs’] right to petition the

27

government” and therefore constitutes constitutionally protected

28

activity.

(Pls.’ Opp’n at 19-20.)

This

CarePartners, LLC v. Lashway, 545 F.3d 867, 877 (9th
24

1

Cir. 2008) (citing BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525

2

(2002)).

3

Defendants initially concede that plaintiffs

4

“exercis[ed] their First Amendment right to petition.”

5

Mem. at 31:12.)

6

plaintiffs’ retaliation claim is unfounded because plaintiffs did

7

not actually appeal the County’s grading violation.

8

Reply at 17 (Docket No. 141).)

9

sent to County and State officials in 2007 and 2008 in which they

(Defs.’

In their Reply, however, defendants argue that

(Defs.’

Plaintiffs offer several letters

10

disputed the County’s finding of a grading violation.

11

e.g., Pls.’ Mem. Exs. C, E, L.)

12

(See,

Whether or not these letters constituted a formal

13

appeal of the grading violation, they are protected under the

14

Petition Clause, see 1 Annals of Cong. 738 (1789) (noting that

15

the First Amendment allows individuals to “communicate their

16

will” by writing directly to lawmakers and government officials),

17

as are the lawsuits that plaintiffs filed.

18

536 U.S. at 525.

19

engaged in constitutionally protected activity.

20

Plaintiffs have therefore shown that they were

b.

21

BE & K Constr. Co.,

Adverse Action

Plaintiffs offer evidence of three instances of adverse

22

action.

First, plaintiffs contend that Mull threatened to

23

withhold a conditional use permit for the Home Ranch winery if

24

they did not obtain a grading permit.

25

attended a meeting on February 1, 2008, about the alleged grading

26

violation at which Anselmo, Hawes, Baugh, and two other officials

27

were also present.

28

shrugged his shoulders and said ‘Well, if you don’t pay me for a

According to Anselmo, Mull

Anselmo avers that during this meeting, “Mull

25

1

grading permit up here I could hold up your CO [conditional use

2

permit] at the winery.”

3

181:12-16.)

4

Mull, Mull responded that “[y]ou can’t sue the State of

5

California” because “they have unlimited resources” and “they’ll

6

tie you up in court for years.”

7

claims were true, Mull’s conduct would constitute adverse action.

8

See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“[T]he

9

mere threat of harm can be an adverse action, regardless of

(Anselmo Decl. ¶ 17; Anselmo Dep. at

Anselmo then avers that after he threatened to sue

(Id. at 184:8-19.)

If these

10

whether it is carried out because the threat itself can have a

11

chilling effect.”).

12

Second, plaintiffs contend that defendants obstructed

13

their application for a winery permit by requiring plaintiffs to

14

conduct a study to determine whether a plant known as Ahart’s

15

Paronychia was present.

16

received a letter dated January 30, 2008, from Bridget Dirks, an

17

Associate Planner with the County, who indicated that the

18

plaintiffs would need to conduct a “botanical survey” on their

19

property and that this survey “will need to include fish and game

20

approved mitigation measures where appropriate.”

21

25 at 35.)

22

application for a winery permit by several months and cost them

23

$5,000.

24

(Anselmo Decl. ¶¶ 22-25.)

Plaintiffs

(Defs.’ RJN Ex.

Plaintiffs contend that this study delayed their

(Anselmo Decl. ¶ 26.)
Third, plaintiffs contend that the County and the Board

25

withheld approval of the Williamson Act contract in retaliation

26

for plaintiffs’ protected conduct.

27

point to a series of letters they received between September 2008

28

and October 2008 from Lio Salazar, an Associate Planner with the
26

(See TAC ¶ 55.0.)

Plaintiffs

1

County, in which he claimed that plaintiffs could not obtain a

2

Williamson Act contract unless they first abated the grading

3

violation.

4

Commission ultimately recommended that the Board of Supervisors

5

approve the Williamson Act contract, the Board ultimately did not

6

award plaintiffs the contract.

7

(Pls. Mem. Exs. H, J.)

Although the County Planning

(See Dec. 16 Minutes at 10.)

For purposes of this motion, it may be assumed that the

8

denial of either a winery permit or a Williamson Act contract

9

would constitute adverse action even if plaintiffs “[can]not

10

establish a legally protected interest in the permits

11

themselves.”

12

1314 (9th Cir. 1989).

13

the court finds that plaintiffs have adduced insufficient

14

evidence to show that they suffered such adverse action in

15

retaliation for exercising their speech and petition rights.

16

Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310,

c.

However, for the reasons discussed below

Causation

17

Plaintiffs must show “a substantial causal

18

relationship” between their constitutionally protected activity

19

and defendants’ adverse action.

20

order to do so, plaintiffs must “show that the protected conduct

21

was a ‘substantial’ or ‘motivating’ factor in the defendant[s’]

22

decision.”

23

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

24

Blair, 608 F.3d at 543.

In

Sorrano’s Gasco, 874 F.2d at 1314 (citing Mt. Healthy

Because “direct evidence of improper motive . . . will

25

only rarely be available,” litigants in First Amendment cases

26

typically rely on circumstantial evidence to explain why

27

defendants acted as they did.

28

County, 192 F.3d 1283, 1302 (9th Cir. 1999).

Mendocino Envtl. Ctr. v. Mendocino

27

For instance, a

1

plaintiff can survive summary judgment by offering evidence of

2

the “proximity in time between the protected action and the

3

allegedly retaliatory . . . decision,” evidence that the

4

defendant “expressed opposition to his speech, either to him or

5

to others,” or evidence that the defendant’s “proffered

6

explanations for the adverse . . . action were false and

7

pretextual.”

8

F.3d 741, 751-52 (9th Cir. 2001).

9

retaliatory motive requires evidence, and “speculation as to . .

Keyser v. Sacramento City Unified Sch. Dist., 265
But circumstantial proof of

10

. improper motive does not rise to the level of evidence

11

sufficient to survive summary judgment.”

12

Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (citing Keyser, 265

13

F.3d at 751).

14

i.

15

Karam v. City of

Mull’s Conduct

According to plaintiffs, Mull threatened to “hold up”

16

their application for a winery permit at the Home Ranch property

17

if they did not obtain a grading permit for the Bear Creek Ranch

18

property.

19

Plaintiffs argue that Mull then followed through on this threat

20

by ordering the County to require plaintiffs to perform the

21

Ahart’s Paronychia study on the Home Ranch property as a

22

condition to obtaining a permit.

23

21-22.)

24

(Anselmo Decl. ¶ 17; Anselmo Dep. at 181:12-16.)

(See, e.g., Anselmo Decl. ¶¶

Plaintiffs have offered no evidence in support of their

25

claim that Mull ordered the plant study.

Mull denies that he was

26

involved in the decision to require the plant study.

27

¶ 13.)

(Mull Decl.

In fact, Mull claims that he was not even aware of this

28
28

1

decision, as “issues regarding CEQA6 compliance” were made at the

2

staff level and were not brought to his attention unless there

3

was a dispute that required his input.

4

offer a declaration from Richard Simon, the current County

5

Director of Resource Management, who avers that “Mull had no

6

involvement in the study” and was not “even aware of it at that

7

time.”

8
9

(Id.)

Defendants also

(Simon Decl. ¶ 23.)
Simon avers that Bridget Dirks, not Mull, made the

decision to require the plant study because the Department of

10

Fish and Game map indicated that Ahart’s Paronychia might be

11

present on the Home Ranch property.

12

initially informed plaintiffs about the study, (see Defs.’ RJN

13

Ex. 25 at 35), and then required plaintiffs to perform the study

14

even after Tom Benson, a botanist and Natural Resources

15

Conservation Service engineer, wrote a letter to the County

16

indicating that plaintiffs’ property did not contain hydric soils

17

that could serve as a habitat for Ahart’s Paronychia.

18

Anselmo Dep. at 206:20-207:14.)

19

to provide evidence sufficient for a fact-finder to conclude that

20

Mull was involved in the decision to impose the plant study, let

21

alone that he ordered the study in retaliation for plaintiffs’

22

exercise of their First Amendment rights.

23

(Id.)

Dirks, not Mull,

(See

Plaintiffs have therefore failed

Nor is plaintiffs’ claim that Mull threatened to “hold

24

up” the application for a winery permit sufficient to withstand

25

summary judgment.

26

plaintiff’s exercise of his First Amendment rights if he is

27

CEQA is an abbreviation for the California
Environmental Quality Act, Cal. Pub. Res. Code § 21000 et seq.
29
6

28

A defendant’s conduct cannot be motivated by a

1

unaware that the plaintiff exercised those rights.

2

Iranon, 283 F.3d 1070, 1076 (9th Cir. 2002) (citing Keyser, 265

3

F.3d at 750-51).

4

plaintiff alleging a First Amendment retaliation claim must

5

produce evidence that the governmental actor had knowledge of his

6

protected speech.”

7

745, 745-46 (9th Cir. 2010) (citing Dietrich v. John Ascuaga’s

8

Nugget, 548 F.3d 892, 901 (9th Cir. 2008).

9

See Allen v.

Therefore, “[t]o survive summary judgment, a

Occhionero v. City of Fresno, 386 Fed. App’x

Plaintiffs contend that Mull threatened to hold up

10

their application for a winery permit at a meeting on February 1,

11

2008.

12

petitions were limited to two letters, dated November 12, 2007,

13

(Pls.’ Mem. Ex. C), and January 2, 2008, (id. Ex. E), in which

14

they disputed the County’s finding of a grading violation.

15

Neither letter is addressed to Mull.

16

November 7, 2007 letter is addressed to nine separate recipients,

17

none of whom included Mull or any employee of the County’s

18

Department of Natural Resources.

(Anselmo Decl. ¶ 17.)

19

Before that date, plaintiffs’

In fact, Minasian’s

(See id. Ex. C.)

Plaintiffs have offered no evidence that Mull was aware

20

that they had exercised their right to petition, let alone that

21

Mull threatened to withhold the winery permit in retaliation for

22

doing so.

23

Keyser, 265 F.3d at 750-51 (concluding that summary judgment was

24

appropriate where “there [was] no evidence in the record to

25

contradict [defendant’s] statement . . . that he was unaware” of

26

the protected speech).

27

February 5, 2008, (Pls.’ Mem. Ex. G), that letter cannot be the

28

cause of Mull’s threat, which they allege occurred four days

See Occhionero, 386 Fed. App’x 745-46; see also

While plaintiffs sent Mull a letter on

30

1

earlier.

2

for the Home Ranch property, plaintiffs have offered no evidence

3

to dispute Mull’s claim that he did so because he witnessed

4

grading on the Bear Creek Ranch property, rather than because of

5

any retaliatory motive.

6

the extent that plaintiffs’ First Amendment claim is based on

7

Mull’s conduct, the court must grant defendants’ motion for

8

summary judgment.

And even if Mull had threatened to withhold a permit

9
10

ii.

(See Mull Decl. ¶ 7.)

Accordingly, to

Delay of the Winery Permit

Plaintiffs also contend that the County retaliated

11

against them by requiring them to perform the plant study on the

12

Home Ranch property.

13

Defendants argue that the County mandated this study not because

14

of plaintiffs’ exercise of their First Amendment rights, but

15

because a routine environmental review of their permit

16

application disclosed that Ahart’s may be present on the Home

17

Ranch property.

18

Dirks Decl. ¶ 5.)

19

as a “species of concern,” the County concluded that the

20

California Environmental Quality Act (“CEQA”) required it to

21

mandate the plant study as a condition of obtaining a conditional

22

use permit.

23

(Anselmo Decl. ¶¶ 21-22; Pls.’ Opp’n 22:5.)

(Defs.’ SUF ¶¶ 64-67; Simon Decl. ¶¶ 16-17;
Because the State of California lists Ahart’s

(Defs.’ SUF ¶ 67; Dirks Decl. ¶ 5.)

Plaintiffs have not shown that this rationale was a

24

pretext for retaliation.

Plaintiffs point to deposition

25

testimony from their attorney, Bart Fleharty, (Flaherty Dep. at

26

52:2-3, 52:10-14), and from plant biologist Richard Lis, (Lis

27

Dep. at 89-91), indicating that the decision to require the plant

28

study was discretionary.

Even if plaintiffs were correct that
31

1

the plant study was discretionary, that alone is not proof that

2

County officials exercised that discretion in a retaliatory

3

manner.

4

F.3d 1142, 1161 (9th Cir. 2006) (holding that city’s exercise of

5

discretion in awarding amplified noise permits was not sufficient

6

to show viewpoint discrimination against unsuccessful permit

7

applicants).

8

handedness in the policy’s implementation” may be sufficient

9

circumstantial evidence of retaliation, Coszalter v. City of

10

Salem, 320 F.3d 968, 978 (9th Cir. 2003), plaintiffs offer no

11

such evidence.

12

Cf. Rosenbaum v. City & County of San Francisco, 484

And while proof of a “lack of clarity and even-

Plaintiffs offer deposition testimony indicating that

13

Tom Benson, a botanist and Natural Resources Conservation Service

14

engineer, wrote a letter to the County’s resources management

15

division indicating that plaintiffs’ property did not contain

16

hydric soils that could serve as a habitat for Ahart’s

17

Paronychia.

18

that after receiving Benson’s letter, the County nonetheless

19

required plaintiffs to conduct the study, resulting in further

20

costs and delay.

21

(Anselmo Dep. at 206:20-25.)

Anselmo then testified

(Id. at 207:2-14.)

True as this may be, it is insufficient evidence from

22

which to infer retaliatory motive.

Defendants contend – and

23

plaintiffs admit – that Dirks contacted Dr. Lis, who then worked

24

for the Department of Fish and Game, to ask whether Benson’s

25

letter was sufficient to satisfy the requirement for a plant

26

study.

27

then informed Dirks that Benson’s letter was not sufficient

28

because he was not a licensed botanist and because Benson’s

(Pls.’ Resp. to Defs.’ SUF, ¶ 71; Dirks Decl. ¶ 6.)

32

Lis

1

report did not seem to reflect familiarity with where Ahart’s

2

“really grew.”

3

(Lis Dep. at 96:3-22.)

Plaintiffs offer no evidence that this reason was a

4

pretext for retaliation.

5

plant study as “burdensome and atypical,” (Pls.’ Opp’n at 22:5),

6

they provide no evidence showing that the County’s environmental

7

compliance policy was not applied in an “even-handed” way to

8

other permit applicants.

9

And while plaintiffs characterize the

Coszalter, 320 F.3d at 978.

Plaintiffs offer no other proof of a causal connection

10

between their dispute of the grading violation and the County’s

11

decision to require the plant study.

12

required the plant study only three months after plaintiffs first

13

disputed the grading violation, “mere temporal proximity” is

14

ordinarily not evidence of causation.

15

Breeden, 532 U.S. 268, 273 (2001).

16

relevant only as part of the “totality of the facts.”

17

320 F.3d at 978; see also Coszalter, 320 F.3d at 978 (“[T]here is

18

no set time within which acts necessarily support an inference of

19

retaliation.”).

20

between the plant study and plaintiffs’ protected activity, a

21

three-month gap in time does not permit a factfinder to infer

22

retaliatory motive.

23

Although the County

Clark Cnty. Sch. Dist. v.

Rather, temporal proximity is
Coszalter,

Absent other evidence of a causal connection

As explained above, there is also no evidence that Mull

24

ordered the plant study, or that anyone involved in ordering the

25

plant study was aware of plaintiffs’ exercise of their First

26

Amendment rights.

27

First Amendment claim is based on the decision to require a study

28

to detect whether Ahart’s Paronychia was present, the court must

Accordingly, to the extent that plaintiffs’

33

1

grant defendants’ motion for summary judgment on that claim.

2

iii. Denial of the Williamson Act Contract

3

Finally, plaintiffs contend that Hawes and Baugh

4

recused themselves in order to deny plaintiffs two of the three

5

votes needed to obtain a Williamson Act contract.

6

and Baugh contend that they recused themselves because of a

7

conflict of interest, plaintiffs have argued since filing their

8

Third Amended Complaint that this “was a bad faith pretext to

9

bring about what they believed would constitute a denial of

10

Plaintiffs’ application.”

11

Although Hawes

(TAC ¶ 55.0.)

Plaintiffs do not dispute that they sued Hawes and

12

Baugh on October 2, 2008.

13

Hawes and Baugh rightly recused themselves from voting on

14

plaintiffs’ application for a Williamson Act contract.7

15

Decl. ¶ 12; Hawes Decl. ¶ 15.)

16

Baugh not only would have exposed themselves to charges of bias

17

and partiality, but would have exposed themselves to potential

18

liability had they voted to deny plaintiffs’ application.

19

Stivers v. Pierce, 71 F.3d 732, 750 (9th Cir. 1995) (holding that

20

a licensing board member was liable for voting against

21

plaintiff’s license application because his “opposition to

22

[plaintiff’s] application was motivated by his own personal

23

bias”).

24

(See Defs.’ RJN Ex. 24.)

As a result,

(Baugh

Had they not done so, Hawes and

See

Plaintiffs have not shown that this reason was a “bad

25
26
27
28

7

Although it does not use mandatory language, Rule 9(b)
of the Board’s Administrative Manual specifically contemplates
that Supervisors will disqualify themselves in the event of a
conflict of interest. (See Admin. Policy 1-101 (Defs.’ RJN Ex.
5).)
34

1

faith pretext” for retaliation.

2

offer evidence that Hawes attempted to persuade them to purchase

3

mitigation credits to resolve the grading violation, (Anselmo

4

Decl. ¶¶ 16.0-16.1), and that Baugh informed them that they could

5

resolve the grading violation by obtaining an “administrative

6

permit” for a hydroelectric generator.

7

these claims were correct, plaintiffs’ evidence does not show

8

that Hawes and Baugh recused themselves because plaintiffs

9

refused these overtures, let alone that Hawes and Baugh recused

10
11

(See TAC ¶ 55.0.)

Plaintiffs

(Id. ¶¶ 23-24.)

Even if

themselves in retaliation for exercising their right to petition.
Finally, Anselmo avers that Hawes and Baugh “stood up

12

with a nod to each other” just before the vote on the Williamson

13

Act contract was set to occur.

14

This is not evidence of retaliatory motive, of an agreement

15

between Hawes and Baugh, or of anything at all.

16

belief that Hawes and Baugh “acted from an unlawful motive,

17

without evidence supporting that belief, is no more than

18

speculation or unfounded accusation about whether the

19

defendant[s] really did act from an unlawful motive.”

20

S.F. Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001).

21

the extent that plaintiffs’ First Amendment claim is premised on

22

Hawes’ and Baugh’s conduct, the court must grant defendants’

23

motion for summary judgment.

24

(Anselmo Dep. at 215:20-21.)

Plaintiffs’

Carmen v.
To

Although plaintiffs have shown that they engaged in

25

constitutionally protected activity and that they suffered

26

adverse action, they have failed to provide the evidence crucial

27

to establishing a causal link between the two.

28

allegations of retaliation are “entirely speculative,” and
35

Plaintiffs’

1

“[t]here is no specific, admissible evidence in the voluminous

2

record that the plaintiffs can cite to support their claims that

3

any of the defendants sought to enforce the law on account of a

4

retaliatory animus . . . .”

5

Fed. App’x 734, 735 (9th Cir. 2011).

6

that plaintiffs’ § 1983 claim is premised on a violation of the

7

First Amendment, the court must grant defendants’ motion for

8

summary judgment.8

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

B.
8

CarePartners LLC v. Lashway, 428
Accordingly, to the extent

Writ of Mandate

Although the court does not reach this issue, it is
likely that Hawes, Baugh, and Mull would be entitled to qualified
immunity even if plaintiffs’ evidence were sufficient to survive
summary judgment on their First Amendment claim. In actions
under § 1983, “qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person should have known.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
The “clearly established” inquiry “assesses the
objective reasonableness of the official’s conduct in light of
the decisional law at the time.” Moss v. U.S. Secret Serv., 675
F.3d 1213, 1222 (9th Cir. 2012). Whether or not plaintiffs could
identify a clearly established right that defendants purportedly
violated, it is unlikely that the court would conclude that any
of the conduct at issue here – including Mull’s statement that a
permit may be denied because of outstanding grading violation,
the imposition of the plant study, or the denial of the
Williamson Act contract — is objectively unreasonable. See id.;
see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (noting that
qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”).
Even if plaintiffs had evidence sufficient to show
retaliatory animus, which they do not, that evidence would not be
“sufficient to defeat immunity if the defendant[s] acted in an
objectively reasonable manner.” Id.; see also Crawford-El v.
Britton, 523 U.S. 574, 588 (1998) (“[A] defense of qualified
immunity may not be rebutted by evidence that the defendant[s’]
conduct was malicious or improperly motivated. Evidence
concerning the defendant[s’] subjective intent is simply
irrelevant to that defense.”).
36

1

Under California law, “it is well settled that although

2

a court may issue a writ of mandate requiring legislative or

3

executive action to conform to the law, it may not substitute its

4

discretion for that of legislative or executive bodies in matters

5

committed to the discretion of those bodies.”

6

Bd. of Supervisors, 49 Cal. 3d 432, 445 (1989).

7

court may order a local legislative body to perform a

8

nondiscretionary ministerial act, it may not control a local

9

board’s discretion.”

10

Common Cause v.
“[A]lthough a

Id. (citing Glendale City Emps. Ass’n, Inc.

v. City of Glendale, 15 Cal. 3d 328, 324 (1975)).

11

As explained above, see infra Part IV.A.3, the decision

12

to award or deny a Williamson Act contract or to designate a

13

parcel of land as an agricultural preserve is discretionary.

14

Kelsey, 30 Cal. App. 3d at 595.

15

grant defendants’ motion for summary judgment with respect to

16

plaintiffs’ claim for a writ of mandate to compel the award of a

17

Williamson Act contract.

See

Accordingly, the court must

18

IT IS THEREFORE ORDERED that plaintiffs’ motion for

19

summary judgment be, and the same hereby is, DENIED, and that

20

defendants’ motion for summary judgment be, and the same hereby

21

is, GRANTED.

22

Dated:

October 28, 2013

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26
27
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