Anselmo et al v. Mull et al

Filing 91

ORDER signed by Judge William B. Shubb on 10/10/12 ORDERING that plaintiffs' 46 Motion to Remand is DENIED: plaintiffs' 40 Motion for Rule 11 Sanctions is DENIED; plaintiffs' 35 Motion to Dismiss is DENIED; Jensen's 59 Mo tion to Dismiss is GRANTED; Jensen's 61 Motion to Strike is DENIED as moot; and Shasta County's 43 Motion for an Order Precluding plaintiffs from further violations of mediation confidentiality and for monetary sanctions is DENIED. Shasta County has 20 days to file amended third-party claims against Jensen, if it can do so consistent with this Order. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---11
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REVERGE ANSELMO and SEVEN
HILLS LAND AND CATTLE COMPANY,
LLC,

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Plaintiffs,

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NO. CIV. 2:12-1422 WBS EFB

ORDER RE: MOTION TO REMAND,
MOTIONS TO DISMISS, MOTION TO
STRIKE, MOTIONS FOR SANCTIONS,
AND MOTION REGARDING MEDIATION
CONFIDENTIALITY

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

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Defendants.
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/

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COUNTY OF SHASTA, AND COUNTY
OF SHASTA, for the People of
the State of California,

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Cross-Complainant,

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v.
REVERGE ANSELMO; SEVEN HILLS
LAND AND CATTLE COMPANY LLC;
NANCY HALEY; MATTHEW RABE;
MATTHEW KELLEY; ANDREW JENSEN;
and ROES 1 THRU 50,

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Cross-Defendants.
/

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----oo0oo---3
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I.

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Factual and Procedural Background
Plaintiffs Reverge Anselmo and Seven Hills Land and

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Cattle Company initiated this action in state court on October 6,

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2008, against defendants Shasta County, the Board of Supervisors

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of the County of Shasta, and Shasta County officials Russ Mull,

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Leslie Morgan, Les Baugh, and Glen Hawes.

In their Third Amended

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Complaint (“TAC”), plaintiffs allege claims against Shasta County

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and its employees under 42 U.S.C. § 1983.

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arise from defendants’ alleged wrongful interference with

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plaintiffs’ use of their land.

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officials engaged in a variety of wrongful conduct that

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interfered with plaintiffs’ use of their property, such as

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issuing wrongful notices of grading violations, filing false

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reports with various officials and agencies, requiring an

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unnecessary environmental impact study, interfering with

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plaintiffs’ development of their winery, and wrongfully denying

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plaintiffs’ application for a Williamson Act contract.

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Am. Compl. (“TAC”) ¶¶ 23, 27, 30, 40, 44-58) (Docket No. 1, Ex.

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B).)

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Plaintiffs’ claims

Plaintiffs allege that county

(Third

Plaintiffs further allege that as part of the county

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officials’ campaign against them, Andrew Jensen, an employee

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of the California Regional Water Quality Control Board, attempted

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to intimidate Anselmo by soliciting governmental agencies

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including the United States Army Corps of Engineers (“Army

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Corps”) to “obtain assertions of violations of other laws” in
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order to “create a ‘piling on’ condition” that deprived

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plaintiffs of their right to use their property.

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Plaintiffs and Jensen reached a settlement, and plaintiffs

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dismissed their claims against him with prejudice on June 25,

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2009.

(Id. ¶ 28.)

(Docket No. 68-2.)

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While the case was still pending in state court, Shasta

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County initiated cross-claims against plaintiffs and third-party

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claims against Jensen and three employees of the Army Corps.

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Attorney General certified the case under the Westfall Act, 28

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U.S.C. § 2697, and thus the United States removed the action to

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federal court pursuant to 28 U.S.C. § 1442(a) and § 2679(d)(2) on

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May 25, 2012.

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challenge the Attorney’s General certification without prejudice.

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(Docket No. 31.)

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The

The court denied Shasta County’s motion to

Currently before the court are (1) plaintiffs’ motion

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to remand the case to state court; (2) plaintiffs’ motion for

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sanctions against Shasta County pursuant to Federal Rule of Civil

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Procedure 11; (3) plaintiffs’ motion to dismiss Shasta County’s

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cross-claims for lack of subject matter jurisdiction pursuant to

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Rule 12(b)(1) and for failure to state a claim upon which relief

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can be granted pursuant to Rule 12(b)(6); (4) Jensen’s motion to

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dismiss Shasta County’s third-party claims pursuant to Rule

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12(b)(6); (5) Jensen’s motion to strike Shasta County’s third-

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party claims pursuant to Rule 12(f); and (6) Shasta County’s

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motion for an order precluding plaintiffs from further violations

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of a mediation confidentiality agreement and for monetary

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sanctions.

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///
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II.

Discussion
A.

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Motion to Remand
The United States removed this action from state court

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pursuant to 28 U.S.C. § 1442(a) and § 2679(d)(2) after Shasta

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County filed third-party claims against three employees of the

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Army Corps.

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certified under the Westfall Act, § 2697(d)(2), that the Army

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Corps employees were acting within the scope and course of their

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employment at the time of the alleged conduct, and the United

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States was substituted as the defendant in place of the Army

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Corps employees.

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certification, and the court denied the challenge without

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prejudice to it being raised based on new discovery or

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allegations.

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granted the United States’ Rule 12(b)(6) motion to dismiss Shasta

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County’s claims against it because the § 1983 claims under which

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Shasta County sought contribution could not be brought against

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the United States.

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to file an amended third-party complaint against the United

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States within the time provided, the court dismissed Shasta

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County’s third-party claims against the United States with

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prejudice.1

In removing the action, the Attorney General

Shasta County challenged the Attorney General’s

(Docket No. 31.)

In a separate Order, the court

(Docket No 33.)

After Shasta County failed

(Docket No. 58.)

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The proposed order granting dismissal with prejudice
was submitted by the United States and included dismissal of the
claims against the Army Corps employees with prejudice. As the
United States had been substituted as the defendant and the
motion to dismiss and grant of leave to file an amended complaint
was limited to the claims against the United States, it was never
the court’s intention to dismiss any claims against the Army
Corps employees with prejudice. The dismissal with prejudice in
Docket No. 58 is therefore limited to Shasta County’s claims
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Because the sole basis for removal was the claims

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against the Army Corps employees to which the United States was

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substituted as the defendant and the claims against the United

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States have been dismissed with prejudice, plaintiffs now seek to

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remand the action to state court pursuant to § 1447(c).

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Section 2679(d)(2) of the Westfall Act provides that

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the certification of the Attorney General pursuant to that

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subsection “shall conclusively establish scope of office or

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employment for purposes of removal.”

28 U.S.C. § 2679(d)(2).

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The Supreme Court has interpreted this provision to mean that,

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once the Attorney General certifies scope of employment under §

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2679(d)(2) and triggers removal of the case to federal court, Ҥ

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2679(d)(2) renders the federal court exclusively competent and

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categorically precludes a remand to the state court.”

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Haley, 549 U.S. 225, 243 (2007).

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Osborn v.

In Osborn, the United States removed a case to federal

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court after the Attorney General certified that the federal

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employee defendant was acting within the scope of his employment.

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After removal, the plaintiff successfully challenged the Westfall

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Act certification and the court denied the United States’ motion

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to be substituted as the defendant and remanded the case to state

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court.

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of the district court’s order remanding the case and held that §

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2697(d)(2) precluded the district court from remanding the case.

The Supreme Court held that § 1447(c) did not bar review

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Given the fact that the remand in Osborn occurred after

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the district court rejected the Attorney General’s certification,

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against the United States.
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the Court’s analysis at times appears limited to precluding

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remand under similar circumstances: “Congress gave district

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courts no authority to return cases to state courts on the ground

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that the Attorney General’s certification was unwarranted”;

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“[w]ere it open to a district court to remand a removed action on

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the ground that the Attorney General’s certification was

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erroneous, the final instruction in § 2679(d)(2) would be

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weightless.”

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Id. at 241-42 (emphasis added).

In contrast to this potentially limiting language,

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other statements in the opinion unconditionally limit a court’s

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ability to remand a case removed pursuant to § 2679(d)(2):

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[W]hen
the
Attorney General
certifies
scope of
employment, triggering removal of the case to a federal
forum[,] . . . § 2679(d)(2) renders the federal court
exclusively competent and categorically precludes a
remand to the state court. . . . Our decision . . .
leaves the district court without authority to send a
certified case back to the state court. . . . [T]he
Westfall Act’s command that a district court retain
jurisdiction over a case removed pursuant to § 2679(d)(2)
does not run afoul of Article III.

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Id. at 243-45.

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When the Attorney General’s certification is not

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challenged and the claims against the United States are

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subsequently dismissed, district courts have reached different

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conclusions as to whether Osborn’s ban on remand applies.

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Kebaish v. Inova Health Care Services, 731 F. Supp. 2d 483 (E.D.

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Va. 2010), the plaintiff voluntarily dismissed its claims against

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the United States after it had been substituted as the defendant

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under the Westfall Act and the case had been removed from state

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court.

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the case before it and Osborn were not material because “Osborn

In

The court reasoned that the factual differences between

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holds that § 2679(d)(2) provides a conclusive basis for federal

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subject matter jurisdiction in all cases, regardless of whether

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certification is ultimately upheld.”

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487; accord Boggs-Wilkerson v. Anderson, Civ. No. 2:10-518, 2011

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WL 6934598, at *2 (E.D. Va. Nov. 17, 2011).

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Kebaish, 731 F. Supp. 2d at

On the other hand, a district court reached the

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opposite result in Salazar v. PCC Community Wellness Center, Civ.

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No. 08-1764, 2010 WL 391383 (N.D. Ill. Jan. 29, 2010).

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case, the plaintiff similarly dismissed the claims against the

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United States after the case had been removed from state court

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and the United States had been substituted as the defendant under

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the Westfall Act.

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Osborn that “district courts have no authority to return cases to

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state courts based on the district [‘]court’s disagreement with

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the Attorney General’s scope-of-employment determination.’”

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Salazar, 2010 WL 391383, at *3 (quoting Osborn, 549 U.S. at 227).

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In that

The court emphasized the limiting language in

Limiting Osborn to cases in which the Westfall Act

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certification is rejected is consistent with the language of §

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2679(d)(2) and some of the Court’s statements in Osborn.

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Nonetheless, remanding this case based on the difference between

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it and Osborn, would be difficult, if not impossible, to

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reconcile with the Court’s unconditional and sweeping

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pronouncement that § 2679(d)(2) “categorically precludes a remand

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to the state court.”

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Osborn, 549 U.S. at 243.

Remanding this case could also conflict with §

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2679(d)(2)’s aim of “‘foreclos[ing] needless shuttling of a case

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from one court to another.’”

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Martinez v. Lamagno, 515 U.S. 417, 433, n.10 (1995)).

Id. at 242 (quoting Gutierrez de

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Here, the

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court denied Shasta County’s challenge to the Attorney General’s

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certification under § 2679(d)(2), but did so without prejudice to

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Shasta County renewing its challenge in light of new allegations

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or evidence.

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General’s certification at a later date, it appears that only the

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federal court could resolve that challenge.

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Crop Pest Comm’n, 414 S.E.2d 121, 124 (S.C. 1992) (“[T]he

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Attorney General’s certification is not reviewable by the state

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court.”); cf. Meridian Int’l Logistics, Inc. v. United States,

Assuming Shasta County challenges the Attorney

See Stewart v. State

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939 F.2d 740, 744-45 (9th Cir. 1991) (holding that, even though §

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2679(d)(2) “is silent on the capacity of the district court to

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review scope certifications . . . district courts may review the

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Attorney General’s scope determinations”).2

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Accordingly, because this action was removed based on

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the Attorney General’s Westfall Act certification under §

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2697(d)(2), the court must deny plaintiffs’ motion to remand, and

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plaintiffs’ request for costs under § 1447(c) is moot.

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even if Osborn is limited to precluding remand only after a

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successful challenge to Westfall Act certification, the court can

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properly retain jurisdiction of this case based on plaintiffs’ §

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1983 claims.

Moreover,

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The court was unable to find a single decision by a
California state court addressing a challenge to certification
under § 2679(d)(2) or the Westfall Act. When the search extended
beyond California, the court found a very limited number of state
court decisions addressing certification, but they were limited
to the Attorney General’s decision not to certify under the
Westfall Act. E.g., Jaskolski v. Daniels, 905 N.E.2d 1, 12-13
(Ind. App. 2009) (“[T]he Westfall Act does not grant to the
federal courts exclusive jurisdiction to review the U.S. Attorney
General’s decision not to certify a purported federal employee
under the Act.”).
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B.

Plaintiffs’ Rule 11 Motion Against Shasta County
Plaintiffs request that the court impose Rule 11

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sanctions against Shasta County based on its addition of the Army

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Corps employees in its FACC and the resulting delay and removal

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to federal court that those third-party claims caused.

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11(c) provides for the imposition of sanctions if Rule 11(b) is

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violated, and thus sanctions are appropriate “when a filing is

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frivolous, legally unreasonable, or without factual foundation,

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or is brought for an improper purpose.”

Rule

Simpson v. Lear

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Astronics Corp., 77 F.3d 1170, 1177 (9th Cir. 1996).

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imposing sanctions under the court’s inherent power requires a

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finding of bad faith, the imposition of Rule 11 sanctions

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requires only a showing of objectively unreasonable conduct.

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re DeVille, 361 F.3d 539, 548 (9th Cir. 2004).

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While

In

Rule 11(c)(2)’s “safe harbor provision requires parties

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filing such motions to give the opposing party 21 days first to

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‘withdraw or otherwise correct’ the offending paper.”

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Baldwin, 425 F.3d 671, 678 (9th Cir. 2005).

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“enforce[s] this safe harbor provision strictly[] [and] must

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reverse the award of sanctions when the challenging party failed

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to comply with the safe harbor provisions, even when the

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underlying filing is frivolous.”

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that they complied with the safe harbor provision, and counsel

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for Shasta County indicates in a declaration that plaintiffs’

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Rule 11 motion was not served on Shasta County before it was

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filed with the court.

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the court must deny plaintiffs’ motion for Rule 11 sanctions.

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Moreover, the court is not inclined to take the parties’

Id.

The court

Plaintiffs do not indicate

(Docket No. 64-1 at ¶ 2.)

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Holgate v.

Accordingly,

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invitation to weed through their obvious frustrations with each

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other and be sidetracked from the timely resolution of this case

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on the merits.

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request for costs as sanctions against plaintiffs for filing the

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Rule 11 motion.

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C.

Likewise, the court also denies Shasta County’s

Plaintiffs’ Motion to Dismiss

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1.

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Plaintiffs first move to dismiss Shasta County’s FACC

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Rule 12(b)(1) Motion

for lack of subject matter jurisdiction pursuant to Rule

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12(b)(1).

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plaintiff bears the burden of establishing a jurisdictional basis

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for its claim.

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U.S. 375, 377 (1994).

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limited jurisdiction” that “possess only that power authorized by

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Constitution and statute,” id., a court must dismiss claims over

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which it has no jurisdiction.

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On a motion to dismiss under Rule 12(b)(1), the

Kokkonen v. Guardian Life Ins. Co. of Am., 511
Because “[f]ederal courts are courts of

Fed. R. Civ. P. 12(h)(3).

Pursuant to 28 U.S.C. § 1367(a), “district courts shall

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have supplemental jurisdiction over all other claims that are so

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related to claims in the action within such original jurisdiction

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that they form part of the same case or controversy under Article

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III of the United States Constitution.”

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state law claim is part of the same case or controversy when it

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shares a ‘common nucleus of operative fact’ with the federal

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claims and the state and federal claims would normally be tried

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together.”

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2004).

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28 U.S.C. § 1367(a).

“A

Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir.

Without belaboring the allegations in the TAC and FACC,
it is readily apparent that Shasta County’s claims for nuisance
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abatement and violations of California Civil Code section 17200

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share a common nucleus of operative fact with plaintiffs’ § 1983

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claims.

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plaintiffs’ use of their property, including their grading of the

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ranch property, development of their winery and restaurant, and

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their Williamson Act contract.

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held that, in cases removed under § 28 U.S.C. § 2679(d)(2), “even

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if only state-law claims remained after resolution of the federal

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question, the District Court would have discretion, consistent

The claims attempt to resolve disputes regarding

Moreover, the Supreme Court has

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with Article III, to retain jurisdiction.”

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245.

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dismiss the cross-claims against them in the TACC for lack of

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subject matter jurisdiction.

Osborn, 549 U.S. at

Accordingly, the court will deny plaintiffs’ motion to

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2.

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Plaintiffs next move to dismiss Shasta County’s

Rule 12(b)(6) Motion

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nuisance abatement and section 17200 claims pursuant to Rule

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12(b)(6) for failure to state a claim upon which relief can be

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granted.

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’”

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)).

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standard,” however, “asks for more than a sheer possibility that

On a motion to dismiss, the court must accept the

Scheuer v. Rhodes, 416

“To survive a motion to dismiss, a complaint must

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Ashcroft v.

This “plausibility

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a defendant has acted unlawfully,” and “[w]here a complaint

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pleads facts that are ‘merely consistent with’ a defendant’s

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liability, it ‘stops short of the line between possibility and

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plausibility of entitlement to relief.’”

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550 U.S. at 556-57).3

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a.

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Id. (quoting Twombly,

Nuisance Abatement Claim

Plaintiffs contend that Shasta County fails to plead a

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cognizable claim for nuisance abatement because California law

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requires that, “when there is an administrative proceeding

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available to determine that a public or private nuisance

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condition exists, it is necessary to allege that proceeding has

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been employed and a nuisance has been declared after hearing in

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compliance with due process.”

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(Docket No. 37).)

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authority giving rise to such an obligation.

(Pls.’ Mot. to Dismiss 6:1-5

Plaintiffs do not provide any controlling

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When addressing then-existing immunity law for

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legislative bodies in 1958, the California Supreme Court

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discussed a requirement that “a legislative body has declared the

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condition complained of to be a nuisance” in order to assert an

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“exception to the immunity doctrine where a governmental unit is

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maintaining a nuisance.”

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820 (1958) (emphasis added).

Vater v. Glenn County, 49 Cal. 2d 815,
Similarly, Mulloy v. Sharp Park

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“When ruling on a motion to dismiss, [the court] may
generally consider only allegations contained in the pleadings,
exhibits attached to the complaint, and matters properly subject
to judicial notice.” Colony Cove Props., LLC v. City of Carson,
640 F.3d 948, 955 (9th Cir. 2011) (internal quotation marks
omitted). The court will take judicial notice of the Shasta
County Code. Id. n.4. The court need not rely on any of the
other extraneous documents submitted in plaintiffs’ request for
judicial notice, and thus denies plaintiffs’ request as moot.
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Sanitary District, 164 Cal. App. 2d 438 (1st Dist. 1958), relied

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on Vater in requiring a plaintiff to “show that a legislative

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body has declared the condition complained of to be a nuisance”

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in order to bring a claim against a “governmental unit . . . for

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creating and maintaining a nuisance.”

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at 441 (emphasis added).

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good law, they do not impose a requirement that an administrative

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body declare that conduct by an individual amounts to a nuisance

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before the county can bring a nuisance claim against the

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Mulloy, 164 Cal. App. 2d

Even assuming these cases are still

individual.
Contrary to plaintiffs’ theory, the Shasta County Code

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contemplates the county asserting a nuisance abatement claim as

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it has in its TAAC.

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provides, “Every violation of any regulatory or prohibitory

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provision contained in Division 4 or 18 of the Food and

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Agricultural Code of the State of California, or of this Code, is

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expressly declared to be a public nuisance.”

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§ 8.28.010.

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arises when a legislative body with appropriate jurisdiction, in

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the exercise of the police power, expressly declares a particular

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object or substance, activity, or circumstance, to be a nuisance”

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and have upheld injunctive relief against a nuisance per se based

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on a violation of a municipal code.

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177 Cal. App. 4th 1153, 1163-66 (2d Dist. 2009) (internal

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quotation marks omitted).

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Shasta County Code section 8.28.010

Shasta County Code

California courts recognize that “nuisance per se

City of Claremont v. Kruse,

Although the Shasta County Code provides procedures for

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a hearing to address a nuisance, it does not establish that a

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hearing is a prerequisite to a civil action and contemplates the
13

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county’s initiation of civil actions to resolve an alleged

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nuisance.

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supervisors on its own motion or an enforcing officer may invoke

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the provisions of this chapter in lieu of or in addition to

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instituting civil enforcement proceedings or a criminal

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prosecution as to any violation of this code that has occurred or

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is occurring or as to any other nuisance.”), § 8.28.070 (“This

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chapter is an alternative to and does not supersede any other

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provision of law that authorizes a nuisance to be abated or

See Shasta County Code § 8.28.020 (“The board of

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enjoined.”), § 8.28.030(C) (“The failure of any person to receive

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a notice given pursuant to subsection B of this section shall not

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constitute grounds for any court to invalidate any subsequent

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action by the county or any of its officers, agents or employees

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to abate the nuisance.”).

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While California Government Code section 25845 provides

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for minimum requirements for an ordinance that establishes the

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procedures for abatement of a nuisance, it neither requires

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counties to enact an ordinance nor precludes an ordinance from

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providing for judicial remedies in lieu of administrative

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remedies.

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51250 outlines procedures to address material breaches of a

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Williamson Act contract, but expressly provides that the remedy

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provided for in the section “is in addition to any other

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available remedies for breach of contract.”

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51250(a); see also id. (“Except as expressly provided in this

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section, this section is not intended to change the existing land

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use decisionmaking and enforcement authority of cities and

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counties including the authority conferred upon them by this

See Cal. Gov’t Code § 25845(a).

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Similarly, section

Cal. Gov’t Code §

1

chapter to administer agricultural preserves and contracts.”).4

2

Plaintiffs’ reliance on the primary jurisdiction

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doctrine is also misplaced.

“The doctrine of primary

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jurisdiction, like the rule requiring exhaustion of

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administrative remedies, is concerned with promoting proper

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relationships between the courts and administrative agencies

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charged with particular regulatory duties.”

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Pac. R. Co., 352 U.S. 59, 63 (1956).

9

a claim is originally cognizable in the courts, and comes into

United States v. W.

The doctrine “applies where

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play whenever enforcement of the claim requires the resolution of

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issues which, under a regulatory scheme, have been placed within

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the special competence of an administrative body; in such a case

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the judicial process is suspended pending referral of such issues

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to the administrative body for its views.”

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a prudential doctrine that “can be used, in instances where the

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federal courts do have jurisdiction over an issue, but decide

Id. at 63-64.

It is

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4

The court previously rejected plaintiffs’ reliance on
section 51250 in their related case:
With respect to plaintiffs’ allegation that they were
entitled to a notice and hearing under the terms of the
Williamson Act before defendants determined that the
chapel was not a compatible use[,] . . . [t]he second
Williamson Act provision plaintiffs cite, Cal. Gov’t Code
§ 51250, provides that a landowner may request a public
hearing upon receiving notice that the city or county
administering the Williamson Act contract has determined
that the landowner is likely in material breach.
Plaintiffs do not allege, however, that they ever
demanded a public hearing. Neither provision, therefore,
suggests that plaintiffs were entitled to a notice and
hearing under state law.
Anselmo v. County of Shasta, --- F. Supp. 2d ----, ----, 2012 WL
2090437, at *n.5 (E.D. Cal. June 8, 2012).

28
15

1

that a claim ‘requires resolution of an issue of first

2

impression, or of a particularly complicated issue that Congress

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has committed to a regulatory agency.’”

4

U.S. S. Commc’ns, Inc., 650 F.3d 1257, 1264 (9th Cir. 2011).

5

Plaintiffs have not sufficiently articulated, and the court

6

cannot surmise, any issues that require resolution by an

7

administrative body, why special competence is needed, or what

8

administrative body possesses that competence.

9

GCB Commc’ns, Inc. v.

The remainder of plaintiffs’ arguments attack the

10

merits of the parties’ claims, not the sufficiency of the

11

allegations in the TACC, and cannot be resolved in a Rule

12

12(b)(6) motion.

13

nuisance abatement claim, the court will deny plaintiffs’ motion

14

to dismiss that claim.

15
16

b.

Because Shasta County sufficiently alleges a

UCL Claim

California’s UCL prohibits “any unlawful, unfair or

17

fraudulent business act or practice . . . .”

18

Code § 17200.

19

the UCL, see id. § 17201, section 17204 of the UCL authorizes

20

counties to bring a UCL claim under limited circumstances,

21

including a case brought “by a county counsel authorized by

22

agreement with the district attorney in actions involving

23

violation of a county ordinance.”

24

Cnty. of Santa Clara v. Astra U.S., Inc., 428 F. Supp. 2d 1029,

25

1033-36 (N.D. Cal. 2006).

26

Cal. Bus. & Prof.

Because counties are not “persons” as defined in

Id. § 17204; see generally

In its TACC, Shasta County alleges that “Cross-

27

Complainant County of Shasta, for the People of the State of

28

California, prior to filing this Cross-Complaint for violation of
16

1

Business and Professions Code Section 17200 et seq., have the

2

authorization by agreement with the District Attorney of the

3

County of Shasta to bring this cause of action.”

4

Plaintiffs’ contend that section 17204 requires county counsel,

5

not the county itself, to assert the UCL claim on behalf of the

6

people of the state.

7

applying it appear to contemplate that county counsel would be

8

the named representative.

9

428 F. Supp. 2d at 1033-36.

10
11

(TACC ¶ 27.)

Neither section 17204 nor the cases

See generally Cnty. of Santa Clara,
The court will accordingly deny

plaintiffs’ motion to dismiss Shasta County’s UCL claim.
D.

12

Jensen’s Motions to Dismiss and Strike
Jensen moves to dismiss Shasta County’s claims for

13

contribution and indemnification pursuant to Rule 12(b)(6) on the

14

ground that § 1983 does not provide for either claim.

15

Circuit has stated that “[t]here is no federal right to

16

indemnification provided in 42 U.S.C. § 1983.”

17

Los Angeles, 92 F.3d 842, 845 n.1 (1996), overruled on other

18

grounds, Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir.

19

1997).

20

The Ninth

Allen v. City of

“Typically, a right to contribution is recognized when

21

two or more persons are liable to the same plaintiff for the same

22

injury and one of the joint tortfeasors has paid more than his

23

fair share of the common liability.”

24

Transport Workers Union of Am., 451 U.S. 77, 87-88 (1981).

25

However, “[a]t common law there was no right to contribution

26

among joint tortfeasors.”

27

contribution may arise in either of two ways: first, through the

28

affirmative creation of a right of action by Congress, either

Id. at 87.

17

Nw. Airlines, Inc. v.

Thus, “a right to

1

expressly or by clear implication; or, second, through the power

2

of federal courts to fashion a federal common law of

3

contribution.”

4

U.S. 630, 638 (1981).

5

Tx. Indus., Inc. v. Radcliff Materials, Inc., 451

The text of § 1983 does not provide for a right to

6

contribution,5 and Shasta County has not identified any statement

7

in its legislative history that suggests Congress intended for

8

such a right to exist.

9

addressed whether federal courts have the power to create a right

Although the Supreme Court has not

10

to contribution under § 1983, it has unequivocally held that

11

courts lack the power to do so under Title VII, the Equal Pay

12

Act, and federal securities law.

13

98; Tex. Indus., Inc., 451 U.S. at 645; see also Smart v. Int’l

14

Broth. of Elec. Workers, Local 702, 315 F.3d 721, 727 (7th Cir.

15

2002) (“[I]n the more than two decades since the Northwest

16

Airlines decision, the Supreme Court has become ever more

Nw. Airlines, Inc., 451 U.S. at

17
18
19
20
21
22
23
24
25
26
27

5

The entirety of § 1983 states:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity, injunctive
relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable. For
the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall
be considered to be a statute of the District of
Columbia.

28
18

1
2

reluctant to imply private rights of action . . . .”).
Often relying on Northwest Airlines and Texas

3

Industries, the vast majority of federal courts that have

4

addressed the issue have concluded that § 1983 does not provide

5

for a contribution or indemnity claim.

6

Hernandez v. Portillo, Civ. No. 1:09–2204 LJO DLB, 2011 WL

7

3740829, at *8 (E.D. Cal. Aug. 24, 2011) (indemnity); Hurley v.

8

Horizon Project, Inc., Civ. No. 08–1365, 2009 WL 5511205, at *2-5

9

(D. Or. Dec. 3, 2009) (contribution) (citing cases); Banks v.

See, e.g., AE ex rel.

10

City of Emeryville, 109 F.R.D. 535, 539 (N.D. Cal. Aug. 27, 1985)

11

(contribution and indemnity).

12

The fact that Jensen is an alleged co-conspirator with

13

Shasta County and its employees in the alleged scheme to violate

14

plaintiffs’ rights does not change the analysis.

15

Industries, the Supreme Court held that there is no right to

16

contribution under the federal antitrust laws.

17

followed the same analysis as in Northwest Airlines, first

18

determining that Congress did not create the right in the

19

statutes and, second, that the court lacked the power to fashion

20

a federal common law right to contribution.

21

451 U.S. at 638.

22

the individuals against whom the defendant sought contribution

23

were “participants in the unlawful conspiracy on which recovery

24

was based.”

25

theory that the Equal Pay Act and Title VII provide for a right

26

to contribution, the Court “assume[d] that the plaintiffs . . .

27

could have recovered from either the union or the employer, under

28

both the Equal Pay Act and Title VII, and that it is unfair to

In Texas

The court

Tex. Indus., Inc.,

It was immaterial to the Court’s analysis that

Id. at 632.

Similarly, in rejecting the employer’s

19

1

require [the employer] to pay the entire judgment.”

2

Airlines, Inc., 451 U.S. at 89.

3

Nw.

In Texas Industries, the Court also emphasized that the

4

federal securities statutes “were not adopted for the benefit of

5

the participants in a conspiracy to restrain trade” and that

6

defendant “‘is a member of the class whose activities Congress

7

intended to regulate for the protection and benefit of an

8

entirely distinct class.’”

9

(quoting Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 37

Tex. Indus., Inc., 451 U.S. at 639

10

(1977)).

11

Equal Pay Act and Title VII did not provide for contribution.

12

Nw. Airlines, Inc., 451 U.S. at 91-92.

13

equally to the present case because, assuming plaintiffs’

14

allegations are true, § 1983 was intended to protect plaintiffs

15

from Shasta County’s conduct, not Shasta County from injuries

16

caused to plaintiffs by Shasta County and its co-conspirators’

17

conduct.

18

The Court raised the same point in concluding that the

This reasoning applies

In contrast to bringing a claim for contribution or

19

indemnity derived from § 1983, § 1983 defendants have sought

20

indemnification or contribution under state law claims.

21

example, in Banks, the plaintiff was burned to death while in the

22

custody of the city jail and her representatives sued the city

23

under § 1983.

24

the mattress in plaintiff’s cell was defective and caused the

25

fire to spread too quickly.

26

could not seek contribution from the mattress manufacturers under

27

§ 1983, it was able to assert third-party claims against the

28

manufacturers in the § 1983 action based on state law causes of

Banks, 109 F.R.D. at 537.

The city claimed that

Id. at 537-38.

20

For

Although the jail

1

action, such as strict products liability, breach of warranty,

2

and negligence.

3

determination that a jury might make is that the tortious actions

4

of the third party defendants are, in whole or in part,

5

responsible for the decedent’s death, and that the defendants

6

should therefore be relieved of liability to the plaintiffs to

7

that extent.”).

8

independent state law claims giving rise to a right to indemnity

9

or contribution.

10

Id. at 539-40; see id. at 540-41 (“One

Shasta County’s TACC does not, however, allege

Accordingly, because § 1983 does not provide for a

11

federal right to contribution or indemnity and Shasta County has

12

not alleged any state law claims, the court will grant Jensen’s

13

motion to dismiss the third-party claims against him.6

14

E.

15

Shasta County’s Motion Re: Mediation Confidentiality
In the final motion before the court, Shasta County

16

moves for an order prohibiting plaintiffs from “further

17

disclosing mediation statements and mediation briefs to third

18

parties, including the press, in violation of a Mediation

19

Confidentiality Agreement, and for an Order imposing monetary

20

sanctions against Plaintiffs and in favor of the County.”

21

(Docket No. 43 at 1:10-13.)

22

invokes the “inherent power” of the court to “impose sanctions

23

upon a party and/or its counsel for bad faith litigation

24

conduct.”

25

In making its motion, Shasta County

(Id. at 5:8-10.)
Shasta County incorrectly views the court’s inherent

26
27
28

6

Because the court will grant Jensen’s motion to
dismiss, his motion to strike Shasta County’s third-party claims
under Rule 12(f) is moot and will be denied as such.
21

1

power as extending to extra-judicial conduct that has no legal

2

effect on the proceedings before the court.

3

NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court discussed

4

courts’ inherent powers in detail, revealing a common thread that

5

the courts’ inherent powers are tied to their need “‘to manage

6

their own affairs so as to achieve the orderly and expeditious

7

disposition of cases’” and remedy “abuses [of] the judicial

8

process.”

9

Co., 370 U.S. 626, 630–31 (1962)).

In Chambers v.

Chambers, 501 U.S. at 43-45 (quoting Link v. Wabash R.
Even when recognizing that

10

the “power reaches both conduct before the court and that beyond

11

the court’s confines,” the Court justified this extension as

12

remedying “disobedience to the orders of the Judiciary,

13

regardless of whether such disobedience interfered with the

14

conduct of trial.”

15

Id. at 44.

Here, independent of any involvement of the court, the

16

parties agreed to mediate their case before the Judicial

17

Arbitration Mediation Service.

18

that agreement and the parties’ actions pursuant to the mediation

19

are independent of this proceeding.

20

of a mediation agreement occurring outside the confines of this

21

proceeding is beyond the reach of the court’s inherent power.7

22

Further, even if it could be argued that the court’s inherent

23

power extended to those mediation proceedings, this court would

This court had nothing to do with

Remedying any alleged breach

24
25
26
27
28

7

In contrast, courts have enforced mediation
confidentiality agreements when the documents subject to the
agreements are submitted to the court or offered at trial. E.g.,
Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1041
(9th Cir. 2011) (upholding the district court’s exclusion of
evidence that was the subject of a mediation confidentiality
agreement).
22

1

have no interest or desire to interject itself into those extra-

2

judicial proceedings.

3

County’s motion for an order precluding plaintiffs from further

4

violations of the mediation confidentiality agreement and for

5

monetary sanctions.

Accordingly, the court must deny Shasta

6

IT IS THEREFORE ORDERED that

7

(1) plaintiffs’ motion to remand (Docket No. 46) be,

8

and the same hereby is, DENIED;

9
10

(2) plaintiffs’ motion for Rule 11 sanctions (Docket
No. 40) be, and the same hereby is, DENIED;

11
12

(3) plaintiffs’ motion to dismiss (Docket No. 35) be,
and the same hereby is, DENIED;

13
14

(4) Jensen’s motion to dismiss (Docket No. 59) be, and
the same hereby is, GRANTED;

15
16

(5) Jensen’s motion to strike (Docket No. 61) be, and
the same hereby is, DENIED as moot; and

17

(6) Shasta County’s motion for an order precluding

18

plaintiffs from further violations of mediation confidentiality

19

and for monetary sanctions (Docket No. 43) be, and the same

20

hereby is, DENIED.

21

Shasta County has twenty days from the date this Order

22

is filed to file amended third-party claims against Jensen, if it

23

can do so consistent with this Order.

24

DATED:

October 10, 2012

25
26
27
28
23