Yates v. Mammoth Community Water District

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/05/15 ORDERING that defendant's 8 Request for judicial notice is GRANTED and RECOMMENDING that defendant's 8 Motion to Dismiss be granted with leave to amend only the contract claim within 60 days of the District Court's resoution of these F&Rs and this matter remanded to Monto County Superiour Court; referred to Judge William B. Shubb; Objections to these F&Rs due within 14 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD YATES, JR.,

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No. 2:15-cv-1762 WBS CKD PS

Plaintiff,
v.

ORDER AND

MAMMOTH COMMUNITY WATER
DISTRICT,

FINDINGS AND RECOMMENDATIONS

Defendant.

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Defendant’s motion to dismiss came on regularly for hearing on November 4, 2015.

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Plaintiff, proceeding in propria persona, failed to appear. Michael Youril appeared for

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defendants. Upon review of the documents in support and opposition, upon hearing the

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arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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In this action removed from state court, plaintiff alleges claims under 42 U.S.C. § 1983

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arising out of his rental of a residential property owned by the defendant water district. Plaintiff

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also alleges state law claims under California’s Unfair Competition Law (“UCL”), Bus. & Prof.

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Code § 17200 et seq., retaliation, malicious prosecution, and breach of contract. Defendant

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moves to dismiss.

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In considering a motion to dismiss for failure to state a claim upon which relief can be

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granted, the court must accept as true the allegations of the complaint in question, Erickson v.
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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678.

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In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider

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only allegations contained in the pleadings, exhibits attached to the complaint, and matters

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properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d

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895, 899 (9th Cir. 2007). Defendant has requested this court take judicial notice of documents.

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ECF No. 8-2. That request will be granted.

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Defendant contends it cannot be held liable under section 1983 because plaintiff fails to

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identify any legally protected interest invaded by the District. This contention is well taken. The

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basis of plaintiff’s civil rights claim is that defendant allegedly sought illegal late fees, demanded

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rent that was not due, and threatened plaintiff with losing his home. Plaintiff alleges no federal

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rights or constitutional deprivation. Plaintiff offers nothing in his opposition which suggests this

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deficiency can be cured. This cause of action should be dismissed without leave to amend.

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Plaintiff’s second cause of action alleges a claim under the UCL. Defendant contends that

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such a claim is not available against a public entity. Plaintiff argues such a claim should lie

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because the District is not a public entity. This argument is meritless. The defendant water

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district is a public entity under California law. Cal. Gov’t Code § 811.2; Cal. Water Code §118-8

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(“public entity” includes California water district); Cal. Water Code §§ 30013, 31013, 31013.5.

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The definition of a “person” subject to liability under the UCL does not include a public entity.
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Cal. Bus. & Prof. Code § 17201; see Tuchscher Dev. Enterprises, Inc. v. San Diego Unified Port

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Dist., 106 Cal. App. 4th 1219, 1243-44 (2003). This is so even where the public entity is engaged

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in commerical activities. See California Medical Assn. v. Regents of University of California, 79

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Cal.App.4th 542, 551 & fn. 14 (2000) (state university school of medicine and hospital is public

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entity and thus not a “person” within scope of prohibitions of unfair competition law, even

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though hospital is involved in commercial activity). Plaintiff’s second claim for relief should

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therefore be dismissed with prejudice.
Defendant is also immune from liability for plaintiff’s retaliation claim.1 See Miklosy v.

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Regents of University of California, 44 Cal. 4th 876, 899 (2008) (Cal. Gov’t Code § 815

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abolishes all common law or judicially declared forms of liability for public entities); Tameny v.

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Atlantic Richfield Co., 27 Cal. 3d 167 (1980) (retaliation in violation of public policy). Similarly,

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an action for malicious prosecution cannot lie against the defendant public entity. See Novoa v.

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County of Ventura, 133 Cal.App.3d 137, 143 (1982); Cal. Gov’t Code §§ 821.2, 821.6. These

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claims should therefore also be dismissed with prejudice.
Plaintiff’s fifth claim for relief is for breach of contract. In conclusory fashion, plaintiff

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alleges that defendant breached the implied warranty of habitability, the implied covenant of good

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faith and fair dealing, the implied covenant of quiet enjoyment, and the modification of the lease

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to deduct rent due from his pay. Such conclusory allegations are insufficient to support a claim

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for breach of contract. See generally Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1367

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(2010) (to state claim for breach of contract, plaintiff must allege the contract, plaintiff’s

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performance or excuse for nonperformance, defendant’s breach and damages). Plaintiff alleges

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no facts supporting his claim of inhabitability or other breach. The claim should therefore be

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dismissed. However, because it appears plaintiff may be able to cure this deficiency, leave to

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amend should be granted.

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/////

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In the opposition, plaintiff raises a claim under California Civil Code § 1942.5 not pled in the
original complaint. Plaintiff’s argument in support of such a claim is insufficient to state a cause
of action under that statute.
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This action was removed from state court on the basis of federal question jurisdiction

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predicated upon an alleged violation of 42 U.S.C. § 1983. All but one of plaintiff’s claims should

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be dismissed without leave to amend. With the dismissal of the federal claim, only a state law

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claim remains. In these circumstances, it is appropriate for the court to decline to exercise

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jurisdiction over the remaining state law claim and remand the matter under 28 U.S.C. §

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1367(c)(3) (district court may decline to exercise supplemental jurisdiction if district court has

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dismissed all claims over which it has original jurisdiction).

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Accordingly, IT IS HEREBY ORDERED that defendant’s request for judicial notice
(ECF No. 8-2) is granted; and

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IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion to dismiss (ECF No. 8) be granted with leave to amend only the

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contract claim within sixty days of the District Court’s resolution of these findings and

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recommendations; and

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2. The action be remanded to the Superior Court of California, County of Mono.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 5, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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