Mohamed, et al v. County of Sacramento

Filing 18

ORDER granting in part and denying in part 14 Motion to Dismiss signed by District Judge John A. Mendez on 2/27/17. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 JOSEPH MOHAMED SR. and SHIRLEY MOHAMED (as Trustees of the Joseph Mohamed Sr. and Shirley Mohamed Charitable Remainder Unitrust II), Plaintiffs, v. No. 2:16-cv-01327-JAM-EFB ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS & STRIKE 15 16 17 18 COUNTY OF SACRAMENTO; BRIAN WASHKO (individually and as Chief Building Official for the County of Sacramento); and DOES 1 through 100, inclusive, Defendants. 19 20 Plaintiffs Joseph Mohamed Sr. and Shirley Mohamed amended 21 their previously dismissed Complaint and once again sue 22 Defendants Brian Washko and the County of Sacramento for 23 violating their rights under 42 U.S.C. § 1983 and breaching a 24 contract between the County and Plaintiffs. 25 (“FAC”), ECF No. 13. 26 dismiss, challenging Plaintiffs’ FAC under Rule 12(b)(6) and Rule First Am. Compl. Defendants once again bring a motion to 27 28 1 1 12(f). 2 Mot., ECF No. 14. I. 3 Plaintiffs oppose. ECF No. 15. 1 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiffs own eighty acres of land in Sacramento County. 4 FAC ¶ 10. 5 land, naming it Alhambra Farms. 6 Alhambra Farms Equestrian Center (“Equestrian Center”). 7 They built a Planned Unit Development (“PUD”) on the Id. ¶ 13. The plan included the Id. In 2007, Plaintiffs discussed their PUD with the County of 8 Sacramento (“County”). First, Plaintiffs submitted a pre- 9 application meeting request, which included their proposal to 10 build ten homes, a full-size riding arena, a caretaker’s home, 11 and a private clubhouse. 12 departments met with Plaintiffs, including the Sacramento County 13 Planning and Building Inspection Department (“PBI”). 14 Id. ¶ 14. Five to six County Id. ¶ 15. Plaintiffs wanted their Equestrian Center to include 15 “agricultural exempt” (“ag exempt”) buildings. 16 Code § 16.02.080 governs “ag exempt” building permits. 17 Plaintiffs applied for these permits, that Section stated, in 18 relevant part, an “agricultural building” shall qualify for an 19 “exempt building permit” if it is located on land with twenty or 20 more acres used primarily for agricultural uses, and certain 21 conditions are met. 22 Sacramento County When Id. (citing the conditions). California Building Code § 202 defines an “agricultural 23 building” as “[a] structure designed and constructed to house 24 farm implements, hay, grain, poultry, livestock, or other 25 horticultural products. 26 1 27 28 This structure shall not be a place of This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for January 24, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the complaint. 2 1 human habitation or a place of employment where agricultural 2 products are processed, treated, or packaged; nor shall it be a 3 place used by the public.” 4 Id. Five years after their pre-planning discussions with the 5 County, Plaintiffs submitted applications to receive “ag exempt” 6 permits to construct Hay Barn I, the Agricultural Barn, the 7 Riding Arena, and Hay Barn II. 8 9 See FAC ¶¶ 18, 22. Plaintiffs then sent a letter to Roger Fuller, the PBI Inspector, confirming these four buildings would not involve 10 commercial use. 11 plan. 12 Plaintiffs’ plot plan and the “ag exempt” permits for all four 13 buildings (the “Original Four”). 14 Plaintiffs applied for several permits to add electrical and 15 plumbing services. 16 Id. ¶ 24. Id. ¶ 21. Plaintiffs also submitted their plot On October 15, 2012, the County approved Id. ¶¶ 21, 25. Afterwards, Id. ¶¶ 26-28. Soon after, PBI inspectors began conducting final 17 inspections. They started with Hay Barn I, the Agricultural 18 Barn, and the Riding Arena. 19 Brian Washko-Chief Building Official for the County—about whether 20 these were, in fact, “ag exempt” buildings. 21 ultimately, the County approved Hay Barn I, the Agricultural 22 Barn, and the Riding Arena. 23 on Hay Barn II. 24 raised the same questions to Washko, but, again, the County 25 approved Hay Barn II as an “ag exempt” building. The inspectors raised questions to Id. Id. ¶ 31. Yet, Then the PBI inspectors focused After their final inspection, PBI inspectors Id. ¶ 32. 26 After the County approved the Original Four as “ag exempt” 27 buildings, Plaintiffs met with Washko to discuss the Equestrian 28 Center. They reviewed issued permits, Plaintiffs’ completed 3 1 2 work, and the County’s inspections. Id. ¶ 35. In August 2014, Plaintiffs’ Alhambra Farms project came to 3 a halt. 4 letter to Plaintiffs revoking the permits for the Stables, Riding 5 Arena and Restroom Building. Id. ¶ 40. 6 asserted that he was revoking these permits because they were 7 intended for public rather than agricultural use and were 8 therefore not “ag exempt” buildings (“Washko Letter”). 9 ¶¶ 40-41. 10 11 Washko inspected the Equestrian Center and then wrote a In his letter, Washko Id. In January 2015, the County issued a “Notice of Violation” and a “Stop Work Order”. Id. ¶ 44. Plaintiffs initiated the appeals process. First, they filed 12 an administrative appeal with the Building Board of Appeals 13 (“Board”). 14 revoke the permits. 15 Sacramento County Superior Court. 16 reversed the board’s decision to revoke the Riding Arena permit 17 but upheld the County’s decision regarding the Stables and 18 Restroom Building permits. 19 Mandate at 2 (attached to FAC as Exh. U). Plaintiffs filed an 20 appeal with the Third District Court of Appeal contesting the 21 Superior Court decision regarding the Stables and Restroom 22 Building. This appeal is still pending. 23 Id. ¶ 45. The Board upheld Washko’s decision to Id. Then Plaintiffs appealed to the Id. ¶ 46. The Superior Court See Judgment on Petition for Writ of Plaintiffs bring several claims against Defendants in this 24 amended complaint. Plaintiffs allege Defendants denied them 25 procedural due process under the Fourteenth Amendment, retaliated 26 against them for engaging in First Amendment activities, and 27 committed an unconstitutional taking under the Fifth Amendment. 28 See generally FAC. Plaintiffs also bring a breach of contract 4 1 claim against only the County. 2 dismiss/strike Plaintiffs’ FAC. Id. at 18. Defendants move to 3 4 II. OPINION 5 A. Section 1983 Claims 6 Section 1983 vindicates federal rights, but does not itself 7 constitute a substantive right. See Albright v. Oliver, 510 8 U.S. 266, 271 (1994) (internal citation omitted). 9 successfully bring a § 1983 claim, a plaintiff must show “a To 10 person acting under color of state law committed the conduct at 11 issue” and “the conduct deprived the claimant of some right, 12 privilege, or immunity protected by [federal law].” 13 Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). 14 § 1983 imposes liability for violating constitutional rights, 15 but not for violating duties arising from tort law. 16 v. McCollan, 443 U.S. 137, 146 (1979). Leer v. Simply put, See Baker 17 B. Judicial Notice 18 Defendants ask the Court to take judicial notice of (1) the 19 Order Granting Defendants’ Motion to Dismiss (“Order”) (attached 20 to Defendants’ Request for Judicial Notice [“RJN”] as Exh. A), 21 and (2) Plaintiffs’ First Amended Complaint (attached to 22 Defendants’ RJN as Exh. B). 23 unnecessary given that both documents are already part of the 24 record in this case. ECF No. 14-2. This RJN is 25 C. Defendants’ Motion to Strike 26 A district court “may strike from a pleading an 27 insufficient defense or any redundant, immaterial, impertinent, 28 or scandalous matter” to avoid expending time and money 5 1 “litigating spurious issues by dispensing with those issues 2 [before] trial....” 3 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) 4 (quotation marks, citation, and first alteration omitted), rev’d 5 on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 6 (1994). 7 See Fed. R. Civ. P. 12(f). See also Defendants move to strike all allegations pertaining to the 8 revoked Horse Stables and Restroom Building permits, arguing 9 that they are immaterial and impertinent because the Court 10 previously dismissed Plaintiffs’ procedural due process claim as 11 to those revoked permits. 12 law, Plaintiffs argue it is procedurally improper for Defendants 13 to move to strike because they filed only a motion to dismiss. 14 Opp’n at 7-8. 15 it proper, Defendants cannot construe the Court’s Order as 16 limiting this case only to the Riding Arena. 17 Mot. at 3-4. Without citing any case But, Plaintiffs continue, even if the Court deems Defendants are correct. Id. at 8. First, Defendants properly moved 18 to strike. 19 permits a responsive pleading, the responding party must move to 20 strike before responding to the pleading. 21 (“on motion made by a party ... before responding to the 22 pleading”). 23 Mot. at 1, 3-4. 24 Rule 12(f) provides that when, as here, a Court Fed. R. Civ. P. 12(f) Defendants have done so—albeit in the same motion. This comports with Rule 12(f)’s plain language. Second, the Court granted Plaintiffs leave to amend this 25 procedural due process claim only as it pertained to the revoked 26 permit for the Riding Arena (which the Superior Court held had 27 been improperly revoked by the County) and not as to the revoked 28 Horse Stables and Restroom Building permits, see Order at 12-15. 6 1 Because the Court’s Order procedurally bars allegations about 2 the revoked Horse Stables and Restroom building permits, the 3 Court grants Defendants’ motion to strike all allegations about 4 those permits as immaterial and impertinent. 5 F.2d at 1527-28 (striking allegations procedurally barred by 6 statute of limitations and res judicata). See Fantasy, 984 7 D. 8 Defendants move to dismiss Plaintiffs’ first and fourth 9 10 11 12 Defendants’ Rule 12(b)(6) Motion to Dismiss causes of action for failure to state a claim. 1. First Cause of Action: Mot. at 1. Procedural Due Process Under the Fourteenth Amendment Plaintiffs bring their first § 1983 claim against all 13 Defendants, alleging that the Washko Letter, the County’s 14 subsequent “Notice of Violation” and “Stop Work Order,” and the 15 Board’s administrative hearing denied them due process under the 16 Fourteenth Amendment. 17 Plaintiffs challenge Defendants’ decision to revoke the Riding 18 Arena permit, insisting that Plaintiffs acquired vested rights 19 in that permit once they—relying on that permit—spent millions 20 building the project. See FAC ¶¶ 49-58. Specifically, Id. ¶ 51. 21 The Fourteenth Amendment provides that “[n]o state shall 22 ... deprive any person of life, liberty, or property, without 23 due process of law.” 24 procedural due process claim, a plaintiff must allege (1) a 25 protectable liberty or property interest, (2) the government 26 deprived him of that interest, and (3) the government denied him 27 adequate procedural protections. 28 Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998) (internal U.S. Const. amend. XIV, § 1. To state a See Foss v. Nat’l Marine 7 1 citations omitted). 2 property interest in a benefit protected by the due process 3 clause results from a ‘legitimate claim of entitlement’ created 4 and defined by an independent source, such as state or federal 5 law.” 6 The Ninth Circuit has clarified that “[a] Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988). Defendants contend Plaintiffs failed to state a claim 7 because (1) § 105.6 gave the County discretion to revoke the 8 Riding Arena permit, and (2) Plaintiffs have not identified 9 local or state law entitling them to this permit. Mot. at 4. 10 Plaintiffs disagree, arguing they have sufficiently alleged a 11 vested right in the Riding Arena permit. 12 The Court agrees with Plaintiffs. Opp’n at 9-12. Defendants’ first 13 argument—that § 105.6 gave the County discretion to revoke the 14 Riding Arena—fails because that discretion applied only if the 15 County issued a permit based on “incorrect, inaccurate, or 16 incomplete information.” 17 the County issued the Riding Arena permit based on truthful 18 information because Plaintiffs built exactly what they applied 19 for—a Riding Arena. 20 (attached to FAC as Exh. U). 21 under § 105.6 to revoke the Riding Arena permit. California Building Code § 105.6. Yet See Ruling on Submitted Matter at 14 So, the County lacked discretion 22 Defendants’ second argument that Plaintiffs have not 23 identified law entitling them to the Riding Arena permit also 24 fails. 25 arose under an equitable estoppel theory. 26 (Plaintiffs acquired a vested right in Riding Arena permit 27 because they spent millions of dollars building it in reliance 28 on the issued permit). Plaintiffs allege their legitimate entitlement claim See FAC ¶ 51 This sufficiently identifies state law 8 1 granting Plaintiffs a vested right in the Riding Arena permit—a 2 right whose “impairment or destruction must not transgress 3 constitutional principles.” 4 Reg’l Comm’n, 101 Cal. App. 3d 38, 49 (1980)(“[A]n owner of 5 property acquires a vested right to construct a building where 6 the conduct of the government amounts to a representation that 7 such construction is fully approved and legal, and in reliance 8 on such representation the owner materially changes position.”). 9 Because Plaintiffs have alleged a protectable property interest See Stanson v. San Diego Coast 10 in the revoked Riding Arena permit, the Court denies Defendants’ 11 motion to dismiss the first cause of action. 12 13 2. Fourth Cause of Action: Breach of Contract In drafting their FAC, Plaintiffs added a new claim brought 14 against only the County, alleging that the County breached a 15 written agreement when it revoked the Riding Arena permit. 16 ¶¶ 73, 78. 17 because they never sought, and this Court never granted, leave 18 to amend to add new causes of action. 19 Id. Defendants argue Plaintiffs failed to state a claim Mot. at 4. When a plaintiff amends a complaint by adding new claims 20 without first seeking leave, a court may dismiss those new 21 claims for failure to state a claim. 22 States, 482 F.3d 1058, 1060 n.4 (9th Cir. 2007) (declining to 23 remand to district court to allow leave to amend complaint to 24 add new claim when plaintiffs did not seek district court’s 25 leave). 26 not grant leave to amend to add a new claim, the Court dismisses 27 the fourth cause of action without prejudice. 28 Upton, 703 F. Supp. 2d 1037, 1051 (E.D. Cal. 2010) (dismissing See Synagogue v. United Because Plaintiffs did not request and the Court did 9 See Clarke v. 1 eighth claim because it was “entirely new and leave to amend to 2 allege it was neither requested nor granted”). 3 The Court need not fully address the County’s other 4 arguments in support of its motion to dismiss this breach of 5 contract claim, however, the Court notes that this claim as 6 currently pled in the FAC seems to lack specificity regarding 7 the exact terms of the alleged contract(s) and the manner in 8 which the breach occurred. 9 10 11 III. ORDER For the reasons set forth above, the Court GRANTS in part 12 and DENIES in part Defendants’ Motion to Dismiss/Strike as 13 follows: 14 1. Defendants’ motion to strike all allegations pertaining 15 to the revoked Horse Stables and Restroom Building permits as 16 immaterial and impertinent is GRANTED; 17 2. Defendants’ motion to dismiss the first cause of action 18 is DENIED to the extent it is brought against the revoked Riding 19 Arena permit; and 20 21 22 3. Defendants’ motion to dismiss the fourth cause of action is GRANTED WITHOUT PREJUDICE. If Plaintiffs want to amend their FAC to include a new cause 23 of action against the County for breach of contract, they shall 24 file a second amended complaint within twenty days from the date 25 of this Order. 26 action. 27 days thereafter. 28 case will proceed on the remaining claims, and Defendants shall Plaintiffs shall not include other new causes of Defendants’ responsive pleadings are due within twenty If Plaintiffs elect not to amend their FAC, the 10 1 file their answer to the FAC within thirty days from the date of 2 this Order. 3 4 IT IS SO ORDERED. Dated: February 27, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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