Lenkner et al v. County of Tehama

Filing 26

ORDER signed by District Judge John A. Mendez on 12/6/2017 GRANTING 14 Motion to Dismiss with leave to amend. Plaintiffs' amended complaint must be filed within 20 days from the date of this Order. The 23 Motion to Amend is DISMISSED as moot. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT LENKNER, et al.,

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Plaintiffs,

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v.

No.

2:17-cv-01839-JAM-CMK

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

COUNTY OF TEHAMA,

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Defendant.

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Certain citizens of Tehama County seek to contest the

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County’s procedures for issuing citations and assessing fees for

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alleged public nuisances.

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the Complaint under Federal Rule of Civil Procedure 12(b)(6) for

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failure to state a claim.

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Defendant’s motion is granted with leave to amend. 1
I.

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For the reasons set forth below,

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The following allegations are taken as true for the purposes

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The Defendant County moves to dismiss

for this motion:
Plaintiffs are citizens of Tehama County and the Bilton

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 21, 2017.
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Family Revokable [sic] Trust.

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2017, Plaintiffs received letters from County of Tehama

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(“Defendant”) informing them that they were in alleged violation

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of a county ordinance and that their use of their residential

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properties had created a Public Nuisance.

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notices stated that the effective accrual date for the subject

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penalties was to begin Tuesday, September 5, 2017, at a rate of

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$1,000 per day, prior to any hearing on the subject matter.”

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at ¶ 10.

Compl. ¶¶ 5–6.

On August 31,

Id. at ¶¶ 9–10.

“The

Id.

Plaintiffs contend that the accrual of administrative

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penalties before a hearing is a violation of their due process

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rights and an attempt to intimidate Plaintiffs to abandon their

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right to be heard and to object to a search of their property.

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Id.

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placed on real property and a forced sale in order to satisfy

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unpaid penalties.

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They further allege that the ordinance allows a lien to be

Id. at ¶ 11.

Plaintiffs assert two causes of action.

First, Plaintiffs

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claim Tehama County Code Chapter 9.06—apparently the ordinance on

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which the notices were based—deprives them of due process of law

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under the Fifth and Fourteen Amendments and their right to be

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free from unreasonable search and seizure.

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Second, Plaintiffs claim that Defendant requires them to consent

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to a warrantless search and thus deprives them of their Fourth

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Amendment rights.

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Id. at ¶¶ 11–12.

Id. at ¶ 13.

When Plaintiffs filed this action, they sought a Temporary

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Restraining Order and Preliminary Injunction enjoining Defendant

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from conducting a hearing pursuant to Tehama County Ordinance

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§ 9.06.035, from assessing administrative penalties or

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enforcement costs prior to a hearing, and from any enforcement
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actions pursuant to the ordinance.

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Restraining Order, Proposed Order, ECF No. 1-3.

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the motion because Plaintiffs had not shown they were likely to

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succeed on the merits of their claim or that they were likely to

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suffer irreparable harm in the absence of preliminary relief.

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Order, ECF No. 12.

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October 12, 2017.

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Motion to Dismiss but instead filed a First Amended Complaint on

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November 9, 2017.

Motion for Temporary
The Court denied

Defendant filed a Motion to Dismiss on
ECF No. 14.

Plaintiffs did not oppose the

ECF No. 19.

The Court ordered the First

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Amended Complaint stricken because it was filed outside of the

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21-day window permitted under Federal Rule of Civil Procedure

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15(a).

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Court unopposed.

ECF No. 22.

Defendant’s Motion to Dismiss is before the

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II.

OPINION

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A.

Legal Standard

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While the Rule 8 pleading standard does not require detailed

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factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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556 U.S. 662, 678 (2009).

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merely offers “labels and conclusion” or “naked assertions devoid

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of further factual enhancement.”

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v. Twombly, 550 U.S. 544, 555–57 (2007)) (quotation marks

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omitted).

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the Court’s review is limited to the Complaint.

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United States, 990 F.2d 451, 454 (9th Cir. 1993).

Ashcroft v. Iqbal,

A pleading is insufficient if it

Id. (citing Bell Atlantic Corp.

On a motion to dismiss for failure to state a claim,
See Farr v.

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B.

Analysis

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The Court is compelled to dismiss the Complaint because it

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is devoid of factual allegations supporting Plaintiffs’ claims.
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On the first cause of action, Plaintiffs allege that

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penalties will accrue prior to any hearing on the subject matter.

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Plaintiffs have not alleged any other facts concerning the

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hearing or process, facts concerning the ordinance, or facts

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concerning Plaintiffs’ activities that caused the notices to

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issue.

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that the accrual of penalties prior to hearing is a due process

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violation where penalties do not become due until after notice

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and a hearing.

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See Compl.

Furthermore, the Court remains unconvinced

See Order, ECF No. 12.

As to the search and seizure allegations—included under both

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the first and second cause of action—the Complaint contains no

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facts supporting the claim that Plaintiffs are forced to consent

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to a warrantless search.

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In sum, Plaintiffs’ bare and conclusory allegations fail to

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state a plausible claim for relief and the Complaint must be

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dismissed.

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without leave to amend.

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Plaintiffs’ first attempt to plead their case and the Court is

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not yet convinced that amendment is futile, leave to amend is

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granted. 2

Defendant asks the Court to grant their motion
However, as the Complaint represents

III.

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ORDER

For the reasons set forth above, the Court GRANTS

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The Court issued a Status (Pre-trial Scheduling) Order in this
case on the same day Plaintiffs filed their First Amended
Complaint. ECF Nos. 18 & 19. The Order states that no further
joinder of parties or amendments to pleadings is permitted except
with leave of court. Under the circumstances, and for the
reasons stated in this Order, Plaintiffs are permitted leave to
amend their complaint. Any amendment beyond that is subject to
the restrictions in the Court’s Status Order.
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Defendant’s Motion to Dismiss with leave to amend.

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amended complaint must be filed within twenty days from the date

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of this Order.

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twenty days thereafter.

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Plaintiffs’

Defendant’s responsive pleading is due within

Plaintiffs’ Motion to Amend, ECF No. 23, is dismissed as
moot.
IT IS SO ORDERED.
Dated: December 6, 2017

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