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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT LENKNER, et al., 11 Plaintiffs, 12 13 v. No. 2:17-cv-01839-JAM-CMK ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COUNTY OF TEHAMA, 14 Defendant. 15 Certain citizens of Tehama County seek to contest the 16 17 County’s procedures for issuing citations and assessing fees for 18 alleged public nuisances. 19 the Complaint under Federal Rule of Civil Procedure 12(b)(6) for 20 failure to state a claim. 21 Defendant’s motion is granted with leave to amend. 1 I. 22 For the reasons set forth below, FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND The following allegations are taken as true for the purposes 23 24 The Defendant County moves to dismiss for this motion: Plaintiffs are citizens of Tehama County and the Bilton 25 26 27 28 1 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. 1 1 Family Revokable [sic] Trust. 2 2017, Plaintiffs received letters from County of Tehama 3 (“Defendant”) informing them that they were in alleged violation 4 of a county ordinance and that their use of their residential 5 properties had created a Public Nuisance. 6 notices stated that the effective accrual date for the subject 7 penalties was to begin Tuesday, September 5, 2017, at a rate of 8 $1,000 per day, prior to any hearing on the subject matter.” 9 at ¶ 10. Compl. ¶¶ 5–6. On August 31, Id. at ¶¶ 9–10. “The Id. Plaintiffs contend that the accrual of administrative 10 penalties before a hearing is a violation of their due process 11 rights and an attempt to intimidate Plaintiffs to abandon their 12 right to be heard and to object to a search of their property. 13 Id. 14 placed on real property and a forced sale in order to satisfy 15 unpaid penalties. 16 They further allege that the ordinance allows a lien to be Id. at ¶ 11. Plaintiffs assert two causes of action. First, Plaintiffs 17 claim Tehama County Code Chapter 9.06—apparently the ordinance on 18 which the notices were based—deprives them of due process of law 19 under the Fifth and Fourteen Amendments and their right to be 20 free from unreasonable search and seizure. 21 Second, Plaintiffs claim that Defendant requires them to consent 22 to a warrantless search and thus deprives them of their Fourth 23 Amendment rights. 24 Id. at ¶¶ 11–12. Id. at ¶ 13. When Plaintiffs filed this action, they sought a Temporary 25 Restraining Order and Preliminary Injunction enjoining Defendant 26 from conducting a hearing pursuant to Tehama County Ordinance 27 § 9.06.035, from assessing administrative penalties or 28 enforcement costs prior to a hearing, and from any enforcement 2 1 actions pursuant to the ordinance. 2 Restraining Order, Proposed Order, ECF No. 1-3. 3 the motion because Plaintiffs had not shown they were likely to 4 succeed on the merits of their claim or that they were likely to 5 suffer irreparable harm in the absence of preliminary relief. 6 Order, ECF No. 12. 7 October 12, 2017. 8 Motion to Dismiss but instead filed a First Amended Complaint on 9 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 10 Amended Complaint stricken because it was filed outside of the 11 21-day window permitted under Federal Rule of Civil Procedure 12 15(a). 13 Court unopposed. ECF No. 22. Defendant’s Motion to Dismiss is before the 14 II. OPINION 15 A. Legal Standard 16 While the Rule 8 pleading standard does not require detailed 17 factual allegations, “it demands more than an unadorned, the- 18 defendant-unlawfully-harmed-me accusation.” 19 556 U.S. 662, 678 (2009). 20 merely offers “labels and conclusion” or “naked assertions devoid 21 of further factual enhancement.” 22 v. Twombly, 550 U.S. 544, 555–57 (2007)) (quotation marks 23 omitted). 24 the Court’s review is limited to the Complaint. 25 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. 26 B. Analysis 27 The Court is compelled to dismiss the Complaint because it 28 is devoid of factual allegations supporting Plaintiffs’ claims. 3 1 On the first cause of action, Plaintiffs allege that 2 penalties will accrue prior to any hearing on the subject matter. 3 Plaintiffs have not alleged any other facts concerning the 4 hearing or process, facts concerning the ordinance, or facts 5 concerning Plaintiffs’ activities that caused the notices to 6 issue. 7 that the accrual of penalties prior to hearing is a due process 8 violation where penalties do not become due until after notice 9 and a hearing. 10 See Compl. Furthermore, the Court remains unconvinced See Order, ECF No. 12. As to the search and seizure allegations—included under both 11 the first and second cause of action—the Complaint contains no 12 facts supporting the claim that Plaintiffs are forced to consent 13 to a warrantless search. 14 In sum, Plaintiffs’ bare and conclusory allegations fail to 15 state a plausible claim for relief and the Complaint must be 16 dismissed. 17 without leave to amend. 18 Plaintiffs’ first attempt to plead their case and the Court is 19 not yet convinced that amendment is futile, leave to amend is 20 granted. 2 Defendant asks the Court to grant their motion However, as the Complaint represents III. 21 ORDER For the reasons set forth above, the Court GRANTS 22 23 24 25 26 27 28 2 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. 4 1 Defendant’s Motion to Dismiss with leave to amend. 2 amended complaint must be filed within twenty days from the date 3 of this Order. 4 twenty days thereafter. 5 6 7 8 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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