Alvarez et al v. Lake County Board of Supervisors et al

Filing 76

ORDER by Judge Nandor J. Vadas Granting In Part and Denying In Part 60 Defendants' Motion to Dismiss the Amended Complaint. Plaintiff is granted fourteen (14) days from the date of service of this order to file a Second Amended Complaint (SAC). Defendants must file an answer to the SAC within twenty-one (21) days after Plaintiff files the SAC. A case management conference will be held on June 21, 2011 at 2:00 p.m. (njvlc2, COURT STAFF) (Filed on 5/25/2011)

1
2
3

NOT FOR CITATION

4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

EUREKA DIVISION

11
For the Northern District of California

United States District Court

10

12

15
16

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS THE AMENDED
COMPLAINT

Plaintiff,

13
14

No. CV 10-1071 NJV

FLORIDALMA ALVAREZ,

v.
LAKE COUNTY BOARD OF SUPERVISORS,
et al.,
Defendants.

(Docket No. 60)

/

17
18

This is an action based on the denial of a building permit to Plaintiff Floridalma Alvarez and

19

an order directing Plaintiff to abate the nuisance by Defendants Lake County Board of Supervisors,

20

Lake County, Lake County Code Enforcement Manager (i.e., Manager of the County’s Code

21

Enforcement Division) Voris Brumfield in her individual and official capacity, and Director of Lake

22

County Community Development Department Richard Coel in his individual and official capacity.

23

The parties have consented to the jurisdiction of this Court as required by 28 U.S.C. § 636(c). After

24

the Court granted in part and denied in part Defendants’ motion to dismiss the original complaint,

25

Plaintiff filed an Amended Complaint (“AC”). Doc. No. 58. Defendants now move to dismiss the

26

AC. Doc. No. 60. Plaintiff has filed her opposition and Defendants have filed their reply. Doc.

27

Nos. 69 & 72. Having considered the arguments of the parties and the papers submitted, and for

28

good cause shown, the Court grants in part and denies in part Defendants’ motion to dismiss.

1

I. BACKGROUND

2

Plaintiff owned, but no longer currently owns, property located at 10865 Pine Point Road in

3

Cobb, California. AC ¶ 6; Defs.’ Request for Judicial Notice (“RJN”), Ex. A (Doc. No. 61). This

4

action is based on Defendant Lake County Board of Supervisors’ denial of Plaintiff’s building

5

permit to build a home on her property and the Board’s order to abate the nuisance requiring

6

Plaintiff to remove personal property and a storage facility on this property. On September 3, 2010,

7

Plaintiff Alvarez filed a notice that Plaintiff Bezdenejnykh had withdrawn from the lawsuit. Doc.

8

No. 46.

dismiss the original complaint. Doc. No. 49. Three causes of action were permitted to go forward:

11
For the Northern District of California

On September 13, 2010, the Court granted in part and denied in part Defendants’ motion to

10

United States District Court

9

(1) a due process claim under 42 U.S.C. § 1983 for deprivation of property; (2) a separate due

12

process claim raising a void for vagueness challenge to Section 106.1 of the Uniform Building Code;

13

and (3) a claim of racial discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3604. All

14

other claims were dismissed. Plaintiff was granted leave to amend her claims for due process

15

violations and Fair Housing Act violations against individual Defendants Brumfield and Coel, and

16

disability discrimination in violation of the Fair Housing Amendments Act. This leave to amend,

17

however, required Plaintiff to correct the deficiencies in the original complaint. In addition, Plaintiff

18

was ordered to file an amended complaint removing from the original complaint the following:

19

(1) the third cause of action for “essential use of land”; (2) the fourth cause of action for taking

20

private property; (3) the fifth cause of action for “land patent law”; (4) the sixth cause of action for a

21

cease and desist order and paragraphs 73 and 75 regarding the same; (5) the seventh cause of action

22

for intentional infliction of emotional distress; and (6) claims based on Plaintiff’s Seventh

23

Amendment right to a jury trial. Plaintiff only partially complied with the Court’s order.

24

Plaintiff filed her Amended Complaint on October 22, 2010, raising the following claims:

25

(1) a due process claim for deprivation of property; (2) a due process claim that Section 106.1 of the

26

Uniform Building Code is void for vagueness; (3) a violation of the federal Fair Housing Act,

27

42 U.S.C. § 3604, for racial discrimination; (4) violations of due process and the Fair Housing Act;

28

(5) disability discrimination in violation of the Fair Housing Amendments Act; and (6) intentional
2

1

infliction of emotional distress. The AC also includes several allegations regarding the “essential

2

use of land,” Plaintiff’s Seventh Amendment right to a jury trial, and “land patent” rights.

3

On October 18, 2010, Plaintiffs filed a notice of voluntary dismissal with prejudice of

4

Plaintiff Bezdenejnykh. Doc. No. 57. The AC does not name Mr. Bezdenejnykh as a plaintiff or

5

seek relief on his behalf. On November 16, 2010, the Court dismissed Mr. Bezdenejnykh with

6

prejudice. Doc. No. 63.

7

Defendants now move to dismiss all causes of action in the AC except the second cause of

strike all allegations in the AC regarding the “essential use of land,” Plaintiff’s Seventh Amendment

10

right to a jury trial, and the request for exemplary and punitive damages. In their reply, Defendants

11
For the Northern District of California

action challenging Uniform Building Code § 106.1 as void for vagueness. Defendants also move to

9

United States District Court

8

argue that Plaintiff did not conform to the local rules and requirements for an opposition. Due to

12

this failure, Defendants argue that Plaintiff has waived her objections to the motion to dismiss. The

13

Court previously rejected this argument on Defendants’ motion to dismiss the original complaint and

14

denies it again here for the same reasons. Plaintiff is proceeding pro se and courts generally

15

interpret pro se pleadings and briefs liberally. See, e.g., Balistreri v. Pacifica Police Dep’t, 901 F.2d

16

696, 699 (9th Cir. 1990). However inartfully drafted, the Court is able to understand and infer

17

Plaintiff’s arguments in opposition to Defendants’ motion to dismiss.

18

Pursuant to the parties’ stipulation, the hearing on Defendants’ motion to dismiss was

19

continued and the Court heard argument on Defendants’ motion on February 22, 2011. Doc. No. 65.

20

II. DISCUSSION

21
22

A.

Legal Standards
A complaint must contain a “short and plain statement of the claim showing that the pleader

23

is entitled to relief.” Fed. R. Civ. P. 8(a). While Rule 8 “does not require ‘detailed factual

24

allegations,’” a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

25

to relief that is plausible on its face.’” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949

26

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). Facial plausibility

27

is established “when the plaintiff pleads factual content that allows the court to draw the reasonable

28

inference that the defendant is liable for the misconduct alleged.” Id.
3

1

In ruling on a motion to dismiss, courts may consider only “the complaint, materials

2

incorporated into the complaint by reference, and matters of which the court may take judicial

3

notice.” Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).

4

When matters outside the pleadings are presented on a Rule 12(b)(6) motion and are not excluded by

5

the court, the court must convert the Rule 12(b)(6) motion to a Rule 56 summary judgment motion.

6

Fed. R. Civ. P. 12(d).

7

Dismissal under Rule 12(b)(6) is appropriate if the complaint does not give the defendant fair

Dismissal of a complaint can be based on either the lack of a cognizable legal theory or the lack of

10

sufficient facts alleged under a cognizable legal theory. Balistreri, 901 F.2d at 699. In considering

11
For the Northern District of California

notice of a legally cognizable claim and the grounds on which it rests. Twombly, 550 U.S. at 555.

9

United States District Court

8

whether the complaint is sufficient to state a claim, the court will take all material allegations as true

12

and construe them in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d

13

896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the

14

allegations in the pleadings, when the complaint is accompanied by attached documents, such

15

documents are deemed part of the complaint and may be considered in evaluating the merits of a

16

Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

17

The court construes the complaint liberally because it was drafted by a pro se plaintiff.

18

Balistreri, 901 F.2d at 699. When granting a motion to dismiss, the court is generally required to

19

provide pro se litigants with “an opportunity to amend the complaint to overcome deficiencies

20

unless it is clear that they cannot be overcome by amendment.” Eldridge v. Block, 832 F.2d 1132,

21

1135-36 (9th Cir. 1987). In determining whether amendment would be futile, the court examines

22

whether the complaint could be amended to cure the defect requiring dismissal “without

23

contradicting any of the allegations of [the] original complaint.” Reddy v. Litton Indus., Inc., 912

24

F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended

25

complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97.

26

B.

Judicial Notice

27

In support of their motion to dismiss, Defendants request that the Court take judicial notice

28

(“RJN”) of documents regarding the ownership of the underlying property and the Court’s “entire
4

1

file in this action.” Doc. No. 61. Courts may take judicial notice of facts that are “either (1)

2

generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and

3

ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.

4

Evid. 201(b).

5

The Court grants Defendants’ request to take judicial notice of Exhibit A, which is

6

comprised of documents regarding the ownership of the underlying property at 10865 Pine Point

7

Road, Cobb, California. See Defs.’ RJN, Ex. A (grant deed, deed of trust, notice of pendency of

8

action in state court, and quitclaim deeds). These property and court documents are capable of

9

accurate and ready determination. See Fed. R. Evid. 201(b). As the Court has previously explained,
Defendants’ request to take judicial notice of the Court’s own file in this action, including its order

11
For the Northern District of California

United States District Court

10

on Defendants’ motion to dismiss the original complaint is unnecessary and will be denied.1 Defs.’

12

RJN, Ex. B.

13

C.

14

First Cause of Action: Deprivation of Property Without Due Process
In the first cause of action, Plaintiff alleges a deprivation of property without due process,

15

including language from the Court’s order on the motion to dismiss the original complaint. AC ¶ 33.

16

The AC adds allegations against individual Defendants Coel and Brumfield, describing their role in

17

the denial of the building permit and in the loss of Plaintiff’s property. Id. Construed in the light

18

most favorable to Plaintiff, the AC’s allegations are sufficient to state a procedural due process claim

19

against all Defendants based on Defendants wrongfully requiring, then denying, a building permit

20

and causing Plaintiff’s loss of personal property allegedly valued at $40,000 in building materials

21

and $42,000 in personal belongings. Id. at ¶ 11. This cause of action may proceed.

22

D.

Second Cause of Action: Vagueness of Uniform Building Code § 106.1

23

The second cause of action alleges a due process challenge to Section 106.1 of the Uniform

24

Building Code as unconstitutionally vague as applied to Plaintiff. See U.S. v. Other Medicine, 596

25

F.3d 677, 682 (9th Cir. 2010) (“[V]agueness challenges to statutes that do not involve First

26

Amendment violations must be examined as applied to the [party challenging the statute].”)

27
28

1

In both the RJN and motion to dismiss the AC, Defendants have raised similar arguments
the Court previously denied in its order on Defendants’ motion to dismiss the original complaint.
5

1

(citations omitted). Defendants do not move to dismiss this cause of action and the Court previously

2

held that this cause of action was sufficiently alleged to proceed.

3

E.

4

Third Cause of Action: Racial Discrimination in Violation of the Fair Housing Act
In the third cause of action, Plaintiff alleges a claim of racial discrimination in violation of

5

the Fair Housing Act. AC ¶ 54; see also id. at ¶ 58. Plaintiff alleges that Defendants treated her

6

differently than non-Hispanic individuals in the denial of the building permit. Id. at ¶¶ 7, 54; see

7

also id. at ¶ 58. Defendants argue that the AC fails to state a claim against individual Defendants

8

Coel and Brumfield.

original complaint, the AC’s allegations support a claim against the entity Defendants for race-based

11
For the Northern District of California

As described in more detail in the Court’s order on Defendants’ motion to dismiss the

10

United States District Court

9

discrimination, alleging an anti-Hispanic remark by a member of the Lake County Board of

12

Supervisors. AC ¶¶ 7 (alleging denial of building permit based on anti-Hispanic motive and alleging

13

that similarly situated owners in the neighborhood have been issued building permits under similar

14

circumstances regarding lack of a public water system and availability of private water system), 54

15

(same), 58 (same). The AC fails, however, to include allegations identifying discriminatory conduct

16

by individual Defendants Coel and Brumfield. Plaintiff’s statements that she believes Defendants

17

Coel and Brumfield’s conduct was racially motivated is insufficient. See id. at ¶ 54, 31:21-26 (“It is

18

my belief after taking a detailed view of the whole picture, that behind these contradictory demands

19

was racism and discrimination ... due to my Spanish surname, which was the only one in the

20

subdivision community wherein my property was located.”). The third cause of action, as to

21

individual Defendants Coel and Brumfield, is dismissed with prejudice because the Court has

22

already provided Plaintiff with “an opportunity to amend the complaint to overcome deficiencies”

23

and it is now clear that these deficiencies “cannot be overcome by amendment.” See Eldridge, 832

24

F.2d at 1135-36. This cause of action may proceed against the entity Defendants.

25

F.

26

Fourth Cause of Action: Due Process and Fair Housing Act Violations
In the fourth cause of action, Plaintiff alleges disability discrimination in violation of the Fair

27

Housing Amendments Act for Defendants’ denial of Plaintiff’s request for reasonable

28

accommodation based on her disability. AC ¶ 56. The Amended Complaint continues to fail,
6

1

however, to identify Plaintiff’s disability despite the Court’s order on Defendants’ motion to dismiss

2

the original complaint. See id. at ¶¶ 27, 54, 56, 61; see also id. at ¶ 42. In addition, the AC suggests

3

that former Plaintiff Bezdenejnykh was disabled, not remaining Plaintiff Alvarez. See id. at ¶ 58,

4

page 44; id. at Ex. 12. Mr. Bezdenejnykh is no longer part of this action and a claim for

5

discrimination based on Mr. Bezdenejnykh’s alleged disability is improper. The fourth cause of

6

action for disability discrimination is dismissed with prejudice because the Court has already

7

provided Plaintiff with “an opportunity to amend the complaint to overcome deficiencies” and it is

8

now clear that these deficiencies “cannot be overcome by amendment.” See Eldridge, 832 F.2d at

9

1135-36.
To the extent that this cause of action raises allegations of a due process violation for

11
For the Northern District of California

United States District Court

10

deprivation of property, such allegations are repetitive with those allegations raised in the first cause

12

of action. See AC ¶ 56, pages 40-41.

13

This cause of action refers in passing to the Americans with Disability Act (“ADA”). Id. at

14

¶ 56, page 41. The Court does not interpret this passing reference to constitute an ADA claim.

15

G.

Fifth Cause of Action: Disability Discrimination in Violation of the Fair Housing

16

Amendments Act

17

The fifth cause of action repeats the earlier claims of racial and disability discrimination

18

raised in the third and fourth causes of action. See AC ¶ 58. As discussed above, the disability

19

discrimination claim is dismissed with prejudice for failure to state a claim upon which relief can be

20

granted. Allegations of racial discrimination included in the fifth cause of action should be added to

21

the third cause of action. Id. at 43:27-44:4. Therefore, the fifth cause of action is dismissed with

22

prejudice as to the disability discrimination claim and stricken as to the remainder.

23

H.

24

Sixth Cause of Action: Intentional Infliction of Emotional Distress
The sixth cause of action alleges intentional infliction of emotional distress. The Court

25

previously dismissed this claim against all Defendants, both the individual and entity Defendants,

26

based on state law immunities. The AC re-pleads an intentional infliction of emotional distress

27

claim but fails to overcome the state law immunities. To the extent that the sixth cause of action

28

refers to discrimination claims, these claims are raised in the third, fourth, and fifth causes of action.
7

1

The sixth cause of action is therefore dismissed with prejudice because the Court has already

2

provided Plaintiff with “an opportunity to amend the complaint to overcome deficiencies” and it is

3

now clear that these deficiencies “cannot be overcome by amendment.” See Eldridge, 832 F.2d at

4

1135-36.

5

I.

Previously Dismissed Claims: “Essential Use of Land,” Seventh Amendment, and

The Court previously dismissed Plaintiff’s claims based on the “essential use of land,” her

8

Seventh Amendment right to a jury trial, and “land patent” rights, and ordered Plaintiff to remove

9

such allegations from the AC. The AC does not raise any new allegations to overcome the

10

deficiencies regarding these previously dismissed claims, but still includes such allegations

11
For the Northern District of California

“Land Patent”

7

United States District Court

6

throughout the AC. For example, the AC includes allegations regarding the right to the “essential

12

use of land” (AC ¶¶ 9, 14, 18, 31, 48); Seventh Amendment right to a jury trial (AC ¶¶ 3, 10, 16, 25

13

at 15:8-12, 33 at 21:13, 35 at 22:13-20, 37, 38, 58 at 45:9-13); and “land patent” rights (AC ¶ 19 at

14

12:17-21). All allegations regarding these previously dismissed claims are stricken from the AC and

15

must be removed. Though the AC is liberally construed because Plaintiff is proceeding pro se, the

16

Court cannot act as Plaintiff’s lawyer.

17

J.

18

Exemplary and Punitive Damages
Plaintiff seeks exemplary and punitive damages for her racial discrimination, disability

19

discrimination, and intentional infliction of emotional distress claims. AC ¶¶ 66, 67, 70. As

20

described above, the Court has dismissed with prejudice the disability discrimination and intentional

21

infliction of emotional distress claims. The Court grants Defendants’ request to strike the AC’s

22

corresponding requests for damages based on the dismissed claims. See id. at ¶¶ 66, 68, 70.

23

Plaintiff is ordered to remove these paragraphs when filing an amended pleading.

24

It is unclear whether Defendants are also arguing that Plaintiff is barred from seeking

25

exemplary or punitive damages for her racial discrimination claim, which has not been dismissed

26

and proceeds only against entity Defendants Lake County and Lake County Board of Supervisors.

27

Though punitive damages are authorized under the Fair Housing Act, 42 U.S.C. § 3613(c)(1), the

28

Fair Housing Act does not expressly authorize punitive damages against municipalities. The Court
8

1

instructs the parties to address on summary judgment whether punitive damages for the racial

2

discrimination claim under the Fair Housing Act may proceed against the entity Defendants.2

3

III. CONCLUSION

4

For the reasons described above, the Court GRANTS IN PART AND DENIES IN PART

5

Defendants’ motion to dismiss the Amended Complaint. In summary:

6

1.

7
8

Defendants’ request to take judicial notice of Exhibit B and the court’s file in this action.
2.

9

The first cause of action for deprivation of property without due process sufficiently states a
claim upon which relief can be granted.

3.

Defendants do not move to dismiss the second cause of action challenging Uniform Building

11
For the Northern District of California

United States District Court

10

The Court grants Defendants’ request to take judicial notice of Exhibit A and denies

Code § 106.1 as unconstitutionally vague and the Court previously held that this cause of

12

action was sufficiently alleged to proceed.

13

4.

The third cause of action for racial discrimination, as to individual Defendants Coel and

14

Brumfield, is dismissed with prejudice for failure to state a claim upon which relief can be

15

granted. This cause of action may, however, proceed against the entity Defendants.

16

5.

The fourth cause of action for disability discrimination is dismissed with prejudice for failure

17

to state a claim upon which relief can be granted. Plaintiff is instructed to remove the fourth

18

cause of action.

19

6.

The fifth cause of action is dismissed with prejudice as to the disability discrimination claim

20

and stricken as to the remainder. Plaintiff is instructed to add the allegations of racial

21

discrimination included in the fifth cause of action to the third cause of action as described

22

above and then remove the fifth cause of action.

23
24
25
26
27
28

2

To prevent future confusion, the Court notes that the issue of whether the entity Defendants
are immune from liability for exemplary or punitive damages was not decided on merits, contrary to
Defendants’ statements in their motion. Defs.’ Mot. at 12 (Doc. No. 60). The Court’s previous order
found that the immunity issue for exemplary and punitive damages for Plaintiff’s intentional infliction
of emotional distress claim was moot because the Court dismissed this claim. The Court also did not
address exemplary or punitive damages for Plaintiff’s racial discrimination claim.
9

1

7.

The sixth cause of action for intentional infliction of emotional distress is dismissed with

2

prejudice for failure to state a claim upon which relief can be granted. Plaintiff is instructed

3

to remove the sixth cause of action.

4

8.

Allegations regarding the “essential use of land,” Plaintiff’s Seventh Amendment right to a

5

jury trial, and “land patent” rights are stricken. As described in more detail above, Plaintiff

6

is instructed to remove these allegations from the Amended Complaint.

7

9.

The Amended Complaint’s requests for any damages, including exemplary and punitive

8

damages, based on the dismissed claims of disability discrimination and intentional infliction

9

of emotional distress are stricken. Plaintiff is instructed to remove these damages requests.

11
For the Northern District of California

United States District Court

10
Plaintiff is granted fourteen (14) days from the date of service of this order to file a Second

12

Amended Complaint (“SAC”), remedying the defects in the AC as explained above and subject to

13

the limitations noted above. The pleading should be clearly labeled “Second Amended Complaint”

14

and must have the docket number of this case on the title page. Plaintiff’s failure to timely file a

15

SAC in compliance with this order may result in the dismissal of this entire action. Defendants must

16

file an answer to the SAC within twenty-one (21) days after Plaintiff files the SAC.

17

A case management conference will be held on June 21, 2011 at 2:00 p.m. to discuss

18

scheduling. The parties may appear by telephone and need to contact the courtroom deputy, Gloria

19

Masterson, by email to confirm their telephone appearance ([e-mail]).

20
21

IT IS SO ORDERED.

22
23

Dated: May 25, 2011

24

_________________________________
NANDOR J. VADAS
United States Magistrate Judge

25
26
27
28
10