Boyd v. Santa Cruz County et al

Filing 48

ORDER GRANTING 29 PLAINTIFF'S APPLICATION TO WITHDRAW HIS MOTION TO REMAND AND TERMINATING 11 MOTION TO REMAND; TERMINATING AS MOOT 29 PLAINTIFF'S MOTION TO VACATE MAY 28, 2015 HEARING; DENYING 29 PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT; GRANTING 27 PLAINTIFF'S MOTION TO AMEND COMPLAINT; AND TERMINATING AS MOOT 12 , 16 , 23 , 30 DEFENDANTS' MOTIONS TO DISMISS. Signed by Judge Beth Labson Freeman on 6/1/2015. (blflc1, COURT STAFF) (Filed on 6/1/2015)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MICHAEL E. BOYD,

United States District Court
Northern District of California

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Case No. 15-cv-00405-BLF

Plaintiff,

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v.

SANTA CRUZ COUNTY, et al.,
Defendants.

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ORDER GRANTING PLAINTIFF’S
APPLICATION TO WITHDRAW HIS
MOTION TO REMAND AND
TERMINATING MOTION TO
REMAND; TERMINATING AS MOOT
PLAINTIFF’S MOTION TO VACATE
MAY 28, 2015 HEARING; DENYING
PLAINTIFF’S MOTION FOR ENTRY
OF DEFAULT; GRANTING
PLAINTIFF’S MOTION TO AMEND
COMPLAINT; AND TERMINATING AS
MOOT DEFENDANTS’ MOTIONS TO
DISMISS
[RE: ECF 11, 12, 16, 19, 23, 27, 30

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This order addresses the following motions, which have been submitted for decision
without oral argument pursuant to the Court’s order dated May 22, 2015 (ECF 47):

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(1)

a Motion to Remand (ECF 11) filed by Plaintiff Michael E. Boyd (“Plaintiff”);

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(2)

a Motion to Dismiss (ECF 12) filed by the City of Santa Cruz, Santa Cruz

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City Council, Katherine Beiers, Hillary Bryant, Lynn Robinson, Pamela Comstock,

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David Terrazas, Don Lane, Cynthia Mathews, and Micah Posner; a Joinder in the

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motion (ECF 16) by Sempervirens Fund and Fred Keeley; and a Joinder in the

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motion (ECF 23) by Colin Disheroon;

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(3)

Plaintiff’s Motion to Amend Complaint (ECF 27);

(4)

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Plaintiff’s Application to Withdraw Motion to Remand; Vacate May 28, 2015
Hearings; and Request for Entries of Defaults (ECF 29); and

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a Motion to Dismiss (ECF 30) filed by Charles Prevedelli and Rick Martinez.1

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(5)

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For the reasons discussed below, Plaintiff’s Application to Withdraw Motion to Remand is

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GRANTED and his Motion to Remand is TERMINATED; Plaintiff’s Application to Vacate the

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May 28, 2015 Hearings is TERMINATED as moot; Plaintiff’s Request for Entries of Defaults is

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DENIED; Plaintiff’s Motion to Amend Complaint is GRANTED; and Defendants’ Motions to

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Dismiss are TERMINATED as moot.
I.

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BACKGROUND
Plaintiff, proceeding pro se, filed this action in the Santa Cruz County Superior Court on

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United States District Court
Northern District of California

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July 15, 2014, challenging Santa Cruz County’s collection of taxes on medical cannabis, also

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referred to in the complaint as medical marijuana. Compl., Notice of Removal Exh. B, ECF 1-2.

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In the complaint, Plaintiff alleges that Santa Cruz County (“the County”) and its Board of

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Supervisors (“the Board”) adopted a resolution providing for a Special Election to be held on

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Tuesday, November 4, 2014, for the purpose of asking voters to pass an ordinance establishing a

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Cannabis Business Tax. Plaintiff claims that the imposition of such a tax would violate the

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California Constitution and deprive medical cannabis patients of federal civil rights protected by

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the United States Constitution. He also claims that, separate and apart from the proposed

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ordinance, Medi-Cal recipients are being charged unlawful use taxes and fees by cannabis

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dispensaries in the County. Although the complaint is not labeled as a class action, all four claims

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therein indicate that they are asserted on behalf of a class. The four claims are: (1) violation of

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California Constitution Article XIIID § 6; (2) violation of California Constitution Article XIII §

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32; (3) violation of California Constitution Article XIII C § 1; and (4) a claim under 42 U.S.C. §

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1983 for deprivation of federal civil rights guaranteed by the First Amendment and Due Process

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Clause of the United States Constitution.
The complaint names as defendants the County; the Board; and individual Board members

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Plaintiff’s Application for an Order to Show Cause why a Preliminary Injunction should not
Issue (ECF 28) is set for hearing on July 2, 2015 and is not addressed in this order.
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John Leopold, Zach Friend, Neal Coonerty, Greg Caput, and Bruce McPherson (collectively,

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“County Defendants”), and Does 1 to 50. The County Defendants filed an answer on August 20,

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2014.
On December 5, 2014, Plaintiff filed an Identification of Fictitious Named Defendants,

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identifying the following individuals and entities in place of Does 1-15: Doe 1, City of Santa Cruz

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(“City”); Doe 2, City Councilmember Pamela Comstock; Doe 3, City Councilmember David

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Terrazas; Doe 4, City Councilmember Hillary Bryant; Doe 5, Mayor Lynn Robinson; Doe 6, Vice

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Mayor Don Lane; Doe 7, City Councilmember Cynthia Mathews; Doe 8, City Councilmember

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Micah Posner; Doe 9, Rick Martinez, Deputy Chief of Police; Doe 10, Charles Prevedelli,
identified as “President, City of Santa Cruz Firefighters”; Doe 11, Fred Keeley, identified as

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United States District Court
Northern District of California

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“County Treasurer – Tax Collector & President Sempervirens Fund”; Doe 12, Sempervirens Fund;

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Doe 13, Former Mayor Katherine Beiers; Doe 14, Scott M. Jalbert, identified as “Chief, Santa

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Cruz County Fire Department”: and Doe 15, Colin Disheroon, identified as “Owner Association

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for Standardized Cannabis.” Identification, ECF 1-10. The City, City Councilmembers, and City

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officials are referred to herein collectively as “City Defendants.”

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On January 26, 2015, Plaintiff filed in the Santa Cruz County Superior Court a Motion to

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Amend Complaint, which was accompanied by a proposed first amended complaint. On January

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29, 2015, before the superior court ruled on that motion, Defendant Jalbert removed the case to

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federal district court. The case was assigned to the undersigned judge on February 4, 2015. The

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motions addressed herein were filed thereafter.

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II.

PLAINTIFF’S MOTION TO REMAND (ECF 11) AND APPLICATION TO

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WITHDRAW MOTION TO REMAND (ECF 29)

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On February 4, 2015, Plaintiff filed a motion to remand, asserting that Defendant Jalbert’s

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notice of removal was untimely, that it was not joined by all defendants, and that the action is not

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within the original jurisdiction of this Court. Pl.’s Mot. to Remand, ECF 11. Jalbert filed

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opposition on February 18, 2015, asserting that he filed the notice of removal less than thirty days

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after being served with the complaint on January 5, 2015. See Destfino v. Reiswig, 603 F.3d 952,

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956 (9th Cir. 2011) (“each defendant is entitled to thirty days to exercise his removal rights after
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being served”). Jalbert also notes that Plaintiff asserts a § 1983 claim, establishing federal

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question jurisdiction. See Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013) (federal question

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jurisdiction exists when a federal question is presented on the face of the plaintiff’s well-pled

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complaint).
With respect to joinder of all defendants, “[a]ll defendants who have been properly . . .

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served in the action must join a petition for removal.” Destfino, 603 F.3d at 956 (internal

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quotation marks and citation omitted) (alteration in original). If a defendant who has been

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properly served at the time of removal does not join in the removal, that defect may be cured if the

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defendant joins in the removal prior to the entry of judgment. Id. at 956-57. A review of the
docket shows that all but two defendants have joined in Defendant Jalbert’s removal of the action.

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United States District Court
Northern District of California

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See Joinders, ECF 17 (County Defendants); ECF 18 (City Defendants minus Prevedelli and

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Martinez); ECF 19 (Keeley and Sempervirens Fund); and ECF 20 (Disheroon). It is not clear

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whether the remaining two defendants, Prevedelli and Martinez, were served with the action

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before Jalbert filed the notice of removal – if they had not yet been served, their joinder in the

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removal is unnecessary.
On April 28, 2015, Plaintiff filed an application to withdraw his motion to remand. Pl.’s

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Applic., ECF 29. As discussed above, the removal was timely. No defect in removal is apparent

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based upon the record before the Court. There has been no opposition to the application to

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withdraw. Accordingly, Plaintiff’s application to withdraw his motion to remand is GRANTED

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and the motion to remand is hereby TERMINATED.

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III.

PLAINTIFF’S APPLICATION TO VACATE MAY 28, 2015 HEARING (ECF 29)
In the same application in which he seeks to withdraw his motion to remand, Plaintiff also

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seeks to vacate the May 28, 2015 hearing that was set in this case. Pl.’s Applic., ECF 29. That

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hearing was vacated by the Court’s order issued May 22, 2015. See Order, ECF 47. As a result,

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Plaintiff’s application to vacate the May 28, 2015 hearing is TERMINATED as moot.

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IV.

PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT (ECF 29)
Plaintiff’s April 28, 2015 application also requests entry of default against Defendants

Jalbert, Disheroon, Martinez, Prevedelli, Beiers, Sempervirens Fund, and Keeley. Pl.’s Applic.,
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ECF 29. Plaintiff has withdrawn his request for entry of default against Jalbert, acknowledging

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that Jalbert has answered the complaint. See Jalbert Answer, ECF 4. With respect to the others,

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default may be entered only against a party who “has failed to plead or otherwise defend.” Fed. R.

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Civ. P. 55(a). Disheroon, Martinez, Prevedelli, Beiers, Sempervirens Fund, and Keeley all have

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filed or joined in motions to dismiss. See ECF 12 (Beiers), ECF 16 (Sempervirens Fund and

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Keeley), ECF 23 (Disheroon), ECF 30 (Martinez and Prevedelli). Thus entry of default against

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those defendants would be inappropriate. See Mechanical Marketing, Inc. v. Sixxon Precision

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Machinery Co., Ltd., No. 5:CV 11–01844 EJD, 2011 WL 4635546, at *6 (N.D. Cal. Oct. 6, 2011)

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(“no default may be entered while a motion to dismiss is pending”). The request for entry of

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United States District Court
Northern District of California

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default is DENIED.
V.

MOTIONS TO DISMISS (ECF 12, 16, 23, 30) AND MOTION TO AMEND

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COMPLAINT (ECF 27)

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On February 5, 2015, the City Defendants minus Prevedelli and Martinez filed a motion to

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dismiss under Federal Rule of Civil Procedure 12(b)(6) on the basis that the complaint does not

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allege any conduct by moving parties or even mention them at all. City Defs.’ MTD, ECF 12.

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Keeley and Sempervirens Fund filed a joinder in that motion on February 11, 2015, and Disheroon

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filed a joinder in the motion on February 19, 2015. See Joinders, ECF 16, 23. On April 30, 2015,

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the remaining City Defendants, Martinez and Prevedelli, filed a virtually identical motion to

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dismiss under Rule 12(b)(6). Martinez and Prevedelli MTD, ECF 30.

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Plaintiff did not file opposition to the February 5, 2015 motion to dismiss. However,

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Defendants acknowledge that Plaintiff was not served with that motion when it was filed. See

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Kovacevich Decl. ¶¶ 5-7, ECF 44-1. Plaintiff, who is proceeding pro se, has not sought or been

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granted permission to become an ECF user. Thus Defendants are required to serve Plaintiff

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manually with documents that are filed electronically in this case. See Civ. L.R. 5-1(b).

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Defendants suggest that Plaintiff was served with the motion to dismiss on February 19, 2015,

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when Disheroon joined in the motion and served his joinder on Plaintiff. See id. ¶ 6. However,

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while the proof of service attached to Disheroon’s filing indicates that the joinder was served on

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Plaintiff, it does not indicate that the motion to dismiss was served on Plaintiff. Disheroon Joinder
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at 3, ECF 23. On April 30, 2015, Plaintiff was served with both the motion to dismiss filed on

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February 5, 2015 and the motion to dismiss filed on April 30, 2015. See Kovacevich Decl. ¶ 7.

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Plaintiff filed opposition to the April 30, 2015 motion on May 13, 2015. Pl.’s Opp., ECF

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40. Defendants filed a reply on May 21, 2015, treating that opposition as though it was addressed

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to both motions to dismiss. Defs.’ Reply, ECF 44.

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On April 28, 2015, two days before the second motion to dismiss was filed and before

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Plaintiff had been served with either motion to dismiss, Plaintiff filed a motion for leave to file a

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first amended complaint. Pl.’s MLTA, ECF 27. The City Defendants filed opposition on May 12,

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2015. City Defs.’ Opp., ECF 37. Plaintiff did not file a reply to that opposition. However, on
May 13, 2015, Plaintiff filed a reply in support of his Application to Withdraw Motion to Remand;

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United States District Court
Northern District of California

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Vacate May 28, 2015 Hearings; and Request for Entries of Defaults, in which he argues that he is

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entitled to amend his complaint as a matter of course under Federal Rule of Civil Procedure 15(a).

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Pl.’s Reply at 2-3, ECF 39. Although Plaintiff did not include that argument in his briefing on the

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motions to dismiss or the motion for leave to amend, the Court addresses it light of Plaintiff’s pro

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se status.

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Rule 15(a) provides in relevant part as follows:

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(1)

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Amending as a Matter of Course. A party may amend its pleadings once
as a matter of course within:
(A)

21 days after serving it, or

(B)

if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.

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Fed. R. Civ. P. 15(a)(1). The rule does not make clear whether the expiration of a plaintiff’s time

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to amend as of right with respect to one of several defendants bars the plaintiff from amending as

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of right with respect to other defendants, and the Ninth Circuit has not addressed that issue.

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However, other courts have held that “[i]f the case has more than one defendant, and not all have

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filed responsive pleadings, the plaintiff may amend the complaint as a matter of course with regard

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to those defendants that have yet to answer.” Williams v. Bd. of Regents of Univ. Sys. of Georgia,

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477 F.3d 1282, 1291 (11th Cir. 2007); see also French v Farm Bureau Mutual Ins. Co. of Idaho,
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No. CV 07-15-MO, 2007 WL 2011191, at *2 (D. Oregon July 6, 2007) (same); Ramirez v. Silgan

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Containers, No. CIV F 07-0091 AWI, 2007 WL 1241829, at *4 (E.D. Cal. Apr. 26, 2007) (same).

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In the present case, although the County Defendants and Jalbert have answered, the parties
moving for dismissal have not. As discussed above, Plaintiff’s motion for leave to amend was

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filed before he was served with either of the pending motions to dismiss. Consequently, when

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Plaintiff filed his motion for leave to amend, he was entitled to amend as of right with respect to

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the moving parties. See Fed. R. Civ. P. 15(a)(1)(B). 2 A motion for leave to amend thus was

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unnecessary. See Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988)

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(holding that a plaintiff’s motion for leave to amend was “unnecessary” because the plaintiff could

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have amended without leave of court). When a plaintiff makes an unnecessary request for leave to

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United States District Court
Northern District of California

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amend in such circumstances, the district court should grant it. Id. “When a party has the ability

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to amend a pleading as a matter of course, but nevertheless requests permission to amend, the

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party’s right to amend is not lost and the court is obliged to grant such unnecessary requests.” Hill

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v. Clovis Police Dep’t, No. 1:11–cv–1391 AWI SMS, 2011 WL 5828224, at *9 (E.D. Cal. Nov.

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18, 2011) (citing Sparling, 864 F.2d at 638). Accordingly, Plaintiff’s motion for leave to amend is

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GRANTED with respect to the City Defendants, Sempervirens Fund, Keeley, and Disheroon.

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Those parties’ motions to dismiss, which are directed toward the original complaint, are

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TERMINATED as moot.

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If Plaintiff’s proposed first amended complaint (“PFAC”) merely added claims against the

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City Defendants, Sempervirens Fund, Keeley, and Disheroon, the Court’s analysis would be at an

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end. However, although it does not add new claims against the County Defendants and Jalbert,

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the PFAC does add factual allegations that change the scope of the existing claims against those

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Defendants Sempervirens Fund and Keeley filed a joinder in the City’s motion to dismiss on
February 11, 2015, more than twenty-one days before Plaintiff filed his motion for leave to
amend, but the joinder is not accompanied by a proof of service indicating that Plaintiff was
served manually. See Sempervirens Fund and Keeley Joinder, ECF 16. Plaintiff was served with
Disheroon’s joinder on February 19, 2015, more than twenty-one days before he filed his motion
for leave to amend. See Disheroon Joinder, ECF 23. However, because Disheroon merely joined
in a motion that had not yet been served on Plaintiff, the Court concludes that service of the
joinder did not start the twenty-one day clock running for Plaintiff to amend as of right with
respect to Disheroon.
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defendants. For example, in the PFAC Plaintiff alleges that the County Defendants “engaged in a

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civil conspiracy to deprive him to access in the County to his medical marijuana, and of having or

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exercising any rights or privileges under the Constitution, due to his ‘status’ as a ‘medical

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marijuana’ patient.” PFAC ¶¶ 6, 8. The PFAC also adds new defendants – alleged co-

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conspirators Ben Rice, his wife Tamyra Rice, and their son Ian Rice – who allegedly control the

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price of medical marijuana through their “Rice Cartel.” Id. ¶ 8. The PFAC adds new allegations

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about Measures K and L, approved by voters on November 4, 2014 after the filing of the original

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complaint, which impose a Cannabis Business Tax on behalf of the County and the City,

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respectively. Id. ¶¶ 31-34. Plaintiff must obtain leave of the Court before adding new allegations

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United States District Court
Northern District of California

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against parties who have answered. See Fed. R. Civ. P. 15(a).
Some district courts faced with this situation have recognized that as a practical matter,

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“the Court cannot have multiple versions of the complaint operative against different defendants.”

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Termini v. Frontier Commc’ns of America, Inc., No. CV 08–8042–PCT–JAT, 2008 WL 2783276,

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at *2 n.4 (D. Ariz. July 16, 2008) (ordering that the amended complaint filed as of right would be

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the controlling pleading even as to a defendant who already had answered). Given Plaintiff’s

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conspiracy theory, it would virtually impossible for him to add claims or allegations against the

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City Defendants, Sempervirens Fund, Keeley, and Disheroon without altering in any way his

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claims against the County Defendants and Jalbert. Under these circumstances, and in light of the

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liberal pleading standards applicable to pro se litigants, the Court GRANTS Plaintiff leave to file

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the PFAC even though it adds allegations against defendants who have answered. See Karim–

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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“A pro se litigant must be

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given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.”) (internal quotation marks and citation omitted).

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In granting leave to amend, the Court is not making any determination regarding the

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adequacy of the PFAC. While it is not the Court’s role to offer Plaintiff specific advice as to how

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he should amend his pleading, see Pliler v. Ford, 542 U.S. 225, 231 (2004) (discussing role of the

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court as an “impartial decisionmaker”), the Court urges Plaintiff to consider carefully the

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arguments made in the City Defendants’ opposition to Plaintiff’s motion for leave to amend, and
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in particular the arguments regarding Federal Rule of Civil Procedure 8(a). See Opp., ECF 37. If

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Plaintiff wishes to redraft his pleading instead of filing the PFAC submitted with his motion for

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leave to amend, he may do so.

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VI.

ORDER

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It is hereby ORDERED that:

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(1)

Motion to Remand is TERMINATED;

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Plaintiff’s Application to Withdraw Motion to Remand is GRANTED and his

(2)

Plaintiff’s Application to Vacate the May 28, 2015 Hearings is TERMINATED as
moot;

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(3)

Plaintiff’s Request for Entries of Defaults is DENIED;

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United States District Court
Northern District of California

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(4)

Plaintiff’s Motion to Amend Complaint is GRANTED; Plaintiff shall file any
amended complaint on or before June 22, 2015; and

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(5)

Defendants’ Motions to Dismiss are TERMINATED as moot.

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Dated: June 1, 2015
______________________________________
BETH LABSON FREEMAN
United States District Judge

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