Cohen et al v. County of Santa Cruz

Filing 20

ORDER by Judge Lucy H. Koh granting 8 Motion to Dismiss. (lhklc3, COURT STAFF) (Filed on 2/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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PHILIP SETH COHEN, et al.,

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Plaintiffs,

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Case No. 16-CV-06404-LHK
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

v.

Re: ECF No. 8

COUNTY OF SANTA CRUZ, et al.,

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Defendants.

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Plaintiffs Philip Cohen and Kimberly Horning (“Plaintiffs”) sue Defendants County of

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Santa Cruz (“County”), Kathleen Previsich, and John Previsich (the “Previsiches” or, collectively

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with the County, “Defendants”) for causes of action under both California and federal law. Before

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the Court is Defendants’ motion to dismiss. ECF No. 8 (“Def. Mot.”). Pursuant to Civil Local

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Rule 7-1(b), the Court concludes that this motion is appropriate for determination without oral

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argument and hereby VACATES the motion hearing set for February 9, 2017, at 1:30 p.m.

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Having considered the parties’ submissions, the relevant law, and the record in this case, the Court

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hereby GRANTS Defendants’ motion to dismiss.

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I.

BACKGROUND

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A.

Factual Background

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Case No.16-CV-06404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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Plaintiffs reside and own property at 260 Ranchitos del Sol in Aptos, California. ECF No.

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1-2 (Complaint, or “Compl.”), ¶ 11. Plaintiffs’ property is adjacent and downslope to 280

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Ranchitos del Sol, which is owned by Defendants Kathleen and John Previsich. Id. ¶ 23.

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Kathleen Previsich is the Planning Director of the Planning Department of the County of Santa

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Cruz (“Planning Department”). Id. ¶ 14.

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On July 25, 2012, the Previsiches filed a Building Permit Application (“Permit

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Application”) with the Planning Department. Id. ¶ 24. The Permit Application “request[ed]

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authorization to construct a two-story, 1576-square-foot, addition to their existing two-story single

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family dwelling, to remodel 314 square feet of their existing house, and to construct a 252-square

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United States District Court
Northern District of California

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foot deck.” Id.
On July 14, 2011, Bauldry Engineering, Inc., prepared a “Geotechnical Report” “to

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accompany the Permit” Application. Id. ¶ 25. The Geotechnical Report “described minimum

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excavation near the footings, but clarified that no new cut or fill slopes had been proposed.” Id. ¶

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26. Moreover, the geotechnical report “warned that the Previsich property’s surface soils are

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moderately to highly erodible, and that all finished and disturbed ground surfaces should be

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prepared and maintained to reduce erosion.” Id. ¶ 26. According to the Complaint, the

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Geotechnical Report “never mentioned proposed grading of any volume greater than 100 cubic

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yards.” Id. ¶ 26.

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On October 23, 2012, the Planning Department issued the building permit (“the Permit”) to
the Previsiches. Id. ¶ 24.
On March 8, 2013, Brian Bauldry (“Bauldry”) from Bauldry Engineering sent a letter to

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the Previsiches informing the Previsiches that certain “soils on the Previsiches property were

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susceptible to down slope creep.” Id. ¶ 28. Bauldry “proposed to stabilize these soils and to

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rebuild the slope as an engineered fill slope with a shallower grade than the preexisting slope.” Id.

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On March 14, 2013, the Previsiches applied for an amended Building Permit Application

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(“Amended Permit Application”). The Previsiches “label[ed] the amendment as a ‘Change

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Order.’” Id. at ¶ 29. The Amended Permit Application “included grading for 980 cubic yards of

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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fill.” Id. The Planning Department approved the Amended Permit Application on March 19,

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2013. Id.

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According to Plaintiff, “the staff member who approved both the initial and the amended

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applications, identified by the initials ‘DAN,’ and his superior and supervisor, Kathleen Previsich .

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. . knew that a Grading Permit and Erosion Control Plan were required in relation to the

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Previsiches’ grading activities.” Id. ¶ 31. However, neither individual “either applied for or

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required these approvals.” Id. Rather, Plaintiff alleges on information and belief that the Planning

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Department “gave the Previsiches special treatment” in “not requir[ing] [the Previsiches] to submit

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a Grading Approval Permit Application or adopt additional protections that would have prevented
the damage to Plaintiff’s property.” Id. According to the Complaint, “[t]he County’s failure to

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Northern District of California

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require the Previsiches to submit a Grading Approval Application meant that [the County] failed

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to obtain crucial required information” such as “property lines and contours of the existing ground

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and details of terrain and area drainage,” “detailed plans of all surface and subsurface drainage

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devices,” and “formulation of an Erosion Control Plan to prevent runoff and erosion both during

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and after grading activities.” Id. ¶ 32. Plaintiffs further allege that “[t]he County never provided

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Plaintiffs with an opportunity for a hearing on the proposed building permit or its proposed

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amendment.” Id. ¶ 33.

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On December 11, 2014, Plaintiffs’ property suffered damage from increased drainage and

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runoff resulting from the Previsiches’ recent grading activities” which Plaintiffs state “has

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significantly impacted Plaintiffs’ use and enjoyment of their property.” Id. ¶ 35. Moreover,

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Plaintiffs allege that the “grading and earth compacting activities” on the Previsiches’ property

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“caused severe earthshaking” which “migrated onto Plaintiffs’ land, causing a retaining wall on

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Plaintiffs’ property . . . to collapse and the retaining wall to cease adequately retaining soil.” Id. ¶

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36. Plaintiffs state that, “[i]n early 2015, Plaintiffs requested all information from the County

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relating to the County’s involvement in the Previsiches’ construction and grading activities” and

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“discovered the County’s illegal issuance of the Change Order and its failure to require a Grading

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Approval Permit.” Id. ¶ 37.

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Case No.16-CV-06404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Plaintiffs filed a state administrative claim against the County, Kathleen Previsich, and the

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County employee “DAN” on March 7, 2016. Id. ¶ 39. The County denied Plaintiffs’

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administrative claim as untimely. Id. ¶¶ 40–44.

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B.

On October 3, 2016, Plaintiffs filed a Complaint against Defendants in the Santa Cruz

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Procedural History

County Superior Court. See id. Plaintiffs alleged six causes of action against Defendants.

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Count One of the Complaint alleged that the County and Kathleen Previsich, acting in her

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official capacity, violated the California Tort Claims Act, also called the Government Tort Claims

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Act, Cal. Gov. Code §§ 815, et seq. Id. ¶ 45.
Count Two of the Complaint alleged that the County and Kathleen Previsich, acting in her

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Northern District of California

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official capacity, violated Article I, § 7 of the California Constitution, in addition to 42 U.S.C. §

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1983, for committing “substantive and procedural due process violations.” Id. ¶¶ 59–68.
Count Three of the Complaint alleged that the County and Kathleen Previsich, acting in

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her official capacity, violated Article I, § 7 of the California Constitution, in addition to 42 U.S.C.

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§ 1983, for committing “state and federal equal protection violations.” Id. ¶¶ 69–75.
Count Four of the Complaint alleged that the Previsiches committed trespass. Id. ¶¶ 76–

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80.

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Count Five of the Complaint alleged that the Previsiches caused a nuisance. Id. ¶¶ 81–85.

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Finally, Count Six of the Complaint alleged that the Previsiches were negligent in grading

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and compacting the fill on the Previsiches’ property. Id. ¶¶ 86–90.
On November 2, 2016, Defendants filed a Notice of Removal in this Court, asserting

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removal on the basis of federal question jurisdiction. ECF No. 1, at 1.

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On November 7, 2016, Defendants filed a motion to dismiss portions of Plaintiffs’

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Complaint. See Def. Mot. On November 21, 2016, Plaintiffs filed a response in opposition. ECF

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No. 11 (“Pl. Opp.”). On November 28, 2016, Defendants filed a reply. ECF No. 12 (“Def.

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Reply”).

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II.

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LEGAL STANDARD
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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A.

Rule 12(b)(6) Motion to Dismiss
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a

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short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint

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that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). Rule 8(a) requires a

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plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully.” Id. (internal quotation marks omitted).
For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept [s] factual allegations

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Northern District of California

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in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving

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party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The

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Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see

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Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look beyond the plaintiff’s

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complaint to matters of public record” without converting the Rule 12(b)(6) motion into a motion

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for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must the

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Court “assume the truth of legal conclusions merely because they are cast in the form of factual

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allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam). Mere

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“conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to

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dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

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B.

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Leave to Amend
If the Court concludes that the complaint should be dismissed, it must then decide whether

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to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to

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amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose

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of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or

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technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (ellipsis in original).

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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Nonetheless, a district court may deny leave to amend a complaint due to “undue delay, bad faith

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or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

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previously allowed, undue prejudice to the opposing party by virtue of allowance of the

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amendment, [and] futility of amendment.” See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d

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522, 532 (9th Cir. 2008).

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III.

DISCUSSION
Defendants move to dismiss only a portion of Plaintiff’s claims. Specifically, Defendants

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contend that Plaintiffs have failed to state a claim (1) in Count One under the California Tort

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Claims Act; (2) in Count Two, both under the California Constitution and under the U.S.
Constitution for violation of procedural due process; and (3) in Count Three under the California

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Northern District of California

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Constitution. See Def. Mot. The Court addresses each of these arguments below.

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A.

Plaintiffs Have Failed to State a Claim in Count One under the California Tort
Claims Act

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Count One of Plaintiffs’ Complaint alleges that Defendants violated the California Tort
Claims Act, Cal. Gov’t Code §§ 815, et seq. See Compl. ¶¶ 45–51. “The California Tort Claims
Act provides that a public entity is not liable for injury arising from an act or omission except as
provided by statute.” Creason v. Dep’t of Hlth. Servs., 957 P.2d 1323, 1327 (Cal. 1998) (citing
Cal. Gov’t Code § 815). In its motion to dismiss, Defendants assert that Plaintiffs have failed to
state a claim under the California Tort Claims Act because Plaintiffs “have failed to actually
identify the enactment that [Plaintiffs] claim imposes a mandatory duty” on the County. Def. Mot.
at 5. For the reasons discussed below, the Court agrees with Defendants.
As an initial matter, the Court notes that Plaintiffs’ Complaint fails to allege the provision
of the California Tort Claims Act that Defendants allegedly violated. Count One cites only to the
California Tort Claims Act generally. See Compl. ¶ 45 (citing to Cal. Gov’t Code §§ 815, et
seq.”). Defendants—and the Court—assume that because Plaintiffs refer to Defendants’
“mandatory dut[ies]” in the Complaint, Plaintiffs intend to bring a cause of action pursuant to §
815.6 of the California Tort Claims Act. See Cal. Gov’t Code § 815.6.
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California Government Code § 815.6 provides that “[w]here a public entity is under a

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mandatory duty imposed by an enactment that is designed to protect against the risk of a particular

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kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure

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to discharge the duty unless the public entity establishes that it exercised reasonable diligence to

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discharge the duty.” Cal. Gov’t Code § 815.6. California courts have interpreted this section as

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having three elements: (1) the enactment at issue must impose a mandatory duty on the public

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entity, meaning that the enactment is “obligatory, rather than merely discretionary or permissive,

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in its directions to the public entity”; (2) “the mandatory duty [must] be ‘designed’ to protect

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against the particular kind of injury the plaintiff suffered”; and (3) the public entity’s breach of the
mandatory duty must have been a proximate cause of the plaintiff’s injury. Guzman v. Cty. of

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Northern District of California

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Monterey, 209 P.3d 89, 95–96 (Cal. 2009) (internal quotation marks omitted).

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Significantly, in order to state a claim under this provision, “Plaintiffs must ‘identify a

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specific statute declaring the entity to be liable, or at least creating some specific duty of care by

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the agency in favor of the injured party.’” Novin v. Fong, 2014 WL 6956923, at *11 (N.D. Cal.

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Dec. 8, 2014) (quoting de Villers v. Cty. of San Diego, 67 Cal. Rptr. 3d 253, 259 (Cal. Ct. App.

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2007)); see also Oracle v. Santa Cruz Cty. Planning Dep’t, 2009 WL 1371461, at *5 (N.D. Cal.

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May 15, 2009) (“[I]t is well-settled that a claim under § 815.6 must allege a specific enactment

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that creates the mandatory duty.”). Indeed, as California courts have explained, “[s]ince the duty

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of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’

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claimed to establish the duty must at the very least be identified.” Becerra v. Cty. of Santa Cruz,

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68 Cal. App. 4th 1450, 1458 (Cal. Ct. App. 1998) (internal quotation marks omitted). “Unless the

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applicable enactment is alleged in specific terms, a court cannot determine whether the enactment

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relied upon was intended to impose an obligatory duty to take official action to prevent

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foreseeable injuries or whether it was merely advisory in character.” Id.; see also Lehto v. City of

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Oxnard, 171 Cal. App. 3d 285, 292–93 (Cal. Ct. App. 1985) (“Based upon the manifest intent

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underlying § 815.6, we think it obvious that a litigant seeking to plead the breach of a mandatory

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duty must specifically allege the applicable statute or regulation. Only by doing so may the public

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entity be advised of the factual and legal basis of the claim against it.”).

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Count One of Plaintiffs’ Complaint cites the California Tort Claims Act generally and

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alleges that “[u]nder Chapter 16.20 of the County Code, setting forth grading regulations, the

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County had a mandatory duty to obtain additional information from the Previsiches regarding the

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nature and potential impacts of the Previsiches’ proposed grading activities.” Compl. ¶ 47.

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Moreover, Count One alleges that “[i]n addition, County had a mandatory duty to condition

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approval of the Previsiches’ grading activities upon the adoption of an Erosion Control Plan, with

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controls designed to eliminate or reduce the risk of damage in the form of runoff, erosion, and

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drainage to nearby properties.” Id.

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The Court agrees with Defendants that Count One fails to “allege[] in specific terms” the

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enactment that Plaintiffs contend imposes the alleged mandatory duties upon Defendants. See

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Becerra, 68 Cal. App. 4th at 1458. As Defendants assert in their motion to dismiss, Chapter 16.20

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of the County Code, which is titled “Grading Regulations,” contains thirty-two separate sections.

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See Def. Mot. Ex. A. Moreover, Chapter 16.20 cross references to Chapter 18.10 of the County

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Code, which sets forth the County’s “Permit and Approval Procedures.” Def. Mot. Ex. B.

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Chapter 18.10 contains fifty-three separate sections. Id. Accordingly, by simply referencing

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“Chapter 16.20” and stating generally that Defendants have a “mandatory duty to obtain additional

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information from the Previsiches regarding the nature and potential impacts of the Previsiches’

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proposed grading activities” and “a mandatory duty to condition approval of the Previsiches’

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grading activities upon the adoption of an Erosion Control Plan,” Plaintiffs have not provided

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Defendants or the Court with a sufficient basis to determine whether a specific enactment imposes

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the alleged duties upon Defendants. See Becerra, 68 Cal. App. 4th at 1458 (“Unless the applicable

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enactment is alleged in specific terms, a court cannot determine whether the enactment relied upon

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was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or

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whether it was merely advisory in character.”).

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Plaintiffs’ response in opposition to Defendants’ motion to dismiss only muddies the
waters. Specifically, Plaintiffs assert that Plaintiffs have stated a claim because Plaintiffs’ state
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administrative claim against the County, which is attached to the Complaint, references §

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16.20.060(C) of the County Code, which sets forth what an applicant for a grading permit should

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include in his or her application and cross references Chapter 18.10. See Pl. Opp. at 8; see also

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Compl., Ex. A. However, Plaintiffs’ administrative claim against the County also states broadly

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that “[t]he County Code contains a litany of requirements for work performed that have not been

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required of the Planning Director” and, as stated above, Count One of Plaintiffs’ Complaint does

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not cite § 16.20.060(C) or any specific section of “Chapter 16.20” in alleging Defendants’

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mandatory duties. See Compl. Ex. A; id. ¶ 45. More significantly, Plaintiffs’ response in

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opposition to Defendants’ motion to dismiss makes clear that Plaintiffs do not allege that
Defendants’ mandatory duties arise from § 16.20.060(C) alone. Rather, Plaintiffs state that “other

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Northern District of California

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sections of the County Code may be relevant to Plaintiffs’ claims.” See Pl. Opp. at 8. Indeed,

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rather than identify the specific provisions upon which they rely, Plaintiffs assert that “[r]equiring

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Plaintiffs to be more specific at this point would be merely decorative.” Id.

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The Court disagrees with Plaintiffs that specificity is “merely decorative.” Id. Rather, as

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stated above, “[s]ince the duty of a governmental agency can only be created by statute, the statute

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claimed to establish the duty must be identified” so that Defendants are on notice of the claims

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asserted against them. D.K. ex rel. GM v. Solano Cty. Office of Educ., 667 F. Supp. 2d 1184, 1198

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(E.D. Cal. 2009) (citing Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (Cal. Ct.

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App. 1986)); see also Becerra, 68 Cal. App. 4th at 1458 (“Unless the applicable enactment is

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alleged in specific terms, a court cannot determine whether the enactment relied upon was

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intended to impose an obligatory duty to take official action to prevent foreseeable injuries or

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whether it was merely advisory in character.”). Moreover, it is also important for a Plaintiff to

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adequately plead a specific source in bringing a § 815.6 claim because “[w]hether a particular

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statute is intended to impose a mandatory duty . . . is a question of statutory interpretation for the

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courts.” B.H. v. Cty. of San Bernardino, 361 P.3d 319, 326 (Cal. 2015). As the California

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Supreme Court has explained, “[c]ourts have construed th[e] first prong [of § 815.6 liability]

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rather strictly, finding a mandatory duty only if the enactment ‘affirmatively imposes the duty and

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provides implementing guidelines.’” Id. By simply referencing an entire Chapter of the County

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Code in their Complaint, and asserting in their opposition that “other sections of the County Code

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may be relevant to Plaintiffs’ claims,” see Pl. Opp. at 8, Plaintiffs have not provided Defendants or

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this Court with the information needed to adequately make the statutory interpretation inquiry that

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is required by California law. “Neither the Court nor Defendants are required to peruse vast

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portions of various California codes in search of potentially mandatory duties.” Oracle, 2009 WL

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1371461, at *6 (N.D. Cal. May 15, 2009).
Accordingly, district courts within this Circuit have repeatedly recognized that “[w]here a

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pleading ‘fail[s] to identify a statute creating liability’ for a public entity, claims against that public
entity ‘must be dismissed with leave to amend.’” Sanwal v. Cty. of Sacramento, 2011 WL

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Northern District of California

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2559388, at *8 (E.D. Cal. June 27, 2011) (quoting D.K. ex rel. G.M., 667 F. Supp. 2d at 1198));

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see also Haar v. City of Mountain View, 2010 WL 4919478, at *4 (N.D. Cal. Nov. 12, 2010)

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(dismissing California Tort Claims Act claim because the Plaintiff made only a “general reference

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to the California Tort Claims Act” and cited an additional irrelevant statute, which was “not

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sufficient to give Defendants fair notice of Plaintiff’s claim and the ground upon which it rests, as

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required by Rule 8(a)” of the Federal Rules of Civil Procedure); Oracle, 2009 WL 1371461, at *6

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(N.D. Cal. May 15, 2009) (dismissing California Tort Claims Act claim where the Plaintiff’s

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complaint “rel[ied] on broad ‘et seq.’ references to the relevant California codes” rather than

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“plead[ing] a specific source” of Defendant’s duty); Skeels v. Pilegaard, 2013 WL 5645346, at *3

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(N.D. Cal. Oct. 16, 2013) (“Plaintiff’s failure to identify a specific statute imposing a mandatory

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duty in Paragraph 122 [of the complaint] is fatal to the negligence claim because it deprives the

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County of notice as to the statutory basis for the purported duties alleged in Plaintiff’s claim.”).

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The same is true here. Plaintiffs’ Complaint fails to state a claim under the California Tort Claims

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Act.

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Defendants argue that the Court should dismiss Count One with prejudice because

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Defendants are immune from “discretionary” licensing decisions under California law. See Def.

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Mot. at 5. However, as discussed above, because the Complaint fails to set forth a specific

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statutory source for Defendants’ alleged mandatory duties, the Court at this time need not interpret

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the County Code to determine whether Defendants are immune. Accordingly, Defendants’ motion

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to dismiss Count One of the Complaint is GRANTED with leave to amend. See Sanwal, 2011 WL

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2559388 (granting plaintiffs California Tort Claims Act claim with leave to amend where the

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plaintiffs did not “allege[] which particular statute(s), if any, permit them to bring state law tort

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claims against the County Defendants”); see also Leadsinger, 512 F.3d at 532 (district court

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should grant leave to amend unless the district court concludes that amendment would be futile).

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“[I]n any amended pleading, Plaintiff shall set forth for each alleged mandatory duty the specific

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provision(s) of law that allegedly create that duty.” Oracle, 2009 WL 1371461, at *6. Failure to
do so will result in a dismissal with prejudice.

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Northern District of California

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B.

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Plaintiffs Have Failed to State in Counts Two and Three a Claim under the
California Constitution
Defendants move to dismiss Counts Two and Three of Plaintiffs’ Complaint to the extent

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that Plaintiffs assert claims under the California Constitution. Def. Mot. at 8. Specifically,

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Defendants assert that Plaintiffs are barred from asserting a cause of action for monetary damages

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under the California Constitution, and thus Plaintiffs’ California Constitution claims must be

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dismissed.
Counts Two and Three of Plaintiffs’ Complaint allege that the County and Kathleen

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Previsich, in her official capacity as Planning Director, violated Article I, § 7 of the California

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Constitution. Section 7 provides: “A person may not be deprived of life, liberty, or property

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without due process of law or denied equal protection of the laws.” However, “[i]t is beyond

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question that a plaintiff is not entitled to damages for a violation of the due process clause or the

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equal protection clause of the [California] Constitution.” Javor v. Taggart, 98 Cal. App. 4th 795,
807 (Cal. Ct. App. 2002); see also Lopez v. Youngblood, 609 F. Supp. 2d 1125, 1142 (E.D. Cal.

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2009) (“Plaintiffs may not bring damages claims directly under Article I, Section 13 or Section 7”
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of the California Constitution). Thus, to the extent that Plaintiffs seek monetary damages in

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Counts Two and Three under the California Constitution, the Court agrees with Defendants that

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Plaintiffs are barred from bringing such a claim. Javor, 98 Cal. App. 4th at 807. Accordingly,

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Plaintiffs’ California Constitution claims in Counts One and Two are DISMISSED without leave

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to amend to the extent that Plaintiffs seek monetary damages. Willingham v. City of San Leandro,

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2006 WL 3734633, at *3 (N.D. Cal. Dec. 18, 2006) (dismissing without leave to amend a damages
claim under Article I, section 7 of the California Constitution “because a private cause of action is

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not available under such section”).
However, Plaintiffs contend in their opposition to Defendants’ motion to dismiss that the

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Northern District of California

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Complaint’s prayer for relief also seeks “injunctive relief.” Pl. Opp. at 15. Accordingly, Plaintiffs

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contend, “Plaintiffs have stated valid claims for equitable relief under the California constitution”

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in Counts Two and Three. Id.
In order for a Plaintiff to have standing to seek an injunction, a “[p]laintiff must

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demonstrate that he has suffered or is threatened with a [1] ‘concrete and particularized’ legal
harm, coupled with [2] ‘a sufficient likelihood that he will be wronged again in a similar way.’”

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Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985–86 (9th Cir. 2007) (internal quotations and

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citations omitted). “As to the second inquiry, [a plaintiff] must establish ‘a real and immediate

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threat of repeated injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). “[P]ast

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wrongs do not in themselves amount to [a] real and immediate threat of injury necessary to make
out a case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

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Plaintiffs’ alleged injury is that the County and Kathleen Previsich, in her official capacity

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as Planning Director, “arbitrarily” and illegally approved the Previsiches’ application for a

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Building Permit. See Compl. ¶ 66–67. This is a “past wrong,” and Plaintiffs’ Complaint contains

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no allegations that suggest that Plaintiffs face any “real and immediate threat of repeated injury”

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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from the County or County officials such that Plaintiff may seek an injunction against the County

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and Kathleen Previsich in her official capacity. Lyons, 461 U.S. at 111 (finding that a plaintiff,

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who had been illegally choked by the police, had failed to establish standing to seek an injunction

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because the complaint “did not indicate why [the plaintiff] might be realistically threatened [in the

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future] by police officers who acted within the strictures of the City’s policy”). Indeed, Plaintiffs

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never state or suggest in either their Complaint or their opposition what activity they wish the

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Court to enjoin. See generally Compl.; Pl. Opp. at 14–15. Accordingly, the allegations in
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United States District Court
Northern District of California

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Plaintiffs’ Complaint fail to show that Plaintiffs have standing to seek an injunction against the
County or Kathleen Previsich in her official capacity. See Bates, 511 F.3d at 985–86.
In their opposition to Defendants’ motion to dismiss, Plaintiffs assert that “a demand for an

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improper remedy is not grounds for dismissal” of a claim. Pl. Opp. at 15. However, courts

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routinely dismiss or strike causes of action where a Plaintiff’s Complaint fails to establish

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entitlement to injunctive relief. See, e.g., Ice Cream Dist. of Evansville, LLC v. Dreyer’s Grand

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Ice Cream, Inc., 487 F. App’x 362, 363 (9th Cir. 2012) (affirming district court’s dismissal of
Plaintiff’s Unfair Competition Law claim because the plaintiff did “not plead entitlement to

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injunctive relief”); see also Labonte v. Gov. of California, 2014 WL 1512229, at *10 (C.D. Cal.

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Apr. 14, 2014) (dismissing § 1983 claim under Rule 12(b)(6) because “plaintiff does not have

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standing to seek injunctive relief”); In re Napster, Inc. Copyright Litig., 354 F. Supp. 2d 1113,

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1127 (N.D. Cal. 2005) (dismissing unfair competition counterclaim because the counterclaimant
“fail[ed] to allege that it ha[d] suffered any ongoing injury from plaintiffs’ anticompetitive

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conduct”).
Accordingly, the Court DISMISSES Plaintiffs’ claims in Count Two and Count Three to

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the extent that Plaintiffs’ claims are based on the California Constitution. The Court grants leave

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to amend, however, for Plaintiff to allege facts that plausibly show Plaintiffs’ entitlement to

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injunctive relief. See Leadsinger, 512 F.3d at 532 (holding that a district court should grant leave

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to amend unless the district court concludes that amendment would be futile).

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C.

Plaintiffs Have Failed in Count Two to State a Procedural Due Process Claim under
the U.S. Constitution

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Lastly, Defendants move to dismiss Count Two of Plaintiffs’ Complaint to the extent that

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Plaintiffs assert a claim under the U.S. Constitution for violation of procedural due process. In

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order to state a procedural due process claim under the U.S. Constitution, a Plaintiff must allege

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the existence of “(1) a liberty or property interest protected by the Constitution; (2) a deprivation

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of the interest by the government; [and] (3) lack of process.” Portman v. Cty. of Santa Clara, 995

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F.2d 898, 904 (9th Cir. 1993). Plaintiffs contend that the County deprived Plaintiffs of procedural

United States District Court
Northern District of California

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due process by failing to “provide[] notice or a public hearing on the County’s review, approval,
or issuance of the subject Building Permits in violation of the County Code.” Compl. ¶ 64.

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First, to the extent that Plaintiffs assert that Plaintiffs have a constitutionally protected

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property interest in the County properly applying the County Code to the Previsiches’ Permit

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Application and Amended Permit Application, Plaintiffs have failed to state a federal procedural

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due process claim. Indeed, the Ninth Circuit rejected a nearly identical argument in Shanks v.

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Dressel, 540 F.3d 1082 (9th Cir. 2008). There, a group of neighboring homeowners brought suit
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against developers that were granted “a building permit [by the city] to construct a duplex

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addition” to a house located within a historic neighborhood. Id. at 1085. The plaintiffs argued

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that, in granting the building permit, the city violated several municipal ordinances applicable to

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historic neighborhoods. Id. at 1085. The plaintiffs stated that the construction “compromised the

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historic character of the [neighborhood], resulting in harm to its ‘cultural, architectural,

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educational, recreational, aesthetic, historic, and economic interests.’” Id. at 1085–86.
In considering the plaintiffs’ procedural due process argument, the Ninth Circuit stated that

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the plaintiffs did “not have a legitimate claim of entitlement to the denial of the [defendants’]

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permit in accordance with the historic preservation provisions.” Id. at 1091. Rather, “[o]nly if the

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governing statute compels a result ‘upon compliance with certain criteria, none of which involve

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the exercise of discretion by the reviewing body,’ does it create a constitutionally protected

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property interest.” Id. (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1164–65 (9th Cir.

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2005)). The Ninth Circuit concluded that the historic preservation provisions of the municipal
code did “not mandate any outcome,” and thus the plaintiffs had no viable procedural due process

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claim. Id.; accord Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1217
(10th Cir. 2003) (rejecting plaintiff’s argument that the due process clause entitled it “to

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United States District Court
Northern District of California

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participate in a hearing prior to [the city’s] approval of [defendant’s] proposed land use” because

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the plaintiff “fail[ed] to point to any limitation on [the city’s] discretion that would create a

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protectable property interest in the special use review procedure”); Gagliardi v. Village of
Pawling, 18 F.3d 188, 191–92 (2d Cir. 1994) (“[Plaintiffs] essentially contend that they have a

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property interest in the proper enforcement of the Code with regard to [the Defendants’ adjacent]
property . . . we find that no such right has been created here.”).
Here, like the plaintiffs in Shanks, Plaintiffs have no “legitimate claim of entitlement to the

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denial of the [defendants’] permit in accordance with” the County Code. Shanks, 540 F.3d at

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1091. Under § 16.20.070(A) of the County Code, “it is uncontested that the [County] may grant

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variances [for grading permits], which indicates that enforcement is, at least to some degree,
discretionary.” Sumner v. Bd. of Adjustments of City of Spring Valley Village, TX, 2013 WL

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1336604, at *5 (S.D. Tex. Mar. 29, 2013) (Ellison, J.) (denying a procedural due process claim

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where the plaintiff argued that the city’s failure to require plaintiff’s neighbor to comply with a

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zoning ordinance affected the plaintiffs’ privacy and property interests). Accordingly, like the

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statute at issue in Shanks, the County Code provisions applicable here do “not mandate any

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outcome” or “compel[] a result upon compliance with certain criteria, none of which involve the

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exercise of discretion by the reviewing body.”1 Shanks, 540 F.3d at 1091 (internal quotation

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marks omitted). Thus, Plaintiffs have no constitutionally protected property interest in the County

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properly applying the County Code to the Previsiches. Id. at 1091–92; see also Horton v. City of

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Smithville, 117 F. App’x 345, 347 (5th Cir. 2004) (finding that the plaintiff’s “true interest

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asserted” was “the right to have [the City] enforce its zoning ordinances in the way that the
[Plaintiffs] believe they should be enforced,” a right to which plaintiff was not entitled).

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Second, to the extent that Plaintiffs argue that the government, by granting a building

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permit to the Previsiches, deprived Plaintiffs of their constitutionally protected property interest in

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United States District Court
Northern District of California

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Plaintiffs’ own land without notice and a public hearing, Plaintiffs have still failed to state a

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federal procedural due process claim. Importantly, under the federal constitution, “[p]rocedural

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due process protections do not extend to those who suffer indirect harm from government action.”

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Dumas v. Kipp, 90 F.3d 385, 392 (9th Cir. 1996). Here, the County did not directly deprive

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Plaintiffs of their property without notice and a hearing. Rather, Plaintiffs allege that the County
illegally granted the Previsiches a Building Permit and an Amended Permit, and that the

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Previsiches’ ensuing construction activity on the Previsiches’ property caused damage to

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Plaintiffs’ neighboring property. Compl. ¶ 67. This type of “indirect harm from government

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action” is not sufficient to assert a procedural due process violation. See Sierra Nevada SW

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Enterp., Ltd. v. Douglas Cty., 506 F. App’x 663, 665 (9th Cir. 2013) (holding that the “indirect

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impact of” diminished value to plaintiff’s development rights that resulted from a County’s
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In holding that the City’s enforcement of its building and grading permit application procedures
are, at least in part, “discretionary” for purposes of creating a property interest under the U.S.
Constitution, the Court expresses no opinion as to whether any duty created by the County Code is
“mandatory” or “discretionary” for purposes of the California Tort Claims Act, Cal. Gov’t Code §
815.6, a separate inquiry that the Court does not reach in this Order, as discussed infra in
dismissing Count One.
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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approval of a development proposal was “not a ‘deprivation’ for purposes of procedural due
process”).

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In their opposition to Defendants’ motion to dismiss, Plaintiffs premise their procedural

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due process argument on the California Supreme Court’s holding in Horn v. County of Ventura,

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596 P.2d 1134, 1139 (Cal. 1979). Horn held that “land use decisions which ‘substantially affect’

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the property rights of owners of adjacent parcels may constitute ‘deprivations’ of property within
the context of procedural due process.” Id. However, the Ninth Circuit has explained that Horn’s

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“holding was rooted in the due process protections of the California Constitution.” Am. Tower
Corp. v. City of San Diego, 763 F.3d 1035, 1049 (9th Cir. 2014) (emphasis added). The Ninth

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United States District Court
Northern District of California

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Circuit in American Tower reasoned, in part, that Horn’s rule was based on the California

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Constitution because “California’s due process protections are, at times, broader than those

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imposed by the Fourteenth Amendment.” Id. at 1050. Thus, Plaintiff’s reliance on Horn for

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Plaintiff’s claim under the U.S. Constitution is misplaced.

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Accordingly, Defendants’ motion to dismiss Plaintiffs’ procedural due process claim based

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on the U.S. Constitution is GRANTED. However, because amendment is not necessarily futile,

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the Court will grant Plaintiffs leave to amend Count Two to adequately allege that the County

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deprived them of a property interest without procedural due process. See Leadsinger, 512 F.3d at

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532.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss as follows.

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

Count One is DISMISSED without prejudice.



Plaintiffs’ claims in Counts Two and Three under the California Constitution are
DISMISSED with prejudice to the extent that Plaintiffs seek monetary damages.



Plaintiffs’ claims under the California Constitution in Counts Two and Three are
DISMISSED without prejudice to the extent that Plaintiffs seek injunctive relief.
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Case No.16-CV-06404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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

Plaintiffs’ claim in Count Two under the U.S. Constitution for violation of procedural due
process is DISMISSED without prejudice.

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Should Plaintiff choose to file an amended complaint curing the deficiencies identified in this

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order, Plaintiff shall do so within thirty (30) days of the date of this order. Failure to meet this

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deadline, or failure to cure the deficiencies identified in this order, will result in a dismissal with

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prejudice. Plaintiff may not add new parties or claims without leave of the Court or stipulation of

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the parties pursuant to Federal Rule of Civil Procedure 15.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: February 3, 2017
______________________________________
LUCY H. KOH
United States District Judge

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