Matthews v. San Diego County Board of Supervisors et al

Filing 63

ORDER Granting Defendants' 49 Motion to Dismiss. Signed by Judge Gonzalo P. Curiel on 8/26/19. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

THOMAS MATTHEWS,

Case No.: 3:18-CV-711-GPC-NLS
Plaintiff,

11
12

v.

13

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

SAN DIEGO COUNTY BOARD OF
SUPERVISORS, et al., CODE
ENFORCEMENT AGENTS TERESA
WILLIS & MICHAEL MURPHY; SAN
DIEGO COUNTY TREASURE'S
OFFICE, (all defendants sued in their
individual and official capacity),

14
15
16
17

[ECF No. 49];

Defendants.

18
19
20

Before the Court is an ongoing dispute between pro se Plaintiff Thomas Matthews

21

(“Plaintiff”) and Defendants, the County of San Diego (“County”), the County of San

22

Diego Board of Directors, and a number of their employees (“the employee defendants”)

23

(collectively, “Defendants”) arising from nuisance abatement actions brought against

24

Plaintiff’s property.

25

At issue is Defendants’ June 6, 2019 motion to dismiss Plaintiff’s Second

26

Amended Complaint (“SAC”). (ECF No. 49.) The parties have fully briefed this motion.

27

(ECF Nos. 49-1, 52, 53, 55, 56.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds

28
1
3:18-CV-711-GPC-NLS

1

the pending motion suitable for adjudication without oral argument. For the reasons

2

explained below, the Court GRANTS Defendants’ motion to dismiss with prejudice.

3

I. Background

4

A. Factual Background

5

The instant litigation ensues from the County’s long-beleaguered efforts to abate a

6

nuisance found at the property located at 5602 Trafalgar Road, El Cajon, CA 92109 (the

7

“property”).

8

In 2004, the County received complaints that solid waste was being stored on the

9

property in violation of several sections of the San Diego County Code of Regulatory

10

Ordinances and the San Diego County Zoning Ordinance. The solid waste included

11

“scrap wood, scrap metal, wood pallets, metal racking, cages, automotive

12

parts/equipment, inoperative vehicles, trailer coaches, construction

13

materials/equipment/vehicles/debris, broken/discarded appliances/furnishings,

14

wiring/cables, plastic buckets/bins/containers, tarps, tubing, cardboard boxes, old

15

machinery and parts, outside stored items, and debris strewn about.” (ECF No. 49-2, at

16

5.) Defendants issued several administrative warnings concerning the property. Site

17

inspections in later years further revealed storage of sixteen commercial vehicles,

18

fourteen inoperative vehicles, large tractor-trailers, trailer coaches, and old machinery

19

and construction, and trash and debris. (Id. at 6.)

20

Despite these notices, the waste and hazardous materials on the property remained

21

on site. On May 13, 2014, Defendants posted a Notice and Order to Abate on the

22

property and mailed a copy to the property owner of record, a John M. Smith. (Id. at 10.)

23

Thereafter, Plaintiff, Mr. Smith’s nephew, filed an administrative appeal of that

24

abatement order. A hearing was held on May 13, 2014. At the hearing, the presiding

25

County Hearing Officer questioned Plaintiff’s standing to bring the appeal, noting that he

26

was not the property owner of record. (Id. at 13.) In response, Plaintiff represented that

27

“he is a long term tenant of the property, having lived at the Trafalgar Road address for

28

21 years, and that he was appearing in place and stead of Mr. Smith, and had full legal
2
3:18-CV-711-GPC-NLS

1

authority to appear for and to bind the record property owner to the rulings of th[e]

2

administrative tribunal.” (Id.). After the appeal, the County Hearing Officer upheld the

3

Notice and Order to Abate. (Id.)

4

After losing the administrative appeal, Plaintiff proceeded to file two actions in

5

San Diego Superior Court contesting the abatement enforcement proceedings. (Id. at 21–

6

32.) Both actions were filed in July of 2014 and claimed violations of Plaintiff’s

7

constitutional rights. Plaintiff’s request for preliminary injunction contains a signature

8

line for John M. Smith, and a handwritten signature appears above it. (Id. at 28.) The

9

Superior Court sustained the County’s demurrer as to the initial complaint and denied the

10
11

request for a preliminary injunction. (Id. at 34–43.)
On March 4, 2015, the County obtained an abatement warrant for the property

12

which authorized any Code Enforcement Officer to enter “for the purpose of abating and

13

removing any and all trash, junk, and broken/discarded appliances/furnishings . . . outside

14

stored items and debris strewn about the property.” (Id. at 15–16.) The abatement

15

warrant was executed starting on March 4, 2015. (Id. at 18.) Defendants retained

16

Advance Demolition for clean-up services. As a result of this abatement, Code

17

Enforcement Officer Teresa Willis discovered approximately 200 containers of unknown

18

substances which required HazMat personnel to investigate. Testing confirmed that some

19

containers held hazardous material. (Id.) In light of the extensive scope of the nuisance,

20

Officer Willis requested and was granted a seven-day extension of the existing abatement

21

warrant to March 21, 2015. (Id. at 19.) The record demonstrates that at the end of

22

abatement, the County removed 195 tons of solid waste from the property. (ECF No. 1-

23

5, at 1.)

24

On April 7, 2015, Officer Willis issued a document titled “Schedule of Costs for

25

Public Nuisance Abatement” which calculated the cost of abatement due as $114,835.10.

26

(Id. at 56.) Thereafter, the County assessed the cost of abatement as a lien against the

27

property subject to San Diego Code of Regulatory Ordinance sections 16.212–215

28
3
3:18-CV-711-GPC-NLS

1

(permitting unpaid abatement expenses due to the County to be applied against the

2

property as a lien, and for the amount of the costs to be added to the property tax bill).

3

Plaintiff filed an administrative appeal challenging the assessment of the abatement

4

costs. On June 4, 2015, a San Diego County hearing officer held a hearing and denied

5

Plaintiff’s appeal. (ECF No. 49-2, at 48–49.) The hearing officer’s order advised that

6

“Appellant has a right to file a lawsuit challenging this decision within 90 days after this

7

decision becomes final.” (Id. at. 49.)

8

Plaintiff filed the present action on April 10, 2018. On April 27, 2018, Plaintiff

9

recorded the grant deeds giving him ownership of the property. (Id. at 75–82.) Before

10

then, John M. Smith was the owner of record, though it appears that Plaintiff has been in

11

receipt of the County’s tax bill for the property since approximately 2009. (See ECF No.

12

48, at 36–60.)

13

Plaintiff’s tax receipts demonstrate an early history of making tax payments for the

14

property. However, after Defendants issued the abatement costs as a lien on the property

15

and added it to Plaintiff’s property taxes, Plaintiff fell behind on his taxes. To collect, the

16

San Diego County Treasurer-Tax Collector’s Office scheduled a tax sale of the property

17

for May 4, 2018. That sale was canceled after Plaintiff filed for bankruptcy on April 30,

18

2018. (ECF No. 45, at 4, 6.) On September 10, 2018, Plaintiff’s bankruptcy petition was

19

dismissed pursuant to Plaintiff’s request. (ECF No. 45, at 4.) Thereafter, a notice was

20

mailed out on March 11, 2019, informing Plaintiff that the property would be listed for

21

sale at public auction on April 26, 2019. (Id. at 6.)

22

B. Procedural Background

23

After filing the original complaint in April of 2018, Plaintiff submitted a first

24

amended complaint (“FAC”) on December 17, 2018. In that complaint, Plaintiff pursued

25

claims against the County, the County Board of Supervisors, several employee

26

defendants, and Advance Demolition. Plaintiff asserted a deluge of causes of action,

27

maintaining, inter alia, allegations under 42 U.S.C. § 1983, denial of due process and the

28

equal protection of the laws, civil RICO (for wire and mail fraud), and state law claims of
4
3:18-CV-711-GPC-NLS

1

perjury, quiet title, perjury, “accounting,” “fraud and swindle,” among others.

2

Defendants moved to dismiss, and on April 24, 2019, the Court granted in part and

3

denied in part Defendants’ motion to dismiss Plaintiff’s FAC. (ECF No. 46.) As relevant

4

to the second iteration of Plaintiff’s complaint, the Court denied dismissal pursuant to

5

Defendants’ state law immunity and res judicata / collateral estoppel arguments. The

6

Court granted dismissal as to Plaintiff’s § 1983 claims for being untimely, but granted

7

leave to amend in case he could point to any more recent injury resulting from

8

Defendants’ alleged conduct which would clear the statute of limitations.

9

Plaintiff submitted his second amended complaint on May 22, 2019. (ECF No.

10

48.) The SAC largely repeats the same factual allegations and causes of action as his

11

first. Like the FAC, the SAC is prolix and difficult to comprehend. Notwithstanding the

12

laundry list of causes of action ascribed to Defendants’ conduct, all of the claims in the

13

SAC are predicated on Plaintiff’s theory that the Defendants contravened Constitutional

14

due process and property right guarantees by engaging in a nefarious conspiracy to

15

institute abatement proceedings against a deceased individual, Mr. Smith.

16

Plaintiff’s theory is that Defendants had full knowledge that Mr. Smith (the

17

property owner of record until 2018), passed away in 2003, but nonetheless instituted and

18

executed the abatement proceedings against the property under Mr. Smith’s name.

19

Plaintiff alleges that Defendants had notice that Plaintiff was the true owner because he

20

had been paying property taxes on the property. Naming Mr. Smith, then, evinced

21

Defendants’ fraudulent plot to “collect an illegal debt by writing false claims against

22

Plaintiff’s real property by using a deceased person.” (ECF No. 48, at 19.)

23

On June 6, 2019, Defendants filed a motion to dismiss the SAC, asserting qualified

24

immunity, statute of limitations, state-law immunity, and res judicata and collateral

25

estoppel. (ECF No. 49). Plaintiff opposed the motion (ECF No. 53) and Defendants

26

filed a reply. (ECF No. 53.)

27
28

On July 2, 2019, Plaintiff filed an untimely second response brief. (ECF No. 55.)
The Court noted the discrepancy but allowed the filing as a supplement to the original
5
3:18-CV-711-GPC-NLS

1

response since it did not prejudice the Defendants nor assert any new legal theories to

2

counter Defendants motion to dismiss. Indeed, this supplementary document was merely

3

a cosmetic correction of Plaintiff’s original response. On July 15, 2019, Plaintiff filed

4

another untimely document with respect to Defendants’ motion to dismiss. (ECF No.

5

57.) As this document did not prejudice the Defendants, and in light of Plaintiff’s pro se

6

status, the Court construed the filing as sur-reply.

7

II. Defendants’ motion to dismiss

8
9

A. Legal Standard for Rule 12(b)(6)
A complaint must contain only a “short and plain statement of the claim showing

10

that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), not “detailed factual

11

allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule

12

demands more than unadorned accusations; “sufficient factual matter” must make a claim

13

at least plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A party may thus move to

14

dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P.

15

12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal

16

theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v.

17

Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

18

In making this context-specific evaluation, this court “must presume all factual

19

allegations of the complaint to be true and draw all reasonable inferences in favor of the

20

nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This

21

rule does not apply to “‘a legal conclusion couched as a factual allegation,’” Papasan v.

22

Allain, 478 U.S. 265, 286 (1986), nor to “allegations that contradict matters properly

23

subject to judicial notice” or to material attached to or incorporated by reference into the

24

complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). In

25

addition, Rule 12(b)(6) does not immunize from scrutiny assertions that are “merely

26

conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.

27

Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g,

28

275 F.3d 1187 (9th Cir. 2001).
6
3:18-CV-711-GPC-NLS

1
2

B. Judicial Notice upon a Rule 12(b)(6) motion
In deciding a motion to dismiss, “courts generally consider only the allegations

3

contained in the complaint, exhibits attached to the complaint and matters of public

4

record.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899–900 (9th

5

Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)). Rule 12(d)

6

addresses the use of materials which are outside the pleadings in motions to dismiss

7

under Rule 12(b)(6). FED. R. CIV. P. 12(d); see also Olsen v. Idaho State Bd. of

8

Medicine, 363 F.3d 916, 922 (9th Cir. 2004). When such materials are presented, the

9

motion is treated as one for summary judgment. Olsen, 363 F.3d at 922. However,

10

certain additional materials may be considered without converting the motion to dismiss

11

into a motion for summary judgment.

12

In this case, Defendants have sought judicial notice of several documents

13

pertaining to their efforts to abate Plaintiff’s property, various state court and

14

administrative agency filings and decisions relating to the parties’ ongoing dispute about

15

the abatement, and a quitclaim deed and grant deed of the property recorded on April 27,

16

2018. (ECF No. 49-2.) Likewise, Plaintiff has filed a number of exhibits; some of these

17

repeat the documents proffered by Defendants, and some are unique to his filings. The

18

Court will consider all of these items.

19

A court may take judicial notice of court filings and other matters of public record.

20

See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

21

Thus, the abatement warrants against the property, the filings, and opinions rendered in

22

connection with Plaintiff’s unsuccessful administrative appeals, the orders on his state-

23

court suits and his application for a preliminary injunction—are appropriately considered

24

by this court. See, e.g., Mechammil v. City of San Jacinto, No. CV 1301380JGBSPX,

25

2013 WL 12204187, at *3 (C.D. Cal. Nov. 12, 2013), vacated in part on other grounds,

26

653 F. App’x 562 (9th Cir. 2016) (taking judicial notice of notices of pendency of

27

nuisance abatement proceeding); Hardy v. Cty. of El Dorado, No. CIV.S-07-

28

0799RRBEFB, 2008 WL 268966, at *5 (E.D. Cal. Jan. 29, 2008) (taking note of
7
3:18-CV-711-GPC-NLS

1

abatement hearing transcripts and an order from the zoning administrator because

2

“[j]udicial notice is properly taken of transcripts, orders and decisions made by other

3

courts or administrative agencies”). The property deeds at issue are similarly subject to

4

judicial notice. Both the quitclaim and grant deeds have reference numbers from the San

5

Diego County Recorder indicating that they were in fact recorded. Lee v. Wells Fargo

6

Bank, No. EDCV151313VAPKKX, 2015 WL 9269433, at *2 (C.D. Cal. Dec. 17, 2015)

7

(taking judicial notice of quitclaim and grant deeds).
Further, the documents unique to Plaintiff’s filings are either attached to his FAC,

8
9

referenced in his FAC, or otherwise “integral” to his complaint. They are also properly

10

considered. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court

11

may . . . consider . . . documents attached to the complaint, documents incorporated by

12

reference in the complaint, or matters of judicial notice—without converting the motion

13

to dismiss into a motion for summary judgment.”); Mulinix v. Unifund CCR Partners,

14

No. 07-1629DMS, 2008 WL 2001747 (S.D. Cal. May 5, 2008) (“A complaint is deemed

15

to include materials incorporated by reference and documents that, although not

16

incorporated by reference, are ‘integral’ to the complaint.”).

17

C. Discussion

18

Defendants have moved to dismiss the SAC on four grounds. First, Defendants

19

contend that Plaintiff’s § 1983 claims are untimely, and second, that they are in any event

20

unavailing because the employee defendants are entitled to qualified immunity.

21

Defendants also argue that Plaintiff’s state law claim are either inadequately stated or

22

disallowed under various state law immunities. Finally, Defendants seek to dismiss the

23

entirety of the action as barred by the principles of res judicata and collateral estoppel.

24
25

The Court will discuss these arguments in turn. It ultimately concludes that
dismissal is proper under all but the first argument.1

26
27
Although Defendants’ motion to dismiss does not specifically address each and every single
cause of action in the SAC, Defendants’ arguments more than amply cover all of Plaintiff’s claims. As
1

28

8
3:18-CV-711-GPC-NLS

1
2

1.

Statute of Limitations

Defendants argue that the statute of limitations bars Plaintiff’s § 1983 claims. “For

3

actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for

4

personal injury actions.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citing Fink

5

v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999)). California has a two-year statute of

6

limitations for personal injury actions. CAL. CIV. PROC. CODE § 335.1.

7

Defendants contend that Plaintiff’s original complaint, filed in 2018, lies outside of

8

the two-year limitations period. They point out that the last of Defendants’ allegedly

9

unlawful actions occurred, at the latest, during the June 2015 administrative appeal

10

hearing, which would mean Plaintiff needed to sue no later than June 2017. However,

11

Plaintiff, in his opposition, identifies a tax sale scheduled for July 12, 2019 as the last

12

distinct wrong done to him, which is well within the statute of limitations. (ECF No. 52.)

13

Defendants do not address this July 12, 2019 date in their reply.

14

The Court declines to make a determination on the statute of limitations defense in

15

this procedural posture. Ordinarily, the Court may not rely on facts asserted for the first

16

time in opposition papers to a motion to dismiss, and given Defendants’ failure to opine

17

on Plaintiff’s belated assertion of a July 12, 2019 tax sale, the Court cannot rule without

18

the benefit of adversarial briefing. Moreover, there is no need to decide the statute of

19

limitations issue; even assuming that Plaintiff’s § 1983 claims are timely, they may not

20

be brought in light of the Court’s determinations infra that the employee defendants are

21

entitled to qualified immunity and that the County is shielded by res judicata principles.

22
23
24
25
26
27
28

observed supra, Plaintiff’s SAC is needlessly convoluted, and all of his causes of action are premised on
his factual allegation of a knowing conspiracy by Defendants to use a dead man’s name in abatement
proceedings. In other words, all of Plaintiff’s allegations rise and fall with his claim that he was denied
due process as a result of Mr. Smith’s name appearing on County documents. Defendants’ motion
amply addresses both the legal theory and factual claims underpinning Plaintiff’s assertion. Thus, while
the Court may discuss the Defendants’ dismissal arguments as particularly directed toward specific
claims—i.e., the state law tax claims, or the § 1983 constitutional claims—it should be understood that
the Court’s ultimately conclusion to grant the motion to dismiss pertains to the entirety of the assertions
in Plaintiff’s SAC.
9
3:18-CV-711-GPC-NLS

1

2.

The employee defendants have invoked qualified immunity as to Plaintiff’s § 1983

2
3

Qualified Immunity Under § 1983

claims.2

4

a. Legal Standard
“Qualified immunity shields government actors from civil liability under 42 U.S.C.

5
6

§ 1983 if ‘their conduct does not violate clearly established statutory or constitutional

7

rights of which a reasonable person would have known.’” Castro v. Cty. of Los Angeles,

8

833 F.3d 1060, 1066 (9th Cir. 2016) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S.

9

800, 818 (1982)). It “protects ‘all but the plainly incompetent or those who knowingly

10

violate the law,’” Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009) (quoting Malley v.

11

Briggs, 475 U.S. 335, 341 (1986)), and protects an officer from suit when he or she

12

“makes a decision that, even if constitutionally deficient, reasonably misapprehends the

13

law governing the circumstances.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
“When a defendant asserts qualified immunity . . . the burden shifts to the Plaintiff

14
15

to show that: (1) the defendant violated a constitutional right and (2) the constitutional

16

right was clearly established.” Pearson v. Callahan, 555 U.S. 223, 232–236 (2009).

17

“[A] right is clearly established when the ‘contours of the right [are] sufficiently clear

18

that a reasonable official would understand that what he is doing violates that right.’”

19

Castro, 833 F.3d at 1067 (quoting Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.

20

2003)). “This inquiry must be undertaken in light of the specific context of the case, not

21

as a broad general proposition.” Mueller, 576 F.3d at 994 (internal quotation marks and

22

citation omitted). “[T]he clearly established law must be ‘particularized’ to the facts of

23

the case.” White v. Pauly, 137 S.Ct. 548, 552 (2017) (citing Anderson v. Creighton, 483

24

U.S. 635, 640 (1987)).

25

b. Discussion

26
27
“A municipality is not entitled to assert the defense of qualified immunity.” Huskey v. City of
San Jose, 204 F.3d 893, 902 (9th Cir. 2000) (citing Owen v. City of Indep., 445 U.S. 622, 638 (1980)).
2

28

10
3:18-CV-711-GPC-NLS

1

In this case, the FAC asserts violations of the 14th Amendment arising from the

2

Defendants’ efforts to abate his property. Specifically, Plaintiff alleges § 1983 liability

3

stemming from Defendants’ use of an abatement warrant allegedly procured by fraud—

4

i.e., the institution of proceedings against Mr. Smith. The void abatement, Plaintiff

5

claims, led to a willful trespass on his property and an unlawful seizure of $300,000 in

6

chattel. (ECF No. 51, at 13–14.) He further asserts that Defendants lied to him about the

7

location of his chattels, and that they committed perjury at the state court to perfect their

8

fraud scheme. (Id.) Plaintiff further alleges that no immunity can lie because Defendants

9

knowingly and intentionally plotted their conspiracy. (Id.)

10

Upon the employee defendants’ invocation of qualified immunity, the burden

11

shifted to Plaintiff to demonstrate both (1) that a constitutional violation occurred, and (2)

12

that the violation was of such a flagrant nature that it was prohibited as a matter of

13

clearly-established law. However, Plaintiff failed to address either of these two issues in

14

his opposition motion.

15

First, as Defendants point out, Plaintiff has offered no evidence that he was denied

16

due process during the abatement of his property. The only reed upon which Plaintiff’s

17

14th Amendment claim rests is that the abatement notices and proceedings were void and

18

fraudulent because they named the deceased Mr. Smith as the property owner. But the

19

judicially-noticeable state court records squarely contradict Plaintiff’s claim that

20

Defendants acted in bad faith and with malice in naming Mr. Smith. Indeed, it was

21

Plaintiff who devised the fiction that Mr. Smith was still alive during the course of the

22

abatement proceedings. To wit, on May 13, 2014, when questioned about his standing to

23

challenge the abatement, Plaintiff represented that to the County Hearing Officer that he

24

was appearing in Mr. Smith’s place, and that Plaintiff had full authority to bind Mr.

25

Smith, who Plaintiff indicated was the record property owner. Moreover, as recently as

26

July 2014, Plaintiff submitted legal motions which bore Mr. Smith’s signature. The

27

employee defendants might be forgiven for thinking that Mr. Smith was alive and

28

properly subject to the abatement notices and proceedings.
11
3:18-CV-711-GPC-NLS

1

In any event, Plaintiff cannot refute the clear documentary record of all the due

2

process afforded him. The County’s decade-long attempt to abate the nuisance was

3

known to Plaintiff, and during this time, Defendants gave Plaintiff every possible

4

opportunity to object and abate the nuisance on his own before they moved forward with

5

an abatement warrant. Indeed, Plaintiff filed numerous motions and appeals with the

6

County and as a result of those filings, Plaintiff was granted hearings during which he

7

was permitted to offer both argument and evidence. Thus, the Court concludes that

8

Plaintiff failed to bear his burden to allege a Constitutional violation.

9

Even assuming arguendo that Defendants had committed a constitutional wrong,

10

Plaintiff is stymied by the second prong of the qualified immunity analysis. To prevail

11

with respect to the second prong, “plaintiffs must generally identify a case where a

12

defendant acting under similar circumstances was held to have violated the

13

[constitutional provision underlying a claim].” Felarca v. Birgeneau, 891 F.3d 809, 822

14

(9th Cir. 2018); see also Reese v. Cty. of Sacramento, 888 F.3d 1030, 1038–39 (9th Cir.

15

2018) (defendant entitled to qualified immunity where plaintiff “has not identified any

16

sufficiently analogous cases” and “none of [plaintiff]’s cited cases demonstrate that the

17

contours of his Fourth Amendment right were sufficiently clear” and “[plaintiff] points to

18

no case that considered the relevant question”). Clearly established law may not be

19

defined “at a high level of generality,” rather; it must be “particularized” to the facts of

20

the case. White, 137 S. Ct. at 552 (citations and internal quotation marks omitted).

21

Although it was his burden, Plaintiff has not articulated any clearly-established law

22

prohibiting conduct analogous to that alleged of the Defendants. Plaintiff has altogether

23

failed to identify any cases where officers were found liable for executing abatement

24

proceedings against a property where the owner—though not named in the proceeding—

25

received notice of all applicable hearings dates and actions, and was granted

26

opportunities to contest and testify thereto. Nor does the Court, drawing on its own “full

27

knowledge” of relevant precedent, believe that any such clearly established law exists.

28

Brown v. Grinder, No. 2:13-CV-01007KJMKJN, 2019 WL 280296, at *15 (E.D. Cal.
12
3:18-CV-711-GPC-NLS

1

Jan. 22, 2019) (courts have discretion to refer to their own knowledge of relevant case

2

law in assessing second prong).

3
4

The employee defendants are entitled to qualified immunity as to Plaintiff’s § 1983
claims.

5
6

3.

State Law Arguments

Defendants’ defenses as to Plaintiff’s state law claims are two-fold. First,

7

Defendants claim that they are absolutely immune from all the SAC’s state law

8

abatement and tax lien allegations under various provisions of the California Government

9

Code. Second, Defendants argue that Plaintiff’s allegations of fraud and conspiracy are

10

contradicted by the record.

11
12

i.

Tax Lien

Defendants argue that any liabilities arising from the Defendants’ imposition of the

13

tax lien on his property are precluded by the pay-first, sue later rule, and immunity

14

provisions in the California Government Code.

15

First, Defendants claim that any attempt to dispute the tax on the property would

16

first require Plaintiff to pay the amount due before litigating. (ECF No. 49-1, at 10.) For

17

this proposition, Defendants rely on the opinion in Rickley, which held that for “taxpayers

18

who dispute that any tax is owed the rule is ‘pay first, litigate later’.” Rickley v. Cty. of

19

Los Angeles, 114 Cal. App. 4th 1002, 1013–14 (2004) (citations omitted). Plaintiff has

20

yet to pay his property taxes (ECF No. 48, at 7–8), and thus, Defendants contend, he

21

cannot file suit until he does so and exhausts administrative remedies. (ECF No. 49-1, at

22

10–11.)

23

In the alternative, Defendants also reassert an immunity provision which they

24

invoked with respect to their previous motion to dismiss the FAC; i.e., California

25

Government Code section 860.2. Section 860.2 states:

26
27
28

Neither a public entity nor a public employee is liable for an injury caused by: (a)
Instituting any judicial or administrative proceeding or action for or incidental to
the assessment or collection of a tax [; or] (b) An act or omission in the
interpretation of application of any law relating to a tax.
13
3:18-CV-711-GPC-NLS

1
2
3
4
5
6
7
8
9
10
11
12
13
14

The Court originally declined to apply Section 860.2 with respect to Plaintiff’s FAC
because Defendants offered no briefing in support of applying Section 860.2 in the face
of allegations of knowing or willful unlawful action. (ECF No. 46, at 10–12.)
Defendants’ new motion to dismiss, however, offers Rickley for the proposition
that Section 860.2 applies even where the officials in question knew that the tax liens
placed were invalid or unjustified. Immunity was granted notwithstanding any asserted
knowledge of impropriety, because, as the court reasoned, “[i]t is of no consequence that
the County acted intentionally or otherwise. . . Such liens are matters of public record and
respondent cannot overcome the immunity conferred on the County.” Rickley, 114 Cal.
App. 4th at 1005.
In light of Rickley, the Court is satisfied that Defendants are immune from
litigation with respect to the tax lien claims—both because Plaintiff had an obligation to
pay first before suit, and also because Section 860.2 is applicable.
ii.

15
16
17
18
19
20
21
22
23
24
25
26
27

Executing the Abatement Warrant

Defendants argue that Plaintiff’s claims as to the execution of the warrant are also
barred by California statute. They cite California Government Code section 821.8, which
“provides that public employees are not liable for entry onto property where the entry is
under the expressed or implied authority of law.” Ogborn v. City of Lancaster, 101 Cal.
App. 4th 448, 462 (2002). Plaintiff has not provided any case law to demonstrate that
Defendants’ interpretation of the state law provision is inaccurate. The Court thus grants
the Defendants immunity regarding the state claims stemming from the abatement
warrant and its execution.
iii.

Conspiracy and Fraud

Defendants do not raise an immunity defense to Plaintiff’s conspiracy and fraud
claims, but contend that they are inadequately pled, or otherwise contradicted by
judicially-noticeable documents.

28
14
3:18-CV-711-GPC-NLS

1

As previously discussed with respect to the § 1983 claims, the Court again finds

2

that Plaintiff has not stated facts plausibly alleging that Defendants hatched a nefarious

3

plot to divest Plaintiff of his property. Given the judicially-noticed documents, and

4

Plaintiff’s own obfuscating representations and filings with the County Hearing Officers,

5

the Court would have to believe that Plaintiff was in cahoots with the Defendants in

6

developing the very fiction that Plaintiff alleged was used against him.

7
8
9
10

Such logic stretches reason and thus can be dismissed as failing the plausibility test
set out in Iqbal. Iqbal, 556 U.S. at 678.
3. Res Judicata and Collateral Estoppel
Finally, Defendants argue that they are immune from further litigation on all

11

Plaintiff’s claims due to claim preclusion and collateral estoppel. Res judicata, also

12

known as claim preclusion, prevents litigation over causes of action between the same

13

parties, or parties who are in privity, which they have previously litigated. Headwaters

14

Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051–52 (9th Cir. 2005). The purpose behind

15

the doctrine is to relieve parties of the cost and vexation of multiple lawsuits, conserve

16

judicial resources, prevent inconsistent decisions, and encourage reliance on prior

17

adjudication. Montana v. United States, 440 U.S. 147, 153–54 (1979).

18

For a defendant to prevail on a res judicata defense, they must show: (1) the same

19

parties, or their privities, were involved in a prior litigation; (2) the preceding litigation

20

involved the same claim or cause of action as the second suit; and (3) the prior litigation

21

was terminated by a final judgment on the merits. See Blonder-Tongue Lab., Inc. v.

22

Univ. of Ill. Found., 402 U.S. 313, 323–24 (1971). The prior litigation need not take

23

place in court; it may reside in an administrative adjudication. Astoria Fed. Sav. & Loan

24

Ass’n v. Solimino, 501 U.S. 104, 107 (1991). In the Ninth Circuit, courts assess the

25

preclusive effect of any given administrative adjudication with reference to the

26

availability of judicial review. See Plain v. McCabe, 797 F.2d 713 (9th Cir. 1986).

27
28

Defendants argue that Plaintiff’s claims are barred because they either had already
been raised and denied in a previous administrative proceeding or were waived because
15
3:18-CV-711-GPC-NLS

1

Plaintiff neglected to raise the claims in a prior proceeding. (ECF No. 49-1, at 6–8.)

2

Defendants rely on Astoria to argue that the determinations reached during the June 4,

3

2015 administrative hearing were preclusive, as Plaintiff made or should have made all

4

his claims of improper procedure, fraudulent proceedings against Mr. Smith, etc., at that

5

juncture. (ECF No. 49-1, at 6–8.) The Supreme Court in Astoria found that “[w]hen an

6

administrative agency is acting in a judicial capacity and resolves disputes of fact

7

properly before it which the parties have had an adequate opportunity to litigate, the

8

courts have not hesitated to apply res judicata to enforce repose.” Astoria, 501 U.S. at

9

107.

10

Defendants argue these hearings are just the sort of actions taken in a judicial

11

capacity that should result in res judicata and collateral estoppel. Defendants point to San

12

Diego Ordinance Section 16.209 to illustrate the judicial characteristics of the June 4,

13

2015 administrative proceedings. The County’s proceedings permitted Plaintiff to be

14

represented by legal counsel, call and examine witnesses, introduce exhibits, cross-

15

examine opposing witnesses, and impeach witnesses. (ECF No. 49-1, at 11.) Defendants

16

further contend that Plaintiff did not have to follow strict rules of evidence. (Id.)

17

Defendants urge that despite the opportunity to put forward any and all evidence and

18

claims at these hearings, Plaintiff failed to prove his case. Further, when the hearing

19

concluded with instructions advising Plaintiff of his right to pursue judicial review,

20

Plaintiff failed to make a timely appeal. (See ECF No. 49-2, at 49 (“Appellant has a right

21

to file a lawsuit challenging this decision within 90 days after this decision becomes final,

22

all as defined by the California Code of Civil Procedure.”).)

23

Plaintiff responds to these arguments by reprising his claims in the SAC, arguing

24

the proceedings are invalid because they were based on fraud and conspiracy. (ECF No.

25

52, at 12–13). He does not engage in any meaningful way with Defendants’ assertions

26

that the administrative hearings ought to be given preclusive force, or provide any

27

explanation why he did not raise his present arguments in 2015.

28
16
3:18-CV-711-GPC-NLS

The Court finds that the administrative hearings in this case “ha[ve] the essential

1
2

procedural characteristics of a court, . . . [their] determinations should be accorded the

3

same finality that is accorded the judgment of a court.” Univ. of Tenn. v. Elliott, 478 U.S.

4

788, 798 n.6 (1986). Plaintiff has not brought forth claims or judicially noticed material

5

that he was denied the ability to present crucial evidence, question witnesses, or

6

challenge the evidence of the Defendants at the administrative hearings. Instead, he

7

claims that the Court should ignore these proceedings because the Defendants were

8

conspiring against him and thus none of the administrative hearings are legitimate.

9

Having discerned no plausible allegations of conspiracy and fraud, the Court finds res

10

judicata proper and gives due weight to the administrative determinations.

11

Lastly, res judicata applies to all Defendants in this case. Although the prior

12

administrative actions were not brought against all the parties in the case at bar, the

13

parties unique to the instant action—i.e., the employee defendants—are in privity with

14

parties previously named. Employees are in privity with their employer for the purposes

15

of res judicata, and thus Plaintiff should have included the employees in his original

16

actions. See Wright v. City of Los Angeles, No. CV 11–0158 AHM (RZx), 2012 WL

17

1319919, at *5 (C.D. Cal. April 17, 2012) (finding employees of various Los Angeles

18

agencies were in privity for purposes of res judicata with their employers). Thus, the

19

preclusive effect of the earlier litigation against the County envelops claims asserted

20

against its employees in the present matter.

21

This Court, therefore, finds that the administrative hearings are binding and

22

preclude the instant litigation—both as to claims that were brought in the administrative

23

proceedings, and those that could have been.3

24

III. Conclusion

25
26
3

27
28

The Ninth Circuit has specifically found that administrative agencies decisions can apply to § 1983
claims. See Miller v. Cty. of Santa Cruz, 39 F.3d 1030, 1031–32 (9th Cir. 1994) (holding that a civil
service administrative proceeding that provided adequate opportunity to litigate a wrongful termination
claim had a preclusive effect on a plaintiff who forwent his right to appeal).
17
3:18-CV-711-GPC-NLS

1

To conclude, the Court has reached several determinations with respect to

2

Defendants’ motion to dismiss. First, Plaintiff’s § 1983 claims against the employee

3

defendants are precluded by qualified immunity. Second, his state law tax lien claims are

4

barred by statute, and his claims for state law trespass, quiet title, bad faith, etc., are

5

factually implausible given judicially noticeable documents squarely belying any

6

assertion that Defendants conspired to use Mr. Smith as a means to deprive Plaintiff of

7

his property. Third, all of Plaintiff’s SAC claims—both federal and state law—are barred

8

as a matter of res judicata, and independently undermined by the record demonstrating no

9

conspiracy by Defendants to maliciously deprive him of property. As a result,

10
11

Defendants’ motion to dismiss is GRANTED. (ECF No. 49.)
The Court’s discretion to deny or grant leave to amend is “particularly broad where

12

a plaintiff has previously amended the complaint.” Ascon Props., Inc. v. Mobil Oil Co.,

13

866 F.2d 1149, 1160 (9th Cir. 1989). Because Plaintiff’s assertion of a fraudulent

14

scheme is irredeemably contradicted by judicially-noticeable documents, the Court

15

determines that amendment would be futile, and orders that dismissal be with

16

PREJUDICE. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming

17

dismissal with prejudice where district court had instructed pro se plaintiff regarding

18

deficiencies in prior order dismissing claim with leave to amend).

19

The motion hearing set for this matter on August 30, 2019 is hereby VACATED.

20

The Clerk is directed to enter judgment and close the case.

21

IT IS SO ORDERED.

22

Dated: August 26, 2019

23
24
25
26
27
28
18
3:18-CV-711-GPC-NLS