Opinion
2:23-cv-00535 WBS JDP
01-09-2024
PHILLIP HOFF, Plaintiff, v. COUNTY OF SISKIYOU, an administrative body; ANDREA FOX, ex-HOA manager; and DOES 1-10, inclusive, Defendants.
ORDER
Plaintiff Phillip Hoff filed a third amended complaint (Third Am. Compl. (“TAC”) (Docket No. 21)) after the court dismissed his second amended complaint with leave to amend (Order (Docket No. 20)). The court now considers defendants Siskiyou County and Andrea Fox's motion to strike (Mot. to Strike (Docket No. 28-1)) and motion to dismiss (Mot. to Dismiss (Docket No. 271)
Except where necessary, the court will not recite the relevant factual background or legal standards because they are already set forth in the court's order dismissing the second amended complaint. (See generally Order.)
I. Motion to Strike
Defendants move to strike the TAC in its entirety because it was filed seven days past the court's deadline. (Mot. to Strike.) Plaintiff's TAC is clearly untimely. However, defendants do not allege any prejudice suffered as a result. Accordingly, the court will not strike the TAC in its entirety on this basis.
This is the second time that plaintiff has failed to comply with the court's orders. Previously, plaintiff's counsel failed to appear for oral argument on defendants' motion to dismiss the second amended, complaint without prior notice to the court or to defendants. (Docket No. 18.) Subsequent failures to comply with the court's orders will require plaintiff to show cause why the court should not impose appropriate sanctions.
Alternatively, defendants move to strike certain portions of exhibits included with the TAC on the grounds that they are irrelevant and immaterial. (Mot. to Strike at 5.) Specifically, defendants target the following documents: (1) A document containing the text of California Government Code § 12956(b)(1) (TAC at 68); (2) a document excerpting from Government Code § 12956.l(b)(1) and §§ 12956.2(a)(1), (b)(1), and (c) (id. at 86); and (3) Grant of Right of Way (id. at 94). (Mot. to Strike at 5.)
Federal Rule of Civil Procedure 12(f) provides that the court may “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). However, “[m]otions to strike should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation or unless prejudice would result to the moving party from denial of the motion.” Delgado v. Marketsource, Inc., No. 17-CV-07370-LHK, 2019 WL 1904216, at *3 (N.D. Cal. Apr. 29, 2019) (internal quotations and citations omitted).
Defendants argue only that “Based on the allegations and legal claims contained in the TAC, the following exhibits appear immaterial and should be stricken.” (Mot. to Strike at 5.) Defendants do not argue that they would be prejudiced if the motion were denied. Accordingly, the court will deny defendants' motion to strike.
II. Motion to Dismiss
A. Due Process (Claim 1)
The court previously dismissed plaintiff's due process claim because he failed to allege (1) any facts establishing a constitutionally protected property interest in a permit for his second container, and (2) any facts showing that his permit was revoked. (Order at 6-7.)
1. Constitutional Right to Hardship Variance
Plaintiff now argues that he has a constitutionally protected interest in a hardship variance for his second container. Plaintiff applied for the hardship variance on October 28, 2022 after the County allegedly revoked his permit, which he alleges was granted verbally in January 2022. (TAC ¶¶ 26, 28 & at 18.) The County closed plaintiffs' variance application as incomplete on March 7, 2023. (Id. at 92.)
Plaintiff argues that the County is obligated to issue the variance once certain conditions are met, and that plaintiff in fact met “any and all requirements of the County Code.” (Id. ¶¶ 45-47.) However, it appears plaintiff's variance application was denied because plaintiff refused to agree to an indemnity agreement. The Siskiyou County Planning Division's Variance Application Guide (TAC ¶ 46 (“Appl. Guide”)) states that all applicants must submit an indemnification agreement along with their variance applications. (Id. at 5-6.) Plaintiff ultimately refused to submit one. (TAC ¶ 48 and at 92 (“The Siskiyou County Community Development Department cannot proceed with your project as a fully executed Agreement for Indemnification is required.”).)
Plaintiff fails to elaborate what those requirements are. Although plaintiff cites to Siskiyou County Ordinance § 106.3602.195 (TAC ¶ 45), this section simply defines what a “hardship variance” is: “a departure from the provisions of this chapter relating to setbacks, side yards, frontage requirements, and lot size, but not involving the actual use or structure.” Id. It speaks nothing of how the County evaluates hardship variance applications or what the requirements for approval are.
Further, the Application Guide clearly states that “[a] variance from the terms of the county ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of county code deprives such property of privileges enjoyed by other property in the vicinity and under an identical zoning classification.” (Appl. Guide at 2-3.)
“Protected property interests are not created by the Constitution, but by existing rules or understandings that stem from . . . state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 985 (9th Cir. 2011) (citation omitted). Here, the applicable “state law rules or understandings” make it clear that hardship variances, far from being an entitlement, are awarded only in special circumstances and pursuant to an application process, neither of which plaintiff satisfied. Accordingly, plaintiff fails to allege a due process claim relating to the denial of the variance.
2. Revocation of Permit
Plaintiff's sole new allegation regarding revocation is as follows: “HOFF's permit that was verbally granted was revoked.” (Id. ¶ 52.) This, without more, cannot support a due process claim even at the pleading stage because it “tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff's claim is defective even if the court assumes that plaintiff argues for a constructive revocation of his permit, based either on the County's citation of his container (id. ¶¶ 27, 30-31, 50) or the County's denial of his subsequent hardship variance application (id. ¶¶ 29, 37-39, 4849, 53). Plaintiff had an opportunity to challenge the citation in an administrative hearing that plaintiff presumably attended on September 21, 2022. (Id. ¶ 30.) This satisfies due process here. See Makdessian v. City of Mountain View, 152 Fed.Appx. 642, 644 (9th Cir. 2005) (due process satisfied upon notice and opportunity to be heard before deprivation of significant property interest). And, unlike his allegations regarding his permit, plaintiff does not allege he was ever granted a variance in the first place that was later revoked. Instead, plaintiff's own allegations show that his hardship variance application was never even finalized because plaintiff ultimately refused to agree to an indemnity, as required by Siskiyou County regulations. (TAC at 92; see § II.A.1, supra.)
The court therefore concludes that plaintiff fails to sufficiently allege a constitutional property interest in a permit or hardship variance for his second container, or that any permit or variance was revoked in violation of due process.
Accordingly, the court will dismiss this claim.
B. Unreasonable Seizure (Claim 2)
The court previously dismissed plaintiff's Fourth Amendment claim because plaintiff failed to sufficiently allege that the County interfered with his property rights. (Order at 7-8.) Plaintiff now affirmatively alleges that the County effectively forced plaintiff to deed away his container to a Buddhist temple, cut the gate and locks to his property, seized his solar panels and umbrellas, and bulldozed trash onto his land. (Id. ¶¶ 31, 61-63.)
Defendants suggest that these allegations should not be considered because they are “fanciful” and “frivolous” (Mot. at 10), but all plaintiff needs to allege at the pleading stage is that there is “more than a sheer possibility that [the County] has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court accordingly finds that plaintiff has pled a Fourth Amendment injury “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
However, plaintiff fails to allege facts sufficient to attach liability to the County. A local governmental unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability. See Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (“‘[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.'” (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)). Rather, a plaintiff must demonstrate that the alleged constitutional deprivation “may fairly be said to represent official policy . . . .” King v. Cnty. of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018).
Here, plaintiff fails to allege any facts suggesting that any County policy or custom or direction from a decisionmaking official was responsible for the acts that ground plaintiff's Fourth Amendment claim. Plaintiff does appear to argue in his opposition that defendant Andrea Fox had some supervisory authority over the unnamed individuals who carried out the alleged unlawful acts; that Fox herself “personally participated in the constitutional violation;” that there exists a sufficient causal connection between Fox's conduct and the alleged constitutional violations; and that this therefore comprised an official municipal act. (Opp'n (Docket No. 31) at 16.) However, plaintiff must allege facts showing that Fox is “responsible for establishing final policy” consequently attributable to the county. Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021).
Plaintiff fails to allege that any specific person, in whatever capacity, committed the acts. Instead, he only alleges that the County itself engaged in the specific acts interfering with his property. (TAC ¶¶ 32-34, 61-63.) Defendants correctly point out that Siskiyou County is an entity, not an individual capable of trespass, property damage, and theft. (Docket No. 32 (Reply) at 5.) The court therefore draws the inference that plaintiff's allegations of unlawful acts are directed to the individual defendants, named and unnamed, in their official capacities, but not in their individual capacities.
Accordingly, the court will dismiss this claim.
C. Equal Protection (Claim 3)
The court previously dismissed plaintiff's “class of one” equal protection claim because he failed to sufficiently show that his neighbors were directly comparable to him in all material respects. (Order at 10.) For example, the court found that plaintiff's allegation that neighboring properties were “crowded with trailers and motor homes in violation of other County ordinances and/or regulations” left it unclear whether neighboring parcels of land had any Conex containers subject to the same permitting requirements. (Id. at 9-10.)
Plaintiff now alleges that “several homes in and around HOFF's land parcel” also have two or more Conex containers on their property “without any permitting requirements, and no variance hardships,” (TAC ¶ 72) which the court construes to mean that his neighbors who have more than one Conex container on their property have not been cited even though they do not have any required permits or hardship variances.
This is sufficient to state a claim at the pleading stage. All that plaintiff must allege now are facts showing that (1) he has been “intentionally treated differently from others similarly situated,” and that (2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff alleges a few theories for intentional mistreatment: comparative lack of political connections (TAC ¶¶ 23, 71); his disability (id. ¶ 70); and personal animus towards him harbored by Fox (id. ¶¶ 19-21).
Plaintiff also now alleges that several of his neighbors have two or more containers on their properties, but without permits or having been cited for a lack of permits. (Id. ¶ 72.) This is enough to establish plaintiff's neighbors as apt comparators at the pleading stage.
Accordingly, the court will not dismiss this claim.
D. Disability Discrimination (Claim 4)
The court previously dismissed plaintiff's disability discrimination claim because plaintiff did not allege any facts showing that the County denied him his permit or variance on the basis of his disability. (Order at 11.)
Plaintiff's claim still fails for the same reason. Plaintiff now alleges that Fox knew of his traumatic brain injury (TAC ¶¶ 82, 86), but still fails to plead any facts to support his conclusory allegation that “[t]he denial of the permit and hardship waiver was by reason of [plaintiff's] disability.” (Id. ¶ 89.)
Accordingly, the court will dismiss this claim.
E. Regulatory Taking (Claim 7)
The court previously dismissed plaintiff's regulatory taking claim because it was premised entirely on his inability to obtain a permit for his second container. (Order at 12.) Plaintiff now alleges theft and trespass as additional bases for this claim. (TAC ¶ 111 (“The COUNTY's bulldozing of trash, cutting of locks, and interfering with properties both personal [solar panels, Conex containers, locks, umbrellas] and realty of HOFF is akin to a regulatory taking.”); see supra, at § II.B.) The court will analyze plaintiff's takings claim solely as to these new allegations.
The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const. amend V. “As its text makes plain, the Takings Clause does not prohibit the taking of private property, but instead places a condition on the exercise of that power. In other words, it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536-37 (2005) (citations omitted).
Here, plaintiff fails to allege any facts suggesting that the County's alleged actions constituted lawful interference with his property rights. Neither does he allege any plausible “public use” of his property that motivated the County's alleged actions. Instead, plaintiff's new allegations amount to nothing more than a recitation of facts supporting his unreasonable seizure claim.
Accordingly, the court will dismiss this claim.
F. State Law Claims (Claims 5, 6)
The court previously dismissed plaintiff's claims for financial elder abuse and negligence because plaintiff failed to show that he presented these claims to the County pursuant to the Government Claims Act, Cal. Gov. Code §§ 905, 945.4, 950.2. (Order at 12-13.) Plaintiff fails to do so again. Accordingly, the court will dismiss this claim.
In his opposition, plaintiff appears to argue that presentation of his claims to the County should be excused because it would be futile. (Opp'n at 20-22.) Not only do none of plaintiff's cited cases discuss excusal from the Government Claims Act's presentation requirement; plaintiff also fails to allege any facts supporting his argument that presenting his claims, as required by statute, would be in vain.
G. Leave to Amend
Plaintiff shall have one final opportunity to amend his complaint as to the dismissed claims. As this will be plaintiff's fourth opportunity to amend his complaint, the court will not grant leave to add any additional claims or defendants.
IT IS THEREFORE ORDERED that defendants' motion to strike (Docket No. 28) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that defendants' motion to dismiss (Docket No. 27) be, and the same hereby is, DENIED as to plaintiff's equal protection claim (Claim 3). Defendants' motion to dismiss GRANTED as to all other claims. Plaintiff has leave to amend his complaint as to the dismissed claims, but does not have leave to add additional claims or additional defendants. Plaintiff shall file a fourth amended complaint within twenty days of the issuance of this order, if he is able to do so consistent with this order.
Defendants' Request for Judicial Notice (Docket No. 27 2) is DENIED as moot because the court need not rely on the materials therein to reach its decision.