Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 6, 2002


The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge.


This matter came before the Court on October 7, 2002, on Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint. After careful consideration of the parties' written briefs and oral arguments, and good cause appearing, the Court GRANTS the motion to dismiss.


Plaintiffs are five African-American and one Mexican-American former tenants of 10031-59 MacArthur Boulevard, Oakland, California. Marvin Budderman, whom Plaintiffs originally named as a Defendant but have since voluntarily dismissed from this suit, is Plaintiffs' former landlord. Defendants are the City of Oakland, Oakland Mayor Jerry Brown, and two city employees, David Carillo and Pelayo Llamas. Plaintiffs assert two causes of action against Defendants: violation of 42 U.S.C. § 1983 and violation of California Civil Code § 51.

Plaintiffs' Second Amended Complaint contains the following allegations: Budderman and other landlords made contributions to Defendant Brown's mayoral campaigns in 1998, 1999, and 2000. Second Amended Complaint ("Compl.") at ¶ 8. Defendants Carillo and Llamas subsequently acted in concert with Defendants Brown and the City of Oakland to deprive Plaintiffs of their First, Fourth, and Fifth Amendment rights. Id. at ¶ 5. Oakland city officials, including Defendants Llamas and Carillo, "have entered upon the abodes and residences of the plaintiffs without search warrants or arrest warrants, and threatened by words and actions to issue citations, committed assaults and batteries upon plaintiffs, threatened to place them under arrest and search their homes and to deprive them of their homes, places of abode and dwelling houses." Id. at. ¶ 10.

Plaintiffs state that, in November of 2001, Defendants Brown, Carillo, and Llamas, together with Budderman, entered into a conspiracy to "deprive the plaintiffs of their homes, their place of residence, their living quarters and their right to determine the occupation of the abodes by threat, intimidation and fear of physical force and violence." Id. at ¶ 9. Over a two-month period, Defendants Brown and the City of Oakland conspired with Defendants Carillo and Llamas "to illegally enter [Plaintiffs'] homes and make threats and use force to deprive them of their properties." Id. at ¶ 11. Plaintiffs assert that Defendants, whose conduct was allegedly motivated by a desire to acquire possession of the property at 10031-17 MacArthur Boulevard, id. at ¶ 13, "have continued to threaten, intimidate and harass the plaintiffs and deprive them of their residence, homes, and domiciles by sending agents there, making threats to them, and locking the doors and changing the locks on the doors." Id.


Plaintiffs instituted this action with the filing of their Complaint on December 19, 2001. Plaintiffs asserted three causes of action against Defendants Jerry Brown and the City of Oakland: (1) violation of 42 U.S.C. § 1983, (2) violation of 42 U.S.C. § 1985, and (3) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(b) and (c). On January 15, 2002, Plaintiffs filed their First Amended Complaint, which included no new substantive allegations. Defendants brought a motion to dismiss on March 15, 2002. This Court granted Defendants' motion on June 12, 2002. Plaintiffs' § 1985 and RICO causes of action were dismissed with prejudice. Two of Plaintiffs' § 1983 claims — the Sixth Amendment jury trial and Fourteenth Amendment equal protection claims — were dismissed with prejudice, and Plaintiffs' remaining allegations — the First, Fourth, and Fifth Amendment claims — were dismissed without prejudice. Plaintiffs filed their Second Amended Complaint on June 19, 2002, and Defendants brought a motion to dismiss on July 8, 2002.


Dismissal is appropriate under Rule 12(b)(6) when a plaintiffs allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In deciding whether a case should be dismissed, a court may generally only consider the complaint and any attached exhibits that have been incorporated therein. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). However, a court may consider a document external to the complaint if the complaint "necessarily relies" on the document and no party contests the document's authenticity. Parino v. FHP, Inc., 146 F.3d 669, 706 (9th Cir. 1998). In addition, as noted above, a court may also take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

The court must accept as true the factual allegations of the complaint and construe those allegations in the light most favorable to the plaintiff. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2000). It should not grant dismissal unless "it appears beyond a doubt that [the] plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Steckman v. Hart Brewing. Inc., 143 F.3d 1293, 1295 (9th Cir. 1998); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal may be based upon "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable theory." Balistieri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Moreover, dismissal should be with leave to amend unless it is clear that amendment could not possibly cure the complaint's deficiencies. Steckman, 143 F.3d at 1296.


I. Procedural Defects

Defendants assert that Plaintiffs' case is infected with two procedural defects that violate both the Federal Rules of Civil Procedure and this Court's orders, and therefore should result in the dismissal of this action against Defendants David Carillo and Pelayo Llamas.*fn2 First, Defendants claim that Plaintiffs failed to obtain leave to amend their First Amended Complaint to name Carillo and Llamas as defendants and to bring a cause of action under the Unruh Act. Second, Defendants contend that Plaintiffs failed to serve Carillo and Llamas in a timely fashion. The Court will address these alleged procedural flaws in turn.

A. Improper Amendment of Plaintiffs' Complaint

Defendants contend Plaintiffs' Second Amended Complaint, which names two new defendants and asserts a new state law cause of action, should be dismissed for failure to comply with the Federal Rules of Civil Procedure and this Court's orders. Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss Second Amended Complaint ("Defendants' Motion") at 2; Defendants' Reply at 1, 4. The Second Amended Complaint names Pelayo Llamas, a Deputy City Attorney, and David Carillo, a Code Inspector, as defendants in this action. Plaintiffs also allege, for the first time, that Defendants have violated the Unruh Civil Rights Act, Cal. Civ. Code § 51. For the following reasons, the Court concludes that these amendments are proper.

Federal Rule of Civil Procedure 15(a) states that a party may amend a pleading once as a matter of course, which Plaintiffs did when they filed their First Amended Complaint on January 15, 2002. Rule 15(a) further provides that a party may otherwise amend a pleading "only by leave of court or by written consent of the adverse party, and leave shall be freely granted when justice so requires."*fn3 Fed.R.Civ.P. 15(a). Rule 15 "reflects the limited role" assigned to pleadings in federal court, which can be described as providing the parties involved "with fair notice of the general nature and type of the pleader's claim or defense." Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, § 8:362 (2002). Because of the strong federal policy favoring resolution of cases on their merits, leave to amend should be freely granted unless the opposing party can make a showing of unfair prejudice or bad faith on the part of the moving party. Id. at § 8:400, citing Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997), overruled in part on other grounds, Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001). The policy regarding leave to amend is to be applied with "extraordinary liberality." Id., citing Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

This Court did in fact grant Plaintiffs' leave to amend. In dismissing Plaintiffs' First, Fourth, and Fifth Amendment claims without prejudice, the Court's June 12 Order provides that "Plaintiffs may file and serve their second amended complaint no later than June 24, 2002."*fn4 June 12 Order at 13. While the Court directed Plaintiffs to address the deficiencies in the First Amended Complaint, no limitations were placed on the types of amendments that could be made. Defendants' characterization of Plaintiffs' tactics as "gamesmanship," Defendants' Reply at 1, is not sufficient to show unfair prejudice or bad faith. Moreover, when the Court issued its June 12 Order, it was not convinced that further amendments to Plaintiffs' complaint would be futile. See Schwarzer at § 8:362 (stating that "[l]eave to amend may be denied if the proposed amendment is futile or would be subject to dismissal"), citing Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Indeed, with respect to the constitutional claims that were dismissed without prejudice, the Court expressly stated that it was not clear that Plaintiffs could not rectify the flaws in their complaint if given leave to amend. June 12 Order at 7-8.

Allowing Plaintiffs to name two new defendants and assert a new state law cause of action is also consistent with the Federal Rules of Civil Procedure governing joinder of parties and claims. Defendants Carillo and Llamas may be added in Plaintiffs' Second Amended Complaint, as questions of law and fact common to all defendants will be litigated in this action and Plaintiffs have asserted against these new defendants claims to relief that arise out of the same transaction or occurrence. Fed.R.Civ.P. 20. Finally, the new claim for violation of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.