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McKenna v. San Miguel Consolidated Fire Protection Dist.

October 27, 2010

THERESA MCKENNA, AN INDIVIDUAL, PLAINTIFF,
v.
SAN MIGUEL CONSOLIDATED FIRE PROTECTION DISTRICT; AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING SAN MIGUEL CONSOLIDATED FIRE PROTECTION DISTRICT'S MOTION TO DISMISS

On July 19, 2010, Plaintiff Theresa McKenna ("McKenna") brought this action against Defendants San Miguel Consolidated Fire Protection District ("Fire Protection District") and Does 1-10. (Doc. No. 1.) On August 6, 2010, Plaintiff McKenna filed a First Amended Complaint ("FAC"). (Doc. No. 4.) On September 9, 2010, Defendant Fire Protection District filed a motion to dismiss pursuant to the Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 8.) Defendant concurrently filed a request for judicial notice. (Doc. No. 9.) On September 28, 2010, Plaintiff filed their response in opposition to the motion to dismiss and a request for judicial notice. (Doc. No. 10.) On October 6, 2010, Defendant filed its reply and a request for judicial notice. (Doc. Nos. 14 & 15.) The Court held a telephonic hearing on this motion on October 22, 2010. Mark Mazzarella appeared on behalf of the Plaintiff. Kevin Osterberg appeared on behalf of Defendant Fire Protection District.

For the reasons below, the Court GRANTS Defendant Fire Protection District's motion to dismiss. The Court takes judicial notice of the documents provided by Defendant and Plaintiff to the extent those documents are properly subject to judicial notice.

Background

Plaintiff McKenna brings an action against Defendant Fire Protection District alleging a § 1983 violation of her substantive and procedural due process rights and for negligence. The action centers around McKenna's application for subdivision of her property with the County of San Diego and her proposed fire protection plan.

McKenna owns a 16-acre residential lot located in east San Diego County, located at 13990 Jamacha Hills Road, Jamul, California, 91935. (FAC ¶ 8.) McKenna started the process of subdividing the property around April 2004 and submitted her initial Tentative Parcel Map ("TPM") application with the County of San Diego's Department of Planning and Land Use on September 20, 2005. (Id. ¶¶ 9-10.)

McKenna's application to the County required her to submit a Fire Protection Plan ("FPP") and for the district fire department to review the proposed plan. (FAC ¶ 11.) McKenna started communicating with the Fire Protection District regarding her application shortly after her TPM submission. (Id. ¶ 12.) On November 29, 2005, she submitted her FPP to the Fire Protection District. On December 6, 2005, the FPP was approved by Fire Marshal Wadlington. (Id. ¶ 13-14.) The FPP was again approved by the Fire Protection District through Fire Marshal Larsen a second time on April 17, 2006. (Id. ¶ 14.) On August 4, 2006, based on the Fire Protection District's recommendations, the County of San Diego also approved the FPP. (Id. ¶ 15.)

On October 21, 2007, San Diego County experienced horrific wildfires resulting in mandatory evacuations of approximately 500,000 people and death of fifteen people, closure of businesses, government offices, including the courts, and many major roads.*fn1 San Diego Wildfires 2007, http://legacy.signonsandiego.com/news/metro/wildfires/index.html (last visited October 26, 2010).

On October 30, 2007, the County withdrew their initial approval of the FPP due to concerns that there was no secondary access for the property in case of fire emergencies. (FAC ¶ 17.) McKenna met with Fire Chief Dawson and Fire Marshal Larsen on November 5, 2007 to discuss the requirement for secondary access. Plaintiff claims that they told her they would allow her to propose a "same practical effect" alternative. (Id. ¶ 18.) During McKenna's development of her plan to satisfy the safety concerns of the County, she experienced several actions by the Fire Protection District that delayed her project and allegedly harmed her. Among her various complaints, McKenna claims she was denied her initial request for gates for her proposed secondary road, causing her to file an appeal with the Fire Protection District board. (Id. ¶ 24.) Around October 12, 2008, McKenna claims she received an insufficient response to a Public Records Act request with the Fire Protection District and learned more information from the public records when released to her. (Id. ¶ 29.) She alleges that her appeal was scheduled to be on the Fire Protection District Board's agenda for November 13, 2008 but she was not told about the meeting. (Id. ¶ 30.) McKenna also tried to have Fire Marshal Larsen removed from her case. (Id. ¶ 31.) The Fire Chief denied the request in her case, but McKenna alleges that a similar request was granted in at least one other case. (Id. ¶¶ 32-34.)

Despite these events, the Fire Protection District Board heard her appeal on August 13, 2009. (FAC ¶ 35.) By a vote of 4-2, the Board granted her appeal and accepted her suggested same practical effect alternative for her fire protection plan. (Id.)

Discussion

I. Motion to Dismiss Pursuant to 12(b)(6)

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure ยง 1216, pp. 235--36 (3d ed. 2004)). "All ...


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