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Jen v. City and County of San Francisco

United States District Court, N.D. California

July 11, 2016

KAIMIN JIMMY JEN, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART SPECIAL MOTION TO STRIKE; SETTING CASE MANAGEMENT CONFERENCE Re: Dkt. Nos. 6 & 7

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant City and County of San Francisco's ("San Francisco") motion to dismiss and special motion to strike the complaint, Dkt. No. 1 ("Compl."), filed by Plaintiff Kaimin Jimmy Jen ("Plaintiff"). Dkt. No. 6 ("MTS") & 7 ("MTD"). San Francisco contends that Plaintiff's claims are res judicata and barred by state law immunity, the applicable statutes of limitations, and standing doctrine. In support of these arguments, San Francisco requests judicial notice of certain materials from past judicial proceedings involving Plaintiff. Dkt. Nos. 9 ("RJN 1") & 23 ("RJN 2"). Plaintiff has filed a consolidated opposition, Dkt. No. 17 ("Opp."), and San Francisco has filed a consolidated reply, Dkt. No. 21 ("Reply").

         For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART San Francisco's motion to dismiss and GRANTS IN PART and DENIES IN PART its special motion to strike.

         I. BACKGROUND

         A. 1998 Private Contract Dispute

         Plaintiff alleges that he entered into a contract in 1998 with Defendant City Attorney Dennis Herrera ("City Attorney Herrera"), then the President of the Police Commission, to do construction work at Herrera's residence. Compl. ¶ 10. City Attorney Herrera allegedly requested that Plaintiff engage in illegal permitting activity to complete the project because he thought that persons of Chinese descent operating as contractors in San Francisco, like Plaintiff, routinely engaged in such business practices. Id. ¶¶ 11-13. Plaintiff refused, but did legally acquire one permit. Id. ¶¶ 12-13. City Attorney Herrera then allegedly refused to pay for these services, despite the fact that he had renewed the permit in October 2003 and used it to complete certain illegal construction on his home. Id. ¶¶ 14-16. Plaintiff did not discover that Herrera used the permit until July 2014. Id. ¶ 14.

         Based on these allegations, and liberally construing the complaint, Plaintiff asserts causes of action under California law against City Attorney Herrera alone for breach of contract, fraud, and breach of the implied covenant of good faith and fair dealing. Id. ¶¶ 63-66.

         B. 1999 Complaint About Building Code Enforcement

         In 1999, Plaintiff allegedly discovered that Defendant Rafael Tores-Gil ("Tores-Gil"), who was then an employee of the code enforcement division of San Francisco's building department, was engaged in an illegal scheme with a San Francisco deputy city attorney to cite buildings for code violations in poor areas, condemn them, purchase the buildings, and then resell them. Id. ¶ 17. Plaintiff brought this to the attention of another deputy city attorney, which caused the City Attorney's Office to become angry with him. Id. In retaliation for this complaint and based on Plaintiff's Chinese race, Tores-Gil created false building code violations regarding construction on a building that Plaintiff owned. Id. ¶ 18. When Plaintiff complained to the director of the building department, Tores-Gil was suspended. Id. But the City Attorney's Office later overturned his suspension. Id.

         Based on these allegations, and liberally construing the complaint, Plaintiff asserts causes of action under California law against all Defendants for intentional infliction of emotional distress and racial and national origin discrimination under California Civil Code 52.1(b), as well as federal claims based on racial and national origin discrimination and conspiracy to commit the same under 42 U.S.C. §§ 1981, 1983 and 1985. Id. ¶¶ 34-47, 58-62.

         C. 2000 Nuisance Lawsuit and 2006 Bankruptcy

         In 2000, Plaintiff purchased an abandoned building in San Francisco that had undergone numerous illegal alterations. Id. ¶ 19. Plaintiff filed building permit applications and abated the violations, but Tores-Gil ordered a site inspection that resulted in a nuisance lawsuit against Plaintiff, brought by the City Attorney's office. Id. Plaintiff represented himself at trial and lost, subjecting him to a fine and attorneys' fees totaling $1.2 million, as well as an injunction requiring pre-approval by the City Attorney's Office for his building permits. Id. ¶ 20. As a result, Plaintiff declared bankruptcy in 2006. Id.

         Based on these allegations, and liberally construing the complaint, Plaintiff asserts causes of action under California law against all Defendants for intentional infliction of emotional distress and racial and national origin discrimination under California Civil Code 52.1(b), as well as federal claims based on racial and national origin discrimination and conspiracy to commit the same under 42 U.S.C. §§ 1981, 1983 and 1985. Id. ¶¶ 34-47, 58-62.

         D. 2007 Criminal Charges and 2008 Dismissal

         In 2007, City Attorney Herrera asked the District Attorney's Office to bring criminal charges against Plaintiff regarding a permit that Plaintiff had filed in 1999 on a property in San Francisco. Id. ¶ 21. To do so, City Attorney Herrera allegedly provided fabricated facts about Plaintiff's work on the property to the District Attorney's Office to make it appear that he had done work without plans and a permit. Id. ¶ 22. Plaintiff believes that the prosecution was retaliatory and motivated by racial animus. Id. In August 2008, all of the charges against Plaintiff were dismissed by the court. Id.

         Based on these allegations, and liberally construing the complaint, Plaintiff asserts causes of action under California law against all Defendants for intentional infliction of emotional distress, malicious prosecution, and racial and national origin discrimination under California Civil Code 52.1(b) regarding his arrest and searches incident thereto, as well as federal claims based on racial and national origin discrimination and conspiracy to commit the same under 42 U.S.C. §§ 1981, 1983, and 1985. Id. ¶¶ 34-62.

         E. 2010 Criminal Arrest, 2013 Probable Cause Finding, and 2014 Dismissal

         In October 2008, City Attorney Herrera urged the District Attorney's Office to conduct another criminal investigation into Plaintiff regarding a forged signature and license stamp used on Plaintiff's construction projects. Id. ¶ 23. Defendant Michael Kloss from the District Attorney's Office was the head of the investigation. Id. ¶ 24. Despite knowing that the investigation had no merit, Defendants Herrera and Kloss pressed forward. Id. ¶¶ 24-25. For example, a handwriting examiner retained by San Francisco indicated that he could not ascertain whether Plaintiff had committed the forgery. Id. ¶ 25. But Herrera and Kloss encouraged witnesses to lie and falsified evidence to obtain search and arrest warrants. Id. ¶¶ 28-29. For its part, San Francisco failed to prevent these retaliatory and racially-motivated actions. Id. ¶¶ 32-33.

         As a result, in February 2009, Kloss searched Plaintiff's office, causing his eviction from the premises and the close of his business. Id. ¶ 26. Kloss also planted GPS devices on Plaintiff's vehicles without a warrant and harassed his family. Id. And on August 3, 2010, Kloss filed 232 felony charges against Plaintiff and successfully sought bail of $50 million, leaving Plaintiff in prison pending trial for four years. Id. ¶ 27. During that time, City Attorney Herrera allegedly made false statements about Plaintiff and pronounced him guilty to the public. Id. ¶¶ 30-31. On August 8, 2014, all charges were dismissed against Plaintiff and he was released. Id. ¶ 27.

         Based on these allegations, and liberally construing the complaint, Plaintiff asserts causes of action under California law against all Defendants for intentional infliction of emotional distress, false arrest, malicious prosecution, and racial and national origin discrimination under California Civil Code 52.1(b) regarding his arrest and searches incident thereto, as well as federal claims for racial and national origin discrimination and conspiracy to commit the same under 42 U.S.C. §§ 1981, 1983 and 1985. Id. ¶¶ 34-62.

         F. Procedural History

         On February 3, 2015, Plaintiff formally filed claims against Defendants under California Government Code § 905, et seq. Id. ¶ 27. Those claims were denied on February 26, 2015. Id. On August 21, 2015, Plaintiff filed the instant action. Dkt. No. 1. San Francisco moves to strike the complaint as an improper attack on Defendants' constitutional right of petition under California Civil Code § 425.16 and has moved to dismiss on a variety of grounds, including res judicata, state law immunity, the applicable statutes of limitations, and standing doctrine.

         II. REQUEST FOR JUDICIAL NOTICE

         Before reaching the substance of San Francisco's motions, the Court addresses its requests for judicial notice. San Francisco asks the Court to take notice of documents containing factual allegations, factual findings, legal arguments, and legal conclusions from several related actions and proceedings discussed in Plaintiff's complaint. RJN 1 & RJN 2.

         These materials include: (1) the complaint and judgment from Plaintiff's civil lawsuit, Jen v. Kwok, et al., No. 313-017, filed June 19, 2000, in San Francisco Superior Court; (2) certain pleadings and the final decree in In re Jimmy Jen aka Kai-Min Jimmy Jen, No. 06-30533, filed June 30, 2006, in United States Bankruptcy Court for the Northern District of California; (3) the final hearing transcript and judgment in Andrea Wirum, Trustee of the Chapter 7 Estate of Jimmy Jen aka Kai-Min Jimmy Jen v. Jimmy Jen aka Kai-Min Jimmy Jen, No. 06-03184, filed December 6, 2006, in United States Bankruptcy Court for the Northern District of California; (4) docket excerpts from and hearing transcripts from the preliminary hearing in People of the State of California v. Kaimin Jimmy Jen, No. 220545, in San Francisco Superior Court; (5) certain records related to Plaintiff's government claim, including a rejection letter and a declaration. Id.

         The Court may take judicial notice of documents "not subject to reasonable dispute." Fed.R.Evid. 201(b). Proceedings, including orders and filings, in other courts, including state courts, are the proper subject of judicial notice if those proceedings "have a direct relation to the matters at issue." Tigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (internal citations omitted). These documents may include hearing transcripts. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1039, n.2 (9th Cir. 2007). But the Court will not take notice of facts from other proceedings for the truth of the matters they assert. See Lasar v. Ford Motor Co., 399 F.3d 1101, 1117, n.14 (9th Cir. 2005) (declining to take judicial notice of findings made in a state court proceeding "because [defendants were] offering the factual findings contained in the order for the purpose of proving the truth of the factual findings contained therein"). The Court will take notice of these materials, however, to the extent that they explain the procedural posture of the case, including the nature of the orders entered by other courts. See Tigueros, 658 F.3d at 987 (taking notice of state court documents because they were "directly related" to the posture of the case).

         Here, the Court takes judicial notice of the fact of the existence of each of the documents set forth in San Francisco's request for judicial notice, including the fact of the existence of the arguments and findings made in the documents, with the exception of Exhibit F-2, the declaration of Matthew Rothschild, which is offered exclusively for the truth of the matters asserted in it.

         III. LEGAL STANDARD

         A. Federal Rule of Civil ...


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