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Cook v. City of California City

United States District Court, E.D. California

April 12, 2017

CITY of CALIFORNIA CITY, a California municipal corporation; TOM WILLIAM WEIL; WILLIAM ROBERT SMITH; SHANNON HAYES; and Does 1-100, inclusive, Defendants.


         This case is currently before the court on a motion to dismiss plaintiff's second amended complaint (“SAC”), which was filed on December 28, 2016. (Doc. No. 46.) Defendants California City, Hayes, Smith, and Weil moved to dismiss the SAC and to strike plaintiff's state claim pursuant to California Code of Civil Procedure § 425.16(b)(1) on January 25, 2017. (Doc. No. 53.)[1] Plaintiff filed an opposition on February 21, 2017. (Doc. No. 58.) Defendants replied on February 28, 2017. (Doc. No. 65.) The court heard oral argument on March 7, 2017, with attorney Olaf Landsgaard appearing telephonically on behalf of plaintiff and attorney Julie Fleming appearing telephonically on behalf of defendants. For the reasons that follow, the court grants defendants' motion to dismiss.


         The factual background of this case was set out in the court's prior order of December 9, 2016, and will not be repeated here save and except to highlight the differences between plaintiff's complaints, as discussed further below. (See Doc. No. 45.) The fifty-five page SAC suffers from the same lack of clarity as the first amended complaint (“FAC”). (See Id. at 3-4 (noting the potential claims plaintiff might have been seeking to allege in his FAC).) Again, the SAC appears to contain allegations which could be construed to allege a wide variety of claims on a plethora of legal bases.[2] At the hearing on the pending motion and at the court's request, plaintiff's counsel identified the federal causes of action alleged in the SAC as follows: (1) a First Amendment retaliation claim; (2) a Fourth Amendment claim; (3) a Fifth Amendment claim; and (4) a Fourteenth Amendment due process claims. Plaintiff's counsel also identified the following new factual allegations in plaintiff's SAC: (1) that the hearing process on plaintiff's damages claim to the city evidenced retaliation because it was conducted in public and because an unruly member of the public was removed from the council meeting (see Doc. No. 46 at ¶¶ 121-23); (2) that defendant Hayes-a local police officer-allegedly returned twice more to plaintiff's home and jumped into his front yard to leave a notice of the new city ordinance on his porch (see Id. at ¶ 33); (3) that a clarified timeline of events shows that only 10 days elapsed between plaintiff's submission of his claim to the city for damages and the nuisance abatement suit filed against plaintiff by the city (see Id. at ¶¶ 35-37); and (4) that defendant Weil and plaintiff had, as plaintiff's counsel put it, “history.” The SAC also includes discussion of California's recently-enacted Proposition 64. (See id. at ¶¶ 5, 26, 46.) Given the rambling nature of the SAC, the court will again focus its attention on those claims identified by counsel at oral argument as purportedly presented therein.


         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         In ruling on such a motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).


         1. Plaintiff States No Cognizable Federal Claims in His Second Amended Complaint

         a. The SAC Does Not State a Cognizable First Amendment Retaliation Claim

         In order to allege a First Amendment claim of retaliation, a plaintiff must allege facts sufficient to demonstrate three elements: (1) plaintiff was engaged in a constitutionally protected activity; (2) the defendant's actions would chill a person of ordinary firmness from engaging in that protected activity and (3) the protected activity was a “substantial or motivating factor” in the defendant's conduct. O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)).

         In its prior order addressing the FAC, the court concluded plaintiff had not stated a First Amendment retaliation claim because he could not plausibly allege that a person of ordinary firmness would be chilled by the filing of a nuisance abatement proceeding against them to enjoin their cultivation of marijuana. (Doc. No. 45 at 10.) In his opposition to the pending motion to dismiss plaintiff clarifies that the chilling occurred not just because of the filing of the nuisance abatement suit against him, but because another resident, an acquaintance of plaintiff's, was ejected from a city council meeting after continually shouting that the city should not consider plaintiff's claim for damages at a public meeting. (Doc. No. 58 at 11-12.) Plaintiff also points to a news article which reported “[the resident] continued to protest, shouting from his seat, as the council proceeded with its discussion, and was eventually escorted from the meeting by a police officer.” (Id.) According to plaintiff, the city council's discussion of plaintiff's request for damages at an open, rather than a closed, session was “meant . . . to humiliate” plaintiff. (Id. at 12.) Even if these allegations were included in the SAC, where they are merely alluded to (see Doc. No. 46 at 34-36), they would be insufficient to state a plausible retaliation claim. A person of ordinary firmness would not be chilled from engaging in protected First Amendment activity by any of the following, even in concert: (1) a public discussion at a municipal meeting of a claim for damages for trespassing that plaintiff had filed; (2) an acquaintance being removed from the same public meeting for being unruly; or (3) the filing of a nuisance abatement suit seeking to enjoin plaintiff from growing marijuana when, at the time of the suit, cultivating marijuana was illegal under the applicable law.

         There are many cases where legal action has been found sufficiently adverse to threaten the chilling of protected activity, enough so that this court would presume legal action such as the filing of a lawsuit is usually sufficient to meet this prong. See Ford v. City of Yakima, 706 F.3d 1188, 1193-94 (9th Cir. 2013) (being booked and taken to jail sufficient to chill ordinary person); Lacey v. Maricopa Cty., 693 F.3d 896, 916-17 (9th Cir. 2012) (investigation and arrest sufficient to find chilling); Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (false prison disciplinary complaints could sufficiently chill); Brodheim v. Cry, 584 F.3d 1262, 1270-71 (9th Cir. 2009) (threat of unwarranted prison discipline sufficiently chilling); Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006) (search-and-seizure could be sufficiently chilling); White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (even “[i]nformal measures, such as ‘the threat of invoking legal sanctions'” can be sufficiently chilling) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)). However, here, plaintiff has consistently alleged only that the state court abatement action brought against him was retaliatory because it sought to enjoin him from cultivating marijuana. (See Doc. No. 46 (Plaintiff's SAC) at ¶ 3 (defendants retaliated by “filing a lawsuit for permanent injunction”); id. at ¶ 6 (state court lawsuit sought to prohibit cultivation of marijuana); id. at 7 (noting suit for injunction filed without “probable cause”); id. at ¶¶ 23, 29, 31, 32; id. at ¶ 37 (noting retaliation by filing “a lawsuit to enjoin Cook's alleged growing of marijuana”); see also Id. at ¶¶ 41, 42, 59, 61, 88-89, 110, 116, 124, 129, 143, 180.)

         It is clear that at the time the abatement action was brought state law permitted municipalities to bar cultivation of marijuana within their jurisdictions by local ordinance. See City of Riverside v. Inland Empire Patients Health and Wellness Ctr., Inc., 56 Cal.4th 729, 752- 57 (2013) (finding state medicinal marijuana laws do not preempt local ordinances prohibiting cultivation of medical marijuana); Ross v. RagingWire Telecomms., Inc., 42 Cal. 4Th 920, 926-31 (2008) (noting medicinal marijuana laws provided only that certain instances of possession and cultivation were no longer criminal under state law). Plaintiff has presented no argument otherwise. Moreover, it is undisputed California City had such an ordinance prohibiting the cultivation of marijuana in effect at the time.

         This court cannot conclude that, as plaintiff has alleged, a nuisance abatement suit seeking only to enjoin him from an activity he had no right under the law to take up would chill a person of ordinary firmness from engaging in the protected First Amendment activity of filing a grievance. The legal actions in the numerous cases cited above involved substantial impingements on the rights of the plaintiffs, such as restrictions on their liberty, direct financial penalties, and invasions into personal spaces protected by the Fourth Amendment. A suit enjoining plaintiff from engaging in conduct he had no right to engage in implicates no such harm. See Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016) (noting adverse retaliatory acts are ordinarily “‘regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech'”) (quoting Blair v. Bethel Sch. Dist., 608 F.3d 540 (9th Cir. 2010)) (emphasis added) (internal quotations omitted); see also Blair, 608 F.3d at 544 (adverse action must be more than a “minor indignity, and de minimis deprivations of benefits and privileges on ...

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