United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [ECF
Gonzalo P. Curiel, United States District Judge.
the Court is an ongoing dispute between pro se Plaintiff
Thomas Matthews (“Plaintiff”) and Defendants, the
County of San Diego (“County”), the County of San
Diego Board of Directors, and a number of their employees
(“the employee defendants”) (collectively,
“Defendants”) arising from nuisance abatement
actions brought against Plaintiff's property.
issue is Defendants' June 6, 2019 motion to dismiss
Plaintiff's Second Amended Complaint (“SAC”).
(ECF No. 49.) The parties have fully briefed this motion.
(ECF Nos. 49-1, 52, 53, 55, 56.) Pursuant to Civil Local Rule
7.1(d)(1), the Court finds the pending motion suitable for
adjudication without oral argument. For the reasons explained
below, the Court GRANTS Defendants'
motion to dismiss with prejudice.
instant litigation ensues from the County's
long-beleaguered efforts to abate a nuisance found at the
property located at 5602 Trafalgar Road, El Cajon, CA 92109
2004, the County received complaints that solid waste was
being stored on the property in violation of several sections
of the San Diego County Code of Regulatory Ordinances and the
San Diego County Zoning Ordinance. The solid waste included
“scrap wood, scrap metal, wood pallets, metal racking,
cages, automotive parts/equipment, inoperative vehicles,
trailer coaches, construction
appliances/furnishings, wiring/cables, plastic
buckets/bins/containers, tarps, tubing, cardboard boxes, old
machinery and parts, outside stored items, and debris strewn
about.” (ECF No. 49-2, at 5.) Defendants issued several
administrative warnings concerning the property. Site
inspections in later years further revealed storage of
sixteen commercial vehicles, fourteen inoperative vehicles,
large tractor-trailers, trailer coaches, and old machinery
and construction, and trash and debris. (Id. at 6.)
these notices, the waste and hazardous materials on the
property remained on site. On May 13, 2014, Defendants posted
a Notice and Order to Abate on the property and mailed a copy
to the property owner of record, a John M. Smith.
(Id. at 10.)
Plaintiff, Mr. Smith's nephew, filed an administrative
appeal of that abatement order. A hearing was held on May 13,
2014. At the hearing, the presiding County Hearing Officer
questioned Plaintiff's standing to bring the appeal,
noting that he was not the property owner of record.
(Id. at 13.) In response, Plaintiff represented that
“he is a long term tenant of the property, having lived
at the Trafalgar Road address for 21 years, and that he was
appearing in place and stead of Mr. Smith, and had full legal
authority to appear for and to bind the record property owner
to the rulings of th[e] administrative tribunal.”
(Id.). After the appeal, the County Hearing Officer
upheld the Notice and Order to Abate. (Id.)
losing the administrative appeal, Plaintiff proceeded to file
two actions in San Diego Superior Court contesting the
abatement enforcement proceedings. (Id. at 21- 32.)
Both actions were filed in July of 2014 and claimed
violations of Plaintiff's constitutional rights.
Plaintiff's request for preliminary injunction contains a
signature line for John M. Smith, and a handwritten signature
appears above it. (Id. at 28.) The Superior Court
sustained the County's demurrer as to the initial
complaint and denied the request for a preliminary
injunction. (Id. at 34-43.)
March 4, 2015, the County obtained an abatement warrant for
the property which authorized any Code Enforcement Officer to
enter “for the purpose of abating and removing any and
all trash, junk, and broken/discarded appliances/furnishings
. . . outside stored items and debris strewn about the
property.” (Id. at 15-16.) The abatement
warrant was executed starting on March 4, 2015. (Id.
at 18.) Defendants retained Advance Demolition for clean-up
services. As a result of this abatement, Code Enforcement
Officer Teresa Willis discovered approximately 200 containers
of unknown substances which required HazMat personnel to
investigate. Testing confirmed that some containers held
hazardous material. (Id.) In light of the extensive
scope of the nuisance, Officer Willis requested and was
granted a seven-day extension of the existing abatement
warrant to March 21, 2015. (Id. at 19.) The record
demonstrates that at the end of abatement, the County removed
195 tons of solid waste from the property. (ECF No. 1-5, at
April 7, 2015, Officer Willis issued a document titled
“Schedule of Costs for Public Nuisance Abatement”
which calculated the cost of abatement due as $114, 835.10.
(Id. at 56.) Thereafter, the County assessed the
cost of abatement as a lien against the property subject to
San Diego Code of Regulatory Ordinance sections 16.212-215
(permitting unpaid abatement expenses due to the County to be
applied against the property as a lien, and for the amount of
the costs to be added to the property tax bill).
filed an administrative appeal challenging the assessment of
the abatement costs. On June 4, 2015, a San Diego County
hearing officer held a hearing and denied Plaintiff's
appeal. (ECF No. 49-2, at 48-49.) The hearing officer's
order advised that “Appellant has a right to file a
lawsuit challenging this decision within 90 days after this
decision becomes final.” (Id. at. 49.)
filed the present action on April 10, 2018. On April 27,
2018, Plaintiff recorded the grant deeds giving him ownership
of the property. (Id. at 75-82.) Before then, John
M. Smith was the owner of record, though it appears that
Plaintiff has been in receipt of the County's tax bill
for the property since approximately 2009. (See ECF
No. 48, at 36-60.)
tax receipts demonstrate an early history of making tax
payments for the property. However, after Defendants issued
the abatement costs as a lien on the property and added it to
Plaintiff's property taxes, Plaintiff fell behind on his
taxes. To collect, the San Diego County Treasurer-Tax
Collector's Office scheduled a tax sale of the property
for May 4, 2018. That sale was canceled after Plaintiff filed
for bankruptcy on April 30, 2018. (ECF No. 45, at 4, 6.) On
September 10, 2018, Plaintiff's bankruptcy petition was
dismissed pursuant to Plaintiff's request. (ECF No. 45,
at 4.) Thereafter, a notice was mailed out on March 11, 2019,
informing Plaintiff that the property would be listed for
sale at public auction on April 26, 2019. (Id. at
filing the original complaint in April of 2018, Plaintiff
submitted a first amended complaint (“FAC”) on
December 17, 2018. In that complaint, Plaintiff pursued
claims against the County, the County Board of Supervisors,
several employee defendants, and Advance Demolition.
Plaintiff asserted a deluge of causes of action, maintaining,
inter alia, allegations under 42 U.S.C. § 1983,
denial of due process and the equal protection of the laws,
civil RICO (for wire and mail fraud), and state law claims of
perjury, quiet title, perjury, “accounting, ”
“fraud and swindle, ” among others. Defendants
moved to dismiss, and on April 24, 2019, the Court granted in
part and denied in part Defendants' motion to dismiss
Plaintiff's FAC. (ECF No. 46.) As relevant to the second
iteration of Plaintiff's complaint, the Court denied
dismissal pursuant to Defendants' state law immunity and
res judicata / collateral estoppel arguments. The Court
granted dismissal as to Plaintiff's § 1983 claims
for being untimely, but granted leave to amend in case he
could point to any more recent injury resulting from
Defendants' alleged conduct which would clear the statute
submitted his second amended complaint on May 22, 2019. (ECF
No. 48.) The SAC largely repeats the same factual allegations
and causes of action as his first. Like the FAC, the SAC is
prolix and difficult to comprehend. Notwithstanding the
laundry list of causes of action ascribed to Defendants'
conduct, all of the claims in the SAC are predicated on
Plaintiff's theory that the Defendants contravened
Constitutional due process and property right guarantees by
engaging in a nefarious conspiracy to institute abatement
proceedings against a deceased individual, Mr. Smith.
theory is that Defendants had full knowledge that Mr. Smith
(the property owner of record until 2018), passed away in
2003, but nonetheless instituted and executed the abatement
proceedings against the property under Mr. Smith's name.
Plaintiff alleges that Defendants had notice that Plaintiff
was the true owner because he had been paying property taxes
on the property. Naming Mr. Smith, then, evinced
Defendants' fraudulent plot to “collect an illegal
debt by writing false claims against Plaintiff's real
property by using a deceased person.” (ECF No. 48, at
6, 2019, Defendants filed a motion to dismiss the SAC,
asserting qualified immunity, statute of limitations,
state-law immunity, and res judicata and collateral estoppel.
(ECF No. 49). Plaintiff opposed the motion (ECF No. 53) and
Defendants filed a reply. (ECF No. 53.)
2, 2019, Plaintiff filed an untimely second response brief.
(ECF No. 55.) The Court noted the discrepancy but allowed the
filing as a supplement to the original response since it did
not prejudice the Defendants nor assert any new legal
theories to counter Defendants motion to dismiss. Indeed,
this supplementary document was merely a cosmetic correction
of Plaintiff's original response. On July 15, 2019,
Plaintiff filed another untimely document with respect to
Defendants' motion to dismiss. (ECF No. 57.) As this
document did not prejudice the Defendants, and in light of
Plaintiff's pro se status, the Court construed the filing
Defendants' motion to dismiss
Legal Standard for Rule 12(b)(6)
complaint must contain only a “short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), not “detailed
factual allegations, ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). But this rule demands
more than unadorned accusations; “sufficient factual
matter” must make a claim at least plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A party
may thus move to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). The motion may be granted only if the complaint
lacks a “cognizable legal theory” or if its
factual allegations do not support a cognizable legal theory.
Hartmann v. Cal. Dep't of Corr. & Rehab.,
707 F.3d 1114, 1122 (9th Cir. 2013).
making this context-specific evaluation, this court
“must presume all factual allegations of the complaint
to be true and draw all reasonable inferences in favor of the
nonmoving party.” Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule
does not apply to “‘a legal conclusion couched as
a factual allegation, '” Papasan v.
Allain, 478 U.S. 265, 286 (1986), nor to
“allegations that contradict matters properly subject
to judicial notice” or to material attached to or
incorporated by reference into the complaint. Sprewell v.
Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.
2001). In addition, Rule 12(b)(6) does not immunize from
scrutiny assertions that are “merely conclusory,