United States District Court, E.D. California
CHRISTOPHER LULL, CONOR BUGBEE, KEVIN BURRAGE, KALEIGH BURRAGE, Plaintiffs,
COUNTY OF PLACER, TIMOTHY WEGNER, STEVE PEDRETTI, JOSEPH ZANARINI, STEVEN SOLOMON, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
case was before the court on February 12, 2019, for hearing
on defendants' motion to dismiss plaintiffs' first
amended complaint for lack of subject matter jurisdiction and
failure to state a claim pursuant to Federal Rules of Civil
Procedure (“Rule”) 12(b)(1) and Rule 12(b)(6)
(ECF No. 21), and the court's February 6, 2019 order
directing defendants to show cause why sanctions should not
be imposed for their failure to appear at the initial hearing
on their motion, which was on February 6, 2019 (ECF No. 29).
Attorney Gregory Warner appeared on behalf of the defendants.
Plaintiff Christopher Lull appeared pro se, and the remaining
plaintiffs failed to appear. Also pending is the court's
January 7, 2019 order directing plaintiffs Conor Bugbee,
Kevin Burrage, and Kaleigh Burrage to show cause why
sanctions should not be imposed for failure to timely respond
to defendants' motion (ECF No. 29), and plaintiff
Lull's motion to amend the complaint (ECF No.
following reasons, the orders to show cause are discharged
and it is recommended defendants' motion to dismiss be
granted and Lull's motion to amend be denied.
Orders to Show Cause
motion to dismiss was originally noticed for hearing on
January 9, 2019. In violation of Local Rule 230(c),
plaintiffs Conor Bugbee, Kevin Burrage, and Kaleigh Burrage
failed to timely file either an opposition or statements of
non-opposition to defendants' motion. Accordingly, the
hearing on the motion was continued to February 6, 2019, and
these plaintiffs were ordered to show cause why sanctions
should not be imposed for their failure to comply with Local
Rule 230(c). ECF No. 26. Defendants, however, failed to
appear at the February 6, 2019 hearing. Accordingly, the
hearing was again continued, and defendants were ordered to
show cause why sanctions should not be imposed for their
failure to appear. ECF Nos. 29, 31.
response to the first order to show cause, plaintiffs Conor
Bugbee, Kevin Burrage, and Kaleigh Burrage filed a statement
of non-opposition, which explains that their claims are now
moot due to a recent amendment to the county ordinance that
is challenged in this action. ECF No. 27. They further state
that they were not aware they needed to file a statement of
non-opposition if they did not oppose defendants' motion.
Id. at 2. In light of those representations, the
order to show cause is discharged and no sanctions are
imposed. Additionally, it is recommended that plaintiffs
Conor Bugbee, Kevin Burrage, and Kaleigh Burrage's claims
be dismissed as moot.
defendants' failure to appear at the February 6 hearing,
defendants' counsel apologized for the error and stated
that he missed the hearing due to “a good faith mistake
when reviewing his weekly calendar.” ECF No. 30. While
counsel's error does not constitute good cause for his
absence, the court reluctantly discharges the order to show
cause and imposes no sanctions.
Defendants' Motion to Dismiss
bring this action against the County of Placer and four of
its employees, challenging the constitutionality of Placer
County Ordinance 5851-B (the “Ordinance”)
pertaining to the cultivation of cannabis. The court
previously granted defendants' motion to dismiss the
prior complaint for lack of standing because plaintiffs
failed to allege that defendants had enforced the Ordinance
against them or that enforcement was imminent. ECF No. 17 at
4; ECF No. 18. Plaintiffs were granted leave to file an
amended complaint, which they have since filed.
first amended complaint consists largely of legal
conclusions, with only minimal factual allegations. See
generally ECF No. 19. According to the amended
complaint, Lull owns real property located in Auburn,
California, and that the other plaintiffs lease the property
from Lull. Id. at 2-3. Defendants Wegner, Pedretti,
Zanarini, and Solomon are employed by the County of Placer
and authorized to enforce county zoning and building
regulations. Id. at 2. In December 2016, defendant
County of Placer (“County”) adopted the
Ordinance, which imposes “sanctions per marijuana plant
or per square footage and not per violation of ordinance as
proscribed by enabling statutes.” Id. at
complaint further alleges that “Defendants are imposing
excessive fines not authorized by enabling statutes and not
for violating an ordinance. This is effectively a progressive
fine schedule for severity of offense as Defendants only
charge or allege a singular offense and increase the sanction
by plant count.” Id. at 4. Lull further
alleges that the “Ordinance subjected property owners
to punitive sanctions regardless of their culpability and the
Amendment fails to draw a distinction of imposing the
sanctions upon culpable person and not the Property
owner.” Id. at 5. Defendants allegedly have
imposed over $7, 000 in fees for a hearing and a $32, 000
punitive sanction against plaintiff Lull. Id. at 8.
on these allegations, the complaint alleges claims styled as
(1) declaratory relief, (2) substantive due process, (3)
procedural due process, and (4) injunctive relief. Defendants
move to dismiss the complaint for lack of standing and
failure to state a claim. ECF No. 21-1.
federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court's diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
motion to dismiss pursuant to Rule 12(b)(1) seeks dismissal
for lack of subject matter jurisdiction. See Fed. R.
Civ. P. 12(b)(1). On such a motion the plaintiff bears the
burden of establishing that jurisdiction exists. See,
e.g., Sopcak v. Northern Mountain Helicopter Serv., 52
F.3d 817, 818 (9th Cir. 1995); Thornhill Pub. Co. v.
General Tel. & Electronics Corp., 594 F.2d 730, 733
(9th Cir. 1979). Different procedures apply to a 12(b)(1)
motion, depending on the manner in which it is made. See,
e.g., Crisp v. United States, 966 F.Supp. 970, 971-72
(E.D. Cal. 1997). “A Rule 12(b)(1) jurisdictional
attack may be facial or factual.” Safe Air For
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A facial attack “asserts that the lack of subject
matter jurisdiction is apparent from the face of the
complaint.” Id. If the motion presents a
facial attack, the court considers the complaint's
allegations to be true, and plaintiff enjoys
“safeguards akin to those applied when a Rule 12(b)(6)
motion is made.” Doe v. Schachter, 804 F.Supp.
53, 56 (N.D. Cal. 1992).
a factual attack, often referred to as a “speaking
motion, ” challenges the truth of the allegations in
the complaint that give rise to federal jurisdiction and the
court does not presume those factual allegations to be true.
Thornhill, 594 F.2d at 733. Although the court may
consider evidence such as declarations or testimony to
resolve factual disputes, id.; McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988),
genuine disputes over facts material to jurisdiction must be
addressed under Rule 56 standards. “[W]hen ruling on a
jurisdictional motion involving factual issues which also go
to the merits, the trial court should employ the standard
applicable to a motion for summary judgment. Under this
standard, the moving party should prevail only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Trentacosta v. Frontier Pacific Aircraft
Industries, Inc., 813 F.2d 1553, 1558 (9th Cir. 1987)
(quotations and citations omitted) (emphasis added).
defendants advance a facial attack, arguing that the
complaint's allegations fail to demonstrate that Lull has
Article III standing.
complaint may be dismissed for “failure to state a
claim upon which relief may be granted.” Fed.R.Civ.P.
12(b)(6). To survive a motion to dismiss for failure to state
a claim, a plaintiff must allege “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic 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) (citing
Twombly, 550 U.S. at 556). The plausibility ...