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Lull v. County of Placer

United States District Court, E.D. California

September 11, 2019

CHRISTOPHER LULL, CONOR BUGBEE, KEVIN BURRAGE, KALEIGH BURRAGE, Plaintiffs,
v.
COUNTY OF PLACER, TIMOTHY WEGNER, STEVE PEDRETTI, JOSEPH ZANARINI, STEVEN SOLOMON, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         This 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. 35).[1]

         For the 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.

         I. Orders to Show Cause

         Defendants' 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.

         In 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.

         As for 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.

         II. Defendants' Motion to Dismiss

         A. Background

         Plaintiffs 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.

         The 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.”[2] Id. at 3-4.

         The 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.

         Based 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.

         B. Legal Standards

         1. Rule 12(b)(1)

         A 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).

         A 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).

         Conversely, 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).

         Here, defendants advance a facial attack, arguing that the complaint's allegations fail to demonstrate that Lull has Article III standing.

         2. Rule 12(b)(6)

         A 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 ...


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