CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff Lee Lawson ("plaintiff") commenced this action on June 22, 2017, alleging numerous claims against defendants Tehama County, Lester Squire, Jerry Jungwirth, Keith Curl, Clint Weston (collectively "County Defendants"), and Roger Meyer. (ECF No. 1.) Plaintiff's claims relate to County Defendants' enforcement of Tehama County Code violations against plaintiff, as well as defendant Roger Meyer's alleged trespassing onto plaintiff's property. (
On January 2, 2019, County Defendants and Roger Meyer each filed motions for summary judgment. (ECF Nos. 61, 62.) Plaintiff opposed defendants' motions and defendants replied. (ECF Nos. 63, 64, 66.) These matters came on for hearing before the undersigned on January 30, 2019 at 10:00 a.m. At the hearing, plaintiff Lee Lawson appeared on his own behalf; David Norton appeared on behalf of County Defendants; and Eric Della Santa appeared on behalf of Roger Meyer. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
The background facts and evidence are largely undisputed. To the extent that any material factual dispute exists, the court resolves the dispute in plaintiff's favor for the limited purpose of adjudicating the pending motions for summary judgment.
After multiple motions to dismiss and opportunities to amend, the claims in this matter have been narrowed to an equal protection class-of-one claim, a selective prosecution substantive due process claim, and a
The deadline for general discovery was November 15, 2018, with expert discovery to be completed by January 3, 2019. (ECF No. 42 at 2.) The only deposition taken before the close of discovery was defendants' deposition of plaintiff. (Declaration of David R. Norton, ECF No. 61-4 at 94 ["Norton Decl."] ¶ 7.) Plaintiff conducted no depositions. (
On October 24, 2018, plaintiff moved to amend the second amended complaint ("SAC"), which the court denied. (ECF Nos. 51, 60, 67.) Subsequently, defendants filed the pending motions for summary judgment, which included separate statements of undisputed material facts. (ECF Nos. 61, 61-2, 62, 62-2.) Plaintiff failed to address either statement of undisputed material facts in his opposition. (
At the January 30, 2019 hearing, the undersigned specifically questioned plaintiff whether he disputes any of the material facts offered by defendants. Plaintiff responded that "nothing jumped out" to him. Instead, plaintiff continued to argue that he was not in violation of the Tehama County Codes and to stress that Tehama County only enforces violations on a complaint basis. Plaintiff failed to point to any evidence in the record demonstrating that other similarly situated individuals were treated differently than he was.
During the relevant period, no person was allowed to occupy a travel trailer or recreational vehicle as a place of human habitation, for any period of time, within Tehama County.
Before constructing a well in Tehama County, a property owner must first obtain a permit from the Department of Environmental Health.
A "dormant well" is defined as "any individual well . . . which has not been used to supply water to a permitted use located on the same parcel for a period of ninety days or more."
There is evidence in the record that Tehama County Code Enforcement typically enforces violations of the county code after receiving a complaint and investigating the matter. (Plaintiff's Explanation of Exhibits, ECF No. 63 at 15-130 ["Pl.'s EOE"] Exh. 10.)
On February 21, 2017, Tehama County Code Enforcement received a complaint from defendant Roger Meyer, regarding a "well & 3 plastic huts" on plaintiff's property. (County Defendants' Index of Exhibits, ECF No. 61-4 ["Cty. Defs.' IOE"] Exh. D.) During the relevant time period, Meyer was plaintiff's neighbor. (Plaintiff's Second Amended Complaint, ECF No. 34 ["SAC"] ¶ 10.)
On or around February 23, 2017, Code Enforcement Officers Keith Curl and Clint Weston and Deputy Sheriffs Lester Squire and Jerry Jungwirth went to Meyer's property to investigate his complaint. (Declaration of Clint Weston, ECF No. 64-1 at 5-8 ["Weston Decl."] ¶ 3; Declaration of Keith Curl, ECF No. 64-1 at 15-18 ["Curl Decl."] ¶ 3.) They encountered a woman on the road to plaintiff's property, later identified as Ms. Alexander. (
Officers Curl and Weston were able to view plaintiff's property while they were standing on Meyer's property. (Weston Decl., ¶ 4; Curl Decl., ¶ 4.) The officers viewed four large metal framed structures on plaintiff's property, later identified as greenhouses. (
On February 28, 2017, Officer Curl issued a notice of violation ("NOV") to plaintiff. (Cty. Defs.' IOE, Exh. E.) In the NOV, plaintiff was cited for: (1) having an occupied travel trailer or recreational vehicle on his property in violation of Tehama County Code § 17.86.030(A); and (2) having constructed/erected four large metal framed structures on his property without first obtaining the proper permits in violation of Tehama County Code § 15.02.310. (Cty. Defs.' IOE, Exh. E.) Plaintiff was directed to remove the travel trailer and the structures by March 10, 2017, in order to avoid fines in the amount of $100 per day for each violation. (
After receiving the NOV, plaintiff meet with Officer Curl. (Curl Decl. ¶ 5; SAC ¶ 17.) Officer Curl reiterated that plaintiff violated the Tehama County Code by maintaining an occupied travel trailer and unpermitted structures/greenhouses on his property. (
Subsequently, in May 2017, Officer Weston learned that Travis Stock had installed a well on plaintiff's property. (Weston Decl., ¶ 5.) Stock appeared at the Code Enforcement Office and alleged that he had not been paid for the well, and therefore would not release documents needed to finalize the well permit. (
On May 31, 2017, Officer Weston issued a second NOV to plaintiff, noting that plaintiff had a well on his premises that was determined to be without a permitted use. (Cty. Defs.' IOE, Exh. B.) Plaintiff was informed that he would be given an opportunity "to present evidence and elicit testimony [at a hearing before the Tehama County Planning Commission] regarding whether the condition(s) existing on the premises constitute a nuisance or whether there is any good cause why the said condition(s) should not be abated." (
The NOV also directed plaintiff to make the well inoperative by June 10, 2017, and contact Code Enforcement to report the abatement. (
At the Tehama County Planning Commission meeting on July 6, 2017, the commission conducted a hearing on the NOV.
The Planning Commission approved a motion to stay the fines until August 17, 2017, to allow plaintiff additional time to secure the necessary permits for the well. (
On August 17, 2017, the Planning Commission conducted another hearing on the NOV. (Cty. Defs.' IOE, Exh. I at 2.) Officer Curl and plaintiff each attended. (
Consequently, the Planning Commission approved Resolution No. 17-09 that declared the well a public nuisance pursuant to Tehama County Code §§ 9.42.399(E) and 10.16.020(D)-(E). (
Plaintiff testified that Tehama County is not enforcing its local ordinances against his next door neighbor. (Deposition of Lee Lawson, ECF No. 61-4 at 52-64 ["Lawson Depo."] 73:13-75:15.) However, plaintiff adduced no evidence regarding whether anyone has ever complained about his neighbor or if Tehama County has ever issued his neighbor a NOV.
The record contains evidence that other property owners in Tehama County have been allowed to maintain travel trailers without permits. Deputy Sheriff Christopher Smith has declared that he has two unpermitted travel trailers on his property. (Declaration of Christopher Smith, ECF No. 61-4 at 90-91 ["Smith Decl."] ¶ 2.) Plaintiff has submitted photographs of several travel trailers located on properties near his own, for which County Defendants were unable to provide copies of any permits. (
Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists.
In resolving a motion for summary judgment, the evidence of the opposing party is to be believed.
County Defendants move for summary judgment of plaintiff's federal claims on the grounds that plaintiff has failed to adduce evidence to establish any of the elements of either an equal protection class-of-one claim or a selective prosecution substantive due process claim. (
The Supreme Court has recognized Fourteenth Amendment "equal protection claims brought by a `class of one,' where the plaintiff alleges that []he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."
According to the Ninth Circuit, to prevail in on a class-of-one claim, a plaintiff must demonstrate that the governmental defendants: "(1) intentionally (2) treated [plaintiff] differently than other similarly situated property owners, (3) without a rational basis."
A class-of-one plaintiff "must show that the discriminatory treatment `was intentionally directed just at him, as opposed . . . to being an accident or a random act.'"
As the court previously determined, "[w]hile Lawson may not have to allege ill will of the individual defendants, that is what he has alleged, and must prove." (ECF No. 33 at 10, n. 10;
Instead, plaintiff has offered unsupported allegations of malicious intent. For example, plaintiff alleged that defendant Meyer conspired with County Defendants "to maliciously prosecute Plaintiff on false charges of creating a public nuisance and for growing marijuana for the purpose of ultimately depriving Plaintiff from utilizing his property in a manner he wanted and to force Plaintiff to sell his property and move away." (SAC ¶ 14.) Plaintiff also alleged that when obtaining the administrative warrant to destroy his well, Officer Weston intentionally or negligently lied in an affidavit, claiming that people on plaintiff's property "walk around with assault rifles and have fired shots . . . [and that] Lawson stated if Law Enforcement was to return to his property that `they had better come prepared.'" (SAC ¶ 28.) Such unsupported speculation as to defendants' intent toward plaintiff is wholly insufficient to support a claim at summary judgment.
Even though County Defendants raised this issue in their motion for summary judgment, plaintiff completely ignored the element of intentionality in his opposition. (
As previously observed, the court "need not determine whether a `complaint only' enforcement policy per se of health and safety ordinances violates the Equal Protection clause . . . [as plaintiff] does not simply assert that because actions were not taken against other violators in the absence of a complaint, he has established an Equal Protection violation. He alleges much more including arbitrary or nefarious actions. . . ."
No reasonable trier of fact could find that County Defendants intentionally directed discriminatory treatment at plaintiff or that their actions were motivated by ill will. The undisputed evidence in the record demonstrates that each NOV was issued after County officials received a complaint, investigated the matter, and discovered violations of the Tehama County Code. (
A class-of-one plaintiff must also show that he has been treated differently than other similarly situated individuals. Many courts have determined that this requirement should be enforced "with particular strictness when the plaintiff invokes the class-of-one theory rather than the more settled cognizable-group theory."
Accordingly, the Second Circuit has held that "class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves."
Here, plaintiff has failed to point to any other sufficiently similar individuals who received differential treatment. First, it is undisputed that plaintiff was cited for having an occupied travel trailer on his property. (
Second, as to plaintiff's unpermitted structures/greenhouses, plaintiff testified that Officer Curl informed him that his neighbor did not have a permit for his greenhouse. (Lawson Depo. 74:8-75:18.) Yet, plaintiff never spoke to his neighbor about the greenhouse, and he does not know if his neighbor was ever issued a NOV or if anyone ever complained about this structure. (
Third, as to his well, plaintiff has failed to point to any evidence regarding other wells in Tehama County or how other well owners have been treated by County Defendants.
Therefore, based on the record in this matter, no reasonable trier of fact could conclude that County Defendants treated plaintiff differently than other similarly situated property owners, as to his occupied travel trailer, greenhouses, or well.
Finally, a class-of-one plaintiff must demonstrate that the actions against him were without a rational basis. "[T]he rational-basis inquiry is a very lenient one."
In his opposition, plaintiff conclusively argues that he "can show that defendants acted without a [rational] basis," without pointing to any evidence to support this assertion. (ECF No. 63 at 5.) Instead, the undisputed evidence demonstrates that after County Defendants received a complaint about plaintiff's property, they encountered an individual who admitted to living in a travel trailer on plaintiff's property and they discovered four unpermitted structures/greenhouses on plaintiff's property. (Weston Decl., ¶¶ 3-4; Curl Decl., ¶¶ 3-4).
Even assuming that County Defendants technically erred in their enforcement here, there is nothing to suggest that their actions lacked a rational basis. Indeed, the undisputed facts in the record resemble a routine code enforcement action, especially because plaintiff does not dispute that he did not have the required permits for his occupied travel trailer and greenhouses.
As to his well, plaintiff asserts that because defendants did not actually inspect his well, they therefore issued an illegitimate NOV. (ECF No. 63 at 8.) Plaintiff also submitted photographs of his well to demonstrate that the well was not a public nuisance. (ECF No. 63 at 8; Pl.'s EOE, Exhs. 13, 23.) Even assuming these photographs to be properly authenticated with proper foundation, plaintiff has failed to submit evidence to demonstrate that County Defendants' decision as to his well lacked any rational basis.
Importantly, this action is not a direct appeal of Tehama County's resolution regarding plaintiff's well. Thus, plaintiff's arguments that his well was not a public nuisance are inconsequential and off topic. Plaintiff should have directly challenged the resolution by filing a writ of mandate in state court, if he wanted to raise these issues.
The undisputed evidence here demonstrates that plaintiff was issued a NOV regarding his well, and was given multiple opportunities to correct the identified issue. Plaintiff admitted to having an unpermitted well at a hearing before the Tehama County Planning Commission. (Cty. Defs.' IOE, Exh. G at 4-5.) At a subsequent hearing, plaintiff stated that he would not destroy his well, even though it remained unpermitted. (Cty. Defs.' IOE, Exh. I at 2.) Thus, even assuming that plaintiff's well was not physically inspected before he was issued the NOV, plaintiff's subsequent admission that he was maintaining a well that was in fact unpermitted, supports the rationality of County Defendants' actions.
No reasonable trier of fact could conclude that plaintiff has adduced sufficient evidence to negate the "reasonably conceivable state of facts" demonstrating that County Defendants' routine code enforcement measures were based upon a reasonable belief that plaintiff had violated the Tehama County Code.
"To establish impermissible selective prosecution [under the Fourteenth Amendment], a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive."
Plaintiff names Tehama County as a defendant to his federal claims. (
While plaintiff originally sought to plead a claim of conspiracy among Roger Meyer and the various County Defendants, that claim has been dismissed by the court. (
Accordingly, IT IS HEREBY RECOMMENDED that:
In light of these recommendations, IT IS ALSO HEREBY ORDERED that all motion practice in this action is STAYED pending resolution of the findings and recommendations. With the exception of objections to the findings and recommendations and any non-frivolous motions for emergency relief, the court will not entertain or respond to any motions and other filings until the findings and recommendations are resolved.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.