Ayala v. Kc Environmental Health

• Decision Date: 30 March 2006
• Docket Number: No. CV F 02-5846 LJO.,CV F 02-5846 LJO.
• Citation: 426 F.Supp.2d 1070
• Parties: Roxanne AYALA, et al., Plaintiffs, v. KC ENVIRONMENTAL HEALTH, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

426 F.Supp.2d 1070

Roxanne AYALA, et al., Plaintiffs, v. KC ENVIRONMENTAL HEALTH, et al., Defendants.

No. CV F 02-5846 LJO.

United States District Court, E.D. California.

March 30, 2006.

Order Denying Reconsideration May 8, 2006.

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Robert E. Dowd, Law Offices of Robert E. Dowd, Bakersfield, CA, for Plaintiffs.

Charles Frederick Collins, Kern County Counsel, Bakersfield, CA, for Defendants.

SUMMARY JUDGMENT DECISION

O'NEILL, United States Magistrate Judge.

INTRODUCTION¹

In this malicious prosecution action under 42 U.S.C. § 1983 ("section 1983"), defendants Kern County Environmental Health Services Department ("EHS"), EHS environmental specialist William O'Rullian ("Mr. O'Rullian"), and EHS environmental health technician Terry Gray ("Mr.Gray")² seek summary judgment on grounds that evidence negates the claims of plaintiffs Leroy Edwards, Kenneth Edwards and Roxanne Ayala³ (collectively "plaintiffs") and that Mr. O'Rullian and Mr. Gray are entitled to qualified immunity. This Court considered the County defendants' summary judgment motion on the record⁴ and without oral argument, pursuant to this Court's Local Rule 78-230(h). For the reasons discussed below, this Court GRANTS the Kern County defendants summary judgment.

BACKGROUND

The Parties

Plaintiff Leroy Edwards ("Leroy") is the father of plaintiff Kenneth Edwards ("Kenneth") and Ms. Ayala. At times relevant, Ms. Ayala was the sole owner of Action Sewer Pumping ("Action"), a septic pumping business. According to plaintiffs, Ms. Ayala was "responsible for operating" Action. Action's sewer pumping trucks pumped contents of residential and commercial septic tanks into containers on the trucks and transported the contents to a disposal site. Action also rented and maintained portable chemical toilets. During 1997-2000, Ms. Ayala dba Action held EHS health and safety permits ("health permits") to operate a septic pumping business and toilet rental agency in Kern County.

During 1999-2001, Leroy and Kenneth performed services for Action, including driving its trucks, and were paid for their work. The County defendants contend that although Ms. Ayala claimed to own Action, it was a family business partnership among plaintiffs and Diane Temple ("Ms. Temple"), Kenneth's wife, in that profits were split among plaintiffs and Ms. Temple, who also worked for Action. In his deposition, Kenneth noted that Action monies were split among Ms. Ayala, Ms. Temple and Kenneth. In her deposition, Ms. Ayala admitted to a splitting of Action monies. Plaintiffs note that Action "was a family business" with Leroy as "the patriarch" who "participated when it was convenient." In her declaration, Ms. Ayala states that she "left the physical operation of the daily business to my family members."

EHS operates a septic pumping program to assure septage and sewage are safely removed, transported and disposed of in compliance with state and Kern County regulations. EHS also issues health permits to septic pumping providers. Kern County employs Mr. O'Rullian as an environmental specialist in EHS. Since 1989, Mr. O'Rullian has supervised the EHS solid waste and vector control program but, according to the County defendants, is neither an EHS manager nor policy maker.

During 1994-2004, Kern County employed Mr. Gray as an environmental health technician in the EHS solid waste and vector program. Mr. O'Rullian supervised Mr. Gray, whose duties included investigations into compliance with EHS health permits, field observations, and joining inspections of other agencies and communicating with other agencies.

Defendant City of Bakersfield ("City") employed defendant Terry Buss ("Mr. Buss") as a code enforcement officer to enforce the City municipal code and the California Health & Safety Code and Code of Regulations and to investigate related wrongdoing. This Court issued its January 10, 2006 decision to grant the City and Mr. Buss (collectively the "City defendants") summary judgment on nearly identical grounds as the County defendants' present motion. Plaintiffs appeal the summary judgment and this Court's denial of relief as to plaintiffs' failure to file timely opposition papers to the City defendants' summary judgment motion.

Property Inspections

Kenneth owns nearly 20 acres of vacant land on Cottonwood Road ("Cottonwood property") in a heavy industrial zoned area of Bakersfield. In 2000, the Cottonwood property was Action's designated storage yard for vehicles and equipment. Action paid Kenneth for use of the Cottonwood property.

Leroy has leased and used property on South Union Avenue in Bakersfield ("Union property") to store equipment, machinery and vehicles subject to a pre-existing use exception to the area's current zoning. Leroy lived in Bakersfield at 340 Hudson Drive ("Hudson property"), which was owned by Ms. Ayala, who paid Leroy's rent from Action's account in return for Leroy's services for Action. Plaintiffs note that Ms. Ayala permitted Leroy to live at the Hudson property and to "pay as he would."

Kenneth and Ms. Temple lived in Bakersfield at 2311 South Eye Street ("Eye Property").

The County defendants note that in spring 2000, EHS began to investigate Action because "regular review" of Action's pumping records revealed omissions, discrepancies and anomalies as to, among other things, septic pumping reports for sewer system locations. On June 7, 2000 and pursuant to an inspection warrant sought by the City to address municipal code compliance issues, a multi-agency inspection was conducted of the Cottonwood property. Mr. O'Rullian assigned Roger Berretti ("Mr. Berretti") of the EHS solid waste and vector control program to observe and take photographs during the inspection in that the Cottonwood property was Action's designated storage area for septic pumping and toilet rental vehicles and equipment. For EHS, the inspection addressed health permit violations. Mr. O'Rullian and Mr. Gray neither participated in the June 7, 2000 inspection of the Cottonwood property nor prepared a report regarding the inspection. Mr. Berretti prepared the EHS inspection report.

Mr. O'Rullian and Mr. Gray participated in June 7, 2000 inspections, pursuant to warrants, of the Union, Hudson and Eye properties to address violations of health permits and environmental laws and regulations. On the Union property, Mr. O'Rullian and Mr. Gray observed used vehicle batteries, used oil filters, spilled waste oil and chemical and oil drums. On the Hudson property, Mr. O'Rullian and Mr. Gray observed what they believed to be stained or oily soil to suggest release of used oil, hydraulic fluid and other wastes, containers of waste oil and hydraulic fluid, approximately 50 waste vehicle batteries, and used oil filters. Mr. O'Rullian and Mr. Gray note that at the Eye property, they observed health permit violations but no hazardous waste. Mr. O'Rullian prepared EHS reports for the Union, Hudson and Eye properties to note violations of the Kern County Ordinance Code and California Health & Safety Code and Code of Regulations. In his reports, Mr. O'Rullian did not note violation of California Health & Safety Code section 25189.5 (disposal, treatment, storage or transportation of hazardous waste without permits or at unauthorized points). Mr. Gray did not prepare reports of inspections of the Union, Hudson and Eye properties.

Civil Proceedings Against Plaintiffs And Re-Inspections Of The Properties

On August 14, 2000, EHS issued its notice and order to require Action to remove all sewage in tanks at the Cottonwood, Union, Hudson and Eye properties (collectively "plaintiffs' properties") to a proper disposal site and to provide, no later than August 31, 2000, documentation of the registered sewage pumping services used to remove the sewage and of proper disposal of the sewage.

During the summer or early fall 2000, Craig A. Smith ("Mr. Smith"), a Kern County Deputy District Attorney, reviewed reports, laboratory results and photographs relating to inspections of plaintiffs' properties. Mr. Smith is responsible to enforce civil and criminal environmental laws, including housing and business conditions. Mr. Smith was assigned to prosecute a civil action against plaintiffs to address, in part, Action's business practices. On October 12, 2000, a Kern County Superior Court civil action ("civil action") was filed against plaintiffs to seek, among other things, injunctive and nuisance relief and civil penalties regarding alleged hazardous use of plaintiffs' properties.

Mr. O'Rullian and Mr. Gray were aware of the civil action since it involved Action. In November 2000, Mr. O'Rullian and Mr. Gray participated in re-inspections of plaintiffs' properties, pursuant to an order of the court in the civil action. Mr. O'Rullian wrote EHS reports on the reinspections and did not note violation of California Health & Safety Code section 25189.5 (disposal, treatment, storage or transportation of hazardous waste without permits or at unauthorized points).

Pumping Job Complaint

In early 2001, Mr. O'Rullian received a telephone call from one of two elderly sisters Shirley Kinney ("Ms. Kinney") or Irma Honeycutt ("Ms. Honeycutt") who complained about American Pumping, Kenneth's non-septic pumping business, and that Leroy and Kenneth failed to pump Ms. Kinney and Ms. Honeycutt's septic tank although Leroy and Kenneth indicated they had pumped and were paid for pumping. Leroy and Kenneth claim they drove 45 minutes each way to Ms. Kinney and Ms. Honeycutt's mobile home, dug down four feet to uncover the septic tank lid, and pumped their septic tank for 25-45 minutes without success in that the septic tank had been abused and not cleaned out for 18 years and the line to the septic tank was blocked.

Mr. O'Rullian notes that he was concerned because he knew that American Pumping did not have a Kern County septic pumping license. Mr....