Cal. Ass'n for the Pres. of Gamefowl v. Stanislaus Cnty.

• Decision Date: 09 February 2023
• Docket Number: 1:20-cv-01294-ADA-SAB
• Parties: CALIFORNIA ASSOCIATION FOR THE PRESERVATION OF GAMEFOWL, Plaintiff, v. STANISLAUS COUNTY, Defendant.
• Court: U.S. District Court — Eastern District of California

CALIFORNIA ASSOCIATION FOR THE PRESERVATION OF GAMEFOWL, Plaintiff,
v.
STANISLAUS COUNTY, Defendant.

No. 1:20-cv-01294-ADA-SAB

United States District Court, E.D. California

February 9, 2023

FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS BE GRANTED IN PART WITH LEAVE TO AMEND

(ECF No. 21)

OBJECTIONS DUE WITHIN FOURTEEN DAYS

I.

INTRODUCTION

Currently before the Court is Defendant Stanislaus County's motion to dismiss the first amended complaint, brought pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 21.) Based on the parties' briefing, the arguments presented at the hearings held on October 19, 2022, and November 2, 2022, as well as the Court's record, the Court recommends Defendant's motion to dismiss be granted in part, and Plaintiff be granted leave to submit an amended complaint subject to the parameters explained below.

II.

BACKGROUND

Plaintiff filed this action on September 9, 2020. (ECF No. 1.) The action was initially

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assigned to District Judge Dale A. Drozd. Plaintiff's initial complaint asserted the same causes of action as the now operative first amended complaint: (1) Regulatory Taking in Violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Corresponding California Constitutional Provisions, 42 U.S.C. § 1983, 28 U.S.C. § 2200, et seq., Cal. Code of Civil Proc. § 1060, et seq.; (2) Violation of the Substantive Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution and Corresponding California Constitutional Provisions, 42 U.S.C. § 1983, 28 U.S.C. § 2200, et seq., Cal. Code of Civil Proc. § 1060, et seq.; (3) Violation of the Procedural Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Corresponding California Constitutional Provisions, 42 U.S.C. § 1983, 28 U.S.C. § 2200, et seq., Cal. Code of Civil Proc. § 1060, et seq.; and (4) Forfeiture of Vested Property Rights Violation of the Fifth Amendment, and the Substantive Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Corresponding California Constitutional Provisions, 42 U.S.C. § 1983, 28 U.S.C. § 2200, et seq., Cal. Code of Civil Proc. § 1060, et seq. (ECF Nos. 1, 19.)

On October 29, 2020, Defendant filed a motion to dismiss contending that: (1) all claims were time-barred by the 90 day limit pursuant to California Government Code § 65009; (2) Plaintiff failed to allege sufficient facts to establish standing; (3) Plaintiff's third claim for procedural due process violation was legally insufficient; (4) Plaintiff's first claim for regulatory taking was legally insufficient; (5) Plaintiff's first claim for relief was an unripe as-applied challenge; (6) Plaintiff's second claim for substantive due process violation was legally insufficient; and (7) Plaintiff's fourth claim for forfeiture failed to allege sufficient facts. (ECF No. 7.) On February 7, 2022, District Judge Drozd granted Defendant's motion to dismiss with leave to amend. (ECF No. 18.) The District Judge dismissed all claims as time-barred under the statute of limitations, and did not directly address the remainder of the Defendant's challenges. Plaintiff was granted leave to amend “in an abundance of caution . . . in part because of the potential that plaintiff could allege an as-applied substantive due process challenge.” (ECF No. 18 at 7.)

On February 27, 2022 Plaintiff filed the operative first amended complaint (“FAC”). (ECF No. 19.) Plaintiff brings the same four causes of action as the original complaint. (ECF

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Nos. 1, 19.) Plaintiff's FAC proffers that Plaintiff California Association for the Preservation of Gamefowl (“CAAPG”) is a non-profit, incorporated association that has as its mission: the bonding together of lovers of gamefowl in order to perpetrate and improve the species; to provide standards for the maintenance and improvement of various strains of gamefowl; to hold shows throughout the State of California to give members opportunities to show and test their birds against the highest standards; to educate members regarding improved methods for health, breeding, caring and protecting gamefowl; and to protect the legal rights of its constituent members to breed, raise and enjoy their gamefowl peaceably and lawfully. (FAC ¶ 8.)

Plaintiff alleges that effective November 16, 2017, the County of Stanislaus made it unlawful for anyone other than a commercial farmer to own a rooster, even if their ownership was responsible, in compliance with other laws, and caused no inconvenience to anyone else in the community (the “Ordinance”).^[1] (FAC ¶ 1.) Plaintiff alleges that as of November 16, 2017, the Ordinance became fully retroactive and outlawed the ownership of roosters by county residents without any exemption that would account for pre-existing, legitimate uses that predate the Ordinance's enactment. (FAC ¶ 2.) Plaintiff alleges that as of this retroactive date, lawabiding rooster owners were obligated to destroy or get rid of their roosters, which only served to take beloved animals out of the possession of those who respect and appreciate them and render them even more available to those inclined to abuse animals and violate the law. (FAC ¶ 2.) Plaintiff submits that the Ordinance sought to prohibit that which was already illegal and actionable - cockfighting and nuisance activity - but it trampled over the well-established property rights of law-abiding citizens in the process. (FAC ¶ 3.) As most relevant to the instant motion to dismiss and the parties' arguments regarding the scope of leave to amend, Plaintiff added the following allegations to the FAC, that were not contained in the initial complaint:

9. CAAPG's Stanislaus County membership includes persons who have become subject to the challenged ordinance since September 9, 2018, persons who have desisted form their protected activities within that same time period, as well as those who currently are in violation of the law due to their present and continuing

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disobedience of said ordinance and its ongoing enforcement since it was enacted. This action was filed less than two years after a CAAPG member became subject to its enforcement less than two years after CAAPG members were harmed by the ordinance, and also less than two years since the ordinance's continued enforcement. These claims are therefore timely despite the 2017 enactment date of the subject ordinance. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) (the statute of limitations of a statute is based on its enforcement date, not its enactment date); Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 518, 522 (6th Cir. 1997) (“[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations” and a statute “does not become immunized from legal challenge for all time merely because no one challenges it within two years of its enactment”). Moreover, CAAPG's membership are having their rights denied each day the challenged ordinance remains in effect to the extent that it continues to outlaw their protected activities, and they risk legal sanction due to its continued validity. See Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997); Maldonado v. Harris, 370 F.3d 945, 956 (9th Cir. 2004); Pouncil v. Tilton, 704 F.3d 568, 581 (9th Cir. 2012)(holding that constitutional and statutory claims were not barred by the statute of limitations where the defendant committed continuing acts within the limitations period, even if said acts related to a preexisting policy of which the plaintiff was aware and subject to outside the limitations period); see also Flynt v. Shimazu, 940 F.3d 457, 464 (9th Cir. 2019) (the continued existence of a statute, even if enacted outside the limitations period, and the realistic threat of future enforcement is sufficient to render a facial challenge to the statute timely); Kuhnle Brothers, 103 F.3d at 521-522 (finding that the plaintiff “suffered a new deprivation of constitutional rights every day that [ the challenged enactment] remained in effect."). If the contrary were true, any an two years would be insulated from challenge, even if its continued existence and enforcement cause additional wrongs. See Scheer v. Kelly, 817 F.3d 1183, 1188 (9th Cir. 2016).

(FAC ¶ 9 (emphasis omitted).)

On March 10, 2022, Defendant filed a notice of motion and motion to dismiss Plaintiff's first amended complaint. (ECF No. 21; Def's Mot. Dismiss (“Mot.”), ECF No. 21-1.) On March 24, 2022, Plaintiff filed an opposition brief. (Pl.'s Opp'n Mot. Dismiss (“Opp'n”), ECF No. 23.)

On August 24, 2022, following her appointment, this action was reassigned to District Judge Ana de Alba for all further proceedings. (ECF No. 25.) On September 12, 2022, the pending motion to dismiss was referred to assigned Magistrate Judge for the preparation of findings and recommendations, and/or other appropriate action. (ECF No. 28.) On October 19,

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2022, the Court held a hearing on the motion to dismiss. (ECF No. 32.) Kevin Little appeared on behalf of Plaintiff via video, and John Whitefleet appeared on behalf of Defendant via video. (Id.) At the hearing, the issue of a lack of reply briefing was discussed. Having no objection from the Plaintiff, the Court ordered a reply brief to be filed on or before October 26, 2022, and continued the hearing on the motion to dismiss until November 2, 2022. (Id.)

On November 2, 2022, the Court held a further hearing on the motion to dismiss. (ECF No. 34.) Kevin Little appeared on behalf of Plaintiff via video, and John Whitefleet appeared on behalf of Defendant via video. (Id.) The Court took the matter under submission.

III.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to...