Cupp v. Smith

• Decision Date: 09 September 2020
• Docket Number: Case No. 20-cv-03456-PJH
• Citation: Cupp v. Smith, Case No. 20-cv-03456-PJH (N.D. Cal. Sep 09, 2020)
• Parties: RONALD CUPP, Plaintiff, v. ANDREW SMITH, et al., Defendants.
• Court: U.S. District Court — Northern District of California

RONALD CUPP, Plaintiff, v. ANDREW SMITH, et al., Defendants.

Case No. 20-cv-03456-PJH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

September 9, 2020

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO DISQUALIFY COUNSEL

Re: Dkt. No. 9, 14

Before the court is County of Sonoma's ("Sonoma County"), Andrew Smith's ("Smith"), Margarett Willet's ("Willett"), Tyra Harrington's ("Harrington"), Mark Franceschi's ("Franceschi"), and Tennis Wick's ("Wick")(collectively, the "Individual Defendants" and jointly with Sonoma County, "defendants")motion to dismiss.Dkt. 9.Also before the court is plaintiffRonald Cupp's ("plaintiff")motion to disqualify counsel.Dkt. 14.Having read the parties' papers and carefully considered their argument and the relevant legal authority, and good cause appearing, the court hereby GRANTSdefendants' motion to dismiss and DENIESplaintiff's motion to disqualify.

BACKGROUND

A.Factual Background

Plaintiff owns certain real property ("the property") located in the County of Sonoma.Dkt. 1("Compl.")¶ 3.The Individual Defendants are employees of Sonoma County's Code Enforcement and Permit & Resource Management divisions.Id.¶¶ 4-8.Plaintiff alleges various federal civil rights claims and state law torts against defendants.He requests both monetary and injunctive relief.Id.Prayers for Relief ¶¶ 1-5, 8.To the extent discernable, plaintiff's claims include or are brought under the following:

• Title 42 U.S.C. § 1983 against Smith for unlawful search in violation of the Fourth AmendmentandCalifornia Health and Safety Code § 17972. Id.¶¶ 58-64.

• Title 42 U.S.C. § 1983 against the Individual Defendants for violation of plaintiff's due process rights under the United States Constitution.Id.¶¶ 65-72.

• Title 42 U.S.C. § 1983 against all defendants for levying "excessive fines" against plaintiff for the property's violations of the county building code.Id.¶¶ 105-06.

• Title 42 U.S.C. § 1985 against all defendants for conspiracy to deprive plaintiff of his right to a hearing and appeal.Id.¶¶ 73-79.

• Title 42 U.S.C. § 1986 against all defendants for failing to prevent harmful slander against the property.Id.¶¶ 80-88.

• Trespass against Smith, Willet, Harrington, and Franceschi.Id.¶¶ 89-94.

• "Land patent infringement" against all defendants.Id.¶¶ 95-98.

• "Slander" of the property's title against all defendants.Id.¶¶ 99-104.

Each claim arises out of a supposed "trespass" by Smith, a Sonoma County Code inspector, on the property on February 15, 2019.Id.¶¶ 4, 20-22.Shortly after that, on February 19, 2019, Sonoma County issued plaintiff two citations for unlawful land use and construction without a permit.Id.¶ 23;Dkt. 10-1.¹Between February 2019 and November 2019, plaintiff, Smith, and Franceschi (Smith's supervisor) exchanged various letters.Those letters concern the following:

• The property's code violations.Compl.¶ 25;Dkt. 30-3at 2-6.

• The possibility of an administrative hearing allowing plaintiff the opportunity to challenge such violations.Compl.¶¶ 25- 26;Dkt. 30-3at 8-17.

• A notice of abatement proceeding instituted against the property.Compl.¶ 30;Dkt. 30-3at 19-31.

• A government tort claim premised on Smith's purported February 15, 2019 entryonto the property.Compl.¶ 35;Dkt. 30-3at 33-36, 41.

Relying on these communications, plaintiff alleges that he"has continually attempted . . . to have a hearing and/or appeal" of the citations issued on February 19, 2019.Compl.¶¶ 25-26, 35-37.According to plaintiff, defendants have acted in concert to ignore and deny him such a hearing.Id.¶¶ 40, 42.The precise wording of these communications is critical, so the court will detail their contents in its analysis below.

On June 13, 2019, Sonoma County filed a notice of abatement proceedings concerning the property's violations with the county recorder's office.Id.¶ 30.As of May 15, 2020, Sonoma County has assessed plaintiff approximately $93,000 for his property's then-outstanding violations.Id.¶ 28.That amount reflects the sum of $90 per day for each violation since February 15, 2019.Id.¶ 27;Dkt. 30-3at 8-9.

B.Procedural History

On October 23, 2019, plaintiff filed a California Government Code § 910 claim against Sonoma County.Compl.¶¶ 35-36;Dkt. 10-5.According to plaintiff, on November 6, 2019, Sonoma County sent plaintiff a "notice of return of untimely claim,"Dkt. 30-3at 41, apparently rejecting plaintiff's § 910 claim as untimely.On November 13, 2019, plaintiff responded, arguing the timeliness of his claim.Id.Six months later, in late May, plaintiff initiated this action.Dkt. 1.The record is silent on what, if anything, transpired between the parties during that period.Defendants filed their motion to dismiss on June 29, 2020.Dkt. 9.Plaintiff filed his motion to disqualify Sonoma Countycounsel from representing the Individual Defendants shortly after.Dkt. 14.

On July 30, 2020, while those motions were pending, Sonoma County conducted an inspection of the property pursuant to a warrant authorized by a Sonoma County Superior Court judge under California Code of Civil Procedure § 1822.50, et. seq.Dkt. 25-4.Sonoma County identified numerous additional code violations during the inspection.Dkt. 25-6.On July 31, 2020, in response to that inspection, plaintiff filed a motion for a temporary restraining order and preliminary injunction asking the court to maintain the "status quo" until finally adjudicating this action.Dkt. 20at 8.The courtdenied that motion on August 5, 2020.Dkt. 29.Following that denial, plaintiff requested that the court permit him to file a supplemental declaration (Dkt. 30-2) and its underlying exhibits (Dkt. 30-3) in support of his opposition to the motion to dismiss.Dkt. 30.The supplemental declaration outlines additional facts related to some of plaintiff's claims.Dkt. 30-2.The court granted that request and permitted defendants an opportunity to respond.Dkt. 34.Defendants filed their further reply on August 17, 2020.Dkt. 35.In it, they stated that they would provide plaintiff an administrative hearing to challenge the citations issued on February 19, 2019.Id. at 4.

DISCUSSION

A.Legal Standards

1.Motion to Dismiss under Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint.Ileto v. Glock, 349 F.3d 1191, 1199-1200(9th Cir.2003).Rule 8 requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief."Fed. R. Civ. P. 8(a)(2).Under Rule 12(b)(6), dismissal "is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory."Somers v. Apple, Inc., 729 F.3d 953, 959(9th Cir.2013).While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted.Ashcroft v. Iqbal, 556 U.S. 662, 678-79(2009).The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face.Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59(2007).

As a general matter, the court should limit its Rule 12(b)(6) analysis to the contents of the complaint, although it may consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading."Knievel v. ESPN, 393 F.3d 1068, 1076(9th Cir.2005);Sanders v. Brown, 504 F.3d 903, 910(9th Cir.2007)("a court can consider a document on which the complaint relies if the document is central to the plaintiff's claim,and no party questions the authenticity of the document").The court may also consider matters that are properly the subject of judicial notice, Lee v. City of L.A., 250 F.3d 668, 688-89(9th Cir.2001), exhibits attached to the complaint, Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19(9th Cir.1989), and documents referenced extensively in the complaint and documents that form the basis of the plaintiff's claims, No. 84 Emp'r-Teamster Jt. Counsel Pension Tr. Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2(9th Cir.2003).

Lastly, a district court"should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations," however, dismissal without such leave "is proper if it is clear that the complaint could not be saved by amendment."Somers, 729 F.3d at 960.

2.Motion to Disqualify Counsel

Matters of disqualification generally are governed by state law.In re County of Los Angeles, 223 F.3d 990, 995(9th Cir.2000).Under California law, "the propriety of disqualification depends on the circumstances of the particular case in light of competing interests."Oaks Mgmt. Corp. v. Superior Court, 145 Cal. App. 4th 453, 464(2006).Accordingly, a court considering a motion to disqualify must "weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of interest."Id. at 465.

"The right to disqualify counsel is within the discretion of the trial court as an exercise of its inherent powers."Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100, 1103(N.D. Cal.2003).Because motions to disqualify are "often tactically motivated,"they are subject to "particularly strict judicial scrutiny" and "[t]he party seeking disqualification bears a heavy burden."Dimenco v. Serv. Employees Int'l Union, 2011 WL 89999, at *3(N.D. Cal.Jan. 10, 2011)....