Kent v. Cal. Dep't of Consumer Affairs

• Decision Date: 24 June 2011
• Docket Number: No. 2:09-cv-02905 KJM KJN PS,2:09-cv-02905 KJM KJN PS
• Parties: JOHN KENT, Plaintiff, v. CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, CONTRACTORS STATE LICENSE BOARD, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

JOHN KENT, Plaintiff, v. CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, CONTRACTORS STATE LICENSE BOARD, et al., Defendants.

No. 2:09-cv-02905 KJM KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: June 24, 2011

No. 2:09-cv-02905 KJM¹ KJN PS

ORDER TO SHOW CAUSE and FINDINGS AND RECOMMENDATIONS

Presently before the court is a motion to dismiss plaintiff's Ninth Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the following defendants: Kevin Carr, Thomas Ebling, Jim Kleiman, Rick Lopez, Patricia Nelson, Sue Payne, Diana Roach, Anita Sisneros, Sue Stirewalt, Stephen Takimoto, Carl Vega, Rick Villucci, andLeslie Yocum-Howell (collectively, "defendants").² (Dkt. No. 28.) The court heard this matter on its law and motion calendar on February 17, 2011. (Minutes, Dkt. No. 40.) Deputy Attorney General James W. Walter appeared on behalf of defendants. Plaintiff, who is proceeding without counsel and in forma pauperis, appeared on his own behalf. The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that defendants' motion to dismiss be granted in part and denied in part. Specifically, the undersigned recommends that plaintiff's first, second, third, fourth, fifth, and seventh claims for relief be dismissed with prejudice as to defendants Carr, Ebling, Kleiman, Lopez, Nelson, Payne, Roach, Sisneros, Stirewalt, Takimoto, Vega, Villucci, and Yocum-Howell. The undersigned further recommends that plaintiff's sixth claim for relief be dismissed with leave to amend, and that such amended complaint may also contain the eighth and ninth claims for relief with accompanying documentation. Additionally, the undersigned orders plaintiff to show good cause why his claims against defendants Jacqueline Maes, Stuart Rind, and Andrea Souza should not be dismissed with prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).

I. BACKGROUND

On October 19, 2009, plaintiff filed his complaint and application to proceed in forma pauperis. (Dkt. Nos. 1, 3.) Between October 19, 2009, and January 13, 2010, plaintiff amended his complaint eight times before the court was able to screen any of his complaints pursuant to 28 U.S.C. § 1915. (See Dkt. Nos. 4-7, 9, 11-14.)

On June 11, 2009, the undersigned screened plaintiff's Ninth Amended Complaint and entered an order and findings and recommendations regarding the same. (Order and Findings & Recommendations, June 11, 2010, Dkt. No. 17.) The court subsequently dismissedwith prejudice: (1) all of plaintiff's claims brought against the California Department of Consumer Affairs and the Contractors State Licensing Board; (2) all of plaintiff's claims against all individual defendants in this action insofar as they were sued in their official capacities; (3) plaintiff's tenth and eleventh claims for relief brought pursuant to 42 U.S.C. §§ 1985 and 1986, in their entirety. (See Order, July 20, 2010, Dkt. No. 20.) Accordingly, plaintiff's Ninth Amended Complaint, as narrowed by the court's orders, is the operative complaint. What remains are nine claims for relief alleged against 16 individual defendants sued only in their individual or personal capacities. (See Ninth Am. Compl. ¶ 7.) Insofar as the individually named defendants are concerned, the Ninth Amended Complaint alleges that they are or were employees of the Contractors State Licensing Board ("CSLB") at all relevant times. (See id. ¶ 4.)

Plaintiff alleges that he is a contractor who controlled a California corporation called "DSI Construction, Demolition and Engineering," as its primary shareholder and chief executive officer. (See Ninth Am. Compl. ¶ 9.) Plaintiff alleges that on October 13, 2005, he was caught in a CSLB sting operation at a home and "was absurdly arrested and uncooperatively detained for a time longer than necessary or allowed by law under the false pretense of contracting without a license" by defendants Rick Villuci, Rick Lopez, and unknown CSLB employees, with the assistance of Placer County Sheriff's Deputies. (Id. ¶ 19; see also id. ¶¶ 20, 86.) Plaintiff further alleges that he was questioned by Lopez and that one or more of the unknown CSLB employees threatened plaintiff with immediate and prolonged imprisonment for requesting to speak to an attorney or invoking his right to remain silent. (See id. ¶ 23.) Plaintiff alleges that Lopez forced plaintiff to read aloud from California Business and Professions Code §§ 7027 and 7028.³ (Id. ¶ 24.)

Plaintiff alleges that after being interrogated, plaintiff signed a Notice to Appearnumbered A7773, which stated, in part: "Without admitting guilt, I promise to appear at the time and place indicated below." (Id. ¶ 28 & Ex. A.) The Notice to Appear provided an appearance date of December 2, 2005. (Id. ¶ 29 & Ex. A.)

Plaintiff alleges that after signing the Notice to Appear, he remained handcuffed and was placed in a "small backroom" in an uncomfortable chair and suffered "enduring physical pain and emotional agony." (Ninth Am. Compl. ¶ 30.) Allegedly, plaintiff was further detained and closely guarded because the sting was still proceeding in other parts of the home. (Id. ¶¶ 30-31.)

Central to this case, plaintiff alleges that on October 24, 2005, defendant Stuart Rind "closed the plaintiff's case marked citation A7773 without giving written notice to anyone," including the Placer County District Attorney's Office, the Placer County Superior Court, or plaintiff. (Ninth Am. Compl. ¶¶ 33, 36.)

Plaintiff alleges that on December 2, 2005, he presented himself to the clerk of the "Placer County Superior Criminal Division" to check in regarding his Notice to Appear. (Ninth Am. Compl. ¶ 37.) The clerk allegedly informed plaintiff that his name and case did not appear on the court's December 2, 2005 docket. (Id. ¶ 38.) The clerk was unable to provide written confirmation "of this fact" and referred plaintiff to the Placer County District Attorney's Office, which "orally confirmed that plaintiff had no current criminal charge pending against him in the Placer County Criminal system." (Id. ¶¶ 39-40.) The district attorney's office allegedly referred plaintiff to the CSLB for clarification. (Id. ¶ 40.) The CSLB allegedly informed plaintiff that citation A7773 was forwarded to the district attorney's office, but would not provide written confirmation of the same. (Id. ¶ 43.)

As defendants note in their moving papers, either the Notice to Appear was not referred to the Placer County District Attorney's Office or the Placer County District Attorney's Office ignored the Notice to Appear. (Defs.' Memo. of P. & A. In Supp. of Mot. to Dismiss at 4.) Additionally, plaintiff alleges that he repeatedly returned to the Placer County DistrictAttorney's Office and CSLB trying to be heard regarding the Notice to Appear, but was unsuccessful. (Ninth Am. Compl. ¶ 45.) Moreover, plaintiff alleges that beginning on December 2, 2005, CSLB employees "continuously maintained that a criminal action was pending in the CSLB system." (Id. ¶ 47.) Allegedly, the effect of this pending action in the CSLB system was that plaintiff was prevented from "legally contracting or selling services for any other contractor or qualifying for any other licensed capacity governed by the CSLB." (Id. ¶ 48.)

Plaintiff alleges that his license was affected for the next two years. (See Ninth Am. Compl. ¶¶ 51-53.) Essentially, plaintiff alleges that his file at CSLB was "flagged" despite the fact that defendant Rind allegedly closed plaintiff's citation A7773 on October 24, 2005. (Id. ¶¶ 53, 56.) Plaintiff alleges that this issue with CSLB "put DSI Construction temporarily out of business." (Id. ¶ 58.)

Additionally, plaintiff alleges that on August 19, 2006, the CSLB suspended DSI Construction's contractors license without providing any notice or opportunity to be heard. (Ninth Am. Compl. ¶¶ 58n, 58p.) The CSLB provided plaintiff with notice of the suspension by letter on August 26, 2006. (Id. ¶ 58n & Ex. M.)

Plaintiff alleges that on October 19, 2007, defendant Rick Villucci orally conveyed to plaintiff that an error had occurred in that the citation numbered A7773 was closed by defendant Rind on October 24, 2005. (Ninth Am. Compl. ¶ 71.) Plaintiff further alleges that on October 19, 2007, an administrative citation numbered "6-2007-1570" was issued "in substitute of the criminal violation, which stemmed from the plaintiff's arrest on October 13, 2005." (Id. ¶ 72.) A civil penalty of $1,500 was imposed on plaintiff. (Id. ¶ 73.)

On March 12, 2008, plaintiff allegedly sent a certified letter to the CSLB demanding money damages in regards to his claims. (Ninth Am. Compl. ¶ 88 & Ex. D (copies of Certified Mail Receipts).) Plaintiff has not filed the actual letter with his Ninth Amended Complaint; he only filed the Certified Mail Receipts. Plaintiff alleges that CSLB did not act inresponse to plaintiff's letter. (See id. ¶¶ 88, 132.)

Plaintiff alleges the following nine claims for relief. First, plaintiff alleges a claim pursuant to 42 U.S.C. § 1983 premised on the alleged denial of procedural due process for an unreasonably long detention and failure to immediately release plaintiff. (See Ninth Am. Compl. ¶¶ 93-98.) Plaintiff's second claim for relief, also alleged pursuant to 42 U.S.C. § 1983, asserts a claim premised on the denial of procedural due process for failing to bring plaintiff before a magistrate. (Id. ¶¶ 99-104.) Plaintiff's third claim for relief alleges a violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1. (Ninth Am. Compl. ¶¶ 105-09.) Plaintiff's fourth and fifth claims for relief, alleged pursuant to 42 U.S.C. § 1983, claims that plaintiff's Sixth Amendment "speedy trial" rights and Fourteenth Amendment due process rights were violated. (See Ninth Am. Compl. ¶¶ 110-21.) Plaintiff's sixth claim for relief alleges yet another Section 1983 ...