Relief v. Cnty. of Kern

• Decision Date: 08 March 2018
• Docket Number: 1:17-cv-01566-LJO-BAM
• Citation: Big O Relief v. Cnty. of Kern, 1:17-cv-01566-LJO-BAM (E.D. Cal. Mar 08, 2018)
• Parties: BIG O RELIEF, et al., Plaintiffs, v. COUNTY OF KERN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

BIG O RELIEF, et al., Plaintiffs, v. COUNTY OF KERN, et al., Defendants.

1:17-cv-01566-LJO-BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 8, 2018

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT AND SPECIAL MOTION TO STRIKE

(ECF No. 3)

I.PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters.Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order.The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court's inability to accommodate the parties and this action.The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District JudgeLawrence J. O'Neill, who must prioritize criminal and older civil cases.

Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters.Civil trials are no longer reset to a later date if Chief Judge O'Neill is unavailable on the original date set for trial.Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the Nation to serve as visiting judges.In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.

II.INTRODUCTION

Plaintiffs Big O Relief, Don H. Yoon, Eunice S. Yoon, and Alvaro Ordaz(collectively, "Plaintiffs") bring this suit against County of Kern, Kern County Board of Supervisors, Kern County Public Works - Code Compliance Division, Kern County Sheriff's Department, District Attorney's Office, County Counsel's Office, Kern County Fire Department, Kern County Planning and Natural Resources Department, Kern County Department of Agriculture and Measurement Standards, Kern County Public Health Department, Greg Fenton, Mick Gleason, David Couch, Mike Maggard, Zack Scrivner, Donny Youngblood, Lisa Green, Mark L. Nations, James L. Brannen(erroneously sued as James L. Brennan), Gurujodha S. Khalsa, Lorelei Oviatt, Glenn Fankhauser, and Al Rojas(collectively, "Defendants").Defendants moved to dismiss.ECF No. 3("Mot.").Plaintiffs opposed, ECF No. 6("Opp."), and Defendants filed a reply, ECF No. 9("Reply").This matter is suitable for disposition without oral argument.SeeLocalRule 230(g).For the reasons set forth below, Defendants' motion to dismiss is GRANTED IN PART.

III.FACTUAL BACKGROUND

Plaintiffs filed their Complaint on October 12, 2017, in Kern County Superior Court.ECF No. 1-1, Ex.A ("Complaint").The Plaintiffs are Big O Relief, which Plaintiffs describe as a "California Nonprofit Mutual Benefit Corporation,"Complaint¶ 3, and "legal medical marijuana dispensary,"id.¶ 37(1)(a); Doo H. and Eunice S. Yoon, owners of the real property where Big O Relief is located, id.¶¶ 4-5; and Alvaro Ordaz, proprietor of Big O Relief, id.¶ 5.

According to the Complaint, on July 28, 2016, Kern County filed a complaint in Kern County Superior Court for preliminary and permanent injunction for violation of Kern County Ordinance Code Section 5.86 against Big O Relief, Doo Yoon, and Eunice Yoon.Complaint¶ 52; Complaint Ex. H. OnJanuary 13, 2017, the court entered default judgment against the defendants in that suit.Id.¶ 52.

On August 10, 2017, Zack Scrivner, Supervisor of the Second District for the Kern County Board of Supervisors, issued a press release stating that Kern County was instituting a "crackdown on illegal medical marijuana dispensaries" and announcing the formation of an Enforcement Task Force as part of "an initiative to close all illegal medical marijuana dispensaries that began operation after the May 10, 2016 Moratorium enacted by the Board of Supervisors."Id.¶ 54;id, Ex. A.The press release specifically named three dispensaries in Rosamond, California, where the Enforcement Task Force had "seized several thousand dollars in unsafe edible product of unknown origin, as well as illegal bath salts" and issued "several notice of violation.Id., Ex. A.The press release did not mention Big O Relief or the other Plaintiffs.Id.The Complaint alleges that this press release, and another that did specifically mention Big O Relief, were "re-published in a local newspaper to citizens of Kern County."Id.¶ 112;id., Ex. I (article titled "Kern County serves warrants on three more pot shops in Eastern Kern," listing Big O Relief as one of "three illegal medical marijuana dispensaries in the communities of Mojave and Rosamond" that the Task Force was acting to close).

Plaintiffs contend that the statement in Scrivner's press release that all medical marijuana dispensaries to be closed were "illegal" was "false and extremely defamatory."Id.¶ 37.The Complaint alleges that "[a]s a direct result of Supervisory Scrivner's press release," on or around August 22 or 24, 2017, Kern County Enforcement Task Force agents conducted a "raid" at Big O Relief, located at 16940State Highway 14, Mojave, California 93501, with guns drawn in order to "effectuate the unlawful seizure of medicinal products and materials belonging to Plaintiffs."Id.¶¶ 37(1)(c), 55.DefendantAl Rojas, Kern County Code Compliance Division Supervisor, issued a notice of violated dated August 30, 2017, which stated that following an inspection on August 24, 2017, the County determined that the property was "in violation of Kern County Ordinances Codesection 5.85" for cultivation of more than twelve marijuana plants on the property.Id.¶ 37(1)(d), id., Ex. B.

At an unspecified date in August of 2017, the Complaint alleges that Defendant Kern CountyPlanning Director Lorelei Oviatt stated at a Board of Supervisors meeting that Kern County wanted to "rid Kern County of the existing medical marijuana dispensaries so that businesses from Los Angeles could establish their business in Kern County."Id.¶ 41.The reason that the County so desired, the Complaint alleges, is that "allowing such Los Angeles-based business to enter Kern County would save Kern County money because the specified business has a history of filing nuisance lawsuits against their competitors and paying for the removal of existing dispensaries."Id;id.¶ 116.The Complaint additionally alleges that Oviatt stated, in "another instance of defamatory action" against Plaintiffs, that "there are no legal dispensaries in Kern County because we[Kern County] have never permitted any medical marijuana dispensary to operate in Kern County."Id.¶ 114.

Finally, Plaintiffs allege that during a Kern County Board of Supervisors meeting on September 26, 2017, Kern County CounselMark L. Nations"argued that the ruling of the Fifth District Court of Appeals [sic] in County of Kern v. T.C.E.F., Inc., was inapplicable to the present matters affecting medical marijuana dispensaries in Kern County," stating that the "casehad nothing to do with medical marijuana issues, but was only an elections matter."Id.¶ 31(1)(i).Plaintiffs allege that because the outcome of that case had the "effect of reinstating Ordinance G-7849, a medical marijuana ordinance," Mr. Nations's interpretation "reveals his desire to fraudulently induce the public and those he reports to of his interpretation of the law as he sees appropriate, without any regard for the truth and/or actual law in the matter."Id.;see also¶ 47("Mr. Nations' flimsy interpretation of relevant case law reveals his and his department's lack of understanding of the issues; or, alternatively, Mr Nations' interpretation demonstrates his and his department's desire to fraudulently induce the public and those he reports to his interpretation of the law as he sees appropriate, without any regard for the truth and/or actual law in the matter or how those interpretations negatively impact citizens and business of Kern County.").

Plaintiffs allege that all Defendants participated in a racketeering enterprise, the primary objective of which "has been to gain political favor, enhance individual Defendants' reputations in the community for political and personal gain by inflicting severe and sustained economic and personal(physical and reputational) hardship upon Plaintiffs, with the intent of impairing, obstructing, preventing and discouraging Plaintiffs from operating a medical marijuana dispensary - a topic of great debate among law-abiding citizens of the State of California."Id.¶ 40.

Plaintiffs' Complaint brings fourteen causes of action.The first three are federal causes of action under the Racketeer Influenced and Corrupt Organizations Act("RICO"), for acquisition and maintenance of an interest and control of an enterprise engaged in a pattern of racketeering activity, conduct and participation in a RICO enterprise, and conspiracy to engage in a pattern of racketeering activity.The other causes of action are assault, battery, negligence, defamation: libel per se and slander, fraud/intentional misrepresentation, negligent misrepresentation, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage, conversion, declaratory relief, and preliminary injunction.Plaintiffs filed suit in Kern County Superior Court, and Defendants removed to this Court on November 22, 2017.ECF No. 1.Defendants moved to dismiss based on Federal Rule of Civil Procedure 12(b)(6) and made an anti-SLAPP motion¹ pursuant to California Code of Civil Procedure § 425.16.

IV.STANDARD OF DECISION

A motion to dismiss pursuant to Federal Rule of...