Uberti v. Gorin, 21-cv-00610-WHA

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
• Docket Number: No. 21-cv-00610-WHA,21-cv-00610-WHA
• Parties: GEORGE UBERTI, Plaintiff, v. SUSAN GORIN, DAVID RABBITT, SHIRLEE ZANE, JAMES GORE, LYNDA HOPKINS, ERICK ROESER, Defendants.
• Decision Date: 23 April 2021

GEORGE UBERTI, Plaintiff,
v.
SUSAN GORIN, DAVID RABBITT, SHIRLEE ZANE, JAMES GORE,
LYNDA HOPKINS, ERICK ROESER, Defendants.

No. 21-cv-00610-WHA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 23, 2021

ORDER DISMISSING CASE; ORDER TO SHOW CAUSE WHY GEORGE UBERTI SHOULD NOT BE DEEMED A VEXATIOUS LITIGANT SUBJECT TO PREFILING ORDER

In November 2005, the Sonoma County Board of Supervisors consolidated the County Auditor-Controller with the County Treasurer-Tax Collector into the Auditor-Controller-Treasurer-Tax Collector (ACTTC) by passing Ordinance No. 5604. California law, specifically, California Government Code Section 24304.2, expressly authorized the consolidation:

[n]otwithstanding Section 24300, in the Counties of Lake, Mendocino, Santa Cruz, Sonoma, Trinity, and Tulare, the board of supervisors, by ordinance, may consolidate the duties of the offices of Auditor-Controller and Treasurer-Tax Collector into the elected office of Auditor-Controller-Treasurer-Tax Collector.

In February 2019, George Uberti, proceeding pro se, sued the Sonoma County Board of Supervisors and the ACTTC in Sonoma County Superior Court. He alleged that the County's consolidation of the Auditor-Controller with the Treasurer-Tax Collector violated section two

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of the Sherman Act, 15 U.S.C. § 2; 18 U.S.C. § 643 (public money embezzlement); Section 1099 of California's Government Code (prohibitions against incompatible offices); and Section 424 of California's Penal Code (criminal negligence). See Uberti v. Sonoma Cnty. Bd. of Sups., No. 19-02338-WHA, ECF No. 1-2 (N.D. Cal. June 10, 2019). After the supervisors demurred to the complaint in state court, Uberti removed the action here. A June 2019 order remanded the case to the superior court. Ibid.

In July 2019, Uberti filed an original complaint here (not the instant complaint). It advanced the same antitrust theory against the same defendants based on the same facts. Compl., Uberti v. Sonoma Cnty. Bd. of Sups. et al., 19-04025-WHA (N.D. Cal. July 12, 2019). Uberti asserted (1) consolidation of the Auditor-Controller with the Treasurer-Tax Collector was a "combination in restraint of commerce," and (2) the consolidation caused the County to fail to properly audit and report its expenditure of federal welfare program grants, in turn harming Uberti's social and economic well-being as an intended beneficiary of those programs.

A February 2020 order dismissed that complaint with prejudice. The order explained, first, that Uberti lacked standing to challenge the County's creation of the ACTTC office because he suffered no injury as a result of the County's action. Uberti asserted that the consolidation and improper auditing negatively affected his social and economic wellbeing as a former homeless person and renter in Sonoma County. The order found that Uberti had not pled a concrete or particularized injury. He thus lacked standing to challenge the creation of the ACTTC office. Second, even assuming the County's consolidation of the auditor office into the ACTTC office harmed Uberti, that action was not a violation of the Sherman Act because it was an act of normal government operation. An act of normal government operation cannot violate the Sherman Act. Final judgment was entered in favor of defendants.

In July 2020, our court of appeals summarily affirmed stating, "A review of the record and the opening brief indicates that the questions raised in this appeal are so insubstantial as not to require further argument." Uberti v. Valerie Brown et. al., No. 20-15360, Order (9th Cir. 2020). It then denied Uberti's motion for reconsideration, as well.

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In January, Uberti filed a "motion for a new trial" in No. 19-04025, asserting that the County's creation of the consolidated ACTTC office and its improper auditing harmed him via "market damages in EBT [electronic benefits transfer] benefits" in violation of the Sherman Act. Mot. for New Trial at 10, Uberti v. Sonoma Cnty. Bd. of Sups. et al., No. 19-04025-WHA. As noted, the February 2020 order had dismissed the complaint in part because Uberti had not alleged a particularized injury from the consolidation. Uberti apparently made the new allegation of "market damages in EBT benefits" to remedy his earlier failure to state an injury.

The day after filing his motion for a new trial in case number 19-04025, Uberti filed a new complaint initiating this case (No. 21-00610). The instant complaint centers on the same facts, the creation of the consolidated ACTTC office, and names the same defendants as did the complaints in the two previous cases (19-cv-02338 and 19-cv-04025).

A March order denied Uberti's motion for a new trail in No. 19-04025. Assuming Uberti's new allegation showed he was injured, the order explained again that the consolidation of the Sonoma County Auditor-Controller with the County Treasurer-Tax Collector...