Opinion
24-cv-03221-LB
09-23-2024
PERFECTO BAUER GARCIA, Plaintiff, v. CITY OF NAPA, et al., Defendants.
SCREENING ORDER
RE: ECF NO. 1
LAUREL BEELER, United States Magistrate Judge
INTRODUCTION
The plaintiff, who represents himself and is proceeding in forma pauperis, sued Napa codeenforcement and building officers after they issued citations to his parents (now deceased) for code violations, did not approve proposals to repair damage to their home's foundation, and continue to issue citations to the plaintiff. Before directing the United States Marshal to serve the defendants with the complaint, the court must screen it for minimal legal viability. 28 U.S.C. § 1915(e)(2)(B). This order explains the deficiencies in the complaint (including a failure to state a federal claim) and asks the plaintiff to supplement the complaint by October 14, 2024. If he does not, the court may recommend dismissal of the complaint.
STATEMENT
The complaint names defendants who are affiliated either with code enforcement or the Building Department: the city itself and eight individuals). Mr. Garcia's parents (now deceased) owned a home in Napa that was damaged in the Napa earthquake in August 2014. The father obtained a permit to rebuild the foundation in December 2014. In March 2024, the plaintiff received a notice of code violations. According the plaintiff, the problem started with the earlier approval of a foundation without footings.
Comp. - ECF No. 1 at 1-3, 4 (¶ 6). Citations refer to the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Id. at 5 (¶ 7)
Id. (¶¶ 7, 9).
To support his lawsuit, the plaintiff attaches eleven exhibits, all City documents or correspondence, which the court considers under the incorporation-by-reference doctrine, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005): (1) a January 22, 2024, Compliance Order and Order to Abate declaring the house unsafe, identifying code violations, red-tagging the property, and instructing him to board up the property, hire a structural engineer, and obtain building permits for identified repairs; (2) a March 13, 2024, email responding to the plaintiff's claim of fraud, explaining that the property had an expired permit, and referencing and attaching the Compliance Order; (3) a March 27, 2015, email saying that the Building Division had improved a foundation plan for a single-story home and that the plaintiff's plan to add a second story would require a structural engineer to issue a report to evaluate the foundation; (4) a November 28, 2018, email addressing the need for a plumbing permit to test the gas line for leaks and the house's unsafe condition due to the foundation; (5) an April 21, 2016, citation for building-code violations; (6) a permit search showing the December 2014 permit approval for the foundation; (7) a photograph of the foundation (which allegedly shows no footing as of February 21, 2016); (8) a photograph of the foundation walls with no footing taken December 10, 2014; (9) the December 19, 2014, approval of the foundation plans; (10) the job copy for the foundation plan; and (11) a January 14, 2016, “red tag” citation declaring the property unsafe to enter or occupy.
Compliance Order and Order to Abate, Ex. 1 to id. - ECF No. 1 at 10-21.
Email, Ex. 3 to id. - ECF No. 1 at 23.
Email, Ex. 4 to id. - ECF No. 1 at 24.
Citation, Ex. 5 to id. - ECF No. 1 at 25-27.
Permit Search, Ex. 6 to id. - ECF No. 1 at 28.
Photograph, Ex 7 to id. - ECF No. 1 at 29; Compl. - ECF No. 1 at 9 (describing and authenticating the photograph).
Photograph, Ex. 8 to Compl. - ECF No. 1 at 30; Compl. - ECF No. 1 at 9 (describing and authenticating the photograph).
Approval, Ex. 9 to Compl. - ECF No. 1 at 31.
Job Copy, Ex. 10 to Compl. - ECF No. 1 at 32.
Admin. Citation - Ex. 5 to Compl. - ECF No. 1 at 25; Letter, Ex. 1 to Compl. - ECF No. 1 at 10.
The plaintiff claims that this violates the Federal Tort Claims Act (FTCA) and was elder abuse of his deceased parents.
Compl. - ECF No. 1 at 6-8.
STANDARD OF REVIEW
A complaint filed by a person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory, sua sponte review and dismissal by the court if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Under § 1915(e)(2), a court reviewing an in forma pauperis complaint must rule on its own motion to dismiss before directing the United States Marshals to serve the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1126-27. “The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
“Frivolousness” under § 1915(e) and failure to state a claim under Rule 12(b)(6) are distinct concepts.
“A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). The definition of frivolousness “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325. When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the court has “the unusual power to pierce the veil of the complaint's factual allegations,” meaning that the court “is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton, 504 U.S. at 32. Frivolous claims include “claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id. “An in forma pauperis complaint may not be dismissed . . . simply because the court finds the plaintiff's allegations unlikely.” Id. at 33. But “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. Frivolous litigation “is not limited to cases in which a legal claim is entirely without merit. . . . [A] person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).
Under Rule 12(b)(6) and § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain “detailed factual allegations,” but the plaintiff must “provide the grounds of his entitlement to relief,” which “requires more than labels and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up).
In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041.
When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130 (cleaned up).
ANALYSIS
The next paragraphs identify several reasons that the complaint is not viable.
First, there is no FTCA violation because there was no action by the United States. 28 U.S.C. § 2674.
Second, while sometimes regulatory action can rise to the level of a constitutional violation, generally code-enforcement actions like these are within the City's police powers to regulate matters involving the health, safety, and welfare of the community. There is no impermissible motive alleged here. Cf. Temple of 1000 Buddhas v. City of Fremont, 588 F.Supp.3d 1010, 102324 (N.D. Cal. 2022) (42 U.S.C. § 1983 action claiming that enforcement of zoning ordinances was impermissibly based on the plaintiff's exercise of her religion and discriminated against her because of her race or national origin); Padgett v. Loventhal, 516 Fed.Appx. 609, 610-12 (9th Cir. 2013) (§ 1983 claim for First Amendment retaliation based on city's enforcement of municipal and building codes); Bridge Aina Le‘A v. State of Hawaii Land Use Comm n, 950 F.3d 610, 625 (9th Cir. 2020) (regulatory-takings framework).
Third, for the court to have jurisdiction of the state-law claims in the absence of any federal claim, there must be diversity jurisdiction: the opposing parties must be citizens of different states, and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). The parties are not diverse. If there were a federal claim, the plaintiff does not allege facts relevant to whether he has standing to assert claims on his parents' behalf. Only the executor of the decedent's estate has standing to pursue the claims. Under the California Code, a decedent's successor in interest or personal representative may prosecute the action if he satisfies the requirements of California law. Cal. Code Civ. Proc. § 377.30; Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1093 n.2 (9th Cir. 2006) (citing Cal. Code Civ. Proc. §§ 377.30, 377.32); Byrdv. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998). The plaintiff must allege and prove that he has standing to sue in a representative capacity or as a successor in interest. Byrd, 137 F.3d at 1131.
The California statue defines “decedent's successor in interest” as “the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” Cal. Civ. Proc. Code § 377.11.
Also, the date that his parents died is relevant to the statute of limitations, an issue that the court can address in a motion to dismiss. District courts can dismiss claims without leave to amend under § 1915(e) if it is clear from the face of the complaint that the claims are barred by complete and obvious defenses, such as the statute of limitations. Heywardv. U.S. Gov't, No. 19-cv-02989-JSC, 2019 WL 3769968, at *4 (N.D. Cal. July 19, 2019), R. & R. adopted, 2019 WL 3767513 (N.D. Cal. Aug. 9, 2019), appeal dismissed, No. 19-16620, 2020 WL 763462 (9th Cir. Jan. 9, 2020).
CONCLUSION
The plaintiff does not need to file a new complaint and instead must file a supplement to it that addresses the deficiencies identified in this order. Alternatively, if he agrees that he cannot state a federal claim, he can file a one-page statement that he is voluntarily dismissing his case without prejudice. That will allow him to pursue any viable state claims in state court. If he does not file a supplement or dismissal by October 14, 2024, the court may reassign the case to a district judge and recommend that it be dismissed.
IT IS SO ORDERED.