Opinion
CV 20-6159-VBF(E)
03-09-2021
BENNIE BENTON, III, Plaintiff, v. COUNTY OF LOS ANGELES, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
Plaintiff, proceeding pro se, filed this civil rights action on July 10, 2020. Defendants are the County of Los Angeles (“County”) and ten fictitious “Doe” defendants. Plaintiff's claims arise from Defendant's alleged denial of Plaintiff's application to construct an “Accessory Dwelling Unit” (“ADU”) on Plaintiff's residential real property. Plaintiff's property is located partially in the City of Los Angeles (“City”) and partially in an unincorporated portion of the County.
On July 31, 2020, Defendant County filed a motion to dismiss the original Complaint. However, on August 13, 2020, Plaintiff filed a First Amended Complaint. On August 17, 2020, the Magistrate Judge filed a Minute Order, observing that the motion to dismiss the original Complaint was moot.
Plaintiff has not filed any proofs of service indicating service of process on any of the fictitious Defendants, and no fictitious Defendant has appeared in the action.
On September 8, 2020, Defendant County filed a “Motion to Dismiss First Amended Complaint and Motion to Strike, ” accompanied by a Request for Judicial Notice. Among other things, the Motion to Dismiss asserts that the present action is duplicative of an action Plaintiff previously filed in the Los Angeles County Superior Court, Benton v. County of Los Angeles, case number BC723569. On September 28, 2020, Plaintiff filed “Plaintiff Bennie Benton III[‘s] Opposition, etc.” (“Opposition”). On October 5, 2020, Defendant filed “Defendant County of Los Angeles' Reply, etc.”
On October 19, 2020, the Magistrate Judge issued a Minute Order: (1) observing that review of the Los Angeles Superior Court's docket in Benton v. County of Los Angeles, case number BC723569, suggested that, on October 13, 2020, the Superior Court granted a defense motion for summary judgment; and (2) ordering the parties (jointly or separately) to file a copy of any document reflecting the Superior Court's ruling. On October 21, 2020, Defendant filed a “Notice of Ruling Granting Defendant County of Los Angeles' Motion for Summary Judgment in Superior Court, ” to which was attached a copy of the Superior Court's October 13, 2020 minute order in Benton v. County of Los Angeles, case number BC723569, granting summary judgment for Defendant in that case.
On November 16, 2020, Plaintiff filed: (1) ‘Plaintiff Bennie Benton III[‘s] Supplemental Memorandum in Opposition of [sic] Motion to Dismiss, etc.” (“Plaintiff's First Supplemental Memorandum”; (2) an unsworn document titled “Plaintiff Bennie Benton III[‘s] Declaration in Opposition to Motion to Dismiss, etc.”; (3) “Plaintiff Bennie Benton III[‘s] Request for Judicial Notice, etc.”; and (4) “Plaintiff Bennie Benton III[‘s] Brief in Objection [sic] to Request for Judicial Notice, etc.”
On November 18, 2020, Defendant County filed “Defendant County of Los Angeles' Supplemental Memorandum in Support of Motion to Dismiss, etc.” (“Defendant's First Supplemental Memorandum”). On the same day, Defendant County filed a “Request for Judicial Notice, etc.” inter alia seeking judicial notice of an order of the Superior Court granting summary judgment for Defendant in Benton v. County of Los Angeles, case number BC723569. /// ///
On January 25, 2021, the Magistrate Judge issued a Minute Order: (1) observing that review of the docket of the Los Angeles County Superior Court in Benton v. County of Los Angeles, case number BC 723569, suggested that the Superior Court entered judgment in that case on or about January 14, 2021; and (2) ordering the parties to file Supplemental Memoranda attaching a copy of any document reflecting any judgment entered by the Superior Court in case number BC723569 and addressing the impact herein of any such judgment.
The Superior Court's docket indicated that a “Notice (of Entry of Judgment or Order)” was entered on January 14, 2021.
On February 8, 2020, Defendant County filed: (1) “Defendant County of Los Angeles' Second Supplemental Memorandum in Support of Motion to Dismiss, etc.” (“Defendant's Second Supplemental Memorandum”); and (2) a “Request for Judicial Notice,, etc., ” inter alia attaching a copy of the judgment filed on January 4, 2021 in Benton v. County of Los Angeles, case number BC723569, in favor of the County and against Plaintiff.
Also on February 8, 2020, Plaintiff filed “Plaintiff Bennie Benton III['s] Supplemental Memorandum, etc., ” (“Plaintiff's Second Supplemental Memorandum”), also attaching a copy of the Superior Court's January 4, 2021 judgment.
STANDARDS GOVERNING MOTIONS TO DISMISS
To survive a motion to dismiss under Rule 12(b)(6), “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) (citation and internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The Court must accept as true all non-conclusory factual allegations in the complaint and must construe the complaint in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). “Generally, a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion.” Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider “only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted); Schneider v. Cal. Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as memorandum in opposition to a defendant's motion to dismiss.”) (emphasis in original). Accordingly, in ruling on the sufficiency of the First Amended Complaint, the Court has not considered new factual allegations contained in Plaintiff's opposing papers or Plaintiff's unsworn “Declaration.” However, the Court may consider facts raised for the first time in an opposition in determining whether to grant leave to amend. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
The Court may not dismiss a complaint without leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d at 1212 (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (citation and internal quotations omitted).
REQUESTS FOR JUDICIAL NOTICE
I. Defendant's Request for Judicial Notice
Defendant seeks judicial notice of: (1) certain documents filed in Plaintiff's state court case, Benton v. County of Los Angeles, Los Angeles Superior Court case number BC723569; (2) the original Complaint filed in the current action; and (3) Los Angeles County Ordinance 21.24.250 (see Defendant's “Request for Judicial Notice, etc.” filed September 8, 2020; Defendant's “Request for Judicial Notice, etc., filed November 18, 2020; Defendant's “Request for Judicial Notice, etc.” filed February 8, 2021). The Court grants Defendant's Requests for Judicial Notice. See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of state court dockets and documents filed in state court proceedings); Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007), cert. denied, 553 U.S. 1066 (2008) (court may take judicial notice of municipal ordinances); Fed.R.Evid. 201. Plaintiff's objections are overruled. See id.
II. Plaintiff's Request for Judicial Notice
To the extent Plaintiff seeks judicial notice of documents which are attached as exhibits to the First Amended Complaint, Plaintiff's Request for Judicial Notice is unnecessary. As indicated above, the Court may consider documents attached to the pleading in ruling on the Motion to Dismiss. See Akhtar v. Mesa, 698 F.3d at 1212. The remaining documents attached to Plaintiff's Request for Judicial Notice, including a tort claim, emails, an alleged “Fire Report” and an alleged “Unsafe” placard, are not proper subjects of judicial notice. See Fed.R.Evid. 201. Plaintiff's Request for Judicial Notice is denied.
PLAINTIFF'S ALLEGATIONS
I. The Original Complaint
In the original Complaint, Plaintiff asserted claims for promissory estoppel, “partial regulatory taking” and alleged violation of equal protection. Plaintiff alleged:
In 2017, the County Department of Regional Planning, as part of a homeless initiative program, recommended a “Second Dwelling Units Pilot Program” whereby second dwelling units, also known as “accessory dwelling units, ” would be a source of affordable housing in single-family neighborhoods (Complaint, Ex. 1). A homeowner who qualified could receive a subsidy of $75,000 per unit (id.). Plaintiff owned a parcel of real property on 121st Street, an address in an unincorporated area of Los Angeles County (id., ¶ 6). On or about March 14, 2018, Plaintiff applied to participate in the County's ADU program (id.). By email dated March 23, 2018, Plaintiff was informed that he had been advanced to the next round of the application process (id., Ex. 4).
By email dated May 1, 2018, Plaintiff was informed that he had not been selected to participate in the program (id., Ex. 8). Plaintiff inquired into the reasons for the decision (id.). The responding individual stated that Plaintiff had been one of the top candidates, but that those tasked with the selection had not realized, until they shared Plaintiff's property information with a representative from the Department of Regional Planning, that Plaintiff's property was “actually split down the middle between the City of LA and unincorporated LA County” (id.). Plaintiff was advised that the front house was within the County, but the back yard, where the ADU would be built, was within the City (id.). Plaintiff also was advised that “[t]his would present some complications because it means that the ADU would be actually permitted by the City of LA and not the County of LA, and this particular pilot program is being sponsored by and coordinated by the County of LA so they want all the properties to be within their jurisdiction” (id.). The responding individual said: “So, in your case, the County would have less control over inspections and approval and no ability to expedite the process” (id.).
On May 2, 2018, Plaintiff replied, alleging that the Department of Planning had made a mistake (id., Ex. 7). Plaintiff was told that a reevaluation would be requested (id.).
On May 10, 2018, Plaintiff received an email stating that the County was “not willing to do a project that has shared jurisdiction with the City of LA” (id., Ex. 5).
“[C]ounty/city Building and Safety” was following a directive issued in 1988 regarding “Buildings Partially In Other Jurisdictions” (id., ¶ 8; Ex. 9). Plaintiff “had no clue of the ordinance that was about to be applied to the property” (id., ¶ 8). Five other homeowners on Plaintiff's block had built on their boundary lines (id.). “After the Department of Planning imposed the ordinance it became an additional element that disqualified the homeowner from the Pilot program, which leads us to another violation of the homeowner rights” (id., ¶ 10).
On or about April 23, 2019, Plaintiff visited the County Department of Building and Safety (id., ¶ 11). An engineering specialist gave Plaintiff a memo “outlining the procedure we would follow for ‘Building Partially in Other Jurisdictions'” (id.; Ex. 10).
On or about April 29, 2019, Plaintiff submitted a plan to the City “after all the requirements had been completed for both the city/county building and safety” (id., ¶ 12). The final thing needed was compliance with County Planning Department requirements (id.).
On October 2, 2019, County Regional Planner Jeantine Nazar informed Plaintiff that “he could not build on the invisible line [and that] the ADU had to be all within the county” (id.). No. one in “either of the Departments of Build and Safety knew of this Ordinance 21.24.280 being applied to this property” (id.).
On October 30, 2019, Nazar wrote Plaintiff a letter, apparently as part of a zoning verification, advising Plaintiff that: (1) Plaintiff's lot included a lot-split between the unincorporated Los Angeles County and the City of Los Angeles; (2) the single-family dwelling was located in the County and the garage was located within the City; (3) County Ordinance 21.24.280 provided: “No lot shall be divided by a city boundary line. Each such boundary line shall be made a lot line.”; (4) therefore, with respect to Plaintiff's property, “the city boundary line is the lot line, and Regional Planning does not have jurisdiction over the adjoining land within the city boundary”; and (5) if the lot-split was “not an option, ” Plaintiff or the City could submit an application to the Local Agency Formation Commission and request an annexation (id., Ex. 12).
On December 9, 2019, Plaintiff wrote a letter to the Chairman of the Regional Planning Commission, asserting, inter alia, that: (1) the “first mistake” had been to “kick [Plaintiff] out of an ADU competition after the independent judge submitted [Plaintiff] as one of the top 6 finalist[s], because of the duel [sic] Jurisdiction issue”; (2) “[w]e have a trial date August 24, 2020, Case No. BC723569"; (3) the “second mistake” was that the Director of Planning “came up with and [sic] ordinance 21.24.280" and that Jeantine Nazar had left Plaintiff a voicemail message stating that Plaintiff could not build on the boundary line; (4) nine other homes were in violation of the ordinance; (5) the City was doing a “plan check” and “[w]e need a solution to the boundary problem that is fair to the tax paying boundary line homeowners . . . .” (id., Ex. 13). Plaintiff said that, if he could not build, he would have no option but to challenge the ordinance in court (id.).
On or about January 2, 2020, Plaintiff submitted a tort claim to the County, which was denied on January 23, 2020 (id., ¶ 13; Ex. 14). On or about April 8, 2020, Plaintiff filed a “Property Ownership Fairness Act” claim with the County (id., ¶ 13; Ex. 15). On June 9, 2020, the County sent Plaintiff a letter deeming the April 8 claim to be an amendment to Plaintiff's previously denied January claim and stating that, accordingly, the County took no action on it (id.; Ex. 16).
Plaintiff appears to refer to proposed legislation drafted by the Goldwater Institute. See https://goldwaterinstitute.org/article/the-property-ownership-fai rness-act-protecting-private-property-rights. This proposed “Act” has not been made law in California.
The County's action of securing a boundary line on private property and thereby depriving the owner of the economic use of the property constitutes a regulatory taking for which the property owner is entitled to compensation (id., ¶ 14). Compensation is due “when the ability to uses [sic] the private property is not equal to the zoned R-1 private property across the street without the boundary line” (id.). The imposition of an “invisible fence” upon which Plaintiff cannot build or encroach requires just compensation (id., ¶ 15). The application of County Ordinance 21.24.280 to Plaintiff's property did not advance the County's public health or safety interest and denied Plaintiff the “economical viable use of his land” (id., ¶ 16).
Furthermore, Plaintiff is being treated differently from: (1) other property owners who own properties on the same street, who have been allowed to build; and (2) other property owners who own property in the unincorporated area of the County (id., ¶ 17). Other property owners do not have to contend with this ordinance (id.). The ordinance is discriminatory in its application because the County intentionally enforces it only against certain people or certain properties in a discriminatory manner (id., ¶¶ 17-18). Other property owners on the street have been able to build, nine are encroaching on the line, and five have built on the line (id., ¶ 18). There is no rational basis for the difference in treatment (id., ¶ 19).
The homeowners of the “boundary line properties” “which are nearly 100% Afro American in 1945, ” when the home was bought new, are being penalized with higher property taxes, are disqualified from participation in many City and County programs and cannot build ADUs on the boundary line (id., ¶ 21).
In the original Complaint, Plaintiff sought damages in the total sum of $526,151.63, which included damages for lost rent and the loss of the $75,000 subsidy, legal fees, architectural fees, reimbursement of property taxes for three years and “just compensation” for the assertedly reduced value of his property (id., pp. 1-11). Plaintiff also sought an order requiring an expedited movement of the boundary line to the north side of the lot (id., p. 9).
II. The First Amended Complaint
The First Amended Complaint resembles the original Complaint. However, the amended pleading is somewhat confusing because Plaintiff omits allegations concerning the asserted events in 2018 and appears to assume the reader's prior knowledge of those alleged events. The First Amended Complaint eliminates the promissory estoppel claim and alleges only two claims for relief: (1) alleged “partial regulatory taking” without just compensation; and (2) alleged violation of equal protection. Plaintiff alleges:
In 1945, when the home was built, the City and the County decided to “create a lot with their boundary line through the middle” (First Amended Complaint, ¶ 6). The County would act as the “governing agency” and the City would have no governing powers but would collect revenue through direct assessment (id.). In 1945, the homes affected by the boundary line were sold primarily to Afro Americans (id.).
In 1988, the County Superintendent of Building wrote a memo to District Office Managers and Section Heads concerning “Buildings Partially in Other Jurisdictions” (FAC, Ex. 10). The memo included guidance on the issuance of building permits, calculation of fees and inspection when the building was “finaled [sic]” (id., Ex. 10).
In 2017, the County Department of Regional Planning, as part of a homeless initiative program, recommended a “Second Dwelling Units Pilot Program” whereby second dwelling units, also known as “accessory dwelling units, ” would be a source of affordable housing in single-family neighborhoods (id., Exs. 4, 18).
Plaintiff again alleges that, on or about April 23, 2019, Plaintiff visited the County Department of Building and Safety and obtained a memo outlining the procedure for “Building Partially in Other Jurisdictions” (id., ¶ 7). Plaintiff again alleges that, on or about April 29, 2019, Plaintiff submitted to the City a plan to build an ADU on the property, after having complied with all requirements of the City and County building and safety departments (id., ¶ 8). “[T]he final thing needed was the requirements [sic] from the Planning Department of the County of Los Angeles” (id., ¶ 8).
Plaintiff again alleges that, on October 2, 2019, Jeantine Nazar notified Plaintiff that Plaintiff could not build an ADU “on top of the invisible boundary line through the middle of the lot . . .” [and that] “the ADU had to be all within the county” (id., ¶¶ 8, 10). “After many emails between departments, no one understood this action, but it was clear that the Department of Planning for the County was not going to let [Plaintiff] utilize [his] whole lot” (id., ¶ 8). The County did not then advise Plaintiff of the applicablity of County Ordinance 21.24.280 (id., ¶ 8). The County's failure to advise the building and safety department or any “lower agency” that the ordinance applies to “duel [sic] Jurisdiction property” allowed property owners to spend thousands of dollars and many hours of construction planning (FAC, ¶ 8). “[T]his is malicious of which immunity does not apply.” (id., ¶ 8) (original emphasis).
Plaintiff again alleges that, on October 30, 2019, Nazar wrote Plaintiff a letter: (1) stating that the dwelling on Plaintiff's lot was located within an unincorporated portion of the County, that the garage was located “within the city jurisdiction” and that Regional Planning did not have jurisdiction over land within the City; (2) advising Plaintiff of the provision of County Ordinance 21.24.280; and (3) suggesting annexation if a “lot-split” was not an option (id., Ex. 12).
Plaintiff again alleges that, on December 9, 2019, Plaintiff wrote a letter to the Chairman of the Regional Planning Commission inter alia: (1) describing the two “mistakes” the County made in denying Plaintiff's ADU application and in telling Plaintiff that the ordinance prevented Plaintiff from building on the boundary line; (2) asking why Plaintiff had been disqualified; and (3) stating that other homes on the street “were in violation of the ordinance” (id., Ex. 13).
Plaintiff again alleges that, on or about January 2, 2020, Plaintiff submitted a claim to the County which the County denied on January 23, 2020 (id., ¶ 10; Ex. 14). Plaintiff again alleges that on April 8, 2020, Plaintiff submitted a “Property Ownership Fairness Act claim” to the County, which the County deemed to be an amendment to the previously denied claim (id., ¶ 10; Exs. 15, 16). ///
Plaintiff intentionally was treated differently from other homeowners who owned properties on the same street and in the unincorporated areas of the County (id., ¶¶ 14-15). Those other homeowners were allowed to build and participate in county programs, and did not have to “contend” with County Ordinance 21.24.280 (id., ¶ 14). The ordinance is discriminatory as applied (FAC, ¶ 14). There was no rational basis for the difference in treatment (id., ¶ 16).
Plaintiff again alleges that the homeowners of the “boundary line properties” “which are nearly 100% Afro American in 1945” are being penalized with higher property taxes, are disqualified from participation in many City and County programs and cannot build ADUs on the boundary line (id., ¶ 18).
Plaintiff seeks the same relief sought in the original Complaint (id., pp. 9-11).
PLAINTIFF'S PRIOR STATE COURT ACTION
On September 27, 2018, Plaintiff filed a Complaint in the Los Angeles County Superior Court, case number BC723569 (Defendant's “Request for Judicial Notice, etc.” filed September 8, 2020, Ex. 1). Therein, Plaintiff sued the County and fifty fictitious Defendants for: (1) promissory estoppel; (2) negligent misrepresentation; (3) “unlawful discrimination - denial of equal protection”; and (4) nuisance.
The Complaint alleged:
In 2017, after state laws became effective creating new opportunities for ADUs, the County began an ADU project pursuant to which it would provide a subsidy of $75,000 per unit to homeowners who build ADUs on their properties and rent them to “Section 8 or homeless tenants” (Superior Court Complaint, ¶ 1). After lengthy communications between Plaintiff and the County, the County agreed that Plaintiff's property and plans would qualify for the ADU subsidy of $75,000 per unit (id.). After Plaintiff embarked on costly and time-consuming measures to finish the qualification process, the County notified Plaintiff that the property did not qualify because a portion of the property lay within City limits (id., ¶2).
Plaintiff reasonably and foreseeably relied to his detriment on the County's promise that the property was under County jurisdiction, thus making Plaintiff eligible for the ADU program (id., ¶¶ 12-14). Defendants negligently gave Plaintiff false information concerning his eligibility for the ADU program and made a negligent misrepresentation of fact by telling Plaintiff that Plaintiff's property was under County jurisdiction and that Plaintiff would be eligible for the subsidy (id., ¶17-18).
Because the portion of Plaintiff's property “on which he built the ADU is substantially within County boundaries, ” Plaintiff should have been treated the same as any similarly situated ADU owner/applicant in the County (id., ¶ 25). The County's denial of Plaintiff's application thereby violated equal protection (id., ¶ 26). Defendants created an obstruction to Plaintiff's free use of his property, thereby interfering with Plaintiff's full use and enjoyment of the property and creating a nuisance (id., ¶¶ 29-35).
In the Complaint, Plaintiff sought compensatory damages and an injunction requiring the defendants to provide Plaintiff with “his rightful subsidy” (id., pp. 6-7).
On March 20, 2019, the Superior Court sustained a demurrer to all claims alleged in the Complaint except the promissory estoppel claim (Defendant's “Request for Judicial Notice, etc.” filed September 8, 2020, Ex. 2).
In July of 2020, the County filed a motion for summary judgment on the remaining promissory estoppel claim (Defendant's “Request for Judicial Notice etc.” filed September 8, 2020, Ex. 3). On October 24, 2020, the Superior Court granted summary judgment, ruling that the evidence failed to support Plaintiff's assertion that the County ever promised Plaintiff that he had been selected to participate in the ADU program (Defendant's “Request for Judicial Notice, etc., ” filed November 18, 2020, Ex. 2).
As indicated above, on January 4, 2021 the Superior Court entered judgment in favor of the County and against Plaintiff (Defendant's “Request for Judicial Notice, etc.” filed February 8, 2021, Exs. 1, 2; Plaintiff's Second Supplemental Memorandum Ex. A).
THE PARTIES' CONTENTIONS
In the Motion to Dismiss, Defendant contends:
1. The “Rooker-Feldman” doctrine allegedly bars Plaintiff's equal protection claim;
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
2. Principles of collateral estoppel allegedly bar Plaintiff's equal protection claim;
3. Plaintiff allegedly has failed to assert any viable equal protection or regulatory taking claims under Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978);
4. Plaintiff allegedly has failed to state any cognizable equal protection or regulatory taking claims;
5. Plaintiff's regulatory taking claim assertedly is unripe under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985);
But see Knick v. Township of Scott, Pa., 139 S.Ct. 2162, 2179 (2019) (overruling Williamson's ripeness requirement).
6. The statute of limitations allegedly bars Plaintiff's regulatory taking claim; and
7. The Court should strike Plaintiff's claim for attorney's fees.
In Defendant's “Supplemental Memorandum, etc.” and “Second Supplemental Memorandum, etc., ” Defendant argues that, in light of the Superior Court judgment entered on January 4, 2021, the present action is barred by res judicata. In Plaintiff's “Supplemental Memorandum” filed on February 8, 2021, Plaintiff argues that res judicata does not bar the present action.
DISCUSSION
Federal courts must accord to a state court judgment the same preclusive effect to which that judgment would be entitled under the law of the state in which the judgment was rendered. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980). “[I]t is well-established that state courts are fully competent to hear federal claims, including constitutional challenges to land-use regulations.” Adam Bros. Farming v. County of Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010) (citations omitted). “Res judicata therefore precludes a party that has proceeded on federal claims in state court from relitigating those claims in federal court.” Id. (citations omitted). “When applying res judicata to a state court decision, we give the same preclusive effect to [that] judgment as another court of that State would give, meaning that we apply res judicata as adopted by that state.” Id. (citation and quotations omitted).
“‘Res judicata' describes the preclusive effect of a final judgment on the merits.” Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 896, 123 Cal.Rptr.2d 432, 51 P.3d 297 (2002). “Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” Id. Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.” Id. (citation and quotations omitted).
Defendant's Motion to Dismiss, filed prior to the Superior Court's order granting summary judgment, inter alia, sought dismissal of Plaintiff's equal protection claim on the ground that, under collateral estoppel principles, the Superior Court's order sustaining the demurrer barred Plaintiff's equal protection claim in this federal action (Motion to Dismiss, pp. 13-14). In opposition to the Motion to Dismiss, Plaintiff responded that the equal protection violation alleged in the present federal complaint assertedly was based on a “totally different incident, ” i.e., the alleged application of County Ordinance 21.24.280 to Plaintiff in October of 2019 (Opposition, pp. 6-7). However, the Superior Court's more recent entry of judgment has raised the issue of res judicata, and the parties now have fully briefed this issue. See Defendant's Supplemental Memorandum, pp. 2-4; Defendant's Second Supplemental Memorandum, pp. 2-3; Plaintiff's Supplemental Memorandum; Plaintiff's Second Supplemental Memorandum.
In Plaintiff's Supplemental Memorandum, Plaintiff opposes a dismissal on the ground of res judicata, pointing out that Plaintiff deleted the promissory estoppel claim contained in the original Complaint, and contending that the regulatory taking and the equal protection claims contained in the First Amended Complaint are “a totally different cause of action from the state case” (Plaintiff's Supplemental Memorandum, etc., p. 6) (original emphasis). Plaintiff makes similar arguments in his Second Supplemental Memorandum, filed after entry of the state court judgment (Plaintiff's Second Supplemental Memorandum, pp. 2, 4-6). Plaintiff further argues that res judicata does not apply here because the alleged events giving rise to the claims in the present action assertedly occurred after the date of filing of the state court action (id., pp. 2-3, 6-7).
In California, “[r]es judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 896, 123 Cal .Rptr. 2d 432, 51 P.3d 297 (2002). “Under the doctrine of res judicata, . . . a judgment for the defendant serves as a bar to further litigation of the same cause of action.” Id. at 896-97.
Res judicata applies when: “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” SLPR, L.L.C. v. San Diego Unified Port Dist., 49 Cal.App. 5th 284, 298, 262 Cal.Rptr.3d 782 (2020) (citation and quotations omitted). “If those requirements are satisfied, res judicata applies not only to the issues actually litigated in the prior proceeding, but also to those issues that could have been litigated in that proceeding.” Id.; see also Eichman v. Fotomat Corp., 147 Cal.App.3d 1170, 1175, 197 Cal.Rptr. 612 (1983) (judgment “bars consideration not only of all matters actually raised in the first suit but also all matters which could have been raised”).
With respect to the definition of a “cause of action” to which res judicata principles may apply, “California's res judicata doctrine is based upon the primary right theory.” Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888 at 904. Under the primary right theory, “a ‘cause of action' is comprised of a ‘primary right' of the plaintiff, a corresponding ‘primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” Id. (citation and quotations omitted). “The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” Id. (citation and quotations omitted).
The primary right “is simply the plaintiff's right to be free from the particular injury, ” and is to be “distinguished from the legal theory on which liability for that injury is premised . . . [and from the remedy sought. . . .” Id. (citations and quotations omitted); see also Adam Bros. Farming v. County of Santa Barbara, 604 F.3d at 1149 (in California, a plaintiff's primary right is “the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based.”) (citation and quotations omitted). “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” Mycogen Corp. v. Monsanto Co., 28 Cal.4th at 904 (citation and quotations omitted); see also Eichman v. Fotomat Corp., 147 Cal.App.3d at 1174-75 (“if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery”) (citations omitted).
In the present case, Plaintiff does not (and properly cannot) dispute that the Superior Court's judgment was final and on the merits, and that the parties to the Superior Court action were identical to the parties herein. The primary right asserted in the Superior Court action and the present action is also identical: the right to use Plaintiff's property to build an ADU thereon free from government constraints emanating from position of the boundary line. The harm assertedly suffered is also identical: the alleged inability of Plaintiff to use his property as he sees fit, i.e., to build an ADU on his property. /// ///
Plaintiff's contention that there is no identity of claims because the Superior Court's judgment assertedly concerned only the merits of Plaintiff's promissory estoppel claim, a claim not alleged in the First Amended Complaint, lacks merit. As indicated above, determination of a primary right is not based on theories of recovery. See Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888 at 904; Eichman v. Fotomat Corp., 147 Cal.App.3d at 1174-75.
Plaintiff's contention that the Superior Court's judgment has no preclusive effect because the claims alleged in the First Amended Complaint purportedly arise out of events allegedly occurring after the date of filing of the Superior Court action is based on a mistaken premise. Under California law, res judicata extends to the facts and conditions as they existed at the time the judgment was rendered. Clark v. Yosemite Community College Dist., 785 F.2d 781, 789 (9th Cir. 1986) (emphasis added); American Broadcasting Companies, Inc. v. Walter Reade-Sterling, Inc., 43 Cal.App.3d 401, 408, 117 Cal.Rptr. 617 (1974). The events alleged in the First Amended Complaint all assertedly occurred prior to the Superior Court's January 4, 2021 judgment. Accordingly, res judicata bars the claims alleged in this federal action. See id.
In these circumstances, amendment would be futile. See Bockari v. California Victim Comp. & Gov't Claims Bd., 672 Fed.Appx. 632, 636 (9th Cir. 2016) (district court did not abuse discretion dismissing action on res judicata grounds without leave to amend; “[a]n amended complaint could not have overcome the bar of res judicata”); Davis v. County of Maui, 454 Fed.Appx. 582, 583 (9th Cir. 2011) (“The district court correctly denied Davis leave to amend his complaint because res judicata would bar relief even with his proposed amendments, and, thus, amendment would be futile.”); Rainwater v. Banales, 2008 WL 5233138, at *9 n.6 (C.D. Cal. Dec. 15, 2008) (“Because of the unavoidable applicability of res judicata and collateral estoppel, granting Plaintiff leave to amend would be futile.”) (citations omitted).
The foregoing analysis applies equally to the non-moving fictitious Defendants, who have not yet appeared in this action. See Silverton v. Dep't of the Treasury, 644 F.2d 1341, 1345 (9th Cir.), cert. denied, 454 U.S. 895 (1981) (sua sponte dismissal of action as against nonappearing defendant appropriate where that defendant was “in a position similar to that of moving defendants or where claims against such defendants are integrally related”).
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Defendant County's Motion to Dismiss; (3) denying Defendant's County's Motion to Strike as moot; and (4) entering judgment dismissing the action with prejudice.
In light of this recommended disposition, the Court need not, and does not, reach the merits of the other contentions made in Defendant County's Motion to Dismiss.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.