(PS) Gleason v. Glasscock, et al, No. 2:2010cv02030 - Document 22 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/28/11, RECOMMENDING that Defendant CHRB's 7 motion to dismiss be granted; Defendant CHRB's 7 motion to strike be denied as moot; and Defendant CHRB be dismis sed from this action. Motion referred to Judge England. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Any reply to the objections shall be filed within seven days after service of the objections. (Kastilahn, A)
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(PS) Gleason v. Glasscock, et al Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PATRICK GLEASON, Plaintiff, 11 vs. 12 13 No. CIV S-10-2030 MCE EFB PS ANNE GLASSCOCK; THE CALIFORNIA HORSE RACING BOARD, 14 15 Defendants. ____________________________________/ FINDINGS AND RECOMMENDATIONS This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 16 17 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendant 18 California Horse Racing Board’s moves to dismiss plaintiff’s complaint and to strike plaintiff’s 19 claim for equitable relief.1 Dckt. No. 7. For the reasons stated herein, the motion to dismiss 20 must be granted and the motion to strike should be denied as moot. 21 I. 22 23 BACKGROUND In 2004, plaintiff was issued a license by the California Horse Racing Board (“CHRB”) as both a racehorse owner and a racehorse trainer. Compl., Dckt. No. 2-1 ¶ 11. Plaintiff alleges 24 25 26 1 Defendant Anne Glasscock has not appeared in this action. The California Horse Racing Board contends that she has not been served and that she has absolute and qualified immunity from plaintiff’s claims. See Dckt. No. 7 at 1, n.1. 1 Dockets.Justia.com 1 that between May 2008 and June 2009, defendant Anne Glasscock, supervisory investigator for 2 the CHRB, improperly refused to renew plaintiff’s licenses. Id. at 5-18. 3 On April 30, 2010, plaintiff filed the underlying action in Sacramento County Superior 4 Court against the CHRB, Anne Glasscock, and Does 1-30. See generally id. Plaintiff’s 5 complaint alleged six causes of action, three of which pertain to defendant CHRB. Specifically, 6 plaintiff alleges that (1) CHRB violated California Civil Code section 51 by refusing to issue 7 plaintiff a license, thereby “wrongfully and unlawfully discriminat[ing] against plaintiff based on 8 his sex and/or race”; (2) CHRB violated Article 1, Section 1 of the California Constitution by 9 “arbitrarily, capriciously and unreasonably . . . depriving [p]laintiff the right to pursue his lawful 10 occupation or business as a racehorse owner and/or trainer”; and (3) CHRB violated California’s 11 Unfair Competition Law, California Business and Professions Code section 17200 et seq., by 12 unfairly refusing plaintiff’s reapplication for a license, initially refusing to supply plaintiff stalls 13 at Golden Gate Fields, and generally treating plaintiff unfairly. Id. ¶¶ 96, 101, 124. Plaintiff 14 seeks damages and equitable relief. Id. at 27. 15 On July 30, 2010, defendant California Horse Racing Board removed the action to this 16 court from Sacramento County Superior Court on the ground that plaintiff’s complaint alleges 17 federal claims. Dckt. No. 2. CHRB now seeks to dismiss plaintiff’s complaint pursuant to 18 Federal Rule of Civil Procedure (“Rule”) 12(b)(6), and to strike plaintiff’s claim for equitable 19 relief. Dckt. No. 7 at 2, 6. 20 II. MOTION TO DISMISS 21 A. Legal Standards 22 To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint 23 must contain more than a “formulaic recitation of the elements of a cause of action”; it must 24 contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell 25 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more 26 . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of 2 1 action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235- 2 236 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to 3 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 4 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 5 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 6 defendant is liable for the misconduct alleged.” Id. 7 In considering a motion to dismiss, the court must accept as true the allegations of the 8 complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe 9 the pleading in the light most favorable to the party opposing the motion, and resolve all doubts 10 in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869 11 (1969). The court will “‘presume that general allegations embrace those specific facts that are 12 necessary to support the claim.’” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 13 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se 14 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 15 404 U.S. 519, 520 (1972). 16 The court may consider facts established by exhibits attached to the complaint. Durning 17 v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts 18 which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of 19 public record, including pleadings, orders, and other papers filed with the court. Mack v. South 20 Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal 21 conclusions “cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 22 624 (9th Cir. 1981). 23 B. Discussion 24 CHRB moves to dismiss plaintiff’s complaint on the grounds that (1) plaintiff’s claims 25 are barred by res judicata and the failure to exhaust administrative remedies, and (2) plaintiff has 26 failed to state a claim under California Civil Code section 51; Article I, Section 1 of the 3 1 California Constitution; or California Business and Professions Code section 17200 et seq. 2 Dckt. No. 7 at 1. As explained in detail below, the court finds that plaintiff’s claims against 3 CHRB should be dismissed for failure to state a claim. Therefore, the court need not address 4 CHRB’s res judicata or exhaustion arguments. 1. California Civil Code Section 51, Unruh Civil Rights Act2 5 6 Plaintiff alleges that CHRB violated the Unruh Civil Rights Act (“Unruh Act”), 7 California Civil Code section 51, by discriminating against plaintiff on the basis of his sex 8 (male) and/or race (Caucasian). Dckt. No. 2-1, ¶¶ 93-98. The Unruh Act provides that “[a]ll 9 persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, 10 color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual 11 orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, 12 or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). CHRB argues, inter alia, that plaintiff’s Unruh Act claim against CHRB should be 13 14 dismissed because CHRB is immune from liability on that claim pursuant to California 15 Government Code section 818.4. Dckt. No. 7 at 4-5. Under California Government Code 16 section 818.4, public entities are immune for injuries caused by the issuance, denial, suspension, 17 or revocation of any permit, license, certificate, approval, or order. However, immunity under 18 section 818.4 is limited to discretionary activities. Richards v. Dep’t of Alcoholic Beverages 19 Control, 139 Cal.App.4th 304, 318 (2006). 20 //// 21 2 22 23 24 25 26 This court notes that it is questionable whether the Unruh Civil Rights Act applies to CHRB. In his complaint, plaintiff alleges that “CHRB qualifies as a business establishment of every kind whatsoever.” Dckt. No. 2-1 ¶ 95. Defendant does not address the issue. Although the California Court of Appeals has held that the Unruh Act does not apply to claims against an Insurance Commissioner in the state Department of Insurance because the Department is not a “business establishment” within the meaning of the Unruh Act, it is unclear if the same rationale precludes the Unruh Act from applying to all government entities, including CHRB. Spanish Speaking Citizens’ Found., Inc. v. Low, 85 Cal.App.4th 1179, 1240 (2000). Nonetheless, as there are alternative grounds for dismissal of plaintiff’s complaint, the court need not decide this issue of state law. 4 1 CHRB is an administrative state agency vested with jurisdiction and supervision over 2 race horse meetings and with the responsibility for overseeing all wagered horse racing in the 3 State of California. Cal. Bus. & Prof. Code §§ 19420, 19562. CHRB has all powers necessary 4 and proper to enable it to effectuate its purpose, including the authority to adopt and enforce 5 rules and regulations, adjudicate disputes arising from the enforcement of those rules and 6 regulations, and license individuals involved in horse racing. Id. §§ 19440, 19510; Flores v. Los 7 Angeles Turf Club, 55 Cal.2d 736, 741 (1961) (“[I]t is no longer open to question that the 8 Legislature . . . and the state Constitution . . . have, in the exercise of the state’s conceded police 9 power to regulate race tracks, validly delegated plenary rule-making power to the racing 10 11 board.”). Pursuant to rules and regulations that CHRB has promulgated, CHRB “may refuse to 12 issue a license or deny a license to any person who has been convicted of a crime punishable by 13 imprisonment in a California state prison or a federal prison, or who has been convicted of a 14 crime involving moral turpitude” or to any person “who has committed an act involving moral 15 turpitude.” Cal. Code Regs. Tit. 4, § 1489(a), (g) (emphasis added). These licensing actions are 16 discretionary since CHRB has the power to determine the facts with regard to the fitness of an 17 applicant for a license and to decide whether to refuse or deny a license to that applicant.3 See 18 McDonough v. Goodcell, 13 Cal.2d 741, 748 (1939); see also Morris v. County of Marin, 18 19 Cal.3d 901, 911-13 (1977) (finding that section 818.4 immunizes discretionary acts such as the 20 process of determining whether or not an applicant should be given a permit); Jones v. City of 21 Modesto, 408 F. Supp.2d 935, 963-64 (E.D. Cal. 2005) (finding that where a regulation states 22 that a police chief may suspend a license, the action is discretionary, not mandatory, and is 23 24 25 26 3 Some CHRB rules require rather than permit CHRB to take a particular action. Compare Cal. Code Regs. Tit. 4, § 1521 (“[a]ny racing official who fails to exercise due diligence in the performance of his duties shall be relieved of his duties”) (emphasis added) with id. § 1528 (“[t]he stewards may suspend the license of anyone whom they have the authority to supervise”) (emphasis added). 5 1 immunized by section 818.4); Inland Empire Health Plan v. Super. Ct., 108 Cal.App.4th 588, 2 594 (2003) (finding that the determination of whether a physician meets the requirements for 3 Medi-Cal reimbursements is discretionary, just as a building official is called upon to determine 4 whether a renovation project meets the requirements of building code, and is therefore 5 immunized by section 818.4). 6 Here, plaintiff’s complaint includes an extensive list of allegations of wrongdoing by 7 CHRB. However, these allegations center around his plaintiff’s primary complaint that CHRB 8 unreasonably denied, or refused to issue, a license to him based on CHRB’s finding that he was 9 unfit to hold a license because of his criminal history. Dckt. No. 2-1 at 21. Plaintiff concedes 10 that he has several criminal convictions and has served time in prison in the state of Oregon.4 As 11 noted above, it is within CHRB’s discretion to refuse an applicant a license based on the 12 applicant’s criminal history pursuant to section 1489. Therefore, CHRB is immune from liability 13 pursuant to California Government Code section 818.4 for its denial of, and/or refusal to issue, a 14 license to plaintiff. Accordingly, plaintiff’s claim against CHRB for violation of California Civil 15 Code section 51 should be dismissed without leave to amend.5 16 2. California Constitution, Article 1, Section 1 17 Plaintiff also alleges that CHRB violated his California constitutional right, pursuant to 18 Article 1, Section 1, to pursue his chosen profession. Dckt. No. 2-1 ¶¶ 99-102. Defendant 19 moves to dismiss this claim arguing, inter alia, that it is immune from liability pursuant to 20 California Government Code section 818.4 for actions regarding the denial of a license. Dckt. 21 No. 7 at 6. 22 4 23 24 25 Plaintiff asserts that in 1985 he was convicted of check forgery in Washington, in 1987 he was convicted of possession of stolen property, in 1994 he was convicted of felony possession of stolen property and racketeering in Oregon for which he served two and a half years in prison, and sometime around 1994 he was again convicted of possession of stolen property in Washington. Dckt. No. 2-1 at 2. 5 26 Because the court finds that CHRB is immune from liability on this claim, CHRB’s alternative grounds for dismissing the claim need not be reached. 6 1 As discussed above, section 818.4 immunizes a public entity from liability for 2 discretionary actions relating to the issuance of a license where the public entity is authorized to 3 determine whether or not the license should be issued or denied. The court finds no case law to 4 support the notion that section 818.4 applies differently when the alleged violation is of a 5 constitutional right. To the contrary, section 814 specifically provides that a public entity’s 6 liability based on contract is not affected by section 818.4 immunity; however, there is no such 7 limitation for liability based on violations of the California Constitution. Therefore, plaintiff’s 8 claim against CHRB for violation of Article 1, Section 1 of the California Constitution should be 9 dismissed without leave to amend. 10 11 3. California Business and Professions Code Section 17200 Finally, plaintiff alleges that by refusing to issue him a license, CHRB engaged in 12 “unlawful and/or unfair business acts or practices” in violation of California’s Unfair 13 Competition Law (“UCL”), Business and Professions Code section 17200 et seq. Dckt. No. 2-1 14 ¶ 124. CHRB moves to dismiss plaintiff’s UCL claim on the ground that it does not apply to 15 public agencies such as CHRB. Dckt. No. 7 at 6. 16 California Business and Professions Code section 17203 establishes the right to sue “any 17 person” for unfair competition, which under section 17200 includes any unlawful, unfair, or 18 fraudulent business act or practice. Cal. Bus. & Prof. Code §§ 17203, 17200. Section 17201 19 defines “person” as any “natural persons, corporations, firms, partnerships, joint stock 20 companies, associations and other organizations of persons.” Id. § 17201. Public entity is 21 defined as any public authority or public agency. Cal. Gov’t Code § 811.2. 22 It is well established that public entities are not included in the definition of person as it 23 is used in the UCL and that therefore public entities are not subject to suit under the UCL. See, 24 e.g., PETA, Inc. v. Cal. Milk Prods. Advisory Bd., 125 Cal.App.4th 871, 877-79 (2005) 25 (California Milk Producers Advisory Board); Cal. Med. Ass’n, Inc. v. Regents of Univ. of Cal., 26 79 Cal.App.4th 542, 551 (2000) (University of California); Trinkle v. Cal. State Lottery, 71 7 1 Cal.App.4th 1198, 1203-04 (1999) (California State Lottery); Community Mem’l Hosp. v. 2 County of Ventura, 50 Cal.App.4th 199, 208-10 (1996) (County of Ventura). Because CHRB is 3 a public entity that is not subject to suit under the UCL, plaintiff’s UCL claim against CHRB 4 should be dismissed without leave to amend. 5 III. 6 MOTION TO STRIKE Because all of plaintiff’s claims against CHRB should be dismissed, CHRB’s motion to 7 strike plaintiff’s equitable relief claim should be denied as moot. 8 IV. 9 CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that: 10 1. Defendant CHRB’s motion to dismiss, Dckt. No. 7, be granted; 11 2. Defendant CHRB’s motion to strike, Dckt. No. 7, be denied as moot; and 12 3. Defendant CHRB be dismissed from this action. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 shall be filed within seven days after service of the objections. Failure to file objections within 19 the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 20 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: February 28, 2011. 22 23 24 25 26 8
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