Woll v. County of Lake, No. 3:2007cv06299 - Document 39 (N.D. Cal. 2008)

Court Description: ORDER Granting in part denying in part Defendant's Motion for Summary Judgment.. Signed by Magistrate Judge Bernard Zimmerman on 10/21/08. (sv, COURT STAFF) (Filed on 10/21/2008)
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Woll v. County of Lake Doc. 39 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 DALLAS WOLL, 13 Plaintiff, 14 v. 15 COUNTY OF LAKE, et al., 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) No. C 07-6299 BZ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 On December 13, 2007, plaintiff Dallas Woll (“plaintiff”) 19 sued the County of Lake (“County”), alleging violations of 42 20 U.S.C. § 1983.1 Plaintiff’s complaint arises from a “Notice 21 of Nuisance” filed and recorded by the County in December 2005 22 concerning plaintiff’s property located in Kelseyville, 23 California. Plaintiff alleges that in late 2005, he was 24 negotiating a large bank loan to enable him to relocate his 25 business, and as a result of the recordation, the bank refused 26 27 28 1 All parties have consented to my jurisdiction, including entry of final judgment, pursuant to 28 U.S.C. § 636(c) for all proceedings. 1 Dockets.Justia.com 1 2 to fund the loan. 3 served as the “functional equivalent” of a prejudgment 4 attachment of his property, amounting to a de facto 5 adjudication of his rights without any prior notice or 6 opportunity to be heard, in violation of his constitutional 7 rights to seek redress and petition; to be free from 8 unreasonable seizures of property; and to be afforded due 9 process of law, respectively. 10 Recording the Notice, plaintiff contends, The County has moved for summary judgment arguing, in 11 part, that plaintiff was not deprived of due process of law 12 because he received adequate notice prior to the recordation 13 of the Notice of Nuisance as well as an “informal opportunity” 14 to be heard after the Notice was recorded and before the 15 County took any additional steps to abate or physically 16 “seize” any of plaintiff’s property. 17 forth below, defendant’s motion is GRANTED IN PART AND DENIED 18 IN PART. 19 1. Factual Background: 20 Certain facts appear undisputed. For the reasons set At all relevant times, 21 plaintiff owned property in Lake County, zoned for 22 agricultural uses. 23 a complaint that plaintiff was operating a “Roto-Rooter” 24 business on his property.2 On September 3, 1991, the County received After investigating, the County 25 2 26 27 28 Plaintiff objects to the consideration of these facts and all others concerning plaintiff’s operation of a commercial business. Plaintiff’s objections to the facts submitted in the joint statement of undisputed material facts, which are based entirely on FRE 401, are OVERRULED for the purposes of this motion. Defendant’s objection based on FRE 701 to the second 2 1 2 determined that plaintiff was in fact operating a commercial 3 business on his property in violation of an agricultural 4 zoning ordinance and issued a Notice of Violation. 5 relocated his business, and the case was closed on January 7, 6 1993. 7 Plaintiff On May 19, 2000, the County received another complaint 8 that plaintiff was operating a septic tank pumping business on 9 his property. The County failed to investigate and the case 10 remained inactive until April 2, 2004, when the County visited 11 plaintiff’s property and confirmed that a “Roto-Rooter” 12 business was again operating on plaintiff’s property. 13 County then issued and recorded a “Notice of Nuisance” against 14 plaintiff’s property, and served plaintiff with the Notice by 15 certified mail. 16 operation of a commercial business in an agriculture zoning 17 district constituted a condition of nuisance and gave 18 plaintiff until May 7, 2004 to abate the violation. 19 Notice of Nuisance also advised plaintiff to “Contact Lake 20 County Planning Department for information regarding correct 21 zoning for Commercial Business Uses.” 22 additional site visit on November 2, 2004, no further action The The Notice of Nuisance stated that the The Other than one 23 24 25 26 27 28 statement of material fact contained in plaintiff’s separate statement of facts is SUSTAINED, and to the extent that the statement is a legal conclusion, the Court will treat it as argument. Defendant’s objections based on FRE 602 to plaintiff’s separate second, fifth, and eighth statements of material fact are OVERRULED for the purposes of this motion, as all reasonable inferences are to be drawn in favor of plaintiff, the non-moving party. All other objections based on FRE 401 made by defendant to plaintiff’s separate statement of facts are OVERRULED. 3 1 2 was taken by the County. 3 with a bank in 2005 to obtain a large loan secured by his 4 property for the purpose of relocating his business. 5 Plaintiff, however, was negotiating On December 8, 2005, the County again visited plaintiff’s 6 property and observed that plaintiff was still operating a 7 commercial business on his property. 8 reviewed its records and determined that no permits had been 9 issued to plaintiff for the operation of a commercial 10 11 That day, the County business. On December 16, 2005, the County recorded and mailed to 12 plaintiff a superseding Notice of Nuisance. 13 Notice was returned due to a wrong address and mailed again on 14 January 11, 2006. 15 was received by the County on January 17, 2006. 16 This superseding A U.S. Postal Service receipt of delivery On February 8, 2006, after reviewing its records, the 17 County discovered that plaintiff had yet to apply for an 18 appropriate permit for the operation of a commercial business. 19 On February 9, 2006, a Notice to Abate Nuisance was served on 20 plaintiff, both personally and via certified mail, informing 21 plaintiff that a hearing before the Lake County Board of 22 Supervisors was set for February 28, 2006. 23 The hearing was held on February 28, 2006 and was 24 indefinitely continued to allow plaintiff to apply for a major 25 use permit. 26 permit, both the Planning Commission and the Board of 27 Supervisors denied plaintiff’s application on September 26, 28 2006 and March 9, 2007, respectively. Despite plaintiff’s efforts to obtain a major use 4 On July 29, 2007, 1 2 plaintiff filed a petition for writ of administrative mandamus 3 with the Lake County Superior Court. 4 2. 5 Process Violations: 6 Alleged Fifth Amendment and Fourteenth Amendment Due It is well-settled that procedural due process is 7 necessitated only if there has been a “taking” or deprivation 8 of a protected interest. 9 564, 569 (1972). Bd. of Regents v. Roth, 408 U.S. For purposes of this motion, the County 10 admits that “the recordation of a Notice of Nuisance is a 11 ‘taking’ of property.” 12 then is whether, as a matter of law, plaintiff received 13 adequate due process under the Fourteenth Amendment. 14 County argues he did because the taking was minor and the 15 various notices plaintiff received prior to December 2005 gave 16 him adequate notice that his business operations were in 17 violation of the local agricultural zoning ordinance. 18 County also argues that plaintiff received an adequate 19 “informal opportunity” to be heard because both the first and 20 superseding Notices of Nuisance apprised plaintiff of the 21 specific conditions causing the nuisance, gave plaintiff time 22 to correct the nuisance to avoid any potential future 23 abatement procedures, and provided plaintiff with the ability 24 to contact the Lake County Planning Department for information 25 regarding correct zoning for commercial business uses. 26 Memo p.2, l.27-p.3, l.1. The issue The The In Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), the 27 Supreme Court articulated a flexible framework for analyzing 28 what procedural safeguards are required by due process. 5 1 2 Specifically, the Court held that due process generally 3 requires consideration of three distinct factors: first, the 4 private interest affected by the official action; second, the 5 risk of an “erroneous deprivation” of the private interest 6 through the procedures used, and the probable value, if any, 7 of additional or substitute procedural safeguards; and 8 finally, the significance of the government interest, 9 including the fiscal and administrative burdens that any 10 additional or substitute procedural requirements would entail. 11 See also Connecticut v. Doehr, 501 U.S. 1 (1991). 12 With regard to the first factor, plaintiff has submitted 13 evidence that the recordation of the superseding Notice of 14 Nuisance caused the bank to refuse to fund a loan, which was 15 to be secured by his property, and which he intended to use to 16 relocate his business. 17 plaintiff was denied the loan, this simply creates a dispute 18 about an issue of material fact which must be resolved at 19 trial. 20 the recorded Notice cause plaintiff substantial harm.3 21 While the County makes much of the fact that an actual 22 abatement never occurred, this argument is beside the point, 23 as the question before me is whether plaintiff’s due process 24 rights were violated as a result of the recordation of the While the County disputes the reasons A jury could conclude from plaintiff’s evidence that 25 3 26 27 28 It is not entirely clear from the evidence whether the problem plaintiff encountered is attributable to the 2004 recordation, of which he does not complain, or the 2005 recordation, but on summary judgment, I give plaintiff the benefit of a favorable inference. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 6 1 2 Notice of Nuisance, not what due process plaintiff was or 3 would have been entitled to had the County proceeded with an 4 abatement. 5 that the taking in this case was so minor as to require little 6 or no due process. 7 Local 473 v. McElroy, 367 U.S. 886, 895-96 (1961). 8 Supreme Court stated in Connecticut v. Doehr, 501 U.S. 1, 12 9 (1991), “temporary or partial impairments to property rights 10 that attachments, liens, and similar encumbrances entail are 11 sufficient to merit due process protection.” 12 For the purposes of summary judgment, I cannot say Cafeteria and Restaurant Workers Union, As the With regard to the third Eldridge factor, the County’s 13 interest in recording the superseding Notice of Nuisance prior 14 to providing plaintiff with a hearing, the only interests 15 advanced by the County are the need to put members of the 16 public on notice that the property was subject to potential 17 litigation and the need to avoid nuisances that may have the 18 effect of reducing property values. 19 motion, I find these arguments lacking. 20 Notice was recorded on December 16, 2005 and a hearing, even 21 with the re-mailing of the misaddressed Notice, occurred 22 February 28, 2006. 23 need to record the Notice in the short period prior to giving 24 plaintiff a hearing. 25 might be harmed during this short period, or why it could not 26 have scheduled an earlier hearing. 27 sense of urgency is undermined by the County’s comparative 28 inaction after it received a complaint in 2000, as well as For the purpose of this The superseding The narrow issue is whether there was a The County never explains how the public 7 The County’s asserted 1 2 3 after it recorded the first Notice of Nuisance in 2004. Finally, the risk of an erroneous deprivation in this 4 case is of sufficient gravity that the issue cannot be 5 properly resolved on motion for summary judgment. 6 asserts that the risk of erroneous deprivation was slight for 7 three reasons: first, plaintiff was provided with a pre- 8 deprivation “informal opportunity” to be heard; second, no 9 actual abatement action was to occur without providing The County 10 plaintiff with notice and a hearing; and third, significant 11 post-deprivation review was available to plaintiff.4 12 County’s argument that it provided plaintiff with a pre- 13 deprivation “informal opportunity” to be heard is 14 unconvincing. 15 refers is the instruction on the recorded Notice of Nuisance 16 that advised plaintiff to contact the County for “information 17 regarding correct zoning for Commercial Business uses.” 18 plaintiff received the Notice on the same day that it was 19 recorded, this “informal opportunity” to be heard occurred 20 after the taking. 21 plaintiff was to receive notice and a hearing before any 22 abatement was to occur, and had available a variety of 23 procedures to review an abatement order, are beside the point. 24 Once again, the taking of which plaintiff complains is the The The “informal opportunity” to which the County Since The County’s other arguments, that 25 26 27 28 4 Neither of the cases cited by the County, Machado v. State Water Res. Control Bd., 90 Cal.App.4th 720, 726-28 (2001), nor Roth v. City of Los Angeles, 53 Cal.App.3d 679, 689 (1976), are on point, as neither involved the actual recordation of an official notice or order. 8 1 2 recordation of the Notice, not the abatement process. 3 Supreme Court has noted, a post-deprivation hearing “would not 4 cure the temporary deprivation that an earlier hearing might 5 have prevented.” As the Doehr, 501 U.S. at 15. 6 Because the County has shown no interest that would 7 offset plaintiff’s interest in obtaining a fair hearing or, at 8 a minimum, receiving an opportunity to correct the noticed 9 violations prior to the actual recording of the Notice, see 10 Evers v. County of Custer, 745 F.2d 1196 (9th Cir. 1984), and 11 because the issue of the effect of the recording of the Notice 12 of Nuisance on plaintiff’s ability to refinance his property 13 is in dispute, I cannot conclude for purposes of summary 14 judgment that plaintiff received either adequate notice or an 15 adequate opportunity to be heard. 16 3. Alleged Fourth Amendment Seizure Violation: 17 Plaintiff argues that his property was illegally “seized” 18 by the County when it recorded the superceding Notice of 19 Nuisance in 2005. 20 the Notice of Nuisance interfered with his ability to use the 21 property as collateral to borrow money, prevented alienation 22 of the property, and substantially reduced the value of the 23 property, thereby constituting a “seizure” of the property in 24 violation of the Fourth Amendment. 25 Plaintiff asserts that the act of recording Plaintiff relies on dicta in United States v. Jacobsen, 26 466 U.S. 109, 133 (1984), that a “seizure” of property occurs 27 when “there is some meaningful interference with an 28 individual’s possessory interest in property.” 9 However, 1 2 plaintiff cites no authority to support his assertion that the 3 recording of a Notice of Nuisance is a “meaningful 4 interference” with his “possessory interest” in property 5 sufficient to constitute a seizure under the Fourth Amendment. 6 In Jacobsen, the Court upheld the validity of a 7 warrantless seizure of drugs by a DEA agent. 8 dispute that the goods were physically seized. 9 Court cited to several prior opinions which recognize that There was no In dicta, the 10 interference with someone’s possession of property, such as 11 seizing but not searching a suitcase, can amount to a Fourth 12 Amendment seizure. 13 plaintiff does not claim that the County restrained his 14 physical possession of his property. See United States v. TWP 15 17 R 4, Certain Real Property in Maine, 970 F.2d 984, 989 (1st 16 Cir. 1992) (finding no “meaningful interference” with 17 defendant’s property rights when government posted a warrant 18 of “arrest in rem” on plaintiff’s property). 19 he suffered can be adequately dealt with under the Due Process 20 Clause, without implicating the Fourth Amendment. 21 Jacobsen, 466 U.S. at 144 n.5. Here, The deprivation The County is entitled to summary judgment on plaintiff’s 22 Fourth Amendment claim for relief. 23 4. Alleged First Amendment Violation: 24 In California Transport v. Trucking Unlimited, 404 U.S. 25 508, 510 (1972), the Supreme Court ruled that the submission 26 of complaints and criticisms to nonlegislative and nonjudicial 27 public agencies, such as a county board of supervisors, 28 constitutes petitioning activity protected by the First 10 1 2 Amendment, concluding that “the right to petition extends to 3 all departments of the Government.” 4 Here, plaintiff has proferred no evidence that he was 5 denied his First Amendment right to redress or to petition. 6 In fact, it does not appear that plaintiff made any effort to 7 petition the Board of Supervisors about the purported nuisance 8 on his property until early 2006. 9 plaintiff exercised his First Amendment right to petition in a Instead, it appears that 10 series of hearings and appearances before the Board of 11 Supervisors in 2006 and 2007, including one in which he sought 12 a release of the recording of the Notice of Nuisance. 13 fact that plaintiff had multiple opportunities to use 14 administrative processes to contest the recording of the 15 Notice of Nuisance indicates that plaintiff’s First Amendment 16 rights to redress and to petition were not violated. The 17 Accordingly, defendant’s Motion for Summary Judgment is 18 granted with regard to plaintiff’s First Amendment claim for 19 relief. 20 Ruling ordered on October 16, 2008. It is ordered that the 21 hearing scheduled for October 22, 2008 is vacated. 22 Dated: The parties having agreed to accept the Tentative October 21, 2008 23 24 25 Bernard Zimmerman United States Magistrate Judge 26 27 28 11