Roark v. Richardson Bay Regional Agency et al, No. 3:2022cv07610 - Document 49 (N.D. Cal. 2023)

Court Description: ORDER GRANTING 41 MOTION TO DISMISS. Signed by Judge William H. Orrick on 12/1/2023. (jmd, COURT STAFF) (Filed on 12/1/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Roark v. Richardson Bay Regional Agency et al Doc. 49 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ROBERT JAMES ROARK, 4 Plaintiff, 5 ORDER GRANTING MOTION TO DISMISS v. 6 RICHARDSON BAY REGIONAL AGENCY, et al., 7 8 Re: Dkt. No. 41 Defendants. 9 United States District Court Northern District of California Case No. 22-cv-07610-WHO Plaintiff Robert James Roark has brought a broad array of constitutional and other claims 10 challenging defendant Richardson’s Bay Regional Agency’s (“RBRA”) “Anchoring Permit 11 Scheme” (“Permit Scheme”) and the December 2022 issuance of a “Notice to Remove” his boat, 12 the Kittiwake, for failure to comply with the Permit Scheme. I denied without prejudice RBRA’s 13 prior motion to dismiss the First Amended Complaint (“FAC”) and invited it to file a more 14 comprehensive motion that addressed the substance of each of Roark’s claims. Dkt. No. 37.1 It 15 16 17 did so. Because Roark has not alleged facts that plausibly support his claims, and because the law is so clear that an amendment would be futile, I GRANT defendants’ motion to dismiss without leave to amend. 18 BACKGROUND 19 20 As noted in my prior Order, Roark’s FAC challenges the constitutionality of the Permit Scheme under the Fourth, Fifth, Eighth and Fourteenth Amendments because:2 21 (i) the Permit Scheme is “impossible to comply with” and “subjects Plaintiff to 22 23 24 25 26 27 28 1 The pleadings opposing the requests for temporary restraining orders were filed on behalf of defendants RBRA, James Malcolm, and Steven McGrath. Dkt. No. 12. The prior motions to dismiss were filed on behalf of defendant RBRA only. Dkt. Nos. 19, 29. The pending motion to dismiss was filed on behalf of defendants RBRA and James Malcolm. Dkt. No. 41. Throughout the pleadings in this case, and in the public agency records and RBRA Code, the bay at issue is referred to as both Richardson’s Bay and Richardsons’ Bay. The same documents refer to Harbor Master and Harbormaster. In this Order, I will use Richardson’s Bay and Harbor Master. The Permit Scheme is outlined in the RBRA Agency Code (“Code”) attached to Roark’s FAC at Ex. H-2 [Dkt. No. 25-10], and the Permit Application at issue is attached to Roark’s FAC as Ex. H [Dkt. No. 25-8]. 2 Dockets.Justia.com 1 constant threat” of the loss of his boat and civil or criminal prosecution; (ii) 2 3 the Fourth Amendment;3 (iii) 4 5 (iv) the Permit Scheme unconstitutionally requires permit applicants to “waive” all right to damages from RBRA’s actions;5 (v) 8 9 the Permit Scheme violates the Due Process Clause and Fifth Amendment Takings Clause because the permits can be revoked at any time without due process;4 6 7 the Permit Scheme unconstitutionally allows warrantless searches in violation of the Permit Scheme requires permit applicants to swear under penalty of perjury facts that could be used against them in criminal proceedings;6 and 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FAC ¶ 108, citing Permit Application pg. 1: “the RBRA harbormaster is authorized to inspect the vessel at any time to enforce compliance with the permit. Any vessel this [sic] is found to be out of compliance with the conditions listed below may be cited, have its permit revoked, and forced to leave the anchorage”; pg. 2: “Emergency inspections of unattended vessels will be conducted whenever a vessel appears to be in, or is likely to create distress or potential to other vessels, real property or the environment.” 3 See FAC ¶ 111, citing Permit Application pg. 1: “Any vessel that is found to be out of compliance with the conditions listed below may be cited, have its permit revoked, and forced to leave the anchorage”; pg. 3: “[i]f a violation occurs, the vessel will immediately be required to leave the anchorage”; pg. 3: “[a]ny vessel anchoring in contravention to these rules, or in neglect of any precaution which may be required by the ordinary practice of seamen, will be required to move immediately when requested to do so by the RBRA and may be subject to citation and immediate cancellation of this permit.” 4 See FAC ¶ 116, citing Permit Application pg. 3: “The permittee shall be liable for any loss or damage to person or property caused by or on behalf of the permittee. Furthermore, the permittee agrees to be responsible to the RBRA and to pay for any or all loss or damages to piers, floats, or other public or private facilities caused by permittee [] whether caused by negligence or not, and further to defend and hold the RBRA [] harmless for any of the foregoing”; pg. 3: “[i]t is expressly agreed that the RBRA shall not be liable for loss or damage to any property left or stored by permittee or any other person in or upon the vessel or boat in RBRA/public waters or bay bottom, and permittee waives any and all claims for such loss or damage against the RBRA and agrees to hold the RBRA harmless from and against any such claims”; pg. 3: “[t]he permittee, for themselves, their assigns [] hereby release and agree to hold harmless the RBRA, their assigns [] for any liability for personal injury, loss of life and/or property damages of any kind whatsoever.” 5 6 See FAC ¶¶ 122-137, citing numerous provisions of the RBRA Code providing authority to the Harbor Master to issue citations, making violation of code provisions an infraction that if occurring three times in a twelve-month period rises to a misdemeanor, and requiring vessels in anchored to Richardson’s Bay to be seaworthy and operable. Roark also argues that because the Permit Application requires applicants to declare under penalty of perjury that the vessel is safe, seaworthy, registered, and has operable tackle, lights, and signals, the Permit Scheme violates the right against self-incrimination. 2 (vi) 1 2 unconstitutional position of facing “persistent criminal liability.”7 3 See FAC ¶¶ 78-79, 97-146 & Ex. H. Roark further alleges that a June 2021 Notice identifying his boat as marine debris 4 United States District Court Northern District of California the Permit Scheme places permit applicants or those without permits in the 5 (“Marine Debris Notice”) and his subsequent “displacement” by the RBRA violated his Fourth, 6 Fifth, and Fourteenth Amendment rights. FAC ¶¶ 71-72, 284-326 & Ex. C. He contends that 7 RBRA and others have conspired to take his boat and defraud the State of California in violation 8 of the Fifth and Fourteenth Amendment based on two “separate grant contracts” entered into in 9 December 2020 and December 2021. FAC ¶¶ 65-71, 175-234, 260-283, 327-335, 389-417 & Exs. 10 A, B (listing the Kittiwake in the scope of work for destruction). He alleges that these contracts, 11 as well as defendants’ intent to destroy his boat shown by the contracts, were concealed from and 12 never disclosed to plaintiff or the public. FAC ¶ 185. He states that this conduct violates 13 California Civil Code sections 526(a) & 1085. FAC ¶¶ 409-431. Finally, he asserts a claim for a 14 constitutional violation under California’s Bane Act (Cal. Civ. Code § 52.1) and for declaratory 15 and compensatory relief for “past and present constitutional violations.” FAC ¶¶ 442, 443. Roark’s allegations of false claims or false statements made to secure state funds from the 16 17 California Department of Boating and Waterways (CDBW, “Cal Save Grants”) or federal funds 18 from the National Oceanic Atmospheric Administration (“NOAA”) form the basis at least in part 19 of the following causes of action: the Third Cause of Action (“42 U.S.C. § 1985 Conspiracy to 20 Violate Substantive Due Process,” alleged against unserved defendants Lesberg, Coastal Policy 21 Solutions, and RBRA); the Fourth Cause of Action (“Violation Public Contract” against unserved 22 defendants Pollard and Havel, based on misuse of federal funds from the NOAA, the Ocean 23 Protection Council, and CDBW); the Fifth Cause of Action (“Violation of 42 U.S.C. § 1983, § 24 1985 Violation of Substantive Due Process,” based on claims that false or fraudulent claims were 25 submitted to NOAA; the Fifteenth Cause of Action (“Violation of California False Claims Act,” 26 based on fraudulent claims made to CDBW to secure Cal Save Grants); and the Nineteenth Cause 27 28 7 See id. 3 1 of Action (“Taxpayer Action” based on false claims submitted to CDBW). These claims all rely 2 on allegations that various defendants made false claims to state and federal agencies for the 3 purpose of securing funds under the pretense or intent to destroy the Kittiwake. 4 In response to defendants’ renewed motion to dismiss the FAC, Roark submitted a notice 5 voluntarily dismissing his “Causes of action under the False Claims Act and the California False 6 Claims Act.” Dkt. No. 43. In an abundance of caution, I will consider Roark’s voluntary 7 dismissal as applying only to the Fifteenth Cause of Action, entitled “Violation of California False 8 Claims,” and DISMISS it with prejudice. I address defendants’ challenges to Roark’s remaining 9 causes of action in turn. 10 United States District Court Northern District of California 11 LEGAL STANDARD Under FRCP 12(b)(6), a district court must dismiss a complaint if it fails to state a claim 12 upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 13 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts 15 that “allow the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must 17 be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not 18 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a 19 right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 20 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 21 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 22 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court 23 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 24 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 25 2008). If the court dismisses the complaint, it “should grant leave to amend even if no request to 26 amend the pleading was made, unless it determines that the pleading could not possibly be cured 27 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making 28 this determination, the court should consider factors such as “the presence or absence of undue 4 1 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 2 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport 3 Package Express, 885 F.2d 531, 538 (9th Cir. 1989). DISCUSSION 4 5 I. Defendants contend that underlying the whole of Roark’s FAC is an assertion that Roark 6 United States District Court Northern District of California CONSTITUTIONAL RIGHT TO ANCHOR 7 has a constitutional right to anchor in Richardson’s Bay. See Mot. at 4-5 (citing ¶¶ FAC 106, 113, 8 144). I do not agree that every claim in Roark’s FAC depends on that assertion. But I agree that 9 to the extent Roark is alleging a stand-alone constitutional entitlement to anchor where he chooses, 10 the United States’ constitution does not confer a blanket right to anchor in Richardson’s Bay. See 11 Graf v. San Diego Unified Port Dist., 7 Cal. App. 4th 1224, 1232 (1992) (“Boaters do not have a 12 constitutional right to unregulated long-term anchorage in public navigable waters.”). 13 II. PREEMPTION Defendants also contend that throughout the FAC Roark argues or implies that RBRA’s 14 15 anchorage ordinance is preempted by federal law. See, e.g., FAC ¶ 145 (“anchoring permit 16 application violates the Supremacy Clause because it effectively bans all anchoring within the 17 federally designated anchorage outlines in 33 C.F.R. 110.126(a)”). I agree that no regulation or 18 federal authority identified by Roark preempts the authority of RBRA to control anchorages in 19 Richardson’s Bay. Instead, the federal regulations he identified establish Richardson’s Bay as a 20 “special anchorage area” and direct mariners to comply with the RBRA’s Permit Scheme.8 21 Significantly, the Ninth Circuit has expressly rejected the argument that the special anchorage 22 23 24 25 26 27 28 8 Roark cites to various federal regulations in his FAC. The regulations that he alludes to in support of preemption include 33 C.F.R. § 110.126a, that classifies Richardson’s Bay as a “special anchorage” and noting that “Mariners anchoring in the special anchorage area should consult applicable ordinances of the Richardson Bay Regional Agency and the County of Marin. These ordinances establish requirements on matters including the anchoring of vessels, placement of moorings, and use of anchored and moored vessels within the special anchorage area. Information on these local agency requirements may be obtained from the Richardson Bay Harbor Administrator.” He also relies on 33 C.F.R. § 109.10, that provides “for the designation of special anchorage areas wherein vessels not more than sixty-five feet in length, when at anchor, will not be required to carry or exhibit anchorage lights. [ ] The areas so designated should be well removed from the fairways and located where general navigation will not endanger or be endangered by unlighted vessels.” 5 1 designations conflict with local ordinances requiring permits to stay beyond 72 hours. See Barber 2 v. State of Hawai'i, 42 F.3d 1185, 1191 (9th Cir. 1994) (the “requirement that vessels in excess of 3 65 feet anchored in Ke’ehi Lagoon must exhibit white lights while at anchor does not conflict with 4 Hawaii’s regulations, which simply require that boats in the lagoon obtain a permit and moor in a 5 designated area if the boat is to remain in the lagoon for more than 72 hours.”); see also Graf v. 6 San Diego Unified Port Dist., 205 Cal. App. 3d 1189, 1193 (Cal. Ct. App. 1988) (“Thus the 7 jurisdiction to establish and enforce the anchorage and nonanchorage areas in San Diego Harbor is 8 concurrent” between the federal government and the local body delegated with authority). Any cause of action or theory based on preemption is DISMISSED without leave to United States District Court Northern District of California 9 10 amend. 11 III. 12 PROCEDURAL DUE PROCESS CLAIM Defendants move to dismiss Roark’s procedural due process claim in the First Cause of 13 Action, where he challenges the lack of an appeal process when RBRA revokes a 30-day 14 anchoring permit (“Permit”) because a vessel is out of compliance with the conditions required by 15 the Permit Application. FAC ¶¶ 110, 190; see also Permit Application pg. 2 (identifying 16 conditions required for vessels to secure or maintain a Permit). Because no fundamental property 17 interest is implicated, there is no procedural due process violation. 18 A plaintiff asserting a section 1983 claim based on procedural due process must show: “(1) 19 a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the 20 government; [and] (3) lack of process.” See Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 21 (9th Cir. 1993). “An elementary and fundamental requirement of due process . . . is notice 22 reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of 23 the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover 24 Bank & Tr. Co., 339 U.S. 306, 314 (1950). Notice must be “reasonably calculated, under all the 25 circumstances, to apprise interested parties of the pendency of the action and afford them an 26 opportunity to present their objections.” Id. at 314. 27 In addition to notice, “[o]rdinarily, due process of law requires an opportunity for ‘some 28 kind of hearing’ prior to the deprivation of a significant property interest.” Memphis Light, Gas, 6 United States District Court Northern District of California 1 and Water Div. v. Craft, 436 U.S. 1, 19 (1978). However, a pre-deprivation hearing is not 2 required where the loss may not be “serious,” where the government has procedures to “minimize 3 the risk of erroneous determination,” where the deprivation is foreseeable, or where provision of a 4 pre-deprivation hearing is “impractical” given exigent circumstances. Weinberg v. Whatcom Cnty., 5 241 F.3d 746, 753–54 (9th Cir. 2001). 6 Defendants argue that Roark lacks standing to bring a procedural due process claim 7 because he has not applied for a Permit (Mot. at 8-9) and admits that he intends to live on his boat 8 in Richardson’s Bay, which is not allowed under RBRA Code §3.04.020 and means that he would 9 be denied a Permit. See Mot. at 8-9; RBRA Code 3.04.020 (“Living aboard a houseboat or vessel 10 anchored or moored in Richardson’s Bay is prohibited. The Harbor Master may issue a permit to 11 transient vessel to anchor in the designated anchorages for more than 72 hours, provided that the 12 Harbor Master determines that no permanent residential use is intended. In such cases, the Harbor 13 Master shall issue a permit valid for 30 days. This permit may be renewed for two additional 30 14 days periods at the Harbor Master’s discretion.”). Roark alleges and defendants do not dispute that Malcom and RBRA posted at least one 15 16 Notice of Removal on the Kittiwake because Roark had not secured a Permit. Both sides also 17 admit that defendants provided Roark with a Permit Application and suggested he apply. See, 18 e.g., Compl. ¶¶ 79-83. Roark alleges that he filled out part of the Permit Application but that he 19 objected to some of the conditions and returned it to defendants with the provisions he objected to 20 crossed out. Id. ¶¶ 86-87, Ex. I. The RBRA rejected Roark’s proposed changes. Id. ¶ 89. Given 21 these undisputed allegations regarding Roark’s attempt to apply for a Permit at defendants’ urging, 22 defendants’ argument that he lacks standing to challenge the provisions is not well taken. On the merits of the claim, defendants contend that adequate process is provided under the 23 24 25 RBRA Code as a matter of law because: • Any person administratively cited for violating RBRA code is entitled to procedural 26 protections including notice, service, an opportunity to appeal the citation to a neutral 27 hearing officer, and an additional opportunity to appeal the administrative decision to the 28 Superior Court. RBRA Code § 1.04.050. 7 • 1 the vessel. RBRA Code § 4.05.010. 2 • 3 United States District Court Northern District of California In the event that a vessel is impounded, the owner has an opportunity to claim and retrieve The RBRA code outlines the procedures for declaring a vessel anchored in Richardson’s 4 Bay without a permit to be a nuisance, including providing notice, service, and an 5 opportunity to appeal the decision. RBRA Code §§ 6.04.040, 6.04.060. 6 Mot. at 9. Review of the sections identified by the RBRA, however, do not fully match 7 defendant’s descriptions. RBRA Code section 1.04.050 outlines the penalties allowed under the 8 Code. RBRA Code section 4.05.010 allows the Harbor Master to remove or impound any vessel 9 “found” in violation of the Code provisions, and gives owners an opportunity to claim and retrieve 10 impounded vessels. RBRA Code sections 6.04.010 et seq. (including 6.04.040 and 6.04.060), 11 govern abatement of identified nuisances. Those sections require notice to vessel owners if 12 vessels are determined to be public nuisances (for identified reasons, see §6.04.020) and allow the 13 owner to either abate the nuisance or appear before the RBRA Board to contest the nuisance 14 designation. The form of notice required by section 6.04.050 of the RBRA Code must identify the 15 conditions creating the nuisance that needs to be abated and also inform the vessel’s owner that 16 she can appear at an identified RBRA Board meeting to contest the negligence determination. See 17 RBRA Code 6.04.050. These provisions do not, on their face, appear to apply to the challenge Roark makes to the 18 19 revocation of 30-day anchoring permits without a pre-deprivation hearing. Nor is the form of 20 notice identified in section 6.04.050 similar to the Notice to Remove given to Roark. Compare 21 Dkt. No. 25-10 at ECF pg. 15 with Dkt. No. 35-6 (December 2022 Notice to Remove).9 It appears 22 that there is no opportunity given to 30-day Permit holders to contest and be heard when RBRA 23 revokes a 30-day permit. That does not mean that Constitutional rights have been violated, however. Constitutional 24 25 26 27 28 9 When asked at oral argument about what appeal process is provided, if any, for the 72-hour Notices to Remove for vessels that have not secured a Permit or presumably ones where the Permit has been revoked, defense counsel stated that recipients can “appeal” the Notices. However, no information regarding methods by which recipients can appeal the Notice to Remove is included on the Notice itself. See Compl. Ex. F [Dkt. No. 25-6]. 8 United States District Court Northern District of California 1 procedural due process rights attach only when a fundamental property right has been implicated. 2 As noted above, there is no constitutional right to anchor in Richardson’s Bay. See Bd. of Regents 3 of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a 4 person clearly must have more than an abstract need or desire for it. He must have more than a 5 unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”). The 6 question, then, is whether a 30-day Permit involves the type of protected property interest that 7 would require a pre-deprivation hearing before it was revoked. See Weinberg v. Whatcom Cnty., 8 241 F.3d 746, 753 (9th Cir. 2001) (issued building “permits and approved plats are analogous to a 9 driver’s licence, which the Washington Supreme Court recognized to be the subject of a valid 10 property interest,” and therefore pre-deprivation notice and opportunity to be heard was required 11 before the permit could be invalidated). 12 Neither side has provided authority regarding this issue under California law, but a 30-day 13 Permit – that provides only a temporary, limited-in-time ability to anchor in RBRA if the vessel is 14 maintained according to the Permit’s requirements – is facially not the type of “property interest” 15 to which pre-deprivation hearing rights attach. As the California Court of Appeal explained in 16 Calvert v. Cnty. of Yuba, 145 Cal. App. 4th 613, 622–23 (2006), as modified (Jan. 3, 2007), 17 permits that are issued for “typical, small scale” building projects involve “ministerial decisions” 18 typically based on “certain fixed standards and objective measurements.” Given the ministerial 19 nature of the permitting process, the revocation of those types of permits falls outside the realm of 20 procedural due process, at least in terms of pre-deprivation hearings.10 The time-limited 30-day 21 Permit allowed under the Permitting Scheme is similarly limited in time and can be issued only if 22 certain fixed standards are met. Roark’s procedural due process challenge to the Permit Scheme is DISMISSED without 23 24 leave to amend. 25 26 27 28 Read generously, Roark also contends that the Permit Application’s requirement that permittees waive their right to seek damages against the RBRA is an “unconstitutional waiver” of his due process rights to challenge the deprivation of “property and rights.” FAC ¶ 120. That allegation is addressed below with respect to Roark’s Takings Claim. 9 10 1 2 3 IV. SUBSTANTIVE DUE PROCESS Defendants move to dismiss Roark’s Sixth Cause of Action alleging a “Substantive Due Process” violation of 42 U.S.C. section 1983 for “Mail Fraud.” FAC ¶¶ 260-279. Roark alleges a violation of “substantive due process” under his Eleventh Cause of Action as well. Id. ¶¶ 327-335 4 The bases for the mail fraud and substantive due process causes of action are the same; Roark 5 alleges that RBRA falsely identified the Kittiwake as an abandoned vessel and thereby secured 6 grant funding under the Cal Save Grant from CDBW to target the Kittiwake for destruction. 7 8 9 “Substantive due process ‘forbids the government from depriving a person of life, liberty, or property in such a way that “shocks the conscience” or “interferes with the rights implicit in the concept of ordered liberty.”’” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (quoting 10 Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)); United States v. Salerno, 481 11 United States District Court Northern District of California U.S. 739, 746 (1987); see also Brittain v. Hansen, 451 F.3d 982, 990-91 (9th Cir. 2006). 12 “Substantive due process is ordinarily reserved for those rights that are ‘fundamental.’” Id. at 990 13 (quoting Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997)). 14 Roark alleges that defendants Havel and Pollard (who have not apparently been served and 15 who have not appeared in this case but who in the past worked for RBRA), RBRA, Malcom and 16 another unserved defendant (Brad Gross) deprived Roark of substantive due process when they 17 used the mails in 2020 and 2021 to apply to CDBW for grants to destroy the Kittiwake and 18 defraud CDBW by falsely stating the Kittiwake was an abandoned derelict vessel. Id. ¶¶ 260-275, 19 327-335. Roark separately alleges that defendant Malcom “demanded” that Roark seek an 20 anchoring permit (when that the permit would have required Roark to waive his rights to damages 21 if his boat were illegally seized) and did not disclose that RBRA already had a “contract” from 22 CDBW to seize and destroy the Kittiwake. By doing this, Roark alleges that Malcolm was 23 24 attempting to “fraudulently induce” him to waive his right to damages “so that the RBRA could execute its fraudulent contract with impunity.” Id. ¶¶ 276-279. 25 RBRA argues that Roark has failed to identify facts showing that defendants interfered or 26 attempted interfere with any of his protected “fundamental liberty” interests through mail fraud. 27 Even if those facts had been adequately alleged, RBRA asserts that Roark cannot state a claim for 28 10 United States District Court Northern District of California 1 damages based on mail fraud under Section 1983 because as Section 1983 protects only against 2 violations of civil rights not violations based on fraud. RBRA is correct: under Section 1983, 3 Roark can seek relief only for deprivation of rights secured by the constitution, not for allegations 4 of fraud or mail fraud. 5 In opposition, Roark clarified his substantive due process theory. He contends that 6 defendants’ fraudulent use of the mails to secure CDBW grants to destroy the Kittiwake (despite 7 the Kittiwake not being an abandoned vessel) is conduct that “shocks the conscience” in violation 8 of his due process rights. He further alleges that Malcom’s purpose in directing Roark to secure a 9 permit in December 2022, while not disclosing the existence of the grants to destroy the 10 Kittiwake, was to force Roark to waive his right to damages against RBRA once the Kittiwake 11 was seized and destroyed. Opposition [Dkt. No. 42] at 6-8. 12 Conduct that shocks the conscience, however, must be more than mere negligence, but 13 must be “so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and 14 decency.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (internal quotations omitted). 15 Neither of Roark’s theories rises to the level of abusive government acts that could shock the 16 conscience. 17 First, defendants’ listing the Kittiwake as a potentially abandoned vessel that could be 18 destroyed using Cal Grant funds, and failing to disclose the listing to Roark, does not rise to the 19 level of mail fraud or governmental conduct that shocks the conscience. Roark attaches as Exhibit 20 A and B to his Amended Complaint the CDBW “Grant Agreements – Certificates of Funding.” 21 Dkt. Nos. 25-1 & 25-2. Those documents show that RBRA was authorized to seek reimbursement 22 from state funds if RBRA took control of “abandoned” or surrendered vessels and had them 23 destroyed. Id., Section 1 “PURPOSE OF THE PROGRAM.” If vessels are destroyed, RBRA 24 then had to seek “reimbursement” following an identified claims process. Id., Section 24 25 “BUDGET DETAIL AND PAYMENT PROVISIONS.” Because the program covers vessels that 26 might be “abandoned” but might also be voluntarily surrendered, that the RBRA listed the 27 Kittiwake as a vessel that was in Richardson’s Bay and might be covered by that year’s grant (if it 28 was seized or if it was voluntarily surrendered) does not support a charge of fraudulent activity by 11 United States District Court Northern District of California 1 RBRA or any individual defendant. It is not legally significant that the RBRA did not disclose to 2 Roark that it listed the Kittiwake on the grant applications; there are a number of anchored vessels 3 in Richardson’s Bay that could potentially fall within the scope of the grant so it is logical that 4 RBRA would list vessels that might potentially fall within the funding parameters for that year. 5 Second, for the same reasons, that Malcom encouraged Roark to seek a 30-day Permit at 6 the same time that the Kittiwake was listed on the grant applications does not support a claim or 7 mail fraud or “shock the conscience” behavior. The RBRA was simply seeking the maximum 8 possible funds in case the Kittiwake or other vessels in Richardson’s Bay were seized under the 9 RBRA’s nuisance abatement powers or voluntarily surrendered. There is no basis for a 10 substantive due process claim related to RBRA identifying the Kittiwake as a vessel in its grant 11 applications.11 In addition to the substantive due process allegations in his Fifth and Eleventh Causes of 12 13 Action, under his First Cause of Action Roark alleges that the Permit Scheme violates Section 14 1983 because it “forces the mariner to waive their rights to due process of law for deprivation of 15 property and rights.” FAC ¶ 114. Roark’s waiver argument is based on language in the Permit 16 Application that: 17 11. The permittee shall be liable for any loss or damage to person or property caused by or on behalf of permittee. Furthermore, the permittee agrees to be responsible to the RBRA and to pay for any or all loss or damages to piers, floats, or other public or private facilities caused by permittee, his or her agents, and/or employees whether caused by negligence or not, and further to defend and hold the RBRA, its agents and employees, harmless for any of the foregoing. This indemnification shall survive the expiration or termination of this agreement. 18 19 20 21 22 12. It is expressly agreed that the RBRA shall not be liable for loss or damage to any property left or stored by permittee or any other person in or upon the vessel or boat in RBRA/public waters or bay 23 24 25 26 27 28 11 Roark argues that his claims are similar to those raised in Knight v. Richardson Bay Reg'l Agency, 637 F. Supp. 3d 789 (N.D. Cal. 2022). However, in Knight the question was whether the plaintiff had made a sufficient showing that his boat was not “marine debris” to temporarily enjoin RBRA from seizing his boat in potential violation of plaintiff’s due process rights and rights under the Fourth Amendment. The analysis there turned on the dispute of fact over whether the boat was “marine debris” and whether to stay enforcement of the existing Marine Debris Notice and the agency’s efforts to seize the boat. In this case, there is no pending Marine Debris Notice and no finding or survey (as in Knight) that the Kittiwake is still considered Marine Debris by RBRA. 12 bottom, and permittee waives any and all claims for such loss or damage against the RBRA and agrees to hold the RBRA harmless from and against any such claims. 1 2 13. The permittee, for themselves, their assigns’, successor’s and interests, legal representatives, their estate as the case may be, hereby release and agree to indemnify and hold harmless the RBRA, their assigns’, successor's and interests, legal representatives for any liability for personal injury, loss of life and/or any property damage of any kind whatsoever. 3 4 5 6 Dkt. No. 25-8. The first paragraph clearly covers damage that occurs as the result of the 7 permittee’s conduct or damage caused by the permittee’s vessel. The second paragraph addresses 8 only loss of property stored in or on the vessel. The third paragraph is a very broad indemnity 9 claim that presumably relates to RBRA’s granting the vessel owner the right to anchor in 10 Richardson’s Bay for 30 days. I agree with Roark that the scope of the paragraph is unclear, but I cannot say that its United States District Court Northern District of California 11 12 presence in the Permit Application effects a violation of substantive due process because it 13 requires permittees to “give up” all possible damage claims against RBRA. Roark’s facial 14 constitutional challenge to the Permit Application can only succeed if Roark establishes “that no 15 set of circumstances exists under which the [Permit Application] would be valid.” United States v. 16 Salerno, 481 U.S. 739, 745 (1987). While broad, the third indemnity paragraph serves obvious, 17 legal purposes: For example, where a permittee’s vessel becomes unmoored and damages a third- 18 party’s vessel, requiring the permittee to indemnify the RBRA for damage to the third-party’s 19 vessel would be appropriate. And there is no support for Roark’s argument that by signing a 20 Permit Application he would give up the right to seek damages from RBRA for conduct unrelated 21 to the 30-day Permit, such as damage claims that either preexisted the Permit or occurred after the 22 Permit expired, i.e., if the RBRA unconstitutionally seizes or otherwise unreasonably takes his 23 boat. Roark’s substantive due process challenge to the Permit Scheme is DISMISSED without 24 25 leave to amend. 26 V. 27 28 TAKINGS CLAIM Defendants move to dismiss the takings claims Roark alleges in his First, Seventh, and Tenth Causes of Action. Roark states these claims under different theories, based on : (1) an 13 1 asserted right to anchor in Richardson’s Bay that is taken away by the use of the notices and 2 forcing vessels to leave or be seized; (2) posting of the two notices on Roark’s boat; one declaring 3 the Kittiwake marine debris and the other for failing to secure a permit, FAC ¶¶ 312-318; (3) the 4 purported contract entered into between RBRA and CDBW to seize and destroy the Kittiwake, 5 FAC ¶¶ 280-283; and (4) the Permit Application requiring permittees to waive rights to damages 6 against RBRA for any unconstitutional takings. FAC ¶¶ 115-119. United States District Court Northern District of California 7 “A property owner has an actionable Fifth Amendment takings claim when the 8 government takes his property without paying for it.” Knick v. Township of Scott, Pa., 139 S. Ct. 9 2162, 2167 (2019). “The government commits a physical taking when . . . the government 10 physically takes possession of property without acquiring title to it.” Cedar Point Nursery v. 11 Hassid, 141 S. Ct. 2063, 2071 (2021) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115- 12 17 (1951) (plurality)). This “sort[] of physical appropriation constitute[s] the ‘clearest sort of 13 taking,’ and we assess [it] using a simple, per se rule: The government must pay for what it takes.” 14 Id. (first quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), then citing Tahoe-Sierra 15 Pres. Council, Inc. v. Tahoe Regional Plan. Agency, 535 U.S. 302, 322 (2002)). Additionally, 16 “[i]ndividuals must receive notice and an opportunity to be heard before the Government deprives 17 them of property.” Gremmels v. FDA, No. 21-CV-06102-JSC, 2021 WL 7448539, at *2 (N.D. Cal. 18 Oct. 5, 2021), report and recommendation adopted, No. 21-CV-06102-VC, 2021 WL 7448546 19 (N.D. Cal. Nov. 4, 2021) (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 20 48 (1993)). 21 Roark’s first theory is not cognizable because there is no constitutional right to anchor in 22 Richardson’s Bay, as discussed above. He identifies no other source of a right to anchor in 23 Richardson’s Bay. His third and fourth theories, based on the CDBW Grant Agreements and 24 purported waiver of rights to seek damages, fail for the reasons discussed in Section IV, above, 25 with respect to the substantive due process claims. The defendants did not commit fraud or 26 “shock the conscience” with their conduct. 27 28 His second theory fails because impoundments – like those contemplated by the Notice to Remove only if the vessel owner does not move their unpermitted vessel within 72 hours – are 14 1 permissible where allowed by law and where sufficient notice has been given, as it was here. 2 Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008) (“The courts have long 3 interpreted this—along with the parallel restriction on the federal government in the Fifth 4 Amendment—to require that notice generally be given before the government may seize 5 property.”); see also Deligiannis v. City of Anaheim, No. SACV 06-720 DOC(JC), 2010 WL 6 1444538, at *8 (C.D. Cal. Mar. 2, 2010), report and recommendation adopted, No. SACV 06- 7 720DOC(JC), 2010 WL 1444535 (C.D. Cal. Apr. 3, 2010), aff'd, 471 F. App'x 603 (9th Cir. 2012) 8 (no takings claim where vehicle impounded for unpaid parking tickets, because “plaintiff’s vehicle 9 was not seized for a ‘public use’ in the context of the Takings Clause.”). There has been no impoundment and no taking here. The posting of the Notice to Remove United States District Court Northern District of California 10 11 gives the vessel owner the option to remove the vessel or to face potential impoundment. In and 12 of itself, that is not an unconstitutional taking. Roark contends that he may pursue his taking 13 claims, even though an impoundment has not occurred, under the Supreme Court’s decision in 14 Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019). Opposition at 3-4. But that case 15 stands for the proposition that once a taking occurs, a property owner may file a federal takings 16 claim and need not exhaust state law processes. It does not stand for the proposition that the 17 government may be enjoined from taking property when there are procedures in place to provide 18 just compensation for any eventual taking. Id. at 2176 (“because the federal and nearly all state 19 governments provide just compensation remedies to property owners who have suffered a taking, 20 equitable relief is generally unavailable. As long as an adequate provision for obtaining just 21 compensation exists, there is no basis to enjoin the government’s action effecting a taking.”). Roark’s takings claim under the Fifth Amendment is DISMISSED without leave to amend. 22 23 24 VI. FIFTH AMENDMENT - SELF-INCRIMINATION Roark alleges that the Permit Application violates the Fifth Amendment privilege against 25 self-incrimination because it requires mariners to “declare facts, under penalty of perjury, that can 26 foreseeably be used in criminal prosecution” and points to various provisions in the RBRA Code 27 28 15 1 that provide for issuances of infractions up to the level of misdemeanors FAC ¶¶ 121-137, 146.12 2 This claim lacks merit. The Fifth Amendment provides that no person “shall be compelled in any criminal case to United States District Court Northern District of California 3 4 be a witness against himself.” U.S. CONST., amend. V. “[T]his prohibition not only permits a 5 person to refuse to testify against himself at a criminal trial in which he is a defendant, but also 6 privileges him not to answer official questions put to him in any other proceeding, civil or 7 criminal, formal or informal, where the answers might incriminate him in future criminal 8 proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (internal quotations omitted). To 9 establish a Fifth Amendment violation outside the context of a criminal trial, a person must prove 10 two things: (1) the testimony desired by the government carries real and appreciable danger of 11 self-incrimination in a future criminal prosecution; and (2) the testimony was compelled, i.e., the 12 penalties suffered are sufficiently coercive and not hypothetical. United States v. Antelope, 395 13 F.3d 1128, 1134-39 (9th Cir. 2005) (citing Minor v. United States, 396 U.S. 87, 98 (1969) and 14 Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)). Roark’s claim fails because he cannot allege plausible facts that if he was to affirm, under 15 16 penalty of perjury, that his boat meets the health and safety requirements required for a 30-day 17 Permit, he faces a “real and appreciable danger” of self-incrimination “in a future criminal 18 prosecution.” Roark relies on the sections of the RBRA Code that provide the Harbor Master the 19 power to issue citations if boats are deemed to violate the Code or other regulations. RBRA Code 20 § 2.040.010(b). He also relies on the section of the Code that states that where any individual “has 21 been convicted of violating the same ordinance three times in a twelve-month period” the “Agency 22 Attorney” may “elevate the current violation to a misdemeanor and prosecute it as such.” RBRA 23 Code §1.04.050(c). But the substantive Code provisions Roark identifies are the independent 24 requirements that vessels anchored in Richardson’s Bay be seaworthy, have adequate sanitation 25 26 27 28 The Permit Application requires applicants to affirm “under penalty of perjury” that their vessel meets certain requirements including: is “maintained in a neat and safe condition”; is “equipped with operable and functioning sanitation equipment”; is “in seaworthy conditions”; is appropriately registered; and has “operational navigation lights” among other requirements. Permit Application pg. 2. 16 12 1 facilities, and comply with other agency regulations. See RBRA Code 1.040.020 (“Definitions,” 2 including “Operable” “Seaworthy”); 3.04.050 (:Vessel Condition and Requirements). It is 3 violation of these provisions – not the statements under penalty of perjury required in the Permit 4 Application – that might subject vessel owners to citations or possible prosecution for 5 misdemeanors under the RBRA Code. See United States v. Drollinger, 80 F.3d 389, 392 (9th Cir. 6 1996) (“The defendant must have “‘reasonable cause to apprehend [such] danger from a direct 7 answer’ to questions posed to him.” (quoting United States v. Neff, 615 F.2d 1235, 1239 (9th 8 Cir.1980)). Nor can Roark demonstrate that he was compelled to provide the testimony, much less United States District Court Northern District of California 9 10 testimony that would be potentially incriminating.13 Roark has a choice of whether or not to 11 anchor in Richardson’s Bay. That he prefers to anchor there – as opposed to China Camp or other 12 areas in the San Francisco Bay because he has neighbors in Richardson’s Bay that will keep an 13 eye on the Kittiwake while he is away – does not equate to being compelled to seek a Permit and 14 thereby make statements that might be false under penalty of perjury. While a permit is required 15 under the RBRA Code and relevant regulations, he is not compelled to seek one sufficient to state 16 a potential claim under the Fifth Amendment’s protection against self-incrimination. Roark’s Fifth Amendment – Self-Incrimination claim is DISMISSED without leave to 17 18 amend. 19 VII. FOURTH AMENDMENT Defendants move to dismiss the claims asserted in his First and Eighth Causes of Action 20 21 that allege violations of the Fourth Amendment’s prohibition on warrantless searches and seizures. 22 Roark asserts these claims based on two different theories. First, Roark makes a facial challenge 23 to the Permit Application language requiring permittees to allow warrantless searches of permitted 24 vessels. See, e.g., FAC ¶¶ 107-109.14 Second, he challenges the ability of RBRA to seize boats 25 26 27 28 13 Roark does not admit it in his FAC, but presumably he is concerned that the affirmations he objects to in the Permit Application – affirming that his vessel has specific equipment and is seaworthy – would be proven objectively false. See Dkt. No. 25-11 at ECF pg. 12-15 (Permit Application provisions objected to by Roark). 14 Complaint ¶ 107: “The Permit Application violates the Fourth Amendment of the US Const., 17 United States District Court Northern District of California 1 subject to the 10-day Marine Debris Notices and the 72-hour Notice to Remove unpermitted boats. 2 As applied to him, he challenges the posting of the Marine Debris Notice on his boat in June 2021 3 and the 72-hour Notice to Remove for failure to secure a permit posted in December 2022. FAC 4 ¶¶ 79, 139, 284-293, 308. 5 Defendants rely on a series of cases holding that certain commercial entities operating in 6 “heavily regulated” industries can be searched without a warrant. 15 See, e.g., Killgore v. City of 7 S. El Monte, 3 F.4th 1186, 1189 (9th Cir. 2021). In order to qualify as a “heavily regulated 8 industry,” there must be something “inherent in the operation [that] poses a clear and significant 9 risk to the public welfare.” City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 424 (2015). A 10 “warrantless inspection of a commercial business in a “closely regulated” industry is reasonable 11 under the Fourth Amendment provided that three conditions are met: (1) ‘there must be a 12 substantial government interest that informs the regulatory scheme pursuant to which the 13 inspection is made’; (2) ‘the warrantless inspections must be necessary to further [the] regulatory 14 scheme’; and (3) ‘the statute’s inspection program, in terms of the certainty and regularity of its 15 application, [must] provid[e] a constitutionally adequate substitute for a warrant.’” Killgore, 3 16 F.4th at 1192 (quoting New York v. Burger, 482 U.S. 691, 702-03 (1987). These cases are 17 inapplicable. No court has found that non-commercial permits allowing private vessels to anchor 18 fall within or is akin to the “heavily regulated industries” that qualify for this exemption from the 19 20 21 22 23 24 25 26 27 28 because it requires all people with boats in Richardson Bay to submit to warrantless searches of their home without probable cause of a crime being committed, without exigent circumstances, and at any time by the RBRA Harbor Administrator, who is not a certified peace officer.” Id. ¶ 108: “The RBRA harbormaster is authorized to inspect the vessel at any time to enforce compliance with the permit. Any vessel this is found to be out of compliance with the conditions listed below may be cited, have its permit revoked” (citing Permit Application, Page 1). Id. ¶ 109: “Furthermore, the anchoring permit application states if the “Harbormaster” “thinks” that the boat is “likely to create distress” in the future he can inspect the vessel… “Emergency inspections of unattended vessels will be conducted whenever a vessel appears to be in, or is likely to create distress or potential to other vessels, real property or the environment.” (citing Permit Application, Page 2). 15 Defendants also argue that Roark lacks standing to challenge the Permit Scheme, as he refuses to apply for a Permit. However, Roark’s alleges he has been encouraged to apply for a Permit, he submitted a Permit Application striking out the language he objects to, and RBRA is still requiring Permits to anchor for 30 days. In these circumstances, Roark has standing to facially challenge the allegedly unconstitutional conditions imposed by the Permit Scheme. 18 United States District Court Northern District of California 1 Fourth Amendment’s warrant requirement. See Kilgore, 3 F.4th at 1189 (identifying the few 2 heavily or closely regulated industries that have been recognized by courts; sale of sporting 3 weapons, stone quarrying and mining, [] automobile junkyards,” “salmon fishing, commercial 4 fishing, family day care homes, transportation of hazardous materials, veterinary drugs, foreign 5 trade zones, [] commercial trucking,” and massage parlors). 6 Roark’s facial Fourth Amendment challenge fails for a different reason. A long line of 7 cases allow government officials to tow vehicles that pose safety or other public health hazards 8 under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. 9 See, e.g., South Dakota v. Opperman, 428 U.S. 364, 369 (1976) (“The authority of police to seize 10 and remove from the streets vehicles impeding traffic or threatening public safety and convenience 11 is beyond challenge.”); Coal. on Homelessness v. City & Cnty. of San Francisco, 93 Cal. App. 5th 12 928, 2023 WL 4673776 *6-7, 9 (2023) (discussing the vehicular community caretaking exception 13 as covering “cars that are illegally parked, create a hazard to other drivers or an obstacle to the 14 flow of traffic, or are a target for vandalism or theft,” but concluding “tows of legally parked cars 15 based on unpaid tickets are not within the vehicular community caretaking exception.”). This 16 applies to the Permit Application provision, which allows for emergency inspections to determine 17 whether a boat should be seized and removed in order to protect public health and safety is not 18 facially unconstitutional. See FAC ¶ 109 (citing Permit Application, page 2). It does not impose 19 an unconstitutional condition and does not violate the Fourth Amendment’s prohibition on 20 unreasonable searches when it conditions the Permit on allowing “Emergency inspections” of 21 unattended vessels that may be in “distress.” Dkt. No. 25- at pg. 2. 22 With respect to the broader provision in the Permit that Roark challenges – giving the 23 Harbor Master permission to inspect vessels “at any time to enforce compliance” with the Permit – 24 that provision is not on its face limited to inspections necessary to protect public health or safety. 25 But all of the requirements identified in the Permit Application concern the maintenance of the 26 vessel and presence of equipment; those requirements are on their face related to health and safety. 27 See id. at pg. 2-3. Moreover, in order to bring a successful facial challenge, Roark must show that 28 the Permitting Scheme and underlying RBRA’s Code provisions that allow for inspections cannot 19 1 be constitutionally applied in any set of circumstances. See United States v. Salerno, 481 U.S. 2 739, 745 (1987) (explaining that a “facial challenge to a legislative Act is, of course, the most 3 difficult challenge to mount successfully, since the challenger must establish that no set of 4 circumstances exists under which the Act would be valid.”). There are numerous circumstances 5 identified on the face of the Permit Application – e.g., “the vessel is in seaworthy condition and 6 floats at all stages of the tide” and the “vessel’s bilges are free from excessive accumulation of 7 fuel, oil, coolant or other fluids, and the pumping equipment is operations” – that would support a 8 community caretaking exception search. Roark or another permittee may be able to challenge the search provisions of the Permit United States District Court Northern District of California 9 10 Scheme on an as-applied basis if the Harbor Master is unreasonably searching vessels with 11 Permits. But his facial challenge fails. Roark’s second Fourth Amendment challenge to the Marine Debris Notice and Notice to 12 13 Remove Notices as warrantless seizures fails because the Notices themselves are on their face not 14 seizures. They provide owners the option of moving the boats to other anchorages within 10 days 15 (for vessels determined to be marine debris) or within 72 hours (for vessels without a 30-day 16 Permit). Only if the vessels are not moved will there be a potential, subsequent seizure.16 Roark 17 has not shown that there are no sets of circumstances where the vessels cannot properly be seized 18 under either Notice in light of the RBRA Code provisions and Permit Applications giving the 19 Harbor Master that authority. 20 As applied, there was no seizure here. Roark was warned of possible seizures pursuant to 21 the Notices unless he removed his boat from Richardson’s Bay. He did so in 2021 in response to 22 the Marine Debris Notice. He did not in response to the December 2022 Notice. But providing 23 notice of a possible seizure, if the vessel owner does not move his vessel, bring his vessel to 24 seaworthy condition (i.e., remediate the conditions causing the vessel to be considered marine 25 debris), or secure a permit, does not equal a seizure under the Fourth Amendment. See, e.g., 26 Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992) (“A ‘seizure’ of property, we have explained, 27 28 16 The due process protections regarding the posting of the Notices are discussed above. 20 1 occurs when ‘there is some meaningful interference with an individual’s possessory interests in 2 that property.’” (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Roark’s Fourth Amendment claims are DISMISSED without leave to amend. 3 4 VIII. EIGHTH AMENDMENT In the Twelfth Cause of Action, Roark argues that the Permit Application requiring him to United States District Court Northern District of California 5 6 make affirmations concerning the condition of his vessel, and the RBRA Code’s provisions that 7 make repeated failures to comply with the Code requirements misdemeanors, “criminalize” Roark 8 for living on his boat in violation of the Eighth Amendment. FAC ¶¶ 336-346; see also RBRA 9 Code § 1.04.050 (“Penalties”).17 This claim fails. 10 Ninth Circuit caselaw holds that the Cruel and Unusual Punishment Clause of the Eighth 11 Amendment “prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside 12 on public property for homeless individuals who cannot obtain shelter.” Martin v. City of Boise, 13 920 F.3d 584, 616 (9th Cir. 2019). In Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 14 2023), the Ninth Circuit clarified that a “local government cannot avoid this ruling by issuing civil 15 citations that, later, become criminal offenses.” Id. at 890. But these cases do not confer upon 16 individuals a right to shelter where they wish. Instead, they hold that local governments cannot 17 penalize homeless individuals, or criminally cite them for merely sleeping outdoors, unless the 18 local governments offer the homeless an adequate place to shelter, e.g., an indoor shelter bed or an 19 alternative campsite. See Martin, 920 F.3d at 617. 20 This line of cases does not support Roark’s claim that the Permit Scheme and Code 21 provisions regarding penalties violate the Eighth Amendment by threatening criminal sanctions for 22 repeated violations. The Permit Scheme and Code require vessels to be seaworthy and possess 23 equipment, in order to protect the public health and safety. Enforcement of those provisions does 24 not criminalize Roark’s use of his boat as his home. Nor do the requirements that individuals 25 must secure a permit to anchor more than 72-hours. As noted above, courts have upheld the right 26 27 28 17 The Eleventh Cause of Action refers to cruel and unusual punishment and the Eighth Amendment, but the allegations regard an alleged denial of substantive due process rights and Roark’s boat being unfairly targeted for destruction through CDBW grants. Those arguments are addressed above. 21 1 of local agencies to enforce permit schemes for any vessels anchoring in excess of 72-hours. 2 Barber v. State of Hawai'i, 42 F.3d 1185 (9th Cir. 1994); Graf v. San Diego Unified Port Dist., 3 205 Cal. App. 3d 1189 (Cal. Ct. App. 1988). And I have also rejected in Section VI, above, the 4 argument that Roark’s privilege against self-incrimination is violated by requiring individuals to 5 declare that their boats comply with the RBRA’s Code provisions in order to secure a Permit. Roark’s claim under the Eighth Amendment is DISMISSED without leave to amend. 6 United States District Court Northern District of California 7 IX. STATE-CREATED DANGER & NEGLIGENCE 8 In his Ninth and part of his Tenth Cause of Action, Roark argues that defendants violated 9 the state-created danger doctrine when they posted the Marine Debris Notice on the Kittiwake in 10 June 2021, threatening to seize Roark’s boat. He alleges that the Notice forced him to leave 11 Richardson’s Bay, despite defendants “knowing” that Richardson’s Bay was the “safest place to 12 anchor in the San Francisco Bay” and that he had no other place to anchor his boat. He contends 13 that unserved defendant Havel (a former RBRA Harbor Master) “instructed” Roark to anchor at 14 China Camp, knowing that anchoring there was more dangerous given the cross currents and that 15 there were no neighbors there to keep a watch on the Kittiwake. Despite these known dangers, 16 Roark alleges that defendants “forced” him to move and anchor at China Camp where he was 17 subsequently damaged when the boat was burglarized and set adrift in November 2022. FAC ¶¶ 18 76, 294-307, 313-319. He claims that he was again placed in “state-created danger” when 19 Malcom issued the December 2022 Notice to Remove for failure to secure a permit, and continues 20 to be at risk by the conduct of new Harbor Master and unserved defendants Brad Gross and Anne 21 Luger (the Deputy Harbor Master) by their attempt to enforce the Permit Scheme. Id. ¶¶ 308-311. 22 To state a substantive due process claim based on the state-created danger doctrine, Roark 23 must establish that: (1) “the officers’ affirmative actions created or exposed h[im] to actual, 24 particularized danger that []he would not otherwise have faced”; (2) “the injury was foreseeable”; 25 and (3) “the officers were deliberately indifferent to the known danger.” Martinez v. City of 26 Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). The third element, deliberate indifference, requires 27 “proof that a municipal actor disregarded a known or obvious consequence of his action” which is 28 “a stringent standard of fault.” Id. at 1274 (quoting Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th 22 1 Cir. 2011)). “[I]t requires a ‘culpable mental state.’” Id. (quoting Patel, 648 F.3d at 974). In other 2 words, plaintiff must allege plausible facts showing that the defendant “recognizes the 3 unreasonable risk and actually intends to expose the plaintiff to such risks without regard to the 4 consequences to the plaintiff.” L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir. 1996) (internal 5 quotation omitted). United States District Court Northern District of California 6 To start, the only affirmative actions alleged to support a “state-created danger” were the 7 posting of the Marine Debris Notice in June 2021 and the 72-hour Notice to Remove posted in 8 December 2022. The posting of those Notices could not have exposed Roark to “actual, 9 particularized danger,” however, because Roark – who had no permit for anchoring in 10 Richardson’s Bay and no entitlement or right to anchor there – was not forced by those Notices to 11 move his boat to any particular place. Roark admits that he had lived in a Marina for 20 years and 12 that he had been able to secure private anchoring options. FAC ¶ 49. Just because he preferred to 13 anchor in Richardson’s Bay does not mean that the RBRA cannot either require him to secure a 14 permit or move his boat. See, e.g., DeShaney v. Winnebago County of Department of Social 15 Services, 489 U.S. 189, 200 (1989) (“The affirmative duty to protect arises not from the State’s 16 knowledge of the individual’s predicament or from its expressions of intent to help him, but from 17 the limitation which it has imposed on his freedom to act on his own behalf.”). 18 The dangers Roark alleges that he faced when moving to China Camp – purportedly at the 19 suggestion of the former Harbor Master – were the need to address the stronger currents there and 20 the more difficult access to and from land. Roark also alleges a greater danger of theft of skiffs 21 and threats of vandalism to his boat because, unlike in Richardson’s Bay, Roark did not have 22 friends to watch over his boat while he was away working in a different county when moored at 23 China Camp. Id. ¶¶ 192, 301-306. These alleged dangers do not rise to the level of serious, 24 particularized, foreseeable risk of dangers to Roark’s life or liberty to which the Harbor Master 25 intended to expose Roark that he would have not otherwise have faced had he remained in 26 Richardson’s Bay. 27 28 Even assuming that the former Harbor Master “directed” him to China Camp, Roark did not have to go there. The dangers that Roark faced and suffered (the stealing of his skiff and 23 United States District Court Northern District of California 1 vandalism of his boat) were caused by third-parties; he does not allege any facts that could 2 plausibly show that the former Harbor Master knew or should have expected that Roark would 3 suffer those particularized forms of damage at the hands of unknown third-parties.18 The level of 4 harm alleged simply does not rise to the level of harm recognized in the case law to plausibly 5 support a state-created danger claim. See, e.g., Reed v. City of Emeryville, 568 F. Supp. 3d 1029, 6 1040–41 (N.D. Cal. 2021) (identifying cases rejecting state-created danger theory where homeless 7 individuals were forced to leave an encampment for a congregate shelter, absent allegations that 8 evictions were occurring during “precarious weather” or during the height of the COVID-19 9 pandemic; allowing claims to continue based on allegations that homeless encampment 10 demolitions were timed to occur at “onset of the winter months” where city did not offer 11 adequately congregate shelter beds); see also Sacramento Homeless Union v. County of 12 Sacramento, No. 222CV01095TLNKJN, 2023 WL 5280238, at *2 (E.D. Cal. Aug. 16, 2023) 13 (state created danger claim plausible where eviction “places unhoused individuals at an increased 14 risk of the ‘known and obvious danger’ of exposure to extreme heat.”). Relatedly, Roark alleges in his Thirteenth Cause of Action that the posting of the Marine 15 16 Debris Notice on his boat in June 2021 and former Harbor Master Havel “directing” him to China 17 Camp was negligent and knowingly exposed him to dangers. Those dangers materialized when 18 Roark’s boat was vandalized, given the lack of neighbors at China Camp who could watch over 19 his boat as his neighbors in Richardson’s Bay do. FAC ¶¶ 347-353. He also complains that the 20 continued “threats” that the current Harbor Master (Gross) will issue future Notices to Remove 21 negligently continue to place him in danger. Id. ¶¶ 354-360. 22 23 24 25 26 27 28 18 Any such allegation is undermined by Roark voluntarily remaining anchored at China Camp from June 2021 through November 2022. FAC ¶¶ 72, 75, 76, 79. That, by itself, shows the implausibility that the dangers Roark alleges were likely or foreseeable to the RBRA officials who posted the Notices in June 2021 and December 2022. Defendants argue that Roark admitted in his original Complaint that he left for China Camp in 2019, but changed that date to June 2021 in his FAC to avoid the three year statute of limitations for maritime negligence and two year statute of limitations for Section 1983 state created danger. See Mot. at 14 n.10. I assume for purposes of this Order that the Marine Debris Notice was posted, and Roark left for China Camp, in June 2021. 24 The negligence claim fails for the same reasons the state-created danger claim fails.19 It United States District Court Northern District of California 1 2 was Roark’s decision to move his boat to China Camp when faced with the Marine Debris Notice, 3 whether or not Havel “directed” him to do so. He remained there for at least eighteen months, 4 from June 2021 through November 2022. FAC ¶¶ 72, 75, 76, 79. Any damages he suffered 5 during that time (from stolen skiffs and vandalism) were caused by third parties and not by any of 6 the defendants. FAC ¶¶ 27, 76, 188, 192. Even if Roark could allege facts showing that the 7 former Harbor Master owed Roark a duty, as required for this claim, there are no facts alleged 8 plausibly showing that the conduct of those third parties should have or even could have been 9 known to the former Harbor Master. Proximate cause cannot be alleged based on Roark’s own 10 admissions. See Steinle v. United States, 17 F.4th 819, 824 (9th Cir. 2021) (rejecting proximate 11 cause as a matter of California law where the injury had only a “tenuous connection” to the 12 government officials conduct, and the damage was caused by the “the criminal and negligent 13 actions of at least two other people intervened between those two events” over the course of 14 “several days”). Roark’s Ninth and Thirteenth Causes of Action are DISMISSED without leave to amend. 15 16 X. CONSTITIUTIONAL CONSPIRACY AND RELATED CLAIMS Roark’s Second and part of (first) Third Causes of Action are for “Civil Conspiracy” in 17 18 violation of 42 U.S.C. section 1985.20 Roark brings the conspiracy claims against a dozen 19 different defendants, the majority of whom have not appeared in this case and do not appear to 20 have been served, alleging a vast conspiracy between: RBRA; the Bay Conservation and 21 Development Commission (“BCDC”) and its past or present members/directors; current and past 22 employees or officers of RBRA; Regional Government Services (“RGS,” a “quasi public/private 23 consulting firm); two other consulting firms; and the County of Marin and its county 24 administrator. Roark generally alleges that the named individuals and entities conspired to pass 25 26 27 28 “To establish a negligence claim under general maritime law, the basic elements are similar to those required for a common law claim of negligence: ‘a duty, a breach of the duty, proximate cause, and damages.’” Shaw v. United States, 436 F. Supp. 3d 1315, 1327 (N.D. Cal. 2020) (quoting Prince v. Thomas, 25 F. Supp. 2d 1045, 1047 (N.D. Cal. 1997)). 19 20 Roark’s FAC contains two conspiracy based Third Causes of Action. See FAC ¶ 161 & ¶ 175. 25 1 ordinances and make plans to remove vessels from Richardson’s Bay and obtain grants from state 2 and federal agencies through false statements to accomplish that goal of destroying private 3 property. FAC ¶¶ 147-160 (Second Cause of Action); ¶¶ 161-174 (first Third Cause of Action). United States District Court Northern District of California 4 Roark’s second “Third Cause of Action” for “Conspiracy to Deprive Civil Rights” is 5 asserted against unserved defendants Regional Government Services (RGS), Brad Gross, Anne 6 Luger, County of Marin, Marin County Administrator Daniel Eilerman, as well as against 7 McGrath (who appeared to oppose the motion for a preliminary injunction). FAC ¶¶ 161-174. 8 The only facts alleged in this cause of action regard the conduct of “Ms. Scwartz Lesberg” who is 9 alleged to have conducted a flawed and fraudulent study in 2018-2019 regarding eelgrass in 10 Richardson’s Bay in order to enrich herself (through “hundreds of thousands of dollars of grant 11 funding”) and causing destruction of boats anchored in Richardson’s Bay. Id. ¶¶ 165-174; see 12 also id. ¶¶ 35-36. Lesberg has not been served. The allegations regarding Lesberg’s flawed 13 research and studies, and submission of the same to fraudulently secure grants from NOAA, are 14 repeated in the Fifth Cause of Action for violation of substantive due process under 41 U.S.C. 15 sections 1983 and 1985. FAC ¶¶ 235-259. 16 Roark’s Fourteenth Cause of Action is for conspiracy in violation of 42 U.S.C. section 17 1985, challenging the Bay Conservation Development Commission’s (“BCDC”) creation of the 18 RBRA and BCDC’s plan in conjunction with RBRA to seize and destroy vessels as marine debris 19 with monies fraudulently secured from state and federal agencies. FAC ¶¶ 373-388. 20 Each of Roark’s conspiracy claims based on Section 1985 fail. To bring a cause of action 21 successfully under § 1985(3), a plaintiff must demonstrate a deprivation of a right motivated by 22 “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the 23 conspirators’ action.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.1992); see also id. 24 at 1526-38 (examples of categories of racial or class-based animus recognized by courts to support 25 a section 1985 claim, including animus based on race and gender). The Supreme Court has held, 26 however, that “group actions generally resting on economic motivations should be deemed beyond 27 the reach of § 1985(3).” United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 839 28 (1983). Roark has not alleged that he is a member of any recognized protected or quasi-protected 26 1 class. His Second, Third (first and second), and Fourteenth Causes of Action are DISMISSED 2 without leave to amend. 3 XI. Roark’s Fourth Cause of Action asserts a claim for violation of “Public Contract Code § 4 United States District Court Northern District of California PUBLIC CONTRACT CODE 5 10411” against unserved defendants Beth Pollard and Curtis Havel. The moving defendants 6 (RBRA and Malcom) do not address this claim. Section 10411 prohibits former public employees 7 from entering into contracts with government agencies where the individual played some role in 8 planning or negotiating the contract while still a public employee.21 Roark alleges that Pollard left 9 her employment as RBRA’s Executive Director and was then hired by Havel (the then, but now 10 former, RBRA Harbor Master) to be a consultant to help Havel secure funds for RBRA’s boat 11 removal program from NOAA, CDBW, and others. He also contends that Havel used his RBRA 12 office to “ingratiate himself” with his future employer, Clipper Harbor marina. Roark generally 13 claims that Pollard and Havel submitted fraudulent reports and claims to CDBW to secure funds to 14 destroy his boat. FAC ¶¶ 201-234. Neither RBRA nor any of the individual defendants who appeared in this action are named 15 16 as defendants under this cause of action. More problematic is that this claim must be brought in 17 Superior Court. See Cal. Pub. Cont. Code § 10421 (“The state, or any person acting on behalf of 18 the state, may bring a civil action seeking a determination by the Superior Court.”). 19 20 21 22 23 24 25 26 27 28 § 10411 provides: “Conflict of interest; retired, dismissed, separated or former state employees; time prohibition (a) No retired, dismissed, separated, or formerly employed person of any state agency or department employed under the state civil service or otherwise appointed to serve in state government may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements, or any part of the decisionmaking process relevant to the contract while employed in any capacity by any state agency or department. The prohibition of this subdivision shall apply to a person only during the twoyear period beginning on the date the person left state employment. (b) For a period of 12 months following the date of his or her retirement, dismissal, or separation from state service, no person employed under state civil service or otherwise appointed to serve in state government may enter into a contract with any state agency, if he or she was employed by that state agency in a policymaking position in the same general subject area as the proposed contract within the 12-month period prior to his or her retirement, dismissal, or separation. The prohibition of this subdivision shall not apply to a contract requiring the person's services as an expert witness in a civil case or to a contract for the continuation of an attorney's services on a matter with which he or she was involved prior to leaving state service. 27 21 The Public Contract Code claim is DISMISSED for lack of jurisdiction without leave to 1 2 amend. 3 XII. In his Sixteenth (first) Cause of Action Roark argues that the defendants violated 4 5 California’s Bane Act when they threatened to seize and destroy his boat (his home) – a threat that 6 exposed Roark to serious bodily injury and death and amounts to “serious violence” in order to 7 deprive him of his constitutional rights.22 Section 52.1 of the California Civil Code, also known as the Bane Act, creates a right of 8 United States District Court Northern District of California BANE ACT 9 action against any person who “interferes by threat, intimidation, or coercion . . . with the exercise 10 or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the 11 United States, or . . . of this state.” Cal. Civ. Code § 52.1(a). In Shoyoye v. Cnty. of Los Angeles, 12 203 Cal. App. 4th 947 (2012), the court clarified that the Bane Act “was intended to address only 13 egregious interferences with constitutional rights, not just any tort. The act of interference with a 14 constitutional right must itself be deliberate or spiteful.” Id. at 959. The court also explained that 15 the statute requires a showing of coercion independent from the coercion “inherent” in the 16 constitutional deprivation. Id. at 962. Courts have pointed out that the constitutional deprivation 17 in Shoyoye – wrongful incarceration – was due to an error and not intentional conduct, hence the 18 need to show some form of coercion, intimidation, or harassment independent from the act alleged 19 to have violated the victim’s constitutional right. See, e.g., Jones v. Cty. of Contra Costa, No. 13- 20 CV-05552-TEH, 2016 WL 1569974, at *6 (N.D. Cal. Apr. 19, 2016); see also Sandoval v. Cty. of 21 Sonoma, No. 11-CV-05817-TEH, 2016 WL 612905, at *3 (N.D. Cal. Feb. 16, 2016) (where the 22 constitutional deprivation was an unlawful search and seizure, the court followed Lyall v. City of 23 Los Angeles, 807 F.3d 1178 (9th Cir. 2015) held “that a Bane Act search and seizure claim 24 requires threats, intimidation or coercion separate from the coercion inherent in the search and 25 seizure itself.”). There are two problems with Roark’s Bane Act claim. First, as demonstrated throughout 26 27 28 22 In the FAC, Roark has two Sixteenth Causes of Action. 28 1 this Order, he has not successfully alleged a constitutional violation. Second, even if Roark had 2 alleged a constitutional violation, he would need to allege coercion or intimidation independent 3 from the alleged constitutional violation. He has not done so. 4 5 6 XIII. CAL. CODE OF CIVIL PROCEDURE SECTION 1085 In his (second) Sixteenth Cause of Action, Roark relies on Cal. Code of Civ. Proc. section 7 1085 – a provision allow a court to grant a writ to compel public entities to perform acts which 8 California law requires them to perform – to argue that defendants must be ordered to return the 9 $70,000 they fraudulently secured from CDBW to destroy the Kittiwake. FAC ¶¶ 418-431. 10 11 United States District Court Northern District of California The Bane Act claims is DISMISSED without leave to amend. Section 1085 is inapplicable on these facts. “Code of Civil Procedure section 1085, providing for writs of mandate, is available to 12 compel public agencies to perform acts required by law. [Citation.] To obtain relief, a petitioner 13 must demonstrate (1) no ‘plain, speedy, and adequate’ alternative remedy exists [citation]; (2) “ ‘a 14 clear, present, ... ministerial duty on the part of the respondent’ ”; and (3) a correlative “ ‘clear, 15 present, and beneficial right in the petitioner to the performance of that duty.”’” People v. 16 Picklesimer, 48 Cal.4th 330, 339-340 (2010). 17 Roark points to no “ministerial duty” that defendants owe to CDBW in connection with the 18 CBDW Grant Agreements. Compl., Exs. A&B. Deciding what vessels to list in the grant 19 agreements – that the RBRA considers to be abandoned or that might be willing to be voluntarily 20 “surrendered” – is on its face a discretionary act, not a ministerial act. And Roark has no 21 “beneficial interest” in the grant agreements that provide funds for the removal and destruction of 22 abandoned vessels or voluntarily surrendered vessels. See e.g., Save the Plastic Bag Coalition v. 23 City of Manhattan Beach, 52 Cal.4th 155, 165 (2011) (“‘The requirement that a petitioner be 24 “beneficially interested” has been generally interpreted to mean that one may obtain the writ only 25 if the person has some special interest to be served or some particular right to be preserved or 26 protected over and above the interest held in common with the public at large.’”). 27 The Section 1085 claim is DISMISSED without leave to amend. 28 29 1 2 XIV. TAXPAYER ACTION Roark’s Nineteenth Cause of Action seeks to hold RBRA liable under California Civil Code section 526a for defendants’ conduct in falsely representing to CDBW that Roark’s boat was 3 marine debris and securing $70,000 from CDBW to destroy the boat. FAC ¶¶ 409-417. 4 Section 526a “establishes the right of a taxpayer plaintiff to maintain an action against any 5 officer of a local agency to obtain a judgment restraining or preventing illegal expenditure, waste, 6 7 or injury of the estate, funds, or property of said agency.” Schmid v. City & Cnty. of San Francisco, 60 Cal. App. 5th 470, 495 (2021).23 However, “[a] claim under this statute does not lie 8 to attack exercises of administrative discretion and may not be employed to interfere with 9 policymaking.” Schmid v. City & Cnty. of San Francisco, 60 Cal. App. 5th 470, 495–96 (2021); 10 see also San Bernardino County v. Superior Court, 239 Cal.App.4th 679, 686 (2015) (“[T]axpayer 11 United States District Court Northern District of California suits are authorized only if the government body has a duty to act and has refused to do so. If it 12 has discretion and chooses not to act, the courts may not interfere with that decision.” (internal 13 quotation omitted); Humane Society of the United States v. State Bd. of Equalization, 152 14 Cal.App.4th 349, 356 (2007) (“[S]ection 526a has its limits. In particular, the courts have stressed 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civil Code section § 526a provides in relevant part: “Actions against officers; scope of section; municipal bonds: (a) An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a local agency, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax that funds the defendant local agency, including, but not limited to, the following: (1) An income tax. (2) A sales and use tax or transaction and use tax initially paid by a consumer to a retailer. (3) A property tax, including a property tax paid by a tenant or lessee to a landlord or lessor pursuant to the terms of a written lease. (4) A business license tax. (b) This section does not affect any right of action in favor of a local agency, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities. (c) An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law. (d) For purposes of this section, the following definitions apply: (1) “Local agency” means a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state. (2) “Resident” means a person who lives, works, owns property, or attends school in the jurisdiction of the defendant local agency. 30 23 United States District Court Northern District of California 1 that the statute should not be applied to principally ‘political’ issues or issues involving the 2 exercise of the discretion of either the legislative or executive branches of government.”). Under a 3 As shown by the exhibits attached to Roark’s complaint, the CDBW grants that he 4 complains about are “agreements” and “certificates of funding” that provide funds for 5 “reimbursement” of expenses the agency actually expends to remove and dispose of abandoned or 6 surrendered vessels. Dkt. 25-1 at §§ 1, 24. While the Kittiwake is listed on the grant applications 7 as part of the “scope of work,” Roark cannot state a claim based on section 525a because the 8 inclusion of the Kittiwake on the list is the result of the discretionary determination by RBRA that 9 the Kittiwake might be abandoned or voluntarily surrendered. Even assuming Roark overcame the 10 discretion inherent in the grant agreement, absent the seizure and destruction of the Kittiwake and 11 then RBRA’s application for reimbursement of those costs from the CDBW grant, there is no 12 expenditure from the state to “restrain[] or prevent[].” 13 14 Roark’s Nineteenth Cause of Action for violation of Civil Code section 526a is DISMISSED without leave to amend. CONCLUSION 15 16 Having addressed each possible claim alleged in Roark’s Amended Complaint, each claim 17 is DISMISSED without leave to amend. The defects identified above that lead to dismissal as a 18 matter of law cannot be cured by alleging further facts. Based on inapplicable legal theories or on 19 facts he has admitted, each claim fails. 20 IT IS SO ORDERED. 21 Dated: December 1, 2023 22 William H. Orrick United States District Judge 23 24 25 26 27 28 31

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