“Rule 12(b)(6) dismissal is not appropriate unless [the Court] 21 can determine, based on the complaint itself, that qualified immunity applies.”
How later courts described this case
- “Rule 12(b)(6) dismissal is not appropriate unless [the Court] 21 can determine, based on the complaint itself, that qualified immunity applies.”
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 NANCY PREBILICH, Case No. 3:21-cv-02380-JD
8 Plaintiff,
ORDER RE MOTION TO DISMISS
v.
9
Re: Dkt. No. 9, 15
10 CITY OF COTATI, et al.,
Defendants.
11
12 Plaintiff Nancy Prebilich was a partner in a “demonstration farm” featuring live animals
13 within the city limits of defendant the City of Cotati. After a few years of operations, Cotati
14 advised Prebilich that she needed to remove the animals to make way for a construction project.
15 For reasons that are not entirely clear in the complaint, Dkt. No. 1, Prebilich did not remove the
16 animals and lost physical possession of them. Prebilich requested approximately $31,000 for the
17 value of the animals, and defendant Damien O’Bid, Cotati’s city manager, offered approximately
18 $11,000. The parties apparently could not bridge the $20,000 gap, and this litigation ensued.
19 Prebilich has alleged multiple claims under 42 U.S.C. § 1983 for due process and equal
20 protection issues, and California state law claims for conversion and fraud by misrepresentation or
21 concealment. Defendants responded with thirteen arguments for why the complaint should be
22 dismissed under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(c) and 12(f). Dkt. No. 15
23 at 3-4.1 O’Bid has asked for qualified immunity in his personal capacity. Id. at 17-18. Prebilich
24 has withdrawn an equal protection claim for “a class of one,” and expressed no opposition to
25 dismissing all claims against O’Bid in his official capacity. Dkt. No 17 at 11, 16.
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1 Defendants initially filed their motion as Dkt. No. 9. Upon reassignment of the case, Dkt. No.
1 The parties’ familiarity with the record is assumed, and the complaint is dismissed with
2 leave to amend. The question of qualified immunity is deferred because the record as it currently
3 stands is not sufficient to decide whether O’Bid is entitled to immunity. The multiple counts in
4 the complaint and the rather overheated response by defendants indicate that the parties are driving
5 up attorneys’ fees and litigation costs out of all reasonable proportion to the amount in controversy
6 of $20,000. Consequently, discovery will be stayed pending mediation as discussed at the end of
7 the order.
8 The parties’ motion filings did not conform to the Court’s page limits in the Standing
9 Order for Civil Cases, or the font size and formatting requirements in our District’s Civil Local
10 Rules. The parties and counsel are advised that any future non-conforming filings will be
11 summarily stricken from the docket.
12 DISCUSSION
13 I. THE SECTION 1983 CLAIMS
14 All of the Section 1983 claims against Cotati are dismissed because the complaint does not
15 plausibly allege a pattern, practice, or custom of such violations. See Monell v. Department of
16 Social Services of City of New York, 436 U.S. 658, 690-91 & n.54 (1978); Escobar-Lopez v. City
17 of Daly City, 527 F. Supp. 3d 1123, 1127-28 (N.D. Cal. 2021). Under Section 1983, each
18 defendant, whether a public entity or an individual person, is liable only for its “own misconduct.”
19 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); see also Connick v. Thompson, 563 U.S. 51, 60
20 (2011). A city may not be held vicariously liable for the unconstitutional acts of its employees
21 under the theory of respondeat superior. See Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520
22 U.S. 397, 403 (1997); Monell, 436 U.S. at 691.
23 A policy or practice requires more than a few occurrences of challenged conduct. A single
24 or even a few isolated and sporadic incidents of unconstitutional conduct are not enough to impose
25 municipal liability under Section 1983. See Gant v. Cty. of Los Angeles, 772 F.3d 608, 618 (9th
26 Cir. 2014) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d
27 791 (1985)). Liability must be “founded upon practices of sufficient duration, frequency and
1 consistency that the conduct has become a traditional method of carrying out policy.” Trevino v.
2 Gates, 99 F.3d 911, 918 (9th Cir. 1996).
3 The complaint as it currently stands does not allege anything close to an actionable pattern
4 or practice by Cotati that might support a Section 1983 claim. At most, it identified a single
5 instance of an alleged constitutional deprivation. That is not enough to plausibly state a Section
6 1983 claim of any variety against the city.
7 For the Section 1983 claims alleged against O’Bid in his individual capacity, the complaint
8 does not provide enough facts for the Court to decide whether O’Bid is entitled to qualified
9 immunity, as he proposes. Dkt. No. 15 at 16-17. Qualified immunity is “an immunity from suit,”
10 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted), and it cloaks public officials
11 unless “(1) the facts adduced constitute the violation of a constitutional right; and (2) the
12 constitutional right was clearly established at the time of the alleged violation.” Mitchell v.
13 Washington, 818 F.3d 436, 443 (9th Cir. 2016). “The first prong ‘calls for a factual inquiry’ while
14 the second is ‘solely a question of law for the judge.’” Shen v. Albany Unified Sch. Dist., 436 F.
15 Supp. 3d 1305, 1309 (N.D. Cal. 2020) (quoting Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir.
16 2010)). “[B]oth prongs must be satisfied for a plaintiff to overcome a qualified immunity
17 defense,” though the two prongs of the analysis need not be considered in any particular order. Id.
18 at 1309-10 (quoting Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1115 (9th Cir. 2017)).
19 The Supreme Court has cautioned that “‘clearly established law’ should not be defined at a
20 high level of generality.” Longoria v. Pinal Cty., 873 F.3d 699, 704 (9th Cir. 2017) (quoting
21 White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (per curiam)) (cleaned up); see also Kisela v.
22 Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (“This Court has repeatedly told courts -- and
23 the Ninth Circuit in particular -- not to define clearly established law at a high level of
24 generality.”) (quotations and citations omitted); City of Escondido v. Emmons, 139 S. Ct. 500, 503
25 (2019) (per curiam) (“Under our cases, the clearly established right must be defined with
26 specificity.”). “An officer cannot be said to have violated a clearly established right unless the
27 right’s contours were sufficiently definite that any reasonable official in [his] shoes would have
1 (2015) (quotations omitted). This “do[es] not require a case directly on point, but existing
2 precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.
3 al-Kidd, 563 U.S. 731, 741 (2011).
4 The problem here is that Prebilich has presented the due process and equal protection
5 claims in generic terms and without enough factual specificity to determine whether she sustained
6 an injury to her clearly established rights. See Dkt. No. 17 at 16 (“For more than a century, the
7 central meaning of procedural due process has been clear.”) (quoting Fuentes v. Shevin, 407 U.S.
8 67, 80 (1972)); id. (“[T]he Equal Protection clause confers ‘a federal constitutional right to be free
9 from gender discrimination at the hands of governmental actors.’”) (quoting Davis v. Passman,
10 442 U.S. 228, 234-35 (1979)). To be sure, even at this highly general level, Prebilich has not
11 identified any precedent that “squarely governs” the potential constitutional dimensions of an
12 alleged deprivation of livestock and attendant valuation, which is not helpful to her case. See
13 Nicholson v. City of Los Angeles, 935 F.3d 685, 695 (9th Cir. 2019); Shafer, 868 F.3d at 1117-18.
14 But it is also true that a deprivation of property by a government entity or actor may raise
15 constitutional issues.
16 On this record, the Court cannot say that additional facts, if they are available, could not
17 establish a constitutional tort here. The Court is also reluctant to declare O’Bid immune when the
18 specific constitutional tort in issue has not been adequately alleged. Consequently, the question of
19 qualified immunity is deferred pending the filing of an amended complaint. Groten v. California,
20 251 F.3d 844, 851 (9th Cir. 2001) (“Rule 12(b)(6) dismissal is not appropriate unless [the Court]
21 can determine, based on the complaint itself, that qualified immunity applies.”).
22 II. STATE LAW CLAIMS
23 Because the federal claims have been dismissed, the Court declines to exercise
24 supplemental jurisdiction over the California state law claims at this time. See Escobar-Lopez,
25 527 F. Supp. 3d at 1130.
26 CONCLUSION
27 Prebilich may file by January 20, 2022, an amended complaint consistent with this order.
1 Procedure 41(b). The Court is advised that the parties are mediating on January 17, 2022. The
2 || parties are directed to promptly report the outcome of mediation to the Court. Discovery is stayed
3 pending further order.
4 IT IS SO ORDERED.
5 Dated: December 16, 2021
6
JAMES JPONATO
7 United Ptates District Judge
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