1 2 3 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

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.

. Prebilich 24 has withdrawn an equal protection claim for “a class of one,” and expressed no opposition to 25 dismissing all claims against O’Bid in his official capacity.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. 26

27 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,

, 690-91 & n.54 (1978); Escobar-Lopez v. City 17 of Daly City,

, 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,

(2009); see also Connick v. Thompson,

, 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

, 403 (1997); Monell,

. 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,

(9th 26 Cir. 2014) (quoting Oklahoma City v. Tuttle,

,

,

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,

(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,

(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,

(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.,

Supp. 3d 1305, 1309 (N.D. Cal. 2020) (quoting Dunn v. Castro,

(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.

18 at 1309-10 (quoting Shafer v. Cty. of Santa Barbara,

(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.,

(9th Cir. 2017) (quoting 21 White v. Pauly,

(2017) (per curiam)) (cleaned up); see also Kisela v.

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,

, 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,

, 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,

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

(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,

(9th Cir. 2019); Shafer,

. 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

(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 8 9 10 11 12

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