1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAWN SAMANIEGO, et al., Case No. 23-cv-02594-JST

8 Plaintiffs,

ORDER DENYING PLAINTIFFS’

9 v. MOTION FOR TEMPORARY

RESTRAINING ORDER AND

10 COUNTY OF CONTRA COSTA, et al., PRELIMINARY INJUNCTION 11 Defendants. Re: ECF No. 2

12 13 Before the Court is Plaintiffs Dawn Samaniego, Alvin Jackson, Norma Welch, Michael 14 Welch, Tammy Griffin, Manuel Joaquin, Kimberly Perez, Michael Brown, Tia Darling, David 15 Bills, Joanne Enea, Harry Sloat, III, Frank Warren, Steve March, Francisco Velez, Mary Ann 16 Bakker, Carrie Campbell, Nova Coe, Johny Diaz, Mark McConnell, Geoff Delnegro, Paula 17 Hanson, and Melissa Herrera’s motion for a temporary restraining order and a preliminary 18 injunction. ECF No. 2. The Court will deny the motion. 19 I. BACKGROUND 20 This action arises from a multi-year dispute regarding real property commonly known as 21 1970 Taylor Road, Bethel Island, Contra Costa County (the “Property”). The Property is owned 22 by BI Properties, Inc., a corporation owned by Alan Wagner and Kevin Davidson. Plaintiffs 23 currently reside in trailers, recreational vehicles, and boats on the Property. 24 The Property “is located in a retail-business (R-B) zoning district,” which “does not allow 25 for the habitation of recreational vehicles or trailers except within a lawful recreational vehicle 26 park or campground authorized by a valid land use permit.” ECF No. 39 ¶ 8. On January 6, 1992, 27 Contra Costa County (the “County”) approved such a land use permit, but it was revoked on 1 Since 2005, code enforcement officers from the County’s Building Inspection Division 2 have investigated the Property and identified violations of the County Ordinance Code, including 3 the presence of trailers, recreational vehicles, and boats being used for residential purposes on the 4 Property. One code enforcement officer observed that the trailers, recreational vehicles, and boats 5 on the Property were in “an unsafe and unsanitary condition.” Id. ¶ 11. Specifically, the trailers, 6 recreational vehicles, and boats “suffer from inadequate sanitation, lack of running water, lack of 7 adequate heating, lack of electrical lighting, lack of connection to a sewage disposal system, lack 8 of garbage removal services, nonconforming electrical wiring, lack of domestic water supply 9 services, and faulty weather protection.” Id. 10 On June 16, 2021, the County declared the Property a public nuisance, and served the 11 Property owner with a notice and order to abate the nuisance. ECF No. 39 ¶ 26. On June 24, 12 2021, a representative of the property owner filed an appeal of the notice and order to abate. Id. 13 The notice and order to abate became a final order on October 16, 2021 after the Property owner 14 withdrew the appeal of the order. Id. ¶ 27. The abatement, however, never occurred. Id. 15 In April 2023, the County Abatement Officer again declared the conditions on the property 16 to be a public nuisance and served the property owner with a notice and order to abate the 17 nuisance. ECF No. 39 ¶ 30. Two individuals living on the Property appealed the notice and order 18 to abate, and the County’s Board of Supervisors (the “Board”) held a hearing on the appeal on 19 May 9, 2023. Id. ¶¶ 31–32. Following the hearing, the Board affirmed the County Abatement 20 Officer’s determination. Id. ¶ 32. On May 19, 2023, the County executed a contract with a 21 private vendor “to abate and remove all trailers, recreational vehicles, and boats; the unpermitted 22 electrical system”; and what the County describes as “‘the junkyard conditions,’ including all tires, 23 batteries, car parts, construction equipment, junk, garbage, and debris, on the subject property.” 24 Id. ¶ 33. 25 On May 20, 2023, Plaintiffs sent a demand letter to the County and the Property’s owner, 26 seeking relocation benefits pursuant to California Health and Safety Code § 17975 and arguing 27 that the County lacked the authority to abate the property. ECF Nos. 2 at 12, 2-1 at 33–37. Two 1 abatement of the Property would begin on June 20, 2023 and that “any items left on the property 2 may be subject to abatement.” ECF No. 2-1 at 39. 3 On May 25, 2023, Plaintiffs filed this action seeking injunctive and monetary relief against 4 the County, Diana Burgis, Jason Crapo, Joseph Losado, Conrad Fromme, and Contra Costa 5 Sherriff’s Department (collectively “County Defendants”), as well as David Livingston, Alan 6 Wagner, Kevin Davidson, Anchor Marina LLC, and BI Properties, Inc (collectively “Property 7 Owner Defendants”). ECF No. 1. On June 23, 2023, Plaintiffs filed an amended complaint 8 adding Plaintiffs Frank Warren, Steve March, Francisco Velez, Mary Ann Bakker, Carrie 9 Campbell, Nova Coe, Johny Diaz, Mark McConnell, Geoff Delnegro, Paula Hanson, and Melissa 10 Herrera. ECF No. 47. The amended complaint explains that its allegations are “identical” to those 11 in the initial complaint, “except for the added plaintiffs . . . so the court will have jurisdiction 12 [over] the added plaintiffs at the time of the preliminary injunction hearing to protect their safety 13 and civil rights.” Id. at 1. Plaintiffs bring the following causes of action: (1) conspiracy to 14 interfere with civil rights pursuant to 42 U.S.C. § 1985; (2) violations of Fourth, Fifth, and 15 Fourteenth Amendments pursuant to 42 U.S.C. § 1983; (3) negligence; (4) writ of mandate 16 pursuant to Cal. Civil Code § 1085; and (5) a taxpayer action pursuant to Cal. Civil Code § 526(a). 17 ECF No. 47 at 13–32. 18 Plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. 19 ECF No. 2. County Defendants filed an opposition to the motion, ECF No. 38, but Property 20 Owner Defendants have not opposed. Plaintiffs filed a reply.1 ECF No. 48. 21 1 Plaintiffs filed declarations with attachments in support of their reply brief. ECF Nos. 49–63. 22 County Defendants object to these declarations. ECF No. 64. County Defendants request that the Court strike the declarations, or in the alternative, consider supplemental declarations from Conrad 23 Fromme and Jenny Robbins. Id. at 2.

24 Ordinarily, the Court will not consider arguments and evidence raised for the first time on reply. Sharma v. Volkswagen AG, 524 F. Supp. 3d 891, 912 n.8 (N.D. Cal. 2021). However, the Court 25 may exercise its discretion to consider such materials where the opposing party will suffer no prejudice as a result. Koerner v. Grigas, 328 F.3d 1039, 1048–49 (9th Cir. 2003) (citing United 26 States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992). Here, the supplemental declarations submitted by the Plaintiffs primarily address the equities. Because the Court bases its ruling on the 27 Plaintiffs’ failure to demonstrate success on the merits of their legal claims, as set forth below, its 1 II. LEGAL STANDARD 2 The Court applies a familiar four-factor test on both a motion for a temporary restraining 3 order and a motion for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & 4 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking either remedy “must establish that 5 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 6 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 7 public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 8 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Injunctive relief is 9 “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is 10 entitled to such relief.” Winter, 555 U.S. at 22. 11 To grant preliminary injunctive relief, a court must find that “a certain threshold showing 12 [has been] made on each factor.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per 13 curiam). Assuming that this threshold has been met, “serious questions going to the merits and a 14 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary 15 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 16 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 17 1135 (9th Cir. 2011) (internal quotation marks omitted). 18 III. DISCUSSION 19 Plaintiffs seek to enjoin the abatement of the Property, at least until they have been 20 provided with relocation assistance pursuant to California Health and Safety Code Section 17975. 21 In opposition, County Defendants argue that the Court should deny Plaintiffs’ request for 22 injunctive relief because the action is barred by Plaintiffs’ failure to exhaust judicial remedies and 23 by the Younger doctrine. The Court first analyzes whether Plaintiffs were required to exhaust 24 judicial remedies. 25 County Defendants argue that “to challenge the Board’s abatement order, including its 26 constitutionality, Plaintiffs are first required to seek relief under § 1094.5” of the California Code 27 1 of Civil Procedure. ECF No. 38 at 12. Plaintiffs counter that they were not required to file a writ 2 petition pursuant to Section 1094.5 for three reasons: (1) they “are not appealing the abatement 3 itself,” rather they are “challenging the unconstitutional way the abatement is being conducted and 4 the undisputed civil conspiracy between” the County and Property Owner Defendants; (2) the 5 abatement is directed at the Property Owner Defendants, not Plaintiffs; and (3) “if Plaintiffs did 6 seek a writ under . . . § 1094.5, there is no evidence that it would protect their homes pending the 7 appeal.” ECF No. 48 at 5. 8 “Under federal common law, federal courts accord preclusive effect to state administrative 9 proceedings that meet the fairness requirements of United States v. Utah Construction & Mining 10 Co[.]” Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1154 (9th Cir. 2018). The Utah 11 Construction requirements are: “(1) that the administrative agency act in a judicial capacity, (2) 12 that the agency resolve disputed issues of fact properly before it, and (3) that the parties have an 13 adequate opportunity to litigate.” Miller v. County of Santa Cruz, 39 F.3d 1030, 1033 (9th Cir. 14 1994), as amended (Dec. 27, 1994). 15 “Because California has adopted the Utah Construction standard, [federal courts] give 16 preclusive effect to a state administrative decision if the California courts would do so.” Doe, 891 17 F.3d at 1155. “In California, ‘[e]xhaustion of judicial remedies . . . is necessary to avoid giving 18 binding ‘effect to [an] administrative agency’s decision[.]’” Id. (alterations in original) (quoting 19 Johnson v. City of Loma Linda, 24 Cal.4th 61, 70 (2000)). To exhaust judicial remedies, a party 20 must “fil[e] a § 1094.5 petition, the exclusive and ‘established process for judicial review’ of an 21 agency decision.” Id. (quoting Johnson, 24 Cal. 4th at 70); see also Y.K.A. Indus., Inc. v. 22 Redevelopment Agency of City of San Jose, 174 Cal. App. 4th 339, 355 (2009) (“The doctrine of 23 exhaustion of judicial remedies . . . is a form of res judicata, of giving collateral estoppel effect to 24 the administrative agency’s decision, because that decision has achieved finality due to the 25 aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing administrative 26 action.” (emphasis in original) (quotation marks and citations omitted)). 27 Here, notwithstanding Plaintiffs’ assertion to the contrary, Plaintiffs are challenging the 1 abatement to proceed is at the center of Plaintiffs’ claims for conspiracy to deprive civil rights 2 (first cause of action), violation of the Fifth Amendment (second cause of action), violation of the 3 Fourteenth Amendment (third cause of action), violation of the Fourth Amendment (fourth cause 4 of action), and a taxpayer action (seventh cause of action). E.g., ECF No. 47 ¶ 32 (alleging that 5 “Supervisor Burgis . . . moved to complete the abatement exactly as proposed by Jason Crapo, Joe 6 Losado, and Conrad Fromme – which was then approved by the Contra Costa Board of 7 Supervisors” in support of the conspiracy to deprive civil rights); id. ¶ 38 (“The approval [of the 8 abatement] by County of Contra Costa Board of Supervisors was a final decision by Contra Costa 9 County to take Plaintiffs private property without just compensation in violation of the Takings 10 Clause of the Fifth Amendment.”); id. ¶ 46 (“The approval [of the abatement] by County of 11 Contra Costa Board of Supervisors was a final decision by Contra Costa County to take Plaintiffs 12 private property without just compensation in violation of the substantive due process provisions 13 of the Fourteenth Amendment.”); id. ¶ 59 (“The approval [of the abatement] by County of Contra 14 Costa Board of Supervisors was a final decision by Contra Costa County to seize Plaintiffs private 15 property in an unreasonable manner” in violation of the Fourth Amendment); id. ¶ 70 (alleging 16 that “the abatement will put Plaintiffs lives in jeopardy and other civil rights – the expenditures for 17 the abatement will be a wasteful and illegal expenditure of Plaintiffs tax dollars” in support of the 18 taxpayer action pursuant to California Code of Civil Procedure Section 526a). Additionally, the 19 Court would have to review the Board’s appeal process and order to assess whether the way in 20 which the abatement will be conducted is unconstitutional. 21 The Court also concludes that the Board’s abatement proceedings meet Utah 22 Construction’s fairness requirements. First, the Board was acting in a judicial capacity when it 23 held the appeal hearing. Second, the Board resolved disputed questions of fact and law when it 24 considered whether to affirm the County abatement officer’s determination that the Property 25 constitutes a public nuisance. Third, the tenants who appealed the abatement notice were 26 represented by counsel and were permitted to present evidence and deliver oral argument in 27 support of the appeal. See ECF No. 39-14; see also Contra Costa Cnty. Ordinance Code § 14- 1 oral and written testimony and other evidence, and to present oral and written argument.”). 2 Finally, at least one California court has held that a Section 1094.5 writ petition is an appropriate 3 mechanism to challenge an order from the Contra Costa County Board of Supervisors affirming a 4 notice and order to abate. Golden Gate Water Ski Club v. County of Contra Costa, 165 Cal. App. 5 4th 249, 254–55, 269 (2008) (affirming the denial of a petition for an administrative writ of 6 mandate under Section 1094.5). Therefore, the Board’s abatement proceedings satisfy the Utah 7 Construction fairness requirements, and Plaintiffs must file a Section 1094.5 writ petition before 8 filing their first, second, third, fourth, and seventh causes of action.2 Because it is undisputed that 9 Plaintiffs have not filed a Section 1094.5 writ petition, the Court is barred from hearing those 10 claims.3 11 As the Court is barred from hearing the first, second, third, fourth, and seventh causes of 12 action, Plaintiffs have failed to establish a likelihood of success on or serious questions going to 13 the merits of those claims. Plaintiffs’ remaining claim is a request for writ of mandate pursuant to 14 Section 1085 of the California Code of Civil Procedure.4 The Court finds that Plaintiffs have 15 failed to show either a likelihood of success or serious questions going to showing on the merits 16 on that claim also. 17 As an initial matter, the Court finds that the exercise of supplemental jurisdiction over that 18 claim is not appropriate, given the Court’s lack of jurisdiction over Plaintiffs’ federal claims. 19 “Having dismissed Plaintiffs’ federal claims, the Court’s ‘decision of whether to exercise 20 supplemental jurisdiction over the remaining state law claims is purely discretionary.’” Metroflex 21 Oceanside LLC v. Newsom, 532 F. Supp. 3d 976, 984 (S.D. Cal. 2021) (quoting Couture v. Wells 22 Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011 WL 3489955, at *4 (S.D. Cal. Aug. 9, 23

24 2 The parties have not briefed the question of whether a Section 1094.5 writ petition must be filed in state court. Therefore, the Court does not address whether it could or would exercise 25 supplemental jurisdiction over that state claim.

26 3 Because the Court concludes that Plaintiffs have failed to exhaust judicial remedies, it does not address whether the Younger doctrines applies. 27 1 2011) (internal quotation omitted)). “Here, because the Court is dismissing the only federal 2 claims at the outset of the litigation, it is more appropriate to decline supplemental jurisdiction 3 over the state law claims.” Id.; see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) 4 (when “all federal-law claims are eliminated before trial, the balance of factors to be considered 5 under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity— 6 will [usually] point toward declining to exercise jurisdiction over the remaining state-law claims”); 7 Ornelas v. DP Invs., 816 F. App’x 185, 186 (9th Cir. 2020) (“Having dismissed Plaintiffs’ sole 8 federal-law claim at an early stage of the litigation, the district court properly declined to exercise 9 supplemental jurisdiction over Plaintiffs’ state-law claims against . . . Defendants.”). 10 Secondly, Plaintiffs have not demonstrated a likelihood of success on the merits on their 11 writ claim under California Code of Civil Procedure Section 1085. That claim seeks to compel the 12 payment of relocation benefits under California Health and Safety Code Section 17975, which 13 provides as follows:

14 Any tenant who is displaced or subject to displacement from a residential rental unit as a result of an order to vacate or an order 15 requiring the vacation of a residential unit by a local enforcement agency as a result of a violation so extensive and of such a nature 16 that the immediate health and safety of the residents is endangered, shall be entitled to receive relocation benefits from the owner as 17 specified in this article. The local enforcement agency shall determine the eligibility of tenants for benefits pursuant to this 18 article. 19 Cal. Health & Safety Code § 17975. By its terms, Section 17975 makes relocation benefits 20 available only to persons being displaced from “residential rental units.” Id. The property on 21 which Plaintiffs are currently living, however, is not zoned for human habitation and Plaintiffs 22 have not attempted to show how the property consists of “residential rental units.” ECF No. 39 23 ¶¶ 8–9; see Cal. Civ. Code § 1954.51 (defining “residential real property” as “any dwelling or unit 24 that is intended for human habitation”). Thus, Plaintiffs have failed to establish entitlement to 25 such benefits. 26 An additional problem is that Plaintiffs have not pleaded facts that would entitle them to a 27 writ to compel the performance of a discretionary act by the County Defendants. They seek a writ 1 so. The California Health & Safety Code does provide that “the local enforcement agency may 2 advance relocation payments” “[i]f the owner or designated agent fails, neglects, or refuses to pay” 3 them. Cal. Health & Safety Code § 17975.5(a) (emphasis added). Whether to advance such 4 benefits, however, is solely within the agency’s discretion, and “[n]othing in this article shall be 5 construed to require the local enforcement agency to pay any relocation benefits to any tenant, or 6 assume any obligation, requirement, or duty of the owner pursuant to this article.” Id. 7 § 17975.5(d). 8 “Normally, mandate will not lie to control a public agency’s discretion, that is to say, force 9 the exercise of discretion in a particular manner.” County of Los Angeles v. City of Los Angeles, 10 214 Cal. App. 4th 643, 654 (2013). “Ordinary mandate under Code of Civil Procedure section 11 1085 is used to review ministerial acts, quasi-legislative acts, and quasi-judicial decisions which 12 do not meet the requirements for review under Code of Civil Procedure section 1094.5.” Tracy 13 Rural Cnty. Fire Prot. Dist. v. Loc. Agency Formation Com. of San Joaquin Cnty., 84 Cal. App. 14 5th 91, 106 (2022) (citations omitted). “[T]he appropriate standard is whether the agency’s action 15 was arbitrary, capricious, entirely lacking in evidentiary support, or failed to follow the procedure 16 required by law.” . Id. (citations omitted). “To compel an official or agency to exercise 17 discretionary power the petitioner must show the official or agency ‘failed to act, and its failure to 18 act is arbitrary, beyond the bounds of reason, or in derogation of the applicable legal standards.’” 19 Ass’n of Deputy Dist. Att’ys for L.A. Cnty. v. Gascon, 79 Cal. App. 5th 503, 529 (2022) (quoting 20 AIDS Healthcare Found. v. L.A. Cnty. Dep’t of Pub. Health, 197 Cal. App. 4th 693, 704 (2011)). 21 Here, Plaintiffs’ complaint does not allege an abuse of discretion. Therefore, Plaintiffs have failed 22 to establish a likelihood of success on or serious questions going to the merits of this remaining 23 claim. 24 The Court acknowledges that many of the Plaintiffs make a strong showing on the equities. 25 Some of them have occupied the Property for a long time, e.g., ECF No. 52 ¶ 1 (ten years), cannot 26 find a suitable alternative place to live, e.g., ECF No. 58 ¶ 5–7, and/or do not have enough money 27 to pay for a suitable alternative, e.g., ECF No. 56 ¶ 12. At least one of the Plaintiffs is a veteran of 1 likelihood of success on the merits, however, or at a minimum, serious questions going to the 2 || merits, the Court does not reach the other factors in the test for preliminary injunctive relief. 3 || Disney Enterps., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“Likelihood of success 4 || onthe merits is the most important Winter factor; if a movant fails to meet this threshold inquiry, 5 || the court need not consider the other factors, in the absence of serious questions going to the 6 || merits[.]” (quotation marks and citations omitted)). 7 Accordingly, the Court concludes that Plaintiffs have failed to satisfy the four-factor test 8 || for preliminary injunctive relief and denies Plaintiffs’ motion for a temporary restraining order and 9 || preliminary injunction.> 10 CONCLUSION 11 For the foregoing reasons, the Court denies Plaintiffs’ motion for a temporary restraining 12 || order and a preliminary injunction. 5 13 IT IS SO ORDERED. || Dated: June 29, 2023 . ‘

JON S. TIG

Q 16 United States District Judge

18 19 20 21 22 23 24 25 26 27 28 > This order expresses no opinion regarding the merits of Plaintiffs’ claims against the Property Owner Defendants.