1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NADER EGHTESAD, et al., Case No. 4:23-cv-00525-KAW

8 Plaintiffs, ORDER GRANTING DEFENDANTS'

MOTION TO DISMISS

9 v. Re: Dkt. No. 21 10 COUNTY OF CONTRA COSTA, et al., 11 Defendants.

12 13 On August 9, 2023, Defendants County of Contra Costa, Keith Marks, John Kophik, Jason 14 Crapo, and Joseph Losado filed a motion to dismiss. 15 On November 2, 2023, the Court held a hearing, and after careful consideration of the 16 parties’ arguments and the applicable legal authority, for the reasons set forth below, GRANTS 17 Defendants’ motion to dismiss with leave to amend. 18 I. BACKGROUND 19 A. General Factual Allegations 20 Plaintiffs Nader Eghtesad and Milestone Diversified Group, LLC own several parcels of 21 real property in unincorporated Contra Costa County, including properties on Manning Road and 22 Finley Road. (Compl., Dkt. No. 1-1 ¶ 1.) Plaintiffs contend that the County, former employee 23 Keith Marks, and current employees John Kopchik, Jason Crapo, and Joseph Losado,“engaged in 24 a long-running, knowingly wrongful and illegal pattern and practice of not only seeking to extort 25 Plaintiffs . . . but also to discriminate against, and abusively target and harass Plaintiffs[.]” 26 (Compl. ¶ 2.) Plaintiffs accuse Defendants of discriminating against Plaintiff Nader Eghtesad 27 based on his “ethnicity/race,” and of retaliating against and punishing Plaintiffs for their “refusals 1 regarding the same. Id. 2 As an example of this claimed unlawful behavior, Plaintiffs contend that Marks threatened 3 to “red-tag and issue code violations” unless Plaintiffs “paid him extortionate bribes.” (Compl. ¶ 4 3.) When Plaintiffs rebuffed Marks’s extortion attempt and reported it to his supervisors (Crapo 5 and Kopchik), Defendants “decided to punish and retaliate against Plaintiffs” based on race, 6 ethnicity, and their “whistle-blowing” efforts. Id. 7 Plaintiffs allege that Defendants have engaged in “ongoing, abusive, illegal mistreatment,” 8 including (a) issuing “false, abusive, and illegitimate” violation and abatement notices and 9 demands; (b) falsely claiming that Plaintiffs failed to obtain required permits; (c) “reneging on 10 promises/agreements,” including whether a particular permitting issue had been “fully and finally 11 cleared and resolved”; (d) falsely demanding that Plaintiffs must reapply for already approved or 12 issued permits; and (e) illegally “flagging” Plaintiffs or their property and refusing to issue 13 permits. (Compl. ¶ 4.) Plaintiffs further contend that Defendants refused to process or hear their 14 “written appeals and challenges” and their Public Records Act requests. (Compl. ¶ 5.) 15 B. Judicially Noticeable Facts and Information 16 In 2013, Plaintiffs obtained two building permits with the County pertaining to the 17 Manning Road Property. (Def.’s Req. for Judicial Notice, “RJN,” Dkt. No. 22).1 The first permit 18 was for installation of an electrical meter, and the second was to repair the barn on the subject 19 property. (2013 Building Permits, RJN, Ex. A.) Under the then-current versions of California 20 Building Code § 105.5 and Contra Costa County Ordinance Code § 72-6.212, permits 21 automatically expired based on the failure to schedule and obtain an inspection within 180 days of 22 issuance. (Contra Costa County Ordinance Code § 72-6.212, RJN, Ex. B.) 23 On August 18, 2015, Plaintiffs applied for a permit to construct a steel storage building. 24 (August 2015 Permit Application, RJN, Ex. D at 1.) Plaintiffs contend that, despite numerous 25 attempts and requests, this permit was never issued. (See Pls.’ Letter, Compl., Ex. A at 2.) 26 On December 9, 2016, the County issued a Notice to Comply and commenced an 27 1 enforcement action based on reported unapproved remodels and additions to the barn, as well as 2 the reported unlawful storage of construction and commercial equipment on the premises. 3 (December 9, 2016 Notice to Comply, RJN, Ex. C at 1.) This notice set forth the corrective 4 actions Plaintiffs must take to clear the violations, which included obtaining all necessary 5 approvals for the remodel and addition, and to remove the contractor’s yard. Id. The corrective 6 actions needed to be taken within 10 days, and Plaintiffs were advised of the consequences of non- 7 compliance. Id. at 1-2. Plaintiffs were also provided the phone number of the code enforcement 8 officer. Id. at 2. 9 On January 26, 2018, Plaintiffs submitted a second permit application to “repair barn, 10 paint, fix siding, doors.” (2018 Permit Application, RJN, Ex. D at 2.) The permit application had 11 a notation that the application was “OK per Joe w/out plans.” Id. 12 Pursuant to Contra Costa County Ordinance Code § 72-6.410, the County may, in its 13 discretion, withhold issuance of a permit for any structure on a parcel of land on which there exists 14 a violation of law or regulation relating to or affecting the permit. (County Ordinance Code § 72- 15 6.410, RJN, Ex. E). Furthermore, pursuant to Contra Costa County Ordinance Code § 72-6.208, 16 the County may revoke or suspend a permit at any time for fraud, misrepresentation, or false 17 statements in connection with a permit application. (County Ordinance Code § 72-6.208, RJN, Ex. 18 F). 19 On April 25, 2018, the County issued a Notice to Comply to Plaintiffs, stating that there 20 had been unpermitted improvements to the barn, including an unpermitted addition, new 21 foundation, framing, windows, and siding. (April 25, 2018 Notice to Comply, RJN, Ex. G at 1). 22 The notice also provided that there were nuisance conditions on the subject property, including the 23 storage of commercial equipment and vehicles, such as a city bus, bus stop, box truck, and dump 24 truck. Id. at 1-2. The notice set forth the corrective actions that must be taken, including the filing 25 of a building permit application authorizing the improvements already made, and the removal of 26 all commercial equipment. Id. at 2. Plaintiffs were informed of what would happen if corrective 27 action was not taken by the May 14, 2018 deadline, and they were given the phone number of the 1 On May 16, 2018, the County issued a Notice of Intent to Record a Notice of an 2 Abatement Proceeding. (May 16, 2018 Notice of Intent, RJN, Ex. H). The notice advised 3 Plaintiff that the attached notice would be recorded due the unlawful conditions at the property.2 4 Id. Plaintiffs were instructed to contact the Building Inspection Division at the included address 5 and phone number if they had any questions or if they had evidence that the unlawful conditions 6 did not exist. Id. 7 C. Plaintiffs’ December 24, 2020 Demand Letter 8 On December 24, 2020, Plaintiffs’ counsel sent a demand letter to Defendant Crapo, which 9 was attached to Plaintiffs’ complaint. (Pls.’ Letter, Compl., Ex. A.) In the letter, Plaintiffs stated 10 that they received a permit to repair an existing barn on the Manning Road Property in 2013. (Pls.’ 11 Letter at 2.) When Plaintiffs applied for a permit to construct a steel storage building on the same 12 property in August 2015, however, the County failed to issue the permit. Id. Plaintiffs asked that 13 the County issue a permit for the storage building, and that the County also conduct an inspection 14 to approve electric meters that they had “long ago” installed on the property. Id. 15 The letter further stated that the County issued a “Notice to Comply” in December 2016, in 16 which the County accused Plaintiffs of performing work on the barn without proper permits or 17 approval, and in which the County said the conditions of Plaintiffs’ property were akin to a 18 “contractor’s yard” and needed to be abated. (Pls.’ Letter at 2.) Plaintiffs asked the County to 19 confirm whether any of the issues identified in the December 2016 Notice remained outstanding. 20 Id. 21 Plaintiffs’ letter also inquired into the status of various other permitting and compliance 22 issues dating from 2018 and January 2020. (Pls.’ Letter at 2-3.) Plaintiffs specifically referenced a 23 Notice to Comply dated April 25, 2018, and a subsequent Notice of Intent to Record a Notice of 24 Pending Nuisance Abatement Proceeding, dated May 16, 2018. Id. at 2-3. Both notices pertained 25 to unpermitted improvements to the barn on the Manning Road Property, as well as the unlawful 26 storage of commercial equipment and vehicles. Id. In the letter, Plaintiffs asked for 27 1 “confirmation” that the issues raised in the notices were “closed, resolved, and moot,” stating they 2 had “successfully objected to and appealed the above issues or allegations, including via their 3 letter . . . dated May 9, 2018[.]” Id. at 3. 4 Plaintiffs’ letter stated that if the County did not “fully and formally” resolve these issues 5 by January 15, 2021, Plaintiffs would request that the County treat the letter as a request for 6 records under the California Public Records Act. (Pls.’ Letter at 4-5.) 7 D. Procedural Background 8 On December 22, 2022, Plaintiffs filed this lawsuit in Contra Costa County Superior 9 Court. (See Compl.) The case was removed to federal court on February 3, 2023. 10 On August 9, 2023, Defendants filed a motion to dismiss (Defs.’ Mot., Dkt. No. 21.) On 11 August 23, 2023, Plaintiffs filed an opposition. (Pls.’ Opp’n, Dkt. No. 23.) On August 30, 2023, 12 Defendants filed a reply. (Defs.’ Reply, Dkt. No. 24.) 13 II. LEGAL STANDARD 14 A. Motion to Dismiss 15 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 16 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 17 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 18 F.3d 729, 732 (9th Cir. 2001). 19 In considering such a motion, a court must “accept as true all of the factual allegations 20 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 21 omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or 22 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 23 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 24 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 25 marks omitted). 26 A claim is plausible on its face when a plaintiff “pleads factual content that allows the 27 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 1 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 2 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of 3 a cause of action” and “conclusory statements” are inadequate. Iqbal, 556 U.S. at 678; see also 4 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of 5 law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a 6 claim.”). “The plausibility standard is not akin to a probability requirement, but it asks for more 7 than a sheer possibility that a defendant has acted unlawfully . . . When a complaint pleads facts 8 that are merely consistent with a defendant's liability, it stops short of the line between possibility 9 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 10 557) (internal citations omitted). 11 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no 12 request to amend is made “unless it determines that the pleading could not possibly be cured by 13 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations 14 omitted). 15 B. Request for Judicial Notice 16 As a general rule, a district court may not consider any material beyond the pleadings in 17 ruling on a motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 18 688 (9th Cir. 2001). A district court may take notice of facts not subject to reasonable dispute that 19 are “capable of accurate and ready determination by resort to sources whose accuracy cannot 20 reasonably be questioned.” Fed. R. Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 21 333 (9th Cir. 1993). “[A] court may take judicial notice of ‘matters of public record,’” Lee, 250 22 F.3d at 689 (citing Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may 23 also consider “documents whose contents are alleged in a complaint and whose authenticity no 24 party questions, but which are not physically attached to the pleading” without converting a 25 motion to dismiss under Rule 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 26 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 27 307 F.3d 1119 (9th Cir. 2002). The court need not accept as true allegations that contradict facts 1 (9th Cir. 1987). 2 III. DISCUSSION 3 A. Request for Judicial Notice 4 As a preliminary matter, Defendants ask that the Court take judicial notice of 8 documents 5 in support of their motion to dismiss. (Req. for Judicial Notice, “RJN,” Dkt. No. 22.) The 6 documents are purportedly true and correct copies of: A) Building Permit Nos. BIMIR 13-009803, 7 BIE 13-009802; B) Contra Costa County Ordinance Code § 72-6.402; C) Notice to Comply, dated 8 December 9, 2016, BIRF 16-00773; D) Applications for Permits, 8505 Manning Road, Livermore; 9 E) Contra Costa County Ordinance Code § 72-6.410; F) Contra Costa County Ordinance Code § 10 72-6.208; G) Notice to Comply, dated April 25, 2018, BIRF 18-00212; and H) Notice of Intent to 11 Record a Notice of Pending Nuisance Abatement Proceeding, dated May 16, 2018, BIRF 18- 12 00212. (RJN, Exs. A-H.) 13 Plaintiffs do not oppose the request for judicial notice. 14 Defendants ask that the Court take notice of the building permits, permit applications, two 15 notices to comply, and the notice of intent to record a notice pending nuisance abatement (Exs. A, 16 C, D, G, H) on the grounds that they were incorporated into the complaint by reference. (RJN at 17 2.) Under the incorporation by reference doctrine, the Court may consider an extrinsic document 18 that the plaintiff refers to extensively or that “forms the basis of the plaintiff’s claim.” United 19 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Here, the complaint incorporates the 20 December 24, 2020 letter from Plaintiffs’ counsel to Defendant Crapo, which describes these 21 documents. (Pls.’ Letter at 2-3.) Moreover, complaint accuses Defendants of depriving Plaintiffs 22 of process in the course of undertaking various actions, and Plaintiffs specifically refer to, and rely 23 upon, allegations regarding permit applications, notices to comply, and a notice of intent to record 24 a notice of a pending nuisance abatement proceeding. (RJN at 2.) The Court finds that these 25 documents were incorporated by reference into the complaint, and, are, therefore, subject to 26 judicial notice. 27 Next, Defendants request that the Court take judicial notice of Contra Costa County 1 ordinances, and regulations are public records that are subject to judicial notice. See Jonna Corp. 2 v. City of Sunnyvale, No. 17-CV-00956-LHK, 2017 WL 2617983, at *4 (N.D. Cal. June 16, 2017). 3 Accordingly, Defendants’ request for judicial notice is GRANTED. 4 B. Motion to Dismiss 5 Defendants move to dismiss all claims on the grounds that they are both barred by the 6 applicable statute of limitations and that they fail to state a claim. 7 i. Statute of Limitations 8 Defendants contend that all claims are barred by the statute of limitations, because all 9 allegations pertain to events that occurred more than two years before the lawsuit was filed. Id. at 10 6-7. This case was filed in state court on December 22, 2022. (See Compl.) The most recent date 11 referred to in the complaint is contained in the December 24, 2020 letter, attached as Exhibit A, 12 which references a Notice to Comply that was issued on January 8, 2020. (See Pls.’ Letter at 3.) 13 In opposition, Plaintiffs argue that Defendants have not met their burden of showing that 14 the action is time-barred. (Pls.’ Opp’n at 1.) To the extent that Plaintiffs argue that the statute of 15 limitations should be tolled due to a purported administrative delay, “a litigant seeking equitable 16 tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights 17 diligently, and (2) that some extraordinary circumstance stood in his way.” Credit Suisse Sec. 18 (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012) (internal quotations and citation omitted); see 19 Pls.’ Opp’n at 5,7. Thus, despite the argument to the contrary, Plaintiffs bear the burden of 20 showing that the case is not time-barred. 21 a. Appropriate Limitations Period 22 Defendants argue that all claims are barred by the two-year statute of limitations. (Defs.’ 23 Mot. at 6-7.) Under California law, the statute of limitations for constitutional claims is two years. 24 See Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011). The 25 limitations period for a writ for mandamus is determined “by the nature of the underlying right or 26 obligation that the action seeks to enforce.” Branciforte Heights, LLC v. City of Santa Cruz, 138 27 Cal. App. 4th 914, 926, 42 Cal. Rptr. 3d 96, 104 (2006). 1 Defendants failed to comply with statutes, regulations, and procedures, and ask that they be 2 commanded to set aside, void, withdraw, or rescind their positions and be enjoined from taking 3 further action until they are in compliance with the law. (Compl. ¶¶ 9-24.) Thus, the nature of 4 Plaintiffs’ writ is tantamount to a request for declaratory relief based on an alleged violation of 5 their constitutional rights, such as the right to “proceed in the manner required by law. (See 6 Compl. ¶ 22.) This claim is, therefore, subject to a two-year statute of limitations. See, e.g., 7 Colony Cove Properties., LLC, 640 F.3d at 956 (claim under Takings Clause barred by two-year 8 statute of limitations). The remaining three causes of action are constitutional claims under 42 9 U.S.C. § 1983 for denial of due process, denial of equal protection, and unconstitutional taking. 10 (Compl. ¶¶ 25-36.) 11 At the hearing, Plaintiffs argued that a four-year limitations period applies. Plaintiffs’ 12 reliance on Valvo v. Univ. of S. California, 67 Cal. App. 3d 887 (Ct. App. 1977), however, is 13 misplaced, because the case is factually inapposite. Valvo involved a former USC medical student 14 who argued that he was improperly dismissed from the private university and then engaged in the 15 school’s extensive readmission process prior to filing his lawsuit. 67 Cal. App. 3d at 892-94. 16 There, the court found that the limitations period ran from the conclusion of the school’s 17 administrative proceedings, rather than from the date of his expulsion. Id. at 894. The Valvo court 18 found that the four-year limitations period in California Civil Procedure Code § 343 applied, 19 because no other limitations period “appear[ed] to be appropriate” to a university readmission 20 claim. Id. at 894. This is not the situation here. 21 For the foregoing reasons, the two-year limitations period for constitutional claims applies 22 to all claims alleged. 23 b. Triggering Event 24 At the hearing, Plaintiffs confirmed that they believe that the limitations period should not 25 have begun to run until the date of their December 2020 demand letter, because Plaintiffs were 26 “trying to pursue whatever administrative remedies might exist[.]” (See Pls.’ Opp’n at 7-8.) 27 Unlike Valvo, there was no formal administrative proceeding from which Plaintiffs may have 1 extended the limitations period. Indeed, the notices to comply outlined the County’s process by 2 identifying the corrective actions necessary to obtain the approvals for the construction, and 3 providing a phone number to contact the applicable inspector if Plaintiffs had questions or 4 believed the notices were issued in error. 5 Nonetheless, obtaining legal counsel and sending a demand letter is not a triggering event. 6 To the contrary, the judicially noticed documents—the building permits, applications, and 7 notices— belie any allegation of extraordinary circumstance, because they indicate that Plaintiffs 8 were informed of the processes by clearly identifying the corrective actions that needed to be 9 taken, as well as the time period for doing so, which directly contradicts any allegation that 10 Plaintiffs were “strung along” like the plaintiff in Valvo. As Defendants argue, Plaintiffs were 11 certainly on notice as of April 2018 that they would not be receiving the requested permit, which 12 were being withheld based on the identified property violations. (See Defs.’ Reply at 8; RJN, Ex. 13 G.) While Plaintiffs contend that they “objected to and appealed” the April 2018 notice on May 9, 14 2018, they do not allege that the corrective actions were taken or that the violations did not exist. 15 (See Pl.’s Letter at 3.)3 The December 2016 and April 2018 notices to comply outlined the 16 corrective actions to be taken, the deadline to complete them, and the individuals to contact if they 17 had questions or believed the notices were issued in error. (See RJN, Exs. C, G.) Nowhere do 18 Plaintiffs allege that they complied with the processes outlined in the notices to comply. Plaintiffs 19 are required to comply with the notices and the corrective actions set forth therein. Plaintiffs are 20 not permitted to fashion their own appeals process. If Plaintiffs can allege that they followed the 21 available processes, they need to do so, because being denied permits after choosing not to follow 22 the County’s instructions does not give rise to a constitutional violation. 23 Furthermore, Plaintiffs do not allege that they responded to the May 16, 2018 Notice of 24 Intent to Record, which was dated one week after they claim to have appealed the April 2018 25 notice to comply. At the hearing, Plaintiffs argued that the alleged nuisances never existed, and 26 that Defendants made them up. Plaintiffs, however, did not claim that they timely applied for 27 1 permits in response to the notices to comply. Nor do Plaintiffs assert that they contacted the 2 inspector identified in the county’s notice to contest the existence of the nuisance conditions 3 identified in the notice. The Court also notes that even if Plaintiffs’ claims accrued when the last 4 Notice to Comply was issued on January 8, 2020, the lawsuit would still be time barred, since the 5 case was not filed until December 22, 2022. (See Pls.’ Letter at 3.) 6 At the hearing, Plaintiffs argued, for the first time, that they submitted a formal appeal to 7 the Contra Costa County Board of Supervisors, which erroneously denied the appeal as a 8 government claim. This is not alleged in the complaint, and the undersigned does not know when 9 this purported appeal occurred let alone whether it was otherwise proper. 10 Finally, Plaintiffs contend that they “have diligently, reasonably tried (in virtually all ways 11 imaginable) to object to - and hopefully resolve sans litigation - Defendants’ rather bizarre, unfair 12 misconduct.” (Pls.’ Opp’n at 8.) While attempting to resolve a dispute without filing a lawsuit is 13 generally preferable, it does not extend the statutory period. 14 Accordingly, as currently pled, the motion to dismiss is granted on the grounds that the 15 case is barred by the two-year statute of limitations. Plaintiffs do not appear to have taken the 16 corrective actions necessary to obtain their permits and abate the nuisance, and instead opted to sit 17 on their rights for several years before hiring legal counsel and issuing a demand letter. While 18 issuing a demand letter cannot revive an otherwise time-barred claim, Plaintiffs are granted leave 19 to amend to allege any objections and appeals taken and the substance thereof, that they complied 20 with the corrective actions outlined in the notices to comply, or any other facts to suggest an 21 ongoing violation. If Plaintiffs cannot allege such facts in good faith, they should file a voluntary 22 dismissal in lieu of an amended complaint. 23 ii. Whether Plaintiffs sufficiently state a claim 24 Since the claims are likely barred by the applicable statute of limitations, the Court need 25 not address the sufficiency of the claims. 26 IV. CONCLUSION 27 For the reasons set forth above, Defendants’ motion to dismiss is GRANTED with leave to 1 The amended complaint must comply with Federal Rule of Civil Procedure 8, and it must 2 || contain all relevant facts. Merely attaching the demand letter is not sufficient to satisfy federal 3 || pleadings standards. 4 IT IS SO ORDERED. 5 Dated: December 8, 2023 . 6 Ne A. Mea 7 United States Magistrate Judge 8 9 10 11 12

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