Borges v. County of Mendocino

• Court: District Court, N.D. California
• Decided: December 13, 2020
• Docket: 3:20-cv-04537
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANN MARIE BORGES, et al., Case No. 20-cv-04537-SI

8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS FIRST 10 COUNTY OF MENDOCINO, et al., AMENDED COMPLAINT 11 Defendants. Re: Dkt. Nos. 33, 34

12 13 Defendants’ motions to dismiss the first amended complaint were scheduled for a hearing 14 on December 11, 2020. Pursuant to Civil Local Rule 7-1(b), the Court determined that these matters are appropriate for resolution without oral argument and VACATED the hearing. For the reasons 15 set forth below, the motions are GRANTED IN PART and DENIED IN PART. The first cause of 16 action may proceed; the second cause of action is dismissed with leave to amend; the third and 17 fourth causes of action are dismissed without leave to amend. If plaintiffs wish to amend the second 18 cause of action, they may file an amended complaint no later than December 23, 2020. 19

20 BACKGROUND 21 I. Factual Background 22 The following facts are drawn from plaintiffs’ First Amended Complaint (“FAC”), which 23 the Court treats as true for the purposes of these motions to dismiss. In August of 2016, plaintiffs 24 Ann Marie Borges and Chris Gurr purchased an eleven-acre farm zoned AG/40 agricultural use in 25 Ukiah, California. FAC ¶¶ 3, 12. Plaintiffs intended to cultivate medical cannabis on their property, 26 and in 2017 plaintiffs formed a business called Goose Head Valley Farms for that purpose. Id. ¶¶ 4, 27 11-12. 1 In April 2017, the County of Mendocino adopted the Medical Cannabis Cultivation 2 Ordinance, Ordinance No. 4381, Ch. 20.242, which contains the County’s cannabis cultivation 3 regulations.1 In May 2017, plaintiffs applied for a permit under Mendocino County Code (“MCC”) 4 10A.17.080(B)(3), which governs “relocation.” That subsection provides, inter alia, “Persons able 5 to show proof of prior cultivation pursuant to paragraph (B)(1) above may apply for a Permit not on 6 the site previously cultivated (the ‘origin site’) but on a different legal parcel (the ‘destination site’), 7 subject to the following requirements. . . .”2 Plaintiffs’ application was conditionally approved by 8

9 1 The Court takes judicial notice of the various versions of the ordinance submitted by defendants. See Dkt. No. 34-1. The Court does not take judicial notice of the other materials 10 submitted by defendants as the Court does not rely on those materials in resolving the current motions. 11

2 Paragraph (B)(1) provides: 12 (1) Proof of Prior Cultivation. Persons applying for a Permit during Phase One shall 13 be required to provide to the Agricultural Commissioner evidence that they were cultivating cannabis on the cultivation site prior to January 1, 2016, which cultivation 14 site shall have been in compliance with the provisions of section 10A.17.040. Evidence shall include: 15 (a) Photographs of any cultivation activities that existed on the legal parcel 16 prior to January 1, 2016, including: (i) ground level views of the cultivation activities and (ii) aerial views from Google Earth, Bing Maps, Terraserver, or a comparable 17 service showing: both the entire legal parcel and the cultivation site in more detail. The date these images were captured shall be noted. 18 (b) Photographs of any cultivation activities that currently exist on the legal 19 parcel, including: (i) ground level views of the cultivation activities and (ii) aerial views from Google Earth, Bing Maps, Terraserver, or a comparable service showing: 20 both the entire legal parcel and the cultivation site in more detail. The date these images were captured shall be noted. 21 (c) At least one additional document demonstrating cultivation on the legal 22 parcel prior to January 1, 2016, which evidence may be used to substitute for evidence pursuant to clause (a). The Agricultural Commissioner shall prepare a list 23 of the types of documentation that will be accepted to meet this requirement, and may accept other similarly reliable documentary evidence showing that cannabis was 24 cultivated for medical use prior to January 1, 2016. 25 (d) Proof of prior cultivation shall be assigned to the applicant relative to their prior cultivation site. 26 (e) Persons who participated in a permit program pursuant to the County's 27 Chapter 9.31 in previous years may present evidence of such participation and 1 then-Interim Commissioner of Agriculture Diane Curry, and plaintiffs were given a temporary 2 permit under which they had authorization to begin cultivation activities. FAC ¶¶ 14-15. Plaintiffs 3 began cultivating marijuana on the property. Id. 4 The FAC alleges that “[d]uring 2017 and prior to her resignation in March 2018, 5 Commissioner Curry was given broad discretion as the final decisionmaker for the County of 6 Mendocino to implement the new ordinance allowing qualified applicants to receive permits to 7 cultivate cannabis in the County[,]” and that “[d]uring that time, Commissioner Curry approved 8 permits for numerous (B)(3) applicants, including but not limited to the plaintiffs, to immediately 9 cultivate cannabis on relocation sites in the County so long as the relocation site met zoning 10 requirements.” Id. ¶ 16. 11 Beginning in June 2017, defendant Sue Anzilotti, who is plaintiffs’ neighbor, contacted 12 Steve White of the California Department of Fish and Wildlife (“CDFW”) on behalf of “concerned 13 homeowners” who lived adjacent to plaintiffs’ property. Id. ¶ 17. Anzilotti “made false allegations 14 that the water source for Plaintiffs’ approved cultivation site was not approved for use in commercial 15 cultivation operations.” Id. White “decided to use a false allegation of water diversion as a pretext 16 to obtain a warrant and seize the plaintiffs’ property.” Id. 17 In July 2017, Commissioner Curry contacted CDFW agents and requested a meeting with 18 them on plaintiffs’ property to better understand the requirements relating to creeks located near 19 cannabis farms. Id. ¶ 18. Plaintiffs allege that on July 25, 2017, two CDFW agents went to 20 plaintiffs’ property without prior notice, and “[w]ithout performing any tests, they concluded it was 21 likely water was being diverted from the creek and sent a letter to Commissioner Curry stating that 22 they suspected water diversion.” Id. 23 On or about July 26, 2017, plaintiffs hired Donald G. McEdwards, a hydrologist, to perform 24 an extensive hydrology study at the property. Id. ¶ 19. 25 On August 10, 2017, “a convoy of CDFW vehicles arrived at Plaintiffs’ property and agents, 26 with guns pointed, immediately placed the Plaintiffs in handcuffs.” Id. ¶ 20. Plaintiffs informed 27 Steve White, the CDFW team leader, that they had a permit application receipt from the County and 1 they were waiting for the results of the hydrology report. Id. “The CDFW team, without any 2 evidence, claimed they believed the water was being diverted from the nearby creek and proceeded 3 to cut down and eradicate marijuana, i.e., 100 plants growing indoors under a hoop and 171 plants 4 growing outdoors in an approved location of 10,000 square feet.” Id. During the search, defendant 5 CDFW agent Mason Hemphill searched plaintiffs’ home and property and confiscated numerous 6 items, including over 200 living marijuana plants. Id. ¶ 21. 7 Plaintiffs received the results of the water tests on August 13, and those results showed that 8 “the water in the well is distinct from the water in the creek.” Id. ¶ 28. 9 On or about August 14, 2017, plaintiff Ann Marie Borges provided Commissioner Curry 10 with proof of “prior cultivation from the town of Willits in Mendocino County, an area not in the 11 coastal zone.” Id. ¶ 29.3 On or about September 16, 2017, Commissioner Curry notified plaintiffs 12 their amended application had been finally approved. Id. ¶ 30. On September 19, 2017, plaintiffs 13 went to Commissioner Curry’s office to pick up the permit, but “[t]he anticipated handoff was 14 prevented by Deputy County Counsel Matthew Kiedrowski . . . [who] informed plaintiffs that they 15 needed to provide additional proof that the site of prior cultivation in Willits was no longer able to 16 resume cannabis cultivation.” Id. No other reason was given for being denied a permit. Id. 17 Plaintiffs hired a local land use attorney, and on or about October 31, 2017, plaintiffs’ attorney 18 submitted to the Deputy County Counsel a signed agreement not to resume cannabis cultivation at 19 the Willits site. 20 Beginning in November 2017, Anzilotti “colluded with her neighbors and conspired with 21 defendants John McCowen, Carre Brown and Georgeanne Croskey to cause the County to create an 22 ‘opt-out’ zone that would change the County zoning plan. It was intended to target the Plaintiffs 23 and preclude them from cultivating cannabis on their property.” Id. ¶ 31. In January 2018, the 24 County initiated a “sham process” to create opt-in and opt-out zones in the County regarding the 25 cultivation of cannabis. Id. County officials intentionally excluded plaintiff Chris Gurr from 26 participating in that process. Id. “This unprecedented political experiment gave a right to plaintiffs’ 27 1 neighbors to decide whether to ‘opt-out’ of the zoning plan and thus prevent plaintiffs from 2 exercising their right to cultivate cannabis on their property.” Id. ¶ 48. 3 On November 22, 2017, plaintiff Chris Gurr made a formal complaint against Anzilotti to 4 the Enforcement Division of the Fair Political Practices Commission. Id. ¶ 32. “The allegations 5 centered on Sue Anzilotti’s use of her position as an unsworn administrator with the Sheriff’s Office 6 to obtain access to private information, including illegal[] background checks, and misuse of her 7 government position to conduct personal business to influence decisions by County officials and 8 employees that would personally benefit her.” Id. 9 On January 23, 2018, plaintiffs received a Temporary Cannabis Cultivation License from 10 the California Department of Agriculture. Id. ¶ 33. The license was issued “following a close 11 examination and inspection of the Plaintiffs’ property and water supply by the CDFW, the State 12 Water Resources Control Board, and the State Department of Food and Agriculture.” Id. 13 In March 2018, Diane Curry left her position as Interim Commissioner of the Department of 14 Agriculture for Mendocino County. Id. ¶ 34. 15 On July 9, 2018, the County of Mendocino Department of Agriculture notified plaintiffs 16 that their application to cultivate medical cannabis had been denied because they did not provide 17 evidence of prior and current cultivation on the same parcel as required by Ordinance 10A.17.080 18 paragraph (B)(1). Id. ¶ 35. Plaintiffs allege the permit denial was based on “a false and fraudulent 19 premise” because plaintiffs did not apply for a medical cannabis permit pursuant to paragraph (B)(1) 20 of the County Ordinance, and instead submitted their application pursuant to paragraph (B)(3) of 21 the Ordinance. Id. Plaintiffs allege that they met all of the (B)(3) requirements as determined by 22 Commissioner Curry in May and September of 2017. Id. Plaintiffs also allege that they are “the 23 only AG40 applicants who complied with all (B)(3) requirements, as determined by Commissioner 24 Curry as the final decisionmaker for the County, but were later informed their application had been 25 denied.” Id. 26 On December 4, 2018, the Mendocino County Board of Supervisors passed Ordinance No. 27 4420, which amended the Mendocino Cannabis Cultivation Ordinance to, inter alia, rezone two 1 FAC. Plaintiffs’ property is located in one of the rezoned districts, Boonville/Woodyglen. Id. 2 “Plaintiffs were the only qualified persons in an agricultural zone in the County adversely affected 3 by the ‘opt-out’ amendment to the zoning plan.” Id. ¶ 48. Plaintiffs allege the zoning decision was 4 made for no legitimate reason and based on impermissible motives, and “[o]n information and 5 belief, this was the first time a County in the State of California created an opt-out zone in the zoning 6 plan that prevented a property owner from cultivating cannabis based solely on the vote of the 7 neighbors.” Id. ¶ 49. 8 9 II. Procedural Background 10 On July 8, 2020, plaintiffs filed this lawsuit against the County of Mendocino and Anzilotti. 11 The complaint alleged four causes of action pursuant to 42 U.S.C. §1983, alleging violations of 12 plaintiffs’ rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment 13 to the United States Constitution. 14 Defendants moved to dismiss the complaint, and after a hearing on September 25, 2020, the 15 Court granted the motions to dismiss and granted leave to amend. At the hearing, the Court informed 16 plaintiffs that (1) the complaint did not sufficiently allege that plaintiffs constituted a “class of one” 17 with regard to the Equal Protection claims, (2) the Court was skeptical plaintiffs could allege a 18 federally cognizable property interest with regard to the Due Process claims, and (3) the conspiracy 19 allegations against Anzilotti were insufficient. 20 On October 23, 2020, plaintiffs filed the FAC. The FAC added additional allegations 21 regarding the denial of plaintiffs’ application and Commissioner Curry’s role in implementing the 22 Ordinance, as well the allegations regarding the change in the County’s zoning plan that prohibited 23 plaintiffs from cultivating cannabis on their property and Anzilotti’s alleged role in the zoning 24 change. See, e.g. id. at ¶¶ 16, 31, 37, 39-49. The FAC also added new allegations regarding the 25 regulation of marijuana in California and the tension between federal and state law with regard to 26 the classification of marijuana. See id. at ¶¶ 22-27. The FAC also names four new individual 27 1 defendants: John McCowen,4 Carre Brown, and Georgeanne Croskey, all of whom were and are 2 members of the Board of Supervisors for the County of Mendocino; and Mason Hemphill, the 3 California Department of Fish and Wildlife (“CDFW”) employee who participated in the August 4 10, 2017 search of plaintiffs’ property and who seized plaintiffs’ marijuana plants and other 5 property. 6 The FAC alleges four causes of action pursuant to 42 U.S.C. § 1983: (1) Class of One/Equal 7 Protection, against the County; (2) Class of One/Equal Protection, Conspiracy between the County 8 and Anzilotti, McCowen, Brown, and Croskey; (3) Substantive Due Process, against the County; 9 and (4) Substantive Due Process, Conspiracy between the County and Anzilotti, McCowen, Brown 10 and Croskey. Plaintiffs seek declaratory and injunctive relief, as well as damages and attorneys’ 11 fees. 12 Now before the Court are motions to dismiss the FAC filed by the County, McCowen, 13 Brown, Croskey, and Anzilotti.5 14 15 LEGAL STANDARD 16 A complaint must contain “a short and plain statement of the claim showing that the pleader 17 is entitled to relief,” and a complaint that fails to do so is subject to dismissal pursuant to Rule 18 12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 19 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 20 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts 21 that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of 23 specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative 24 level.” Twombly, 550 U.S. at 555, 570. “A pleading that offers ‘labels and conclusions’ or ‘a 25 formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 26 4 The FAC sometimes refers to McCowen as “John McCune.” It is unclear if this is a 27 typographical error. 1 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 2 devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “While legal 3 conclusions can provide the framework of a complaint, they must be supported by factual 4 allegations.” Id. at 679. 5 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the 6 complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. City 7 of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as 8 true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 9 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 10 If a court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth 11 Circuit has repeatedly held that “a district court should grant leave to amend even if no request to 12 amend the pleading was 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 and 14 internal quotation marks omitted). 15 16 DISCUSSION 17 I. Due Process: Third and Fourth Causes of Action 18 The FAC alleges that plaintiffs have a property interest in farming their property and that 19 defendants violated their due process rights by arbitrarily and capriciously denying their application 20 for a permit to cultivate medical cannabis and by rezoning the area to prohibit cannabis cultivation 21 at plaintiffs’ property. FAC ¶¶ 64-68. Plaintiffs allege that “[b]y licensing and taxing production, 22 distribution and sales of cannabis, the State of California has created a property interest in cannabis 23 products produced for distribution and sale in California.” Id. ¶ 22. 24 In relevant part, the Fourteenth Amendment commands that “no state shall make or enforce 25 any law which shall abridge the privileges or immunities of citizens of the United States; nor shall 26 any state deprive any person of life, liberty, or property, without due process of law . . . .” U.S. 27 Const. amend. XIV § 1. To succeed on a procedural or substantive due process claim, a plaintiff 1 Gerhart v. Lake County, Mont., 637 F.3d 1013, 1019 (9th Cir. 2011 (9th Cir. 2011). “Although the 2 underlying substantive interest is created by an independent source such as state law, federal 3 constitutional law determines whether that interest rises to the level of a legitimate claim of 4 entitlement protected by the Due Process Clause.” Town of Castle Rock, Colo. v. Gonzales, 545 5 U.S. 748, 757 (2005) (internal quotation marks and citation omitted). 6 Defendants contend that plaintiffs cannot state a claim for violation of their due process 7 rights because although California has decriminalized aspects of marijuana cultivation, those 8 activities remain prohibited under federal law. See generally Gonzales v. Raich, 545 U.S. 1 (2005) 9 (upholding Controlled Substances Act and holding Congress’ Commerce Clause authority includes 10 the power to prohibit the local cultivation and use of marijuana, even when such local cultivation 11 and use complies with California law). Defendants argue that a local licensing or permitting scheme 12 for cannabis cultivation does not give rise to a property interest protected by the federal Constitution. 13 Other courts have recognized “the murky interface of California state law permitting the 14 cultivation and sale of marijuana in some circumstances and the United States federal law banning 15 all such activities.” Citizens Against Corruption v. County of Kern, Case No. 1:19-CV-0106 AWI 16 GSA JLT, __ F. Supp. 3d __, 2019 WL 1979921, at *3 (E.D. Cal. May 3, 2019). In Citizens Against 17 Corruption, medical marijuana dispensaries filed suit against Kern County challenging a county 18 ordinance that banned marijuana dispensaries and permitted existing dispensaries to continue 19 operation for an additional twelve months. Judge Ishii dismissed the plaintiffs’ due process claims 20 on the ground that the plaintiffs did not have a legally protectible property interest in cultivating 21 marijuana: 22 [Citing cases] Those precedents illustrate the problems and limitation Plaintiffs face in trying to vindicate rights that depend on California marijuana law in federal court. 23 Here, Plaintiffs face the insurmountable hurdle that federal law does not recognize any protectible liberty or property interest in the cultivation, ownership, or sale of 24 marijuana. Even though “state law creates a property interest, not all state-created rights rise to the level of a constitutionally protected interest.” Brady v. Gebbie, 859 25 F.2d 1543, 1548 n.3 (9th Cir. 1988). “The Supreme Court has held that no person can have a legally protected interest in contraband per se . . . under federal law, 26 marijuana is contraband per se, which means no person can have a cognizable legal interest in it.” Schmidt v. Cty. of Nev., 2011 U.S. Dist. LEXIS 78111, 15-16 (E.D. 27 Cal. July 19, 2011), citing United States v. Jeffers, 342 U.S. 48, 53 (1951). . . . As 1 Id. Numerous other courts have reached similar conclusions. See e.g. id. (citing cases); see also 2 Kent v. County of Yolo, 411 F. Supp. 3d 1118, 1123 (E.D. Cal. 2019) (dismissing marijuana 3 cultivator’s due process claim challenging county’s refusal to renew medical cannabis cultivation 4 license because “federal law does not recognize any protectible property interest in the cultivation 5 of cannabis”); Grandpa Bud, LLC v. Chelan County Wash., No. 2:19-CV-51-RMP, __ F. Supp. 3d. 6 __, 2020 WL 2736984, at *4 (E.D. Wash. May 26, 2020) (dismissing cultivator’s due process claim 7 because “[e]ven when cannabis production is a legitimate use of one’s property at the state level, 8 such use is not recognized as a protectable property interest under the U.S. Constitution”); Allen v. 9 County of Lake, Case No. 14-cv-03934-TEH, 2017 WL 363209, at *2-3 (N.D. Cal. Jan. 25, 2017) 10 (citing cases for the proposition that “there is no protected property interest in medical marijuana 11 for purposes of the Fourteenth Amendment”). 12 Plaintiffs do not cite any on-point authority holding that they can assert a property interest 13 in cultivating medical cannabis that is cognizable in a § 1983 action. Instead, plaintiffs contend that 14 California has created a state property interest by licensing and taxing production, distribution and 15 sales of cannabis, and that the “fact, law and logic [of Gonzales v. Raich] is no longer valid because 16 there is no legal ‘national market’ for marijuana produced, possessed, distributed and sold in 17 California pursuant to licenses granted by the State of California.” Pls’ Opp’n at 18 (Dkt. No. 43).6 18 Plaintiffs argue that “the ‘gaping hole’ on which Congress and the Court relied in the prohibition of 19 intrastate manufacture and possession of marijuana has been filled by the State of California’s 20 implementation of its own comprehensive regulation,” and plaintiffs emphasize that since Gonzales 21 numerous additional states have legalized the use of marijuana for medicinal or recreational 22 purposes. Id. at 19. 23 The Court recognizes that the state regulatory landscape has changed since Gonzales. 24 Nevertheless, marijuana cultivation remains illegal under federal law. As such, the Court agrees 25 with the reasoning of the other courts that have addressed this question and concludes that plaintiffs 26 do not have federally protected property interest in cultivating medical marijuana and thus that they 27 1 cannot state a claim under § 1983 for violation of their due process rights. Because plaintiffs’ due 2 process claim fails, the fourth cause of action for conspiracy also fails as a matter of law. See Avalos 3 v. Baca, 596 F.3d 583, 592 (9th Cir. 2010) (upholding dismissal of conspiracy claim where 4 underlying constitutional claim was denied). 5 Accordingly, the Court GRANTS defendants’ motions to dismiss the third and fourth causes 6 of action without leave to amend. 7 8 II. Equal Protection/Class of One 9 A. First Cause of Action Against the County 10 The FAC alleges that the County denied plaintiffs’ application for a permit to cultivate 11 medical cannabis for irrational, arbitrary and impermissible reasons in violation of the Equal 12 Protection Clause of the Fourteenth Amendment, and that plaintiffs “are the only AG40 applicants 13 denied a permit who met the necessary requirements under category (B)(3) of the Ordinance and 14 were approved for a permit by Diane Curry acting as the Interim Commissioner of the Department 15 of Agriculture and final decisionmaker for the County.” FAC ¶ 56. Plaintiffs also allege that the 16 December 4, 2018 amendment of the Ordinance “specifically targeted the Plaintiffs as the only 17 qualified applicants in an agricultural area prohibited from cultivating cannabis based on change in 18 zoning.” Id. ¶ 57. 19 Plaintiffs’ “equal protection claims do not require a constitutionally protected property 20 interest.” Hermosa on Metropole, LLC v. City of Avalon, 659 Fed. App’x 409, 411 (9th Cir. 2016) 21 (citing Outdoor Media Grp. v. City of Beaumont, 506 F.3d 895, 903 (9th Cir. 2007)); see also Kent, 22 411 F. Supp. 3d at 1124 (separately analyzing medical cannabis cultivator’s Due Process and Equal 23 Protection claims and noting that “Plaintiff’s only claim that does not specifically rely upon the 24 identification of a constitutionally protected property right is his Sixth COA for Equal Protection.”). 25 The Equal Protection Clause ensures that “all persons similarly situated should be treated alike.” 26 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “The Supreme Court has 27 recognized that ‘an equal protection claim can in some circumstances be sustained even if the 1 singled out as a so-called ‘class of one.’” Gerhart, 637 F.3d at 1021 (quoting Engquist v. Or. Dep’t 2 of Agric., 553 U.S. 591, 601 (2008)). 3 Defendants contend that plaintiffs have not stated a claim because the facts alleged in the 4 FAC demonstrate that plaintiffs did not qualify for a (B)(3) permit. Defendants argue that (B)(3) 5 applicants must satisfy the requirements of Paragraph (B)(1) of the ordinance, and that (B)(1) 6 requires evidence of both prior and existing cultivation at the “origin site.” Defendants assert that 7 the Court can infer from the FAC that plaintiffs only had evidence of prior cultivation at the Willits 8 site and that at the time they applied for the (B)(3) permit, they were no longer cultivating at the 9 Willits location. Thus, defendants argue, plaintiffs were not entitled to receive a (B)(3) permit and 10 there was a rational basis for the permit denial. With regard to the rezoning, defendants argue that 11 plaintiffs have not alleged that the County acted differently with regard to similarly situated 12 cultivators in other proposed “rezones.” 13 The Court concludes that as a pleading matter, plaintiffs have alleged enough facts to state 14 a claim. Plaintiffs allege that Interim Commissioner Curry determined that they satisfied the 15 requirements for a (B)(3) permit and that Curry was the final decisionmaker for the County with 16 regard to the interpretation and implementation of the Ordinance. Plaintiffs also allege that they 17 were the only AG40 applicants who met the (B)(3) requirements, as determined by Curry, who were 18 denied a permit, and that they were specifically targeted in the “opt-out” rezoning process. These 19 allegations are sufficient to state a claim that plaintiffs were intentionally treated differently than 20 other similarly situated permit applicants without a rational basis. See Gerhart, 637 F.3d at 1022- 21 24 (reversing summary judgment in favor of defendants on a class-of-one claim where plaintiff 22 presented evidence that he was treated differently than other property owners with regard to a permit 23 denial). The Court finds that the parties’ disputes regarding how MCC 10A.17.080(B)(1) and (B)(3) 24 should be interpreted and whether the County’s interpretation is entitled to Chevron deference are 25 not amenable to resolution on the present motions to dismiss.7 26 7 Defendants also assert that the entire action should be dismissed under the doctrine of ex 27 Turpi Causa Non Oritur Actio because Congress did not intend 42 U.S.C. § 1983 to allow a plaintiff 1 2 B. Second Cause of Action – Conspiracy 3 Defendant Anzilotti separately challenges the conspiracy allegations alleged against her in 4 the second cause of action. “To state a claim for conspiracy to violate constitutional rights, ‘the 5 plaintiff must state specific facts to support the existence of a claimed conspiracy.’” Olsen v. Idaho 6 State Bd. Of Medicine, 363 F.3d 916, 929 (9th Cir. 2004). A defendant’s knowledge of and 7 participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the 8 defendant’s actions. Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999). 9 The FAC alleges, inter alia, that (1) Anzilotti made a false report of water diversion on 10 plaintiffs’ property in order to thwart the approval of plaintiffs’ application to cultivate marijuana, 11 leading to a CDFW raid on plaintiffs’ property; (2) Anzilotti colluded with her neighbors and 12 conspired with McCowen, Brown, and Croskey to create an “opt-out” process under which 13 plaintiffs’ property was rezoned; (3) Anzilotti was politically connected to McCowen and Brown 14 and complained to them in private; and (4) plaintiff Gurr filed a complaint alleging that Anzilotti 15 used her position as an “unsworn administrator” with the Sheriff’s office to conduct personal 16 business to influence decisions by County officials and employees that would personally benefit 17 her. FAC ¶¶ 17, 31-32, 39-40, 45. The FAC also alleges, as part of the conspiracy allegations, that 18 Curry was told by Deputy County Counsel Matthew Kiedrowski that McCowen would never allow 19 plaintiffs’ permit to be approved and that after Curry approved plaintiffs’ permit, Kiedrowski 20 intervened and prevented Curry from delivering the permit to plaintiffs. Id. ¶¶ 41-44. 21 Anzilotti contends that the conspiracy allegations are conclusory and do not show an 22 agreement to engage in illegal conduct. Anzilotti also contends that even if plaintiffs have 23 sufficiently alleged a conspiracy, she is immune from liability under the Noerr-Pennington doctrine. 24 “Under the Noerr-Pennington doctrine, those who petition all departments of the government for 25 redress are generally immune from liability.” Empress LLC v. City and County of San Francisco, 26 419 F.3d 1052, 1056 (9th Cir. 2005). “Although the Noerr-Pennington doctrine originally 27 1 immunized individuals and entities from antitrust liability, Noerr-Pennington immunity now applies 2 to claims under § 1983 that are based on the petitioning of public authorities.” Id. 3 The Court agrees that the allegations against Anzilotti describe activities protected by the 4 Noerr-Pennington doctrine. Most of the acts described in the FAC involve Anzilotti petitioning 5 County officials and other government agencies to complain about plaintiffs’ marijuana cultivation 6 and efforts by her to have plaintiffs’ property rezoned to prohibit marijuana cultivation. Courts have 7 held similar activities to be immune from suit. In Empress LLC, hotel owners filed a § 1983 action 8 against the City of San Francisco, various city officials, and the director of a nonprofit housing 9 corporation, alleging that the city had unlawfully delegated zoning decisions to the nonprofit 10 director by taking official actions consistent with the director’s requests on zoning petitions affecting 11 San Francisco’s Tenderloin area. The hotel owners’ claims against the nonprofit director were based 12 upon a letter the director sent to the San Francisco Zoning Administrator requesting a zoning 13 determination and zoning enforcement, as well as a conversation between the director and the 14 Zoning Administrator. Id. at 1054, 1056. 15 The Ninth Circuit affirmed the dismissal of the claims against the nonprofit director, holding 16 the letter and conversation were protected petitioning activities. Id. The court rejected the argument 17 that the “sham exception” to the Noerr-Pennington doctrine applied: “The Patels’ complaint does 18 not allege that Shaw used government processes, as opposed to the outcome of those processes, as 19 a mechanism to injure the Patels, and that therefore his petitioning activity falls under the sham 20 exception to the Noerr-Pennington doctrine. As such, no matter what Shaw’s motives were, his 21 petitioning activity as alleged in the Patels’ complaint is immunized under the Noerr-Pennington 22 doctrine.” Id. at 1057. The court further noted, “there is no ‘conspiracy’ exception to the Noerr- 23 Pennington doctrine that applies when government officials conspire with a private party to employ 24 government action as a means of depriving other parties of their federal constitutional or statutory 25 rights.” Id. (citing City of Columbia v. Omni Outdoor Adver. Inc., 499 U.S. 365, 382-83 (1991)). 26 “In such circumstances, a remedy lies only against the conspiring government officials, not against 27 the private citizens.” Id. 1 in legitimate lobbying activities which would include attending public meetings and both publicly 2 and privately talking to officials.” Pls’ Opp’n at 15 (Dkt. No. 44). However, plaintiffs contend that 3 the immunity does not extend to the allegations that Anzilotti made the false allegation of water 4 diversion and that Anzilotti caused Kiedrowski to interfere with the permit process and prevented 5 plaintiffs from receiving the permit approved by Interim Commissioner Curry. 6 The Ninth Circuit has held similar allegations to be within the ambit of the Noerr-Pennington 7 doctrine. In Boone v. Redevelopment Agency of City of San Jose, 841 F.2d 886 (9th Cir. 1988), real 8 estate developers brought suit for antitrust and civil rights violations against a city’s redevelopment 9 agency, the city, and another real estate developer, Koll. The plaintiffs alleged, inter alia, that Koll 10 made “false reports and misrepresentations” to the city council with regard to a redevelopment plan. 11 The Ninth Circuit affirmed the dismissal of the claims against Koll based on Noerr-Pennington: 12 As pointed out by the Court in Noerr, attempts to influence public officials may occasionally result in “deception of the public, manufacture of bogus sources of 13 reference, [and] distortion of public sources of information. . . . While we do not condone misrepresentations, we trust that the council and agency, acting in the public 14 sphere, can “accommodate false statements and reveal their falsity” 15 Id. at 894 (internal citations omitted). Here, even if Anzilotti made a false report to CDFW about 16 water diversion, that report is petitioning activity protected by the Noerr-Pennington doctrine. 17 Further, the allegation that Anzilotti and CDFW agent Steve White “decided to use a false allegation 18 of water diversion as a pretext to obtain a warrant and seize the plaintiffs’ property” is conclusory 19 and devoid of specific facts showing that Anzilotti and White conspired against plaintiffs. FAC 20 ¶ 17. 21 Plaintiffs’ arguments regarding the allegations about Deputy County Counsel Kiedrowski 22 interfering with the permit process – insofar as those allegations relate to Anzilotti – fare no better. 23 As an initial matter, the FAC does not allege any direct connection between Anzilotti and 24 Kiedrowski’s actions. Instead, the FAC alleges that the conspiracy was initially formed between 25 Anzilotti and CDFW agent White, later “evolved to include members of the Board of Supervisors, 26 John McCowen and Carre Brown,” and that “McCowen recruited Assistant County Counsel 27 Matthew Kiedrowski to prevent the permit approved by Commissioner Curry from being delivered 1 with Kiedrowski’s actions. Moreover, even if one engaged in those inferences, the only activities 2 || Anzilotti is alleged to have engaged in consists of petitioning activities protected by the Noerr- 3 Pennington doctrine: complaining publicly and privately to McCowen, Brown, and other state and A || local agencies. See id. | 17, 40, 44-45.8 5 Accordingly, the Court GRANTS defendant Anzilotti’s motion to dismiss the FAC. 6 || Although the Court is skeptical that plaintiffs can state a claim against Anzilotti under section 1983, 7 the Court will grant one final opportunity to amend the second cause of action. 8 9 CONCLUSION 10 Accordingly, defendants’ motions to dismiss the FAC are GRANTED IN PART and 11 DENIED IN PART. The first cause of action may proceed. The second cause of action as alleged 12 against defendant Anzilotti is dismissed with leave to amend. The third and fourth causes of action 13 are dismissed without leave to amend. If plaintiffs wish to amend the second cause of action, they 14 || may do so no later than December 23, 2020.

a 16 IT IS SO ORDERED. San belie 18 Dated: December 13, 2020 SUSAN ILLSTON 19 United States District Judge 20 21 22 23 24 25 26 27 8 The FAC references the complaint Gurr filed against Anzilotti for allegedly misusing her 2g || “unsworn position” in the Sheriff's Office, but does not elaborate on that allegation or tie that allegation to the alleged conspiracy.