1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 HOWARD HERSHIPS, No. 2:25-cv-2953 DC AC (PS) 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 THE CITY OF RANCHO CORDOVA, et al., 14 Defendants. 15 16 17 Plaintiff paid the filing fee and is proceeding in this matter pro se; pre-trial proceedings 18 are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Plaintiff sues five 19 defendants, each of whom moves to dismiss. ECF No. 4 (motion by defendant HDL Companies 20 NC), No. 5 (motion by defendant The City of Rancho Cordova), No. 7 (motion by defendant 21 Rancho Cordova Tourist Board Corp. and defendant Rancho Cordova Travel, joined by HDL 22 Companies (ECF No. 29)), No. 10 (motion by defendant Meyers Nave). The motion by 23 defendant Meyers Nave includes an anti-SLAPP motion. ECF No. 10. Plaintiff opposes each 24 motion. ECF No. 26. Two reply briefs were filed. ECF No. 28, 30. Plaintiff filed two motions 25 for a temporary restraining order (ECF Nos. 13 and 23). 26 Because this court lacks subject matter jurisdiction to hear this case, the undersigned 27 recommends that defendants’ motions to dismiss addressing subject matter jurisdiction (ECF Nos. 28 4, 5, and 7) be GRANTED, and that the plaintiff’s motions and the motion by Meyers Nave (ECF 1 Nos. 10, 13, 23) be DENIED as MOOT. This case should be dismissed without prejudice and 2 without leave to amend. 3 I. Background 4 A. The Complaint 5 Plaintiff Howard Herships is a long-term resident at a hotel in Rancho Cordova, 6 California, and he brings this case to “stop the City of Rancho Cordova from collecting the TBID 7 Tax of 4.5% of the monthly rent plus $1.50 per night fee, which is collected by the hotel even 8 though Plaintiff has consecutively occupied the premises beyond the 30th day, which defendant 9 are prohibited under California Law as California Revenue and Tax Code § 7280(a) from 10 collecting these fees and taxes.” ECF No. 1 at 1. Plaintiff alleges that Rancho Cordova’s TBID 11 tax (or Tourism Business Improvement District assessment) is collected without a valid statutory 12 basis and accordingly is an “illegal taking” in violation of the Fifth and Fourteenth Amendments. 13 Id. at 2. Plaintiff further asserts that he is 81 years old, and accordingly the TBID tax, which is 14 prohibited by California tax law, constitutes “Financial Elder Abuse” under California law. Id. 15 Plaintiff has been forced to pay these taxes for over two years without legal or statutory 16 basis. Plaintiff alleges that the tax violates the 14th Amendment’s Equal Protection Clause 17 because tenants in Rancho Cordova who have tenancy in rental apartments rather than hotels do 18 not have to pay the taxes. Id. Plaintiff sues Meyers Nave, which serves as the attorneys of record 19 for the City of Rancho Cordova. Id. at 4. Plaintiff asserts that Meyers Nave implemented and 20 advised the City regarding the TBID tax, even though they knew it was illegal. Id. Plaintiff 21 alleges defendants Rancho Cordova Travel and the Rancho Cordova Tourist Board collect 22 approximately 2.4 million dollars annually from the illegal tax. Id. Defendant HDL Companies 23 specializes in the collection of taxes in California and at all times knew that the TBID Tax is 24 limited to short term rentals and that California law prohibited its collection on tenants beyond 30 25 days of tenancy. Id. at 5. Defendants have refused to refund plaintiff for his paid TBID taxes. 26 Id. 27 B. Pending Motions 28 Defendants move to dismiss on several grounds, although some bases for dismissal are 1 raised in multiple motions: (1) there is no federal cause of action (and accordingly, no 2 jurisdiction) because plaintiff’s purported federal claims are state law claims couched as 3 constitutional violations; (2) TBID taxes, which have been levied since 2021, are paid by hotels 4 themselves and not hotel guests, and accordingly plaintiff lacks standing to bring this suit; and (3) 5 California Revenue and Tax Code § 7280 does not apply to TBID assessments on hotels. See, 6 ECF No. 4 at 12-15; ECF No. 7 at 17. The City of Rancho Cordova’s motion further asserts that 7 this case is barred by the Tax Injunction Act. ECF No. 5-1 at 3. 8 Defendant Meyers Nave, a law firm, moves to dismiss on the merits for failure to state a 9 claim and within that motion, brings a special motion to strike under California’s anti-SLAPP 10 statute, seeking $15,985.00 in attorneys’ fees from plaintiff. ECF No. 10 at 12. 11 Plaintiff filed two motions for a temporary restraining order, preventing the collection of 12 the TBID tax. ECF Nos. 13 and 23. 13 II. Analysis 14 A. This Court Lacks Subject Matter Jurisdiction 15 Defendants HDL, Rancho Cordova Travel, the City of Ranco Cordova, and the Rancho 16 Cordova Tourist Board move to dismiss for lack subject matter jurisdiction pursuant to Fed. R. 17 Civ. P. 12(b)(1). ECF Nos. 4 at 2, 5-1 at 1, and 7 at 2. Federal Rule of Civil Procedure 12(b)(1) 18 allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the 19 subject matter of an entire action or of specific claims alleged in the action. When a party brings 20 a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction 21 contained in the complaint are insufficient on their face to demonstrate the existence of 22 jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 23 12(b)(1) motion of this type, the factual allegations of the complaint are presumed to be true, and 24 the motion is granted only if the plaintiff fails to allege an element necessary for subject matter 25 jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th 26 Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). 27 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 28 Am., 511 U.S. 375, 377 (1994). In 28 U.S.C. §§ 1331 and 1332(a), “Congress granted federal 1 courts jurisdiction over two general types of cases: cases that “aris[e] under” federal law, § 1331, 2 and cases in which the amount in controversy exceeds $ 75,000 and there is diversity of 3 citizenship among the parties, § 1332(a). The “presence or absence of federal question 4 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal 5 jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly 6 pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). If a federal court lacks 7 subject matter jurisdiction, the action must be dismissed. Fed. R. Civ. P. 12(h)(3). 8 Plaintiff attempts to invoke federal question jurisdiction by asserting constitutional claims. 9 However, it is very clear from the allegations that each of plaintiff’s purported constitutional 10 claims hinge on plaintiff’s contention that one local tax (the “TBID tax”) violates California’s tax 11 law (Cal. Rev. & Tax Code § 7280 (a)).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 HOWARD HERSHIPS, No. 2:25-cv-2953 DC AC (PS) 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 THE CITY OF RANCHO CORDOVA, et al., 14 Defendants. 15 16 17 Plaintiff paid the filing fee and is proceeding in this matter pro se; pre-trial proceedings 18 are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Plaintiff sues five 19 defendants, each of whom moves to dismiss. ECF No. 4 (motion by defendant HDL Companies 20 NC), No. 5 (motion by defendant The City of Rancho Cordova), No. 7 (motion by defendant 21 Rancho Cordova Tourist Board Corp. and defendant Rancho Cordova Travel, joined by HDL 22 Companies (ECF No. 29)), No. 10 (motion by defendant Meyers Nave). The motion by 23 defendant Meyers Nave includes an anti-SLAPP motion. ECF No. 10. Plaintiff opposes each 24 motion. ECF No. 26. Two reply briefs were filed. ECF No. 28, 30. Plaintiff filed two motions 25 for a temporary restraining order (ECF Nos. 13 and 23). 26 Because this court lacks subject matter jurisdiction to hear this case, the undersigned 27 recommends that defendants’ motions to dismiss addressing subject matter jurisdiction (ECF Nos. 28 4, 5, and 7) be GRANTED, and that the plaintiff’s motions and the motion by Meyers Nave (ECF 1 Nos. 10, 13, 23) be DENIED as MOOT. This case should be dismissed without prejudice and 2 without leave to amend. 3 I. Background 4 A. The Complaint 5 Plaintiff Howard Herships is a long-term resident at a hotel in Rancho Cordova, 6 California, and he brings this case to “stop the City of Rancho Cordova from collecting the TBID 7 Tax of 4.5% of the monthly rent plus $1.50 per night fee, which is collected by the hotel even 8 though Plaintiff has consecutively occupied the premises beyond the 30th day, which defendant 9 are prohibited under California Law as California Revenue and Tax Code § 7280(a) from 10 collecting these fees and taxes.” ECF No. 1 at 1. Plaintiff alleges that Rancho Cordova’s TBID 11 tax (or Tourism Business Improvement District assessment) is collected without a valid statutory 12 basis and accordingly is an “illegal taking” in violation of the Fifth and Fourteenth Amendments. 13 Id. at 2. Plaintiff further asserts that he is 81 years old, and accordingly the TBID tax, which is 14 prohibited by California tax law, constitutes “Financial Elder Abuse” under California law. Id. 15 Plaintiff has been forced to pay these taxes for over two years without legal or statutory 16 basis. Plaintiff alleges that the tax violates the 14th Amendment’s Equal Protection Clause 17 because tenants in Rancho Cordova who have tenancy in rental apartments rather than hotels do 18 not have to pay the taxes. Id. Plaintiff sues Meyers Nave, which serves as the attorneys of record 19 for the City of Rancho Cordova. Id. at 4. Plaintiff asserts that Meyers Nave implemented and 20 advised the City regarding the TBID tax, even though they knew it was illegal. Id. Plaintiff 21 alleges defendants Rancho Cordova Travel and the Rancho Cordova Tourist Board collect 22 approximately 2.4 million dollars annually from the illegal tax. Id. Defendant HDL Companies 23 specializes in the collection of taxes in California and at all times knew that the TBID Tax is 24 limited to short term rentals and that California law prohibited its collection on tenants beyond 30 25 days of tenancy. Id. at 5. Defendants have refused to refund plaintiff for his paid TBID taxes. 26 Id. 27 B. Pending Motions 28 Defendants move to dismiss on several grounds, although some bases for dismissal are 1 raised in multiple motions: (1) there is no federal cause of action (and accordingly, no 2 jurisdiction) because plaintiff’s purported federal claims are state law claims couched as 3 constitutional violations; (2) TBID taxes, which have been levied since 2021, are paid by hotels 4 themselves and not hotel guests, and accordingly plaintiff lacks standing to bring this suit; and (3) 5 California Revenue and Tax Code § 7280 does not apply to TBID assessments on hotels. See, 6 ECF No. 4 at 12-15; ECF No. 7 at 17. The City of Rancho Cordova’s motion further asserts that 7 this case is barred by the Tax Injunction Act. ECF No. 5-1 at 3. 8 Defendant Meyers Nave, a law firm, moves to dismiss on the merits for failure to state a 9 claim and within that motion, brings a special motion to strike under California’s anti-SLAPP 10 statute, seeking $15,985.00 in attorneys’ fees from plaintiff. ECF No. 10 at 12. 11 Plaintiff filed two motions for a temporary restraining order, preventing the collection of 12 the TBID tax. ECF Nos. 13 and 23. 13 II. Analysis 14 A. This Court Lacks Subject Matter Jurisdiction 15 Defendants HDL, Rancho Cordova Travel, the City of Ranco Cordova, and the Rancho 16 Cordova Tourist Board move to dismiss for lack subject matter jurisdiction pursuant to Fed. R. 17 Civ. P. 12(b)(1). ECF Nos. 4 at 2, 5-1 at 1, and 7 at 2. Federal Rule of Civil Procedure 12(b)(1) 18 allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the 19 subject matter of an entire action or of specific claims alleged in the action. When a party brings 20 a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction 21 contained in the complaint are insufficient on their face to demonstrate the existence of 22 jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 23 12(b)(1) motion of this type, the factual allegations of the complaint are presumed to be true, and 24 the motion is granted only if the plaintiff fails to allege an element necessary for subject matter 25 jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th 26 Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). 27 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 28 Am., 511 U.S. 375, 377 (1994). In 28 U.S.C. §§ 1331 and 1332(a), “Congress granted federal 1 courts jurisdiction over two general types of cases: cases that “aris[e] under” federal law, § 1331, 2 and cases in which the amount in controversy exceeds $ 75,000 and there is diversity of 3 citizenship among the parties, § 1332(a). The “presence or absence of federal question 4 jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal 5 jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly 6 pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). If a federal court lacks 7 subject matter jurisdiction, the action must be dismissed. Fed. R. Civ. P. 12(h)(3). 8 Plaintiff attempts to invoke federal question jurisdiction by asserting constitutional claims. 9 However, it is very clear from the allegations that each of plaintiff’s purported constitutional 10 claims hinge on plaintiff’s contention that one local tax (the “TBID tax”) violates California’s tax 11 law (Cal. Rev. & Tax Code § 7280 (a)). It is well settled that a litigant cannot “transform a state- 12 law issue into a federal one merely by asserting a [constitutional] violation.” Langford v. Day, 13 110 F.3d 1380, 1389 (9th Cir. 1996); Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th 14 Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate a violation of federal law, not state 15 law.”); Mitchel v. City of Santa Rosa, 695 F. Supp. 2d 1001, 1006 (N.D. Cal. 2010), aff’d in part, 16 476 F. App'x 661 (9th Cir. 2011) (“a claim cannot be stated under Section 1983 for a violation of 17 state or local law.”). 18 Each of plaintiff’s claims under §1983 is very clearly premised on an alleged violation of 19 state law. Plaintiff alleges that because the TBID tax is collected “without a valid statutory basis” 20 it constitutes an “illegal taking” and/or due process violation of under the Fifth and Fourteenth 21 Amendments. ECF No. 1 at 2. Plaintiff specifically links the alleged constitutional violation to 22 California state law, asserting that the TBID tax “constitutes an ‘illegally taking’ of plaintiff’s 23 money which is prohibited by California Rev & Tax Code § 7280(a)[.]” Id. Plaintiff’s allegation 24 that defendants violated the Equal Protection Clause of the 14th Amendment is likewise rooted in 25 his belief that the TBID tax violates state law. For example, he supports his claim by asserting 26 defendants deprived him “’Equal Protection of the Laws’ in that Plaintiff on the 30th day had 27 residency status which provides no taxes or fees can be assessed by the City of Rancho Cordova, 28 which is mandated by California Law to wit § 7280(a) of the California Revenue and Tax Code. 1 Defendants . . . are violating Plaintiff’s Equal Protection Rights as other rental tenants in Rancho 2 Cordova do not pay this tax.” Id. at 7. 3 To the extent plaintiff asserts that equal protection is violated because defendants are 4 discriminating between renters in long-term stay hotels and renters in more traditional rental 5 dwellings such as apartments buildings, the claim is without legal basis. See Steel Co. v. Citizens 6 for a Better Environment, 523 U.S. 83, 89 (1998) (holding federal courts lack subject matter 7 jurisdiction to consider claims that are “so insubstantial, implausible, foreclosed by prior 8 decisions of this court, or otherwise completely devoid of merit as not to involve a federal 9 controversy.”). When local economic regulations are challenged as violating the equal protection 10 clause, “it is only the invidious discrimination, the wholly arbitrary act, which cannot stand 11 consistently with the Fourteenth Amendment.” City of New Orleans v. Dukes, 427 U.S. 297, 12 303–04, (1976). Plaintiff’s Fourteenth Amendment equal protection claim is frivolous because it 13 is not based on plaintiff’s membership in a protected class or treatment different than that 14 afforded similarly situated individuals. See Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 15 2006) (plaintiffs claiming an equal protection violation must identify specific instances where 16 persons situated similarly in all relevant aspects were treated differently). Traditional renters and 17 long-term hotel tenants are not similarly situated, and to the extent plaintiff contends that the 18 TIBD tax targets indigent persons, the law is clear that indigent persons are not a suspect class. 19 Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999). 20 All of plaintiff’s constitutional claims are re-packaged allegations that the TBID tax exists 21 in violation of California state law, and to the extent they invoke federal specific constitutional 22 principles they are legally frivolous. Even assuming that the TBID tax does violate California 23 law, a violation of state law is not the same thing as a violation of the U.S. Constitution. A claim 24 that a state law has been violated cannot be turned into a federal question simply by stating that 25 the violation amounts to a violation of the U.S. Constitution. Plaintiff’s case falls squarely within 26 the strong line of authority prohibiting federal courts from asserting jurisdiction over state law 27 claims rhetorically framed as federal constitutional claims. See Langford, 110 F.3d at 1389. 28 Accordingly, the motions to dismiss must be granted and this case be dismissed without prejudice 1 for lack of subject matter jurisdiction. Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th 2 Cir. 2017) (“In general, dismissal for lack of subject matter jurisdiction is without prejudice.”). 3 B. Motion to Dismiss State Law Claim and Anti-SLAPP Motion to Strike 4 The law firm defendant Meyers Nave brings a motion to dismiss for failure to state a 5 claim upon which relief can be granted, and a special motion to strike pursuant to California Code 6 of Civil Procedure § 425.16 (Anti-SLAPP), asking this court to order plaintiff to pay $15,985 in 7 attorneys’ fees. ECF No. 10 at 2. California’s anti-SLAPP statute protects against “strategic 8 lawsuits against public participation;” that is, “lawsuits brought primarily to chill’ the exercise of 9 speech and petition rights.” FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (2019) 10 (quoting Cal. Civ. Proc. Code § 425.16(a)). The anti-SLAPP statute provides that “a prevailing 11 defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and 12 costs.” Cal. Civ. Code § 425.16(c). “[A] federal court can only entertain anti-SLAPP special 13 motions to strike in connection with state law claims.” Hilton v. Hallmark Cards, 599 F.3d 894, 14 900-01 (9th Cir. 2010). 15 As stated above, the court lacks subject matter jurisdiction over the case. Accordingly, the 16 motion to dismiss for failure to state a claim is moot. Further, “[a] court that lacks jurisdiction at 17 the outset of a case lacks the authority to award attorneys’ fees.” Skaff v. Meridien N. Am. 18 Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir. 2007). The court does not have jurisdiction to 19 rule on Meyers Nave’s motion to dismiss or its anti-SLAPP motion. See Thrower v. Wells Fargo 20 Bank, NA, No. 24-cv-05047-DMR, 2025 WL 1359123, at *6 (N.D. Cal. May 9, 2025). The 21 motion accordingly must be DENIED as MOOT. 22 C. Plaintiff’s Motions 23 Because the court lacks subject matter jurisdiction over this case, plaintiff’ motions for 24 temporary restraining orders (ECF No. 13, 23) should be DENIED as MOOT. 25 III. Leave to Amend Is Not Appropriate 26 Considering the contents of the complaint and the court’s lack of subject matter 27 jurisdiction over the gravamen of the dispute, leave to amend is not appropriate. A plaintiff 28 appearing in pro se should generally be given leave to amend, unless it is clear that amendment 1 would be futile. Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). Here, it is clear that 2 amendment is futile and leave to amend is therefore inappropriate. “Subject matter jurisdiction 3 must exist as of the time the action is commenced.” Morongo Band of Mission Indians v. Cal. 4 State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). “If jurisdiction is lacking at the 5 outset, the district court has no power to do anything with the case except dismiss.” Id. (cleaned 6 up). Because it is clear that this court lacks subject matter jurisdiction, dismissal without leave to 7 amend is appropriate. 8 IV. Pro Se Plaintiff’s Summary 9 The Magistrate Judge is recommending that this case be dismissed because there is no 10 federal subject matter jurisdiction. A violation of state law is not the same thing as a violation of 11 the U.S. Constitution, and you cannot turn a state law claim into a federal claim by saying that the 12 violation of a state law violates your constitutional rights. These claims can only be heard in state 13 court. Because there is no subject matter jurisdiction, the Magistrate Judge is also recommending 14 that the court deny your motions for a temporary restraining order and Meyers Nave’s motion 15 asking the court to order you to pay them over $15,000.00 in attorney’s fees for filing this case. 16 If you disagree with these recommendations, you have 21 days to file objections. The District 17 Judge will make the final decision. 18 V. Conclusion 19 Accordingly, the undersigned recommends as follows: 20 1. That the motions to dismiss at ECF Nos. 4, 5, and 7 be GRANTED; 21 2. The motions at ECF No. 10, 13, and 23 be DENIED as MOOT; and 22 3. That the this be DISMISSED in its entirety, without prejudice, for lack of jurisdiction, and 23 the case closed. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 28 document should be captioned “Objections to Magistrate Judge’s Findings and 1 | Recommendations.” Failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 3 || v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 | DATED: January 5, 2026 ~
ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28