(PS) Olson v. Slote

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 KIMBERLY R. OLSON, No. 2:16-CV-0956-DC-DMC 12 Plaintiff, ORDER 13 v. and 14 PARTICIA SLOTE, et al., AMENDED FINDINGS AND RECOMMENDATIONS 15 Defendants. — 16 — 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court is Plaintiff’s second amended complaint, ECF No. 18. 19 The Court is required to screen complaints brought by litigants who, as here, have 20 been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915 (e)(2). Under this 21 screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915 (e)(2)(A), (B). 24 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an 25 action if the Court determines that it lacks subject matter jurisdiction. Pursuant to Rule 12(h)(3), 26 the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. 27 / / / 28 / / / 1 I. PLAINTIFF’S ALLEGATIONS 2 Plaintiffs Kimberly R. Olson initiated this action filed on May 5, 2016. See ECF 3 No. 1. Plaintiff is a resident of Hornbrook, Siskiyou County, California. See EFC No. 18, pg. 6. 4 Plaintiff was provided leave to amend and filed the first amended complaint on December 26, 5 2017. See ECF No. 7. Plaintiff was once again provided leave to amend and filed the operative 6 second amended complaint on January 19, 2023. See EFC No. 18. Plaintiff now names the 7 following defendants: (1) Patricia Slote; (2) Melissa Peterson (a.k.a. Melissa Tulledo); (3) Robert 8 Puckett Sr.; (4) Julie Bowles; (5) Clint Dingman; (6) Ernest; (7) Hornbrook Community Services 9 District (HCSD); (8) Steven Crittenden; (9) Hornbrook Community Bible Church Inc. (HCBC); 10 (10) Peter Kampa, and (11) John Does 3 through 20. See id. at 1-6 . Plaintiff no longer names Lee 11 Buckley, Robert Winston, and Kirsher, Winston & Boston, L.L.C. as defendants, who were listed 12 in the original complaint and the first amended complaint, nor Kevin Dixon, who was previously 13 listed in the first amended complaint. 14 Plaintiff alleges that Defendant Goff, as the Chief Operator of the water facilities 15 of the HCSD, had statutory duties to regularly inspect, oversee, and directly control day-to-day 16 operations of the water treatment plant and distribution system. See ECF No. 18, pg. 4. 17 According to Plaintiff, Defendant Goff was rarely present at the HCSD’s facilities and falsely 18 represented to the State Water Resources Control Board (SWRCB) that he had been fulfilling his 19 duties when Defendant Dingman, who lacked the proper state certifications, performed those 20 duties. See id. 21 Plaintiff claims that despite failing to obtain and maintain the required water 22 treatment certification, Dingman engaged in water treatment activities for the HCSD every day, 23 violating state and federal laws and regulations. See id. at 11 . Plaintiff claims that, knowing that 24 Dingman had no certification, HCSD, Slote, Puckett, Peterson, Bowles, Goff, and Kampa agreed 25 to cooperate on a scheme to have Dingman illegally undertake, and be paid for, those water 26 treatment-related duties. See id. Plaintiff alleges that Dingman was unlawfully contracted and 27 paid to perform treatment operations at HCSD facilities. See id. 28 / / / 1 Plaintiff claims that chlorine was improperly added to the water supply on dozens 2 of occasions to the point of toxicity causing Plaintiff discomfort; injury and death to her food 3 crops, trees, shrubs, soil biota, livestock, and landscaping; and destruction of equipment. See id. — 4 — 4 and 5. Plaintiff claims that these harms were aggravated by the failure of Goff, Dingman, HCSD 5 and its Officers to alert the public regarding toxic chlorine levels that exceeded 4.0 mg/L, as 6 required by law. See id. at 5 . Plaintiff enlisted the aid of a Certified Water Treatment and 7 Distribution Operator to test her water on multiple occasions, finding concentrations of chlorine 8 in the water at times exceeding 8.0 mg/L and sometimes with no chlorine present at all. See id. at 9 12 n. 34. Plaintiff claims that she notified the HCSD, its officers, and employees both in writing 10 and in-person of the illegality of this conduct without any response. See id. at 12 . Plaintiff 11 believes that each Board member, the HCSD, Kampa, and Goff knowingly permitted these events 12 and recklessly disregarded any potential harm to the public and the Plaintiff. See id. 13 Plaintiff believes that Goff resigned from his position due to disciplinary action 14 taken by SWRCB, which stripped him of his Water Treatment Operator certification. See id. at 5 . 15 Specifically, Plaintiff believes that Goff was “renting out” his certification to water districts 16 throughout the state and failing to perform his duties as “Chief Operator” while representing 17 himself as such. See id. 18 According to Plaintiff, Defendant Hornbrook Community Bible Church, Inc. 19 (HCBC) was a commercial customer receiving water service from HCSD at a rate of $225.00 per 20 month. See id. at 5 . In addition to the church building, the HCBC has a residence on the same 21 parcel of land in the form of a detached parsonage – the home of the Minister and his family. See — 22 — id. According to Plaintiff, HCBC should have been charged $270.00 per month for water usage 23 plus any charges incurred for water used over 15,000 gallons. See id. Plaintiff claims that from 24 December 5, 2015, to November 29, 2017, HCSD, Slote, Puckett, Peterson, and Bowles reduced 25 the total charge to a single fee of $39.00 per month, in effect granting “gifts” of public funds each 26 month. See id. at 5 and 6. 27 / / / 28 / / / 1 Plaintiff claims that Crittenden and HCBC engaged in improper, ex parte contacts 2 with HCSD, Slote, Puckett, Dingman, and Bowles outside of public Board meetings to arrange 3 this “gift” of public funds. See id. at 6 . Plaintiff asserts that Crittenden sought similar “gifts” for 4 himself by arranging for reduced and/or waived fees for his home. See id. According to Plaintiff, 5 this reduced what should have been a $110.00 per month charge to $78.00 per month. See id. 6 Plaintiff claims that she was denied reasonable accommodations under Title II of 7 the Americans Disabilities Act (ADA) by the HCSD, its Officers, agents, and employees. See id. 8 at 7. According to Plaintiff, she is a disabled person as defined by State and Federal laws due to 9 significant mobility impairments. See id. Plaintiff repeatedly requested individual Officers and 10 Board members to timely provide meeting agendas and materials in an alternative format because 11 Plaintiff’s limited mobility made it difficult to access the local bulletin board in-person where 12 information was posted. See id. Plaintiff claims that she made requests to individual Officers and 13 the Board both in person at public meetings and in writing for the opportunity to access public 14 records, kept at HCSD’s various facilities, concerning water production and use/maintenance of 15 the wells and treatment plant, but all requests were denied or ignored. See id. Plaintiff asserts that 16 other non-disabled persons were permitted access to the records and facilities. See id. at 7 and 23. 17 Plaintiff claims that these actions were done by the HCSD, Slote, Puckett, Peterson, Goff, 18 Bowles, and Dingman maliciously in retaliation for Plaintiff’s pending complaints and assistance 19 to others for making complaints to State and Federal agencies. See id. at 22-23 . 20 Plaintiff alleges that in 2014, Dingman became homeless and started spending 21 more time at the HCSD’s water treatment facility, collecting junk, non-operative vehicles, and 22 personal items that he stored in or around the facility. See id. 13 . According to Plaintiff, 23 Dingman resided at the water treatment facility without paying from December 2015 through 24 November 2017. See id. Even though the HCSD received several complaints concerning the 25 situation, the Board Defendants and Kampa approved of Dingman residing there. See id. 26 According to Plaintiff, Kampa lied to the Department of Industrial Relations (“DIR”) about 27 Dingman living in the water treatment facility while encouraging Dingman to provide a false 28 address to the DIR to prevent further investigation. See id. 1 Plaintiff further alleges that Puckett, Slote, and Peterson granted Dingman 2 permission to move a travel trailer and various vehicles onto the treatment facility property and 3 attempted to designate him as a “caretaker” to allow him to use HCSD utilities and occupy the 4 treatment facility for free. See id. According to Plaintiff, Dingman’s occupation and use of the 5 industrial heater, hot-plates, refrigerators, microwaves, television, and other utilities caused the 6 power bill to increase, costing HCSD thousands of dollars more per year to operate. See id. at 14 . 7 Plaintiff claims that there was no rational or reasonable purpose for Dingman’s occupation nor is 8 there evidence that would support a legitimate purpose. See id. 9 Plaintiff claims that Defendant Slote breached HCSD’s employment contract with 10 Dingman by overpaying him, permitting him to be paid for illegal duties relating to water 11 treatment, and allowing him to reside at the water treatment facility. See id. at 15 . Plaintiff 12 further alleges that Slote entered into a contract with Dingman on behalf of HCSD, without any 13 authorization from the Board, for “past-due wages” and a "release of all claims” held against the 14 district in exchange for several thousand dollars, authorizing Bowles to pay him out. See id. 15 Plaintiff alleges that Slote submitted false requests for payments, including back-payments, and 16 increased Dingmans pay to $15.00 an hour. See id. 17 Plaintiff alleges that both Slote and Bowles approved paychecks and timesheets for 18 Dingman paying him $15.00 per hour and including extra hours worked per month over the limit 19 imposed by Dingman’s contract of 35 hours. See id. Plaintiff claims that all excess hours were 20 approved by Slote and paid out by Bowles without prior Board approval. See id. Additionally, 21 Plaintiff claims that Dingman also reported time on his timesheet that he didn’t work, charging 22 the HCSD at least one extra hour per day. See id. 23 Plaintiff alleges that beginning December 5, 2015, and continuing through 24 November 29, 2017, the HCSD, Slote, Puckett, Peterson, Bowles, and Dingman “jointly acted” to 25 waive various fees and charges to certain HCSD customers, to improperly assess fees, charges, 26 and assessments to certain HCSD customers, reclassify some customers, and change residential 27 water rates without voter approval required by the Bylaws. Id. at 18 . Plaintiff claims that the 28 actions by those Defendants interfered with Plaintiff’s voting rights and the rights of other 1 electors in the district. See id. at 18 and 19. Furthermore, Plaintiff claims that the actions of those 2 Defendants disenfranchised Plaintiff and other electors of the district, doing so without notice, or 3 opportunity to be heard, and violating her Due Process rights. See id. at 19 . In support of this 4 claim, Plaintiff attaches Resolution #14-025 which shows Plaintiffs’ signature. See id. at 30 . 5 Plaintiff claims that Defendants HCSD, Slote, Puckett, Peterson, Goff, Bowles, and Dingman 6 denied her right to vote maliciously in retaliation for Plaintiff’s pending complaints and assistance 7 to others for making complaints to State and Federal agencies. See id. at 22-23 . 8 According to Plaintiff, on April 18, 2014, the Board adopted Resolution #14-025, 9 which lowered the rate per gallon for residential water service by increasing the monthly base 10 allotment from 12,000 gallons to 15,000 gallons and charging $45.00 monthly fee instead of 11 $39.00 monthly fee set forth in the Bylaws at 1-5.010. See id. Plaintiff claims that beginning 12 December 5, 2015, and continuing through March 31,2016, Defendants Slote, Puckett, Peterson, 13 Bowles, and later Kampa, imposed and collected from everyone in the district for residential 14 water service at a rate of $39.00 per month, while charging the Plaintiff more. See id. Plaintiff 15 believes that the discriminatory billing was only imposed on her in retaliation for her legal actions 16 and enforcement complaints against the HCSD and its Officers. See id. at 20 . 17 Plaintiff claims that beginning December 16, 2015, she regularly requested access 18 to HCSD records, and for copies of documents and records. See id. at 20 . Defendant Slote 19 permitted access to some HCSD records but refused access to other relevant records See id. 20 Plaintiff made California Public Records Act (CPRA) requests by letter, email, and verbally. See — 21 — id. Plaintiff claims that insufficient responses to her CPRA requests were made by HCSD, Slote, 22 Puckett, Peterson, Kampa, Bowles, Goff, Dingman. See id. Plaintiff claims that those Defendants 23 repeatedly denied access to and/or production of public records, as well as opportunity for 24 physical record inspection during regular business hours, despite multiple inquiries. See id. 25 Additionally, Plaintiff claims that HCSD, Slote, Puckett, Peterson, Kampa, Bowles, Goff, and 26 Dingman violated the CPRA by failing to provide written determinations regarding each of 27 Plaintiff’s requests within 10 days and explanation of documents claimed to be exempt from 28 disclosure. See id. 1 According to Plaintiff the HCSD, Slote, Puckett, Peterson, Kampa, Dingman, and 2 Goff each knew that HCSD’s Well #3 was unusable for domestic water due to high levels of toxic 3 Boron and salts. See id. at 21 . Plaintiff claims that the water from the well flows into Rancheria 4 Creek (located near Plaintiff’s house) feeding into the Klamath River without a permit from the 5 EPA, and thus violating the Clean Water Act. See id. Plaintiff claims that the release of toxic 6 water from the well, poisons plants, amphibians, fish, insects, and birds. See id. 7 Based on these allegations, Plaintiff asserts six federal claims as follows: 8 Count I Deprivation of Rights as Granted by the HCSD Bylaws, and without Due Process — 9 — Count II Violation of Clear Water Act — 10 — Count III Violation of Safe Water Drinking Act — 11 — Count IV Unlawful Retaliation for Exercise of Constitutional Rights — 12 — Count V Conspiracy; Deprivation of Equal Protections; 42 USC §1985 (3), 13 §1986 14 Count VI ADA Violations as to HCSD, Puckett, Slote, Peterson, Dingman, and Kampa — 15 — ECF No. 18, pgs. 21-23 — 16 — Plaintiff also asserts state claims as follows: — 17 — Count I Negligence by HCSD, Puckett, Slote, Peterson, Goff, Dingman, 18 and Kampa 19 Count II Diversion of, and Gifts of, Public Funds as to Michelle Hanson 20 Count III Gifts, and Waste of, Public Funds as to John Does 21 Count IV Failure to Impose, Standby, Availability Fee; Fiduciary Duty 22 Count V Breach of Fiduciary Duty, HCSD Bylaws – General 23 Count VI Nuisance 24 Count VII Negligent Infliction of Emotional Distress 25 Count VIII Violation of the CPRA as a Waste of Public Funds 26 Count IX Gifts of Public Funds to HCBC and Crittenden 27 Count X Gifts of Public Funds to Dingman; Unlawful Use of HCSD Facility 28 See id. at 24-28. 1 II. DISCUSSION 2 A. Federal Claims 3 Plaintiff’s second amended complaint, ECF No. 18, provides sufficient facts for 4 the following federal claims to proceed: Clean Water Act, Safe Drinking Water Act, Retaliation, 5 Conspiracy and Deprivation of Equal Protections ( 42 USC §1985 (3) and §1986), and Americans 6 with Disabilities Act. However, Plaintiff fails to state a claim upon which relief can be granted for 7 Due Process because, as discussed below, Plaintiff’s own admission negates an essential element 8 of such a claim. Thus, this Court will recommend that the due process claim be dismissed while 9 the other claims proceed. 10 1. Due Process 11 In order to state a claim of deprivation of due process, a plaintiff must allege both 12 the existence of a liberty or property interest and that said liberty or interest was deprived without 13 the requisite process. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents v. Roth, — 14 — 408 U.S. 564, 569 (1972). Plaintiff asserts that her due process rights were violated with the 15 passing of Resolution #14-025 because “Defendants did so without notice . . . [and] opportunity 16 to be heard.” See ECF No. 18, pg. 21. However, Plaintiff attaches Resolution #14-025 to the 17 complaint, showing that Plaintiff signed the resolution on the date of its’ passing. See id. at 30. 18 By Plaintiff’s own admission, she was present, had the opportunity to be heard, and even signed 19 off on the adoption of the bylaw. Thus, Plaintiff is unable to make a due process claim arising 20 from Resolution #14-025. Given this, the Court will recommend that claim be dismissed. 21 2. Clean Water Act 22 The Clean Water Act provides a cause of action for citizens to bring a private suit 23 against alleged violators of the Act after specific notice is given to the alleged violator. See 33 24 U.S.C. § 1365 (a), (b). Here, Plaintiff claims that Defendants HCSD, Slote, Puckett, Peterson, 25 Kampa, Dingman, and Goff violated the Clean Water Act by knowingly allowing HCSD’s Well 26 #3, which contained high levels of toxins, to flow into Rancheria Creek. See ECF No. 18, pgs. 2127 22. Plaintiff asserts that she provided the requisite notice and Defendants failed to remedy the 28 issue. See id. at 7 . Therefore, this claim should proceed. 1 3. Safe Drinking Water Act (SDWA) 2 The Safe Drinking Water Act (SDWA) provides a private cause of action for 3 citizens to bring a suit against alleged violators of the Act after specific notice is given to the 4 alleged violator. See 42 U.S.C. § 300j-8. According to Plaintiff, Defendant Dingman operated 5 water treatment facilities without the required certifications and “illegally and improperly add[ed] 6 chlorine” to the water in violation of the SDWA. See ECF No. 18, pg. 22. Plaintiff claims that 7 Defendants HCSD, Slote, Puckett, Peterson, Goff, and Kampa knowingly agreed to allow 8 Dingman to do so, thus violating SDWA. See id. Plaintiff asserts that she provided the requisite 9 notice and Defendants failed to remedy the issue. See id. at 7. Therefore, this claim should 10 proceed. 11 4. Retaliation 12 To state a First Amendment retaliation claim, a plaintiff must plausibly allege “that 13 (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill 14 a person of ordinary firmness from continuing to engage in the protected activity, and (3) the 15 protected activity was a substantial or motivating factor in the defendant’s conduct.” O’Brien v. 16 Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 17 755, 770 (9th Cir. 2006)). 18 Plaintiff contends that Defendants HCSD, Slote, Puckett, Peterson, Goff, Bowles, 19 and Dingman charged Plaintiff more for water, prevented Plaintiff from accessing public records, 20 and did not allow Plaintiff to vote on “certain HCSD administrative changes or Board actions.” 21 ECF No. 18, pg. 23. According to Plaintiff, these actions were taken in retaliation for her 22 “‘Brown Act Lawsuits’; complaints, and assistance to others making complaints to State and 23 Federal enforcement agencies.” Id. at 22 . Therefore, this claim should proceed. 24 5. Conspiracy; Deprivation of Equal Protections; 42 USC §1985 (3), §1986 25 A section 1985(3) claim requires "four elements: (1) a conspiracy; (2) for the 26 purpose of depriving, either directly or indirectly, any person or class of persons of the equal 27 protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in 28 furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or 1 deprived of any right or privilege of a citizen of the United States." Sever v. Alaska Pulp Corp., — 2 — 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). "Section 1986 authorizes a remedy against 3 state actors who have negligently failed to prevent a conspiracy that would be actionable under § 4 1985." Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968 , 971 n. 7 (9th Cir. 1994). 5 According to Plaintiff, Defendants HCSD, Slote, Puckett, Peterson, Goff, Bowles, 6 and Dingman conspired to charge her $45 a month for water, while the other residents were 7 charged $39, thus depriving her of equal protection as a class of one. See ECF No. 18, pg. 23. 8 Therefore, this claim should proceed. 9 6. Americans with Disabilities Act (ADA) 10 Title II of the Americans with Disabilities Act ("ADA") provides: 11 Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or 12 be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. — 13 — 42 U.S.C. § 12132 . — 14 — 15 To establish a violation of Title II of the ADA, "a plaintiff must show: (1) he is a 16 'qualified individual with a disability'; (2) he was either excluded from participation in or denied 17 the benefits of a public entity's services, programs or activities, or was otherwise discriminated 18 against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by 19 reason of his disability." Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976 , 978 20 (9th Cir. 1997) (quoting § 12132). 21 While Plaintiff does not say her underlying disability, she states that she does 22 qualify as disabled under the ADA. See ECF No. 18, pgs. 7 and 23. At this stage of litigation, the 23 Court accepts that representation. According to Plaintiff, Defendants HCSD, Slote, Puckett, 24 Peterson, Dingman, and Kampa “failed to accommodate Plaintiff’s disability” by not providing 25 her access to HCSD Board meetings, meeting materials, and “refusing to provide CPRA access” 26 to records. Id. at 23. Plaintiff contends that those without disabilities were provided access to the 27 same meetings, materials, and records. Id. Therefore, this claim should proceed. 28 / / / 1 B. Pendant State Claims 2 Plaintiff makes out the following state claims: negligence, four §526(a) claims, 3 nuisance per se, fiduciary duty, and a California Constitution Article XVI §5 claim. Therefore, 4 those claims should proceed. However, Plaintiff fails to state a claim upon which relief can be 5 granted for both the §526(a) claim based on a violation of the CPRA and the Negligent Infliction 6 of Emotional Distress (NIED) claim, as discussed below. Thus, the undersigned will recommend 7 such claims be dismissed. 8 1. Negligence 9 A negligence action under California law consists of four elements: (1) duty; (2) 10 breach; (3) causation; (4) and damages. See Mayall v. USA Water Polo, Inc., 909 F.3d 1055 , 11 1060 (9th Cir. 2018); A.B. Concrete Coating, Inc. v. Wells Fargo Bank Nat’l Assoc., 491 F. 12 Supp. 3d 727, 738 (E.D. Cal. 2020); Peredia v. HR Mobile Servs., Inc., 25 Cal. App. 5th 680 , 687 13 (Cal. Ct. App. 2018). In other words, plaintiffs in negligence suits must establish a duty of care, 14 breach of that duty, and the breach’s proximate causation of a resulting injury. See Vasilenko v. 15 Grace Family Church, 3 Cal. 5th 1077, 1083 (2017). 16 Plaintiff contends that Defendants HCSD, Puckett, Slote, Peterson, Goff, 17 Dingman, and Kampa failed to “exercise reasonable care over the water treatment processes” in 18 violation of the SDWA, 40 CFR § 141.54 (setting federal maximum levels of disinfectants) and 19 22 CCR § 64533.5 (setting California’s maximum contaminant levels). See ECF No. 18, pg. 24. 20 According to Plaintiff, Defendants’ failure to give warnings about the water exceeding the legal 21 levels of chlorine, as required by California Health and Safety Code § 116450 and § 116455, 22 resulted in property damage to Plaintiff. Therefore, this claim should proceed. 23 2. California Code of Civil Procedure §526(a) 24 According to Plaintiff, state Counts Two, Three, Four, Eight, and Nine necessitate 25 injunctive relief under California Code of Civil Procedure §526(a). This section authorizes 26 remedial injunctive relief, when “the expenditure of public funds which [the taxpayer] seeks to 27 enjoin is illegal." Herzberg v. Cty. of Plumas, 133 Cal. App. 4th 1, 23-24 (2005). At this stage of 28 litigation, Plaintiff provides sufficient facts for claims regarding public funds provided to 1 Michelle Hanson’s legal fees, improperly classified water rates and fees as to John Does, failure 2 to impose standby and availability fees, and the unlawful use of HCSD Facility by Defendant 3 Dingman. However, Plaintiff’s claim that Defendants failure to comply with the CPRA is not 4 actionable, as discussed below. 5 i. “Diversion of, and Gifts of, Public Funds as to Michelle Hanson” 6 Plaintiff contends that Defendant HCSD, Puckett, Slote, and Peterson illegally 7 “diverted monies from HCSD accounts to Michelle Hanson . . . towards her privately-incurred 8 legal fees.” ECF No. 18, pg. 24. Plaintiff alleges this constituted an illegal expenditure of public 9 funds which could be remedied with §526(a) injunctive relief and therefore, this claim should 10 proceed. 11 ii. “Gifts, and Waste of, Public Funds as to John Does” 12 According to Plaintiff, Defendants HCSD, Slote, Puckett, Peterson, Kampa, Goff, 13 Dingman, and Bowles reduced water rates and other charges, declined to collect past-due 14 accounts, or gifted public funds to John Does1 in violation of the governing bylaws. See ECF No. 15 18, pg. 24. Plaintiff alleges this constituted an illegal waste of public funds which could be 16 remedied with §526(a) injunctive relief and therefore, this claim should proceed. 17 iii. “Failure to Impose, Standby, Availability Fee; Fiduciary Duty” 18 Plaintiff asserts that Defendants HCSD, Slote, Puckett, Kampa, and Bowles were 19 required to impose and collect “standby” and “availability” fees per HCSD Resolution #14-022 20 and relevant bylaws but failed to do so. See ECF No. 18, pg. 25. Plaintiff alleges this constituted 21 an illegal waste of public funds which could be remedied with §526(a) injunctive relief and 22 therefore, this claim shoukd proceed. 23 iv. “Violation of the CPRA as a Waste of Public Funds” 24 Plaintiff asserts that Defendants failure to comply with the CPRA constitutes a 25 waste actionable under §526 (a), relying on Blair v. Pitchess as a basis for this claim. See ECF 26 No. 18, pg. 27. The Court disagrees. Failing to respond to requests, as required by law, does not 27 amount to “performing illegal acts” as addressed by Blair. In Blair, the Court held that actions 28 1 The Court assumes this refers to the John Does 3-20 Plaintiff lists as Defendants. 1 taken in violation of the 4th Amendment by county officials, who at the time of the action were 2 being paid by the county, could constitute waste for the purposes of §526(a) remedial action2. 3 Blair v. Pitchess, 5 Cal. 3d 258, 268-69 (1971). There is a legal distinction between action and 4 inaction. See Weirum v. RKO Gen., Inc., 15 Cal. 3d 40, 49 (1975). Here, Plaintiff seeks to 5 extend the holding in Blair to Defendants purported failure to act3. See ECF No. 18, pg. 27. 6 Finding the law does not support such a claim, the Court will recommend this claim be dismissed. 7 v. “Unlawful Use of HCSD Facility” 8 The purpose of §526 is to provide standing for taxpayers to remedy “illegal or 9 wasteful expenditure of public funds or damage to public property.” McLeod v. Vista Unified 10 Sch. Dist., 158 Cal. App. 4th 1156, 1165 (2008). According to Plaintiff, Defendants Slote, 11 Puckett, Peterson, Kampa, Goff, and Dingman allowed Dingman to unlawfully reside at the 12 HCSD water treatment facility, resulting in “sanitary and physical hazards” while HCSD paid the 13 utility costs of such use. See ECF No. 18, pgs. 27-28. Plaintiff’s claim that was a wasteful 14 expenditure of public funds and damage to public property should proceed. 15 3. Breach of Fiduciary Duty 16 The elements of a claim for breach of fiduciary duty are: "(1) existence of a 17 fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the 18 breach." Stanley v. Richmond, 35 Cal. App. 4th 1070, 1086 (1995). Plaintiff contends that 19 Defendants Slote, Puckett, Peterson, Bowles, and Kampa breached their fiduciary duties “to the 20 District by: unlawfully reducing and waiving various fees for certain customers; misclassifying 21 customers; failing to collect overdue accounts; and, failing to properly impose multiple [fees].” 22 ECF No. 18, pg. 25. According to Plaintiff, these actions all violated either Resolution #14-022 or 23 the HCSD Bylaws, causing economic harm to the District. See id. Thus, Plaintiff alleges the 24 existence of a fiduciary duty, breach of such duty by acting in violation of the governing 25 resolutions or bylaws, and damages caused by the breach. Therefore, this claim should proceed. — 26 — 2 The Court notes that portions of Blair have been superseded by statute but those are separate from the holding discussed here. 27 3 Plaintiff also fails to establish that Defendants were paid employees at the time of their inaction, in accordance with the holding in Blair. Even if Plaintiff could establish that the Defendants were paid employees, the 28 claim is not cognizable for the reasons stated above. 1 4. Nuisance Per Se 2 California recognizes nuisance per se. City of Monterey v. Carrnshimba, 215 Cal. 3 App. 4th 1068, 1086 (Cal. Ct. App. 2013). A nuisance per se arises when a legislative body with 4 lawful jurisdiction, in the exercise of police power, expressly and legislatively declares a 5 particular substance, object, activity, or other circumstance to be a nuisance. See id.; City of 6 Claremont v. Kruse, 177 Cal. App. 4th 1153, 1163 (Cal. Ct. App. 2009). California Health and 7 Safety Code §116670 declares any “failure to comply with any primary drinking water standard” 8 a public nuisance. Cal. Health & Safety Code § 116670 . 9 According to Plaintiff, Defendants Slote, Puckett, Peterson, Kampa, Goff and 10 Dingman caused, were aware of, and did not remedy chloring levels in the water that violate the 11 drinking water standard. See ECF No. 18, pg. 26. Thus, Plaintiff’s nuisance per se claim, arising 12 from Defendants’ alleged failure to adhere to primary drinking water standards, should proceed. 13 5. Negligent Infliction of Emotional Distress (NIED) 14 Negligent infliction of emotional distress (NIED) is not an independent tort 15 doctrine in California. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 , 25 Cal. 16 Rptr. 2d 550, 863 P.2d 795 (1993). Rather, NIED “is a form of the tort of negligence, to which 17 the elements of duty, breach of duty, causation and damages apply." Griffith v. Bank of Am., 18 N.A., No. CV-11-5867 PA FFMX, 2011 U.S. Dist. LEXIS 150940 , 2011 WL 6849048 , at * 9 19 (C.D. Cal. Dec. 13, 2011) (quoting Huggins v. Longs Drug Stores Cal., Inc., 6 Cal. 4th 124, 129 , — 20 — 24 Cal. Rptr. 2d 587 , 862 P.2d 148 (1993)). An allegation of property damage and fear of 21 physical injury is not sufficient to recover emotional distress damages arising out of a negligence 22 claim. See Erlich v. Menezes, 21 Cal. 4th 543, 555-56 (1999); Gravillis v. Coldwell Banker 23 Residential Brokerage Co., 143 Cal. App. 4th 761, 762 (2006). 24 Here, Plaintiff seeks to recover for NIED based on “extensive harm and/or 25 destruction to Plaintiff’s yard, plant, trees, bushes, soil, garden crops, livestock, financial well26 being, home appliances and fixtures, and personal equipment.” See ECF No. 18, pg. 26. Given 27 Plaintiff’s NIED claim relies solely on an allegation of property damage, the Court will 28 recommend that this claim be dismissed. 1 6. “Gifts of Public Funds to HCBC and Crittenden” 2 The California Constitution Article XVI §5 prohibits “the Legislature, nor any 3 county, city and county, township, school district, or other municipal corporation” from making 4 an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or 5 sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever nor shall any 6 grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious 7 creed, church, or sectarian purpose whatever . . . 8 Cal. Const. Art. XVI, §5. 9 Plaintiff asserts that Defendants Hornbrook Community Bible Church, Inc. 10 (HCBC) and Crittenden “received gifts of public funds in the amount of at least $2,772.00 [and] 11 $384.00” respectively. ECF No. 18, pg. 27. According to Plaintiff, these funds were provided in 12 the form of “unlawfully reduced and/or waived fees.” Id. at 5-6. Plaintiff contends this 13 demonstrates “favoritism” extended to HCBC and Crittenden, the Deacon of the HCBC in 14 violation of California’s ‘no aid clause.’ Id. at 27. Plaintiff alleges these actions by Defendants 15 HCBC and Crittenden thus violated California’s Constitution, Article XVI §5. See id. This claim 16 should proceed. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Il. CONCLUSION 2 Based on the foregoing, the undersigned orders and recommends as follows: 3 1. It is ORDERED that the Clerk of the Court terminate the following 4 individuals, who are no longer named in the operative complaint: Lee Buckley, Robert 5 Winston, Kirsher, Winston & Boston L.L.C. and Kevin Dixon; 6 2. It is RECOMMENDED that Federal Claim Count I — Deprivation of 7 Rights as Granted by the HCSD Bylaws, and without Due Process be dismissed with 8 prejudice; and 9 3. It is RECOMMENDED that State Claim Count VII — Negligent Infliction 10 of Emotional Distress be dismissed with prejudice; and 11 4. It is RECOMMENDED State Claim Count VIII — Violation of the CPRA 12 as a Waste of Public Funds be dismissed with prejudice; and 13 5. It is RECOMMENDED that this action proceed on the second amended 14 complaint on Plaintiff's remaining claims (Federal: Count I, Count III, Count IV, and 15 Count V; State: Count I, Count II, Count III, Count IV, Count V, Count VI, Count IX, and 16 Count X). 17 These findings and recommendations are submitted to the United States District 18 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 14 days 19 | after being served with these findings and recommendations, any party may file written 20 || objections with the Court. Responses to objections shall be filed within 14 days after service of 21 || objections. Failure to file objections within the specified time may waive the right to appeal. See 22 || Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). — 23 — 24 | Dated: March 26, 2025 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE — 27 — — 28 — — 16 —