Ramachandran v. Best Best & Krieger

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 SATISH RAMACHANDRAN, Case No. 20-cv-03693-BLF 8 Plaintiff, ORDER GRANTING MOTIONS TO 9 v. DISMISS 10 BEST BEST & KRIEGER, et al., [Re: ECF 43, 55, 57] 11 Defendants. [12] 13 This is a neighbor dispute gone horribly wrong that has now spawned three lawsuits, two 14 in federal court and one in state court. Plaintiff Satish Ramachandran has sued Los Altos city 15 employees Kirk Ballard, Christopher Jordan and David Kornfield (collectively, “City Employee 16 Defendants”), attorneys Christopher Diaz, who serves as Los Altos City Attorney by contract with 17 the City, Christina Hickey, and the law firm Best Best & Krieger (collectively “BBK 18 Defendants”), and Pamela Jacobs, his neighbor. Before the Court are three motions to dismiss, one 19 from each respective group of Defendants. The Court GRANTS the motions to dismiss, and the 20 dismissal of all claims is WITH PREJUDICE. 21 I. BACKGROUND 22 Mr. Ramachandran immigrated to the United States from India in 1986. Am. Compl. 23 (“FAC”) ¶ 3, ECF 92. 1 He has owned his current home in the City of Los Altos (“the City”) since 24 1993. Id. This saga began in 2013, when Mr. Ramachandran sought to complete several home [25] 1 Long after briefing completed on Defendants’ motions to dismiss, Mr. Ramachandran sought [26] leave to file an amended complaint. See Mot., ECF 85. The Court granted that motion on December 24, 2020, and, in order to avoid any prejudice to Defendants, retained the hearing date [27] for the current motions and only considers the amendments to relate to the issue of futility of 1 improvement projects. Id. ¶ 17. Mr. Ramachandran met with Defendants Ballard and Kornfeld, 2 employees in Los Altos’s Building Department, to discuss whether his projects required permits 3 under the Los Altos Municipal Building Code (“building code”) Id. ¶¶ 7-8, 17-18. Relying on the 4 information Defendants Ballard and Kornfeld provided him, Mr. Ramachandran hired contractor 5 Adam Nicolas Conchas (“Contractor Conchas”) on April 19, 2013, to complete the improvements. 6 Id. ¶19. Part of Mr. Ramachandran’s agreement with Contractor Conchas included obtaining 7 necessary permits, which Contractor Conchas apparently never did. Id. ¶ 21. Contractor Conchas 8 abandoned the project on or about May 2, 2013, and misconduct concerning this project resulted 9 in Contractor Conchas losing his license in proceedings in front of the Contractors State Licensing 10 Board. Id. ¶¶ 19, 22. 11 Unbeknownst to Mr. Ramachandran at the time, Contractor Contras had filed a written 12 complaint with the Building Department on May 8, 2013, in which he represented that he was 13 working for Mr. Ramachandran and that Mr. Ramachandran was completing work on his property 14 without permits. FAC ¶ 22. On June 25, 2013, Defendant Kornfield—according to Mr. 15 Ramachandran—caused an assistant city planner to send Mr. Ramachandran a letter claiming that 16 his property was less than 15,000 square feet, a statement Mr. Ramachandran claims Defendant 17 Kornfield knew was false. Id. ¶ 28. On July 12, 2013, Defendant Jacobs, Mr. Ramachandran’s 18 neighbor, sent Defendant Ballard an email stating, in relevant part, “I spoke with you Monday 19 morning regarding the illegal shed which my neighbor Satish Ramachandran is building…I had 20 hoped that you all would have contacted him and stopped work.” Id. ¶ 29. Defendant Ballard 21 responded five days later on July 17, 2013, letting Defendant Jacobs know that the issue was being 22 addressed. Id. 23 On or about July 12, 2013, a city employee who is not a party to this case came to Mr. 24 Ramachandran’s property regarding the shed. FAC ¶¶ 30-31. The interaction was hostile. Id. Mr. 25 Ramachandran accuses the city employee of asking him, “Why do you live here? Why don’t you 26 move to San Jose?” before yelling at him, “Go back to India!” Id. ¶ 31. Immediately after the city 27 employee left, Mr. Ramachandran contacted Los Altos’s Planning Department to report the 1 another city employee came to Mr. Ramachandran’s property, and a “belligerent” Defendant 2 Ballard informed Mr. Ramachandran that the shed must be removed because it had been built 3 without a permit. Id. ¶ 34. On this visit, Defendant Ballad also told Mr. Ramachandran that the 4 city employee that he accused of racist behavior was a “good employee,” which Mr. 5 Ramachandran interpreted as attempting to persuade him that his complaint was misguided. Id. ¶ 6 35. Mr. Ramachandran further interpreted this visit from Defendant Ballard as retaliation for 7 reporting the racist behavior. Id. ¶ 35. On July 17, 2013, Mr. Ramachandran filed a formal 8 complaint with the city manager alleging “bias, discrimination, misconduct, and abuse” against 9 Defendant Ballard and other nonparties. Id. ¶ 36. He also contacted the Los Altos City Counsel 10 about the conduct of the Building Department employees. Id. Mr. Ramachandran eventually 11 learned that no permit was required for his shed, but Defendant Kornfield informed him that it 12 needed to be farther back from his property line. Id. ¶ 37. Mr. Ramachandran complied and 13 moved the shed. Id. ¶ 38. 14 In late 2013, Mr. Ramachandran filed a formal complaint with the City regarding illegal 15 home improvements and construction by his neighbor, Defendant Jacobs. FAC ¶ 45. The Jacobs 16 family is white. Id. Mr. Ramachandran asserts that the City has never addressed these violations. 17 Id. Mr. Ramachandran also alleges that the City approved non-compliant projects at the Jacobs’s 18 residence. Id. ¶¶ 49-57. He continued to complain to the City to no avail. Id. ¶¶ 58-59, 61. He 19 filed a formal appeal of a permit issued to the Jacobs family on October 11, 2017, but the City 20 never responded. Id. ¶ 73. 21 Mr. Ramachandran continued to have disagreements with the City regarding his home 22 improvement projects and the applicable permits. FAC ¶¶ 39-41. In May 2014, Mr. 23 Ramachandran sent a letter to the city manager, mayor, and city council members identifying 24 many instances of arbitrary, capricious, and unreasonable interferences with his right to complete 25 his permitted improvements and unequal application of the building code requirements to him. 26 Id. ¶ 42. The City ultimately hired an independent inspector to review Mr. Ramachandran’s 27 improvements, and the inspector wrote in an October 14, 2014 email to Defendant Ballard that a 1 remodeling, passed inspection. Id. ¶¶ 43-44. In 2015, Mr. Ramachandran obtained a permit to 2 replace an exterior door, which was inspected by the City. Id. ¶ 46. Mr. Ramachandran alleges 3 that this inspection was a pretext to conduct an illegal search of his property for evidence of other 4 building code violations. Id. ¶ 47. 5 On September 8, 2017, Defendant Ballard sent Mr. Ramachandran an email asking to 6 discuss some complaints. FAC ¶ 66. When Mr. Ramachandran asked for more information, 7 Defendant Ballard replied on September 12, 2017, informing Mr. Ramachandran that he needed 8 to investigate his property, preferably within the next 48 hours, because there had been a 9 complaint regarding unpermitted construction and alterations. Id. ¶¶ 67-68. Mr. Ramachandran 10 responded immediately asking for more clarification since the last construction work at the house 11 occurred in 2015 and was approved by the City. Id. ¶ 69. Mr. Ramachandran filed a Public 12 Records Act request for copies of the alleged complaints made about his property, but the City 13 failed to produce any record of any complaints. Id. ¶ 71. 14 The relationship between Mr. Ramachandran and his neighbor, Defendant Jacobs, 15 continued to sour. On June 29, 2017, the Jacobs family sued Mr. Ramachandran in state court 16 over a property line dispute between the two houses. FAC ¶ 74. Mr. Ramachandran filed a cross17 complaint for battery against Defendant Jacobs’s husband stemming from a 2017 incident at the 18 property line. Id. On February 25, 2018, Mr. Ramachandran filed a federal action (“first federal 19 lawsuit”) against the City and the City Employee Defendants, alleging, among other things, 20 discriminatory enforcement of the building code.2 FAC ¶ 75. Mr. Ramachandran alleges that 21 these two parallel legal actions created an opportunity for Defendant Jacobs and the City to 22 coordinate and retaliate against him for standing up for himself and challenging the City and his 23 privileged white neighbors. Id. ¶ 76. Mr. Ramachandran alleges that the BBK Defendants, 24 Defendant Jacobs, Defendant Ballard, and Defendant Jordan conspired to unlawfully obtain a 25 search warrant for his residence as a pretext to inspect his property in search of code violations 26 and evict a tenant then living on his property. Id. [27] 1 On May 28, 2018, Mr. Ramachandran filed a Code Enforcement Complaint identifying 2 several building code violations on Defendant Jacobs’s property that he alleged presented fire 3 and safety hazards to him and his adjacent property. FAC ¶ 78. He alleges he submitted 4 photographic evidence of exposed wires along the fence separating the two properties. Id. The 5 City dismissed the complaint on June 5, 2018. Id. ¶ 79. On July 3, 2018, Defendant Jacobs had 6 her attorney send a letter to Defendant Diaz, a partner at Best Best & Krieger who also serves as 7 the Los Altos City Attorney. Id. ¶¶ 5, 80. The letter included a statement of alleged violations on 8 Mr. Ramachandran’s property, a list that Mr. Ramachandran insists Defendant Jacobs knew was 9 false and fraudulent. Id. ¶ 80. 10 On August 31, 2018, Defendant Ballad and Defendant Hickey, an attorney at Best Best & 11 Krieger whose practice includes administrative adjudications and code enforcement, obtained a 12 search warrant for Mr. Ramachandran’s property. FAC ¶¶ 6, 83. Mr. Ramachandran alleges this 13 warrant was obtained based on the fraudulent declaration of Defendant Ballard, which allegedly 14 contained false statements and material omissions Id. ¶¶ 83-94. Defendant Hickey signed an ex15 parte application for the warrant and a memorandum of points and authorities that allegedly 16 contained knowingly false statements asserting there was reason to believe there were code 17 violations on Mr. Ramachandran’s property. Id. ¶¶ 95-96. Defendant Hickey submitted 18 Defendant Ballard’s declaration and her memorandum and application, all of which omitted the 19 existence of the pending first federal lawsuit and the fact that Defendant Ballard was a party in 20 that lawsuit. Id. ¶ 97. 21 On September 6, 2018, Defendant Ballard signed a report purportedly based on the search 22 conducted pursuant the warrant. FAC ¶ 102. The report found that the shed was illegally placed 23 and uninhabitable for living purposes. Id. The shed was required to be vacated by October 6, 24 2018. Id. Mr. Ramachandran was required to obtain a permit for an accessory dwelling unit 25 (“ADU”) and permits to remedy the noncompliant construction within the main residence. Id. On 26 the same day, the City posted six notices to vacate, signed by Defendant Ballard, on Mr. 27 Ramachandran’s property. Id. ¶¶ 104-05. On September 11, 2018, Mr. Ramachandran removed 1 with a misdemeanor for removing the notice. Id. ¶ 106. The criminal prosecution was dismissed 2 on October 20, 2020. Id. ¶ 140. On September 16, 2018, Mr. Ramachandran’s then-attorney 3 notified the City via letter of the false and fraudulent claims in the September 6 report. Id. ¶ 103. 4 The letter constituted Mr. Ramachandran’s appeal to the findings in the report. Id. 5 Mr. Ramachandran also alleges fourteen other nonwhite families in the City were, like 6 him, subject to a pattern and practice of racial discrimination in which Defendants selectively 7 applied the building code against them, denying them the ability to improve their properties. 8 FAC ¶¶ 110-12. 9 Mr. Ramachandran initiated this lawsuit on June 3, 2020, more than two years after he 10 filed the first federal lawsuit. See Compl., ECF 1. Four of his claims are before the Court: a First 11 Amendment retaliation claim under 42 U.S.C. § 1983 against all Defendants; a Fourteenth 12 Amendment equal protection claim under 42 U.S.C. § 1983 against the City Employee 13 Defendants and Defendant Jacobs; a Racketeer Influenced and Corrupt Organizations Act 14 (“RICO”) claim against all Defendants; and an intentional infliction of emotional distress claim 15 against Defendant Jacobs. FAC ¶¶ 121-137. The BBK Defendants filed their motion to dismiss 16 on August 17, 2020. See ECF 45 (“BBK MTD”). The City Employee Defendants filed their 17 motion to dismiss on the same day. See ECF 55 (“City Defendants MTD”). Defendant Jacobs 18 filed her motion to dismiss on the same day as well. See ECF 58 (“Jacobs MTD”). [19] 20 II. LEGAL STANDARD 21 A. Motion to Dismiss 22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 23 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 25 considering such a motion, the Court “accept[s] factual allegations in the complaint as true and 26 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 27 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, the Court need not 1 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 2 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation 3 marks and citations omitted). “Threadbare recitals of the elements of a cause of action, supported 4 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 5 at 555). 6 B. Leave to Amend 7 In deciding whether to grant leave to amend, the Court must consider the factors set forth 8 by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 9 Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district 10 court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) 11 undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 12 amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence 13 Capital, 316 F.3d at 1052 . “[I]t is the consideration of prejudice to the opposing party that carries 14 the greatest weight.” Id. However, a strong showing with respect to one of the other factors may 15 warrant denial of leave to amend. Id. Dismissal without leave to amend is proper only if it is clear 16 that “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Group, 17 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted). [18] 19 III. DISCUSSION 20 A. Request for Judicial Notice 21 Each of the three groups of Defendants and Mr. Ramachandran have filed requests for 22 judicial notice. See Req. for Judicial Notice (“RJN”), ECF 44, 56, 59, 77, 81, and 95. There is just 23 one objection, by Defendant Jacobs to one request from Mr. Ramachandran, which the Court will 24 address below. 25 The Court may take judicial notice of documents referenced in the complaint, as well as 26 matters in the public record. See Lee v. City of Los Angeles, 250 F.3d 668 , 688–89 (9th Cir. 2001), 27 overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 , 1125–26 (9th 1 judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). In addition, 2 the Court may take judicial notice of matters that are either “generally known within the trial 3 court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose 4 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts may also judicially 5 notice documents under the incorporation-by-reference doctrine. Khoja v. Orexigen Therapeutics, 6 Inc., 899 F.3d 988, 1002 (9th Cir. 2018). “The doctrine prevents plaintiffs from selecting only 7 portions of documents that support their claims, while omitting portions of those very documents 8 that weaken—or doom—their claims.” Id. 9 The BBK Defendants request the Court judicially notice the misdemeanor complaint filed 10 in People v. Ramachandran, No. B1899994 (Santa Clara Cnty. Super. Ct. Nov. 29, 2018) and Los 11 Altos Municipal Code chapters 1.10, 2.03, and 11.10. BBK Defendants RJN, ECF 44. Mr. 12 Ramachandran does not oppose this request. The Court GRANTS the BBK Defendants’ requests 13 because the misdemeanor complaint is a court document and the Los Altos Municipal Code is in 14 the public record and its accuracy cannot reasonably be questioned. 15 The City Employee Defendants request the Court judicially notice fourteen exhibits from 16 the first federal lawsuit between Mr. Ramachandran and the City Employee Defendants, 17 Ramachandran v. City of Los Altos et al., No. 5:18-cv-01223-VKD (N.D. Cal Feb. 25, 2018). See 18 City Employee Defendants RJN, ECF 56. The City Employee Defendants also request the Court 19 judicially notice a document prepared by their counsel that purports to highlight the similarities 20 and differences in this case and the first federal lawsuit. Ex. O, ECF 56-15. Mr. Ramachandran 21 does not oppose these requests. The Court GRANTS the City Employees Defendants’ request as 22 to the exhibits from the first federal lawsuit, as they are court documents. The Court DENIES the 23 request as to the document prepared by the City Employees Defendants’ counsel because the 24 Court does not rely on it to decide this motion. The Court similarly DENIES the City Employee 25 Defendants’ request to judicially notice two letters exchanged between their counsel and Mr. 26 Ramachandran’s counsel because the Court does not rely on them to decide this motion. Second 27 City Employee Defendants RJN, ECF 81. 1 court lawsuit Jacobs et al. vs. Ramachandran et al., No. 17-CV-312418 (Santa Clara Cnty. Super. 2 Ct. June 29, 2017). See Defendant Jacobs RJN, Ex. 1-9, 12-13, ECF 59. Ms. Jacobs also asks the 3 Court to judicially notice the exhibits attached to the July 3, 2018 letter Defendant Jacobs sent, 4 through her attorney, to Defendant Diaz, the Los Altos City Attorney, as well as an unredacted 5 copy of the full letter. Ex. 10, Exhibits, ECF 59-10; Ex. 11 Letter, ECF 59-11. Mr. Ramachandran 6 excerpts a portion of the letter in his complaint. FAC ¶ 80. Mr. Ramachandran does not oppose 7 these requests. The Court GRANTS Defendant Jacobs’s requests since the state court documents 8 are properly noticeable as court documents and the full letter, including exhibits, is incorporated9 by-reference into the complaint. 10 Finally, Mr. Ramachandran asks the Court to judicially notice Los Altos Municipal Code 11 Section 11.10.060; a September 6, 2018 notice to repair or abate served on Mr. Ramachandran by 12 the City; Los Altos Municipal Code Section 11.10.010; Los Altos Municipal Code Section 13 11.10.080; an order continuing an administrative appeal hearing before the Office of 14 Administrative Hearings (OAH), In the Matter of the Appeal of Satish Ramachandran, OAH No. 15 2018110904 (Aug. 27, 2020); excerpts from a deposition of Defendant Kornfield; and a 16 September 21, 2017 email from Defendant Jacobs to a city code enforcement officer. See 17 Ramachandran RJN, ECF 77. He also asks the Court to judicially notice the summary judgment 18 order in the first federal lawsuit. Second Ramachandran RJN, ECF 95. Defendant Jacobs objects 19 to the request to judicially notice the email for a failure to authenticate the document under Federal 20 Rule of Evidence 901. Jacobs Reply 7, ECF 82. The Court GRANTS Mr. Ramachandran’s request 21 as to the Los Altos Municipal Building Code sections and the orders from the OAH and the first 22 federal lawsuit on the basis that these are matters in the public record whose accuracy cannot 23 reasonably be questioned. The Court DENIES Mr. Ramachandran’s request to judicially notice the 24 Defendant Kornfield deposition transcript and the email from Defendant Jacobs. The Court notes 25 that noticing these documents would convert this motion into one for summary judgment as they 26 are not matters in the public record. Khoja, 899 F.3d at 998 . 27 B. BBK Defendants’ Motion 1 and a RICO claim against the BBK Defendants. See FAC ¶¶ 121-26, 131-33. The BBK 2 Defendants argue that they are immune from suit and entitled to prosecutorial immunity because 3 they were performing activities closely associated with the judicial process. BBK MTD 6-10. Mr. 4 Ramachandran argues that the BBK Defendants did not follow proper procedure under the Los 5 Altos Municipal Code and are not entitled to prosecutorial immunity for conducting investigative 6 work by obtaining the warrant to inspect his property and the consequences that flowed from that, 7 including the September 2018 notices to vacate and subsequent misdemeanor prosecution for 8 removing a notice. Opp’n 15-20. Mr. Ramachandran also argues that Best Best & Krieger is liable 9 for the Section 1983 claim under Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978) 10 because Defendant Diaz “acted as a final policy maker for Defendant BB&K in his capacity as City 11 Attorney for Los Altos.” Opp’n 25. The Court agrees with the BBK Defendants that their conduct 12 was prosecutorial, not investigative, and thus they are entitled to prosecutorial immunity.3 13 “Prosecutors are extended absolute immunity from damages when performing activities 14 closely associated with the judicial process.” Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 15 1999). This immunity applies to initiating a judicial proceeding, including administrative acts, and 16 presenting evidence in support of a search warrant application. Lacey v. Maricopa County, 693 17 F.3d 896, 912 (9th Cir. 2012), Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009). “Absolute 18 immunity also protects those functions in which the prosecutor acts as an ‘advocate for the State,’ 19 even if they ‘involve actions preliminary to the initiation of a prosecution and actions apart from 20 the courtroom.’” Lacey, 693 F.3d at 912 (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). 21 Prosecutorial immunity has been extended to state administrative officials who perform functions 22 analogous to those as a prosecutor. Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984). 23 The intent of the prosecutor plays no role in the immunity inquiry. McCarthy v. Mayo, 827 F.2d 24 1310, 1315 (9th Cir. 1987) (finding allegations that prosecutors filed criminal charges knowing 25 that the statute of limitations had run covered by prosecutorial immunity); see also Burns, 500 [26] 3 It does not appear on the face of the FAC that Mr. Ramachandran has alleged any facts against [27] Best Best & Krieger to support an unlawful and long-standing practice or policy as required in 1 U.S. at 489-50 (presenting false testimony in support of a search warrant covered by absolute 2 immunity). Prosecutorial immunity applies to conspiracy allegations as well. Ashelman v. Pope, [3] 793 F.2d 1072, 1078 (9th Cir. 1986). 4 In VNT Prop. 1, LLC v. City of Buena Park, the court found a defendant, who was acting 5 as city attorney, and his law firm were entitled to prosecutorial immunity for serving 6 administrative notices of building code violations on a property and ordering it vacated. No. SA 7 CV 15-0007-DOC (RNBx), 2015 WL 12762257 , at *5-*6 (C.D. Cal. Aug. 11, 2015). “Defendants 8 Palmer and Jones & Mayers purported red-tagging of the Property on November 25, 2013 ‘fell 9 within their prosecution of the City’s enforcement action against Plaintiffs,’ and their conduct was 10 ‘intimately associated with the judicial phase’ of the proceedings ‘and thus were functions to 11 which the reasons for absolute immunity apply with full force.’” Id. at *5 . (quoting Spitzer v. 12 Aljoe, No. 13-CV-05442-MEJ, 2014 WL 1154165 , at *12 (N.D. Cal. Mar. 20, 2014)). The court 13 also found that prosecutorial immunity extended to defendants allegedly unlawfully obtaining an 14 inspection warrant. VNT Prop. 1, 2015 WL 12762257 , at *6. “Generally, the application of a 15 warrant is closely related to the prosecutorial role protected by prosecutorial immunity.” Id. (citing 16 Kalina v. Fletcher, 522 U.S. 118, 129 (1997)). All federal claims were dismissed against the 17 Defendants with prejudice. VNT Prop. 1, 2015 WL 12762257 , at *6. 18 The Court finds the facts here analogous to the facts in VNT Prop. 1. Mr. Ramachandran 19 accuses Defendant Hickey of seeking and obtaining a search warrant for his property “based upon 20 the fraudulent declaration of Defendant Ballard.” FAC ¶ 83. Defendant Hickey was not acting as 21 the complaining witness, but rather as an officer of the court performing a function intimately 22 associated with the judicial phase of the proceedings. Accordingly, she is entitled to absolute 23 immunity. The Court also has no trouble finding Defendant Hickey covered by prosecutorial 24 immunity against Mr. Ramachandran’s charge that she is criminally prosecuting him for removing 25 one of the notices to vacate from his property. FAC ¶ 106. 26 Mr. Ramachandran alleges that Defendant Diaz was responsible for procuring the search 27 warrant as well. FAC ¶¶ 77, 107-09. Mr. Ramachandran does not allege that Defendant Diaz acted 1 with the administrative code enforcement activities taken against his property, FAC ¶ 101, which 2 qualify as activity covered under prosecutorial immunity. See VNT Prop. 1, 2015 WL 12762257 , 3 at *6; Spitzer, 2014 WL 1154165 , at *12. 4 The Court does not find Mr. Ramachandran’s reading of the Los Altos Municipal Code 5 persuasive. Opp’n 15-17. Both the notice to vacate and Section 11.10.180(A) of the municipal 6 code plainly contain the authority to pursue misdemeanor charges. Ex. 3, Notice; Ex. 4, Municipal 7 Code Section 11.10.180, ECF 77. Mr. Ramachandran has not identified any authority that 8 indicates this ability is suspended or paused when someone appeals a notice, as he suggests. Opp’n 9 18 n.1. The Court also not persuaded by Mr. Ramachandran’s attempts to distinguish VNT Prop. 10 1. Opp’n 18-19. The fact that the penalties resulting from “red-tagging” a property are more severe 11 than those for posting a notice of violation to a property does not change the case’s holding that 12 enforcing municipal code violations and obtaining search warrants are actions covered by 13 prosecutorial immunity. VNT Prop. 1, 2015 WL 12762257 , at *5-*6. The BBK defendants were 14 acting as “advocate[s] for the State,” even though their actions against Mr. Ramachandran’s 15 property “involve actions preliminary to the initiation of a prosecution and actions apart from the 16 courtroom.” Lacey, 693 F.3d at 912. Accordingly, all claims against the BBK Defendants are 17 DISMISSED WITH PREJUDICE since no amendment could negate their prosecutorial immunity. 18 C. City Employee Defendants’ Motion 19 Mr. Ramachandran asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 , a 20 Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983 , and a RICO claim against 21 the City Employee Defendants. See FAC ¶¶ 121-133. The City Employee Defendants argue that 22 all claims against them should be dismissed under the claim splitting doctrine since Mr. 23 Ramachandran’s first federal lawsuit arises from the same incident and same facts. City 24 Defendants MTD 10-17. Mr. Ramachandran concedes that “case number one and the instant case 25 are based on essentially the same pertinent facts and seek the same damages with some exceptions.” 26 Opp’n 35. The Court finds dismissal of all three claims against the City Employee Defendants proper. 27 “A main purpose behind the rule preventing claim splitting is to protect the defendant from 1 Washoe County, 69 F.3d 321 , 328 (9th Cir. 1995) (internal quotations and citations omitted). 2 “Plaintiffs generally have no right to maintain two separate actions involving the same subject 3 matter at the same time in the same court and against the same defendant.” Adams v. California 4 Dep’t of Health Servs., 487 F.3d 684 , 688 (9th Cir. 2007), rev’d on other grounds, Taylor v. 5 Sturgell, 553 U.S. 880, 904 (2008) (internal quotations and citations omitted). “There would be no 6 end to litigation if such a practice were permissible.” United States v. Haytian Republic, 154 U.S. 7 118, 125 (1894). The claims do not have to be identical in both lawsuits for the claim-splitting 8 doctrine to apply. Lenk v. Monolithic Power Sys., Inc., No. 16-CV-02625-BLF, 2017 WL 9 1832198, at *3 (N.D. Cal. May 8, 2017), aff’d, 754 F. App’x 554 (9th Cir. 2018) (“[r]es judicata, 10 also known as claim preclusion, bars litigation in a subsequent action of any claims that were 11 raised or could have been raised in the prior action.”) (citing W. Radio Servs. Co. v. Glickman, 123 12 F.3d 1189 , 1192 (9th Cir. 1997)). 13 Courts use the claim preclusion test to determine if lawsuits are duplicative. Adams, 487, 14 F.3d at 688. “[T]he Court examines whether the causes of action and relief sought, as well as the 15 parties or privies to the action, are the same.” Id. The first question entails a further four-prong 16 transaction test that asks: (1) whether rights or interests established in the prior judgment would be 17 destroyed or impaired by prosecution of the second action; (2) whether substantially the same 18 evidence is presented in the two actions; (3) whether the two suits involve infringement of the 19 same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Id. 20 (citing Costantini v. Trans World Airlines, 681 F.2d 1199 , 1201–02 (9th Cir. 1982)). “The last of 21 these criteria is the most important.” Costantini, 681 F.2d at 1202 . 22 Here, there is no question that the City Employee Defendants and Mr. Ramachandran are 23 adverse parties in both actions. Ex. A, Fourth Am. Compl. (“4AC”), ECF 56-1. The Court now 24 turns to the four-prong transaction test, starting with the most important factor. 25 i. The Two Suits Arise out of the Same Transactional Nucleus of Facts 26 “Whether two events are part of the same transaction or series [of transactions] depends on 27 whether they are related to the same set of facts and whether they could conveniently be tried 1 raised or could have been raised in the prior action are barred by claim preclusion. Lenk, 2017 WL 2 1832198, at *3. 3 Here, Mr. Ramachandran has conceded that “[t]he same ‘transactions(s) or event(s)’ 4 predominate both actions” in a June 23, 2020 motion to relate filed in the first federal lawsuit. Ex. 5 L, Mot. to Relate 2, ECF 56-12. “Specifically, both actions allege racial discrimination and 6 retaliation against Plaintiff by the City of Los Altos and its officials/employees Kirk Ballard, 7 David Kornfield and Christopher Jordan.” Id. The fact that Mr. Ramachandran tried to relate the 8 cases also serves as a concession on his part that the cases could conveniently be tried together. 9 The denial of the relation motion by Judge Virginia K. DeMarchi, the presiding judge in 10 the first federal lawsuit, came after she had denied in part Mr. Ramachandran’s motion for leave to 11 file a fourth amended complaint to add the BBK Defendants and Defendant Jacobs to the first 12 federal lawsuit. Ex. J., Order Denying Leave, ECF 56-10. She denied the motion on the grounds of 13 prejudice to the City Employee Defendants, who had already spent two years litigating the case. [14] Id. 11-14 . In that April 20, 2020 order, Judge DeMarchi found that the new RICO and intentional 15 infliction of emotional distress claims did rely on some of the same facts underlying the Section 16 1983 claims but ultimately decided not to allow amendment because Mr. Ramachandran 17 unjustifiably waited over a year to amend his complaint, resulting in prejudice to the City 18 Employee Defendants. Id. 10, 13-15 . In denying Mr. Ramachandran’s later motion to relate the 19 two cases, Judge DeMarchi noted that he had declined to consent to magistrate judge jurisdiction 20 in this second filed action. Ex. M., Order Denying Mot. to Relate 2, ECF 56-13. “[T]he fact that 21 plaintiff was denied leave to amend does not give [him] the right to file a second lawsuit based on 22 the same facts.” Adams, 487 F.3d at 688. 23 Mr. Ramachandran has pled his RICO claim as predicated on the same transactional 24 nucleus of facts as his Section 1983 claims against the City Employee Defendants. FAC ¶ 132. 25 And the Court agrees with Mr. Ramachandran’s characterization of both lawsuits as arising out of 26 the same transactions and events. See Mot. to Relate. Accordingly, the Court finds that both 27 lawsuits arise out of the same transactional nucleus of facts. 1 Since the two Section 1983 claims asserted in both lawsuits against the City Employee 2 Defendants are identical, the only question is whether Mr. Ramachandran’s RICO claim involves 3 the same right. The RICO claim is predicated on a scheme resulting in an injury to his property 4 rights and his ability to develop his property to produce rental income. FAC ¶¶ 132-33. In the first 5 federal lawsuit, Mr. Ramachandran claims an injury to his property rights. 4AC ¶¶ 16-17, 71(e) 6 (“…prevent Plaintiff from conducting the business of renting his converted garage as a dwelling 7 unit to deprive Plaintiff of rental income and damage his property.”), 88, 93. Accordingly, the 8 Court finds that the two lawsuit involve infringement of the same right. 9 iii. Substantially the Same Evidence is Presented in Both Lawsuits 10 Since Mr. Ramachandran’s RICO claim relies on the same underlying conduct pled in the 11 first federal lawsuit, much of the evidence in both suits would be duplicative. Mr. Ramachandran 12 references the same email exchanges, letters, and alleged wrongful administrative actions against 13 his property. Compare FAC ¶¶ 17-48 (describing Mr. Ramachandran’s 2013-2015 renovation 14 projects) with 4AC ¶¶ 10-37 (same); FAC ¶¶ 49-73 (describing Defendant Jacobs’s renovation 15 projects and Mr. Ramachandran’s subsequent complaints) with 4AC ¶¶ 38-61 (same); FAC ¶¶ 7416 98, 102-109 (describing Defendant Jacobs’s July 3, 2018 letter that allegedly led to an illegal 17 search, notices to vacate, and a criminal prosecution) with 4AC ¶¶ 62-76 (same); FAC ¶¶ 110-12 18 (describing Los Altos’s history and pattern of equal protection violations against non-white 19 homeowners); with 4AC ¶¶ 77-79 (same). Accordingly, the Court finds that substantially the same 20 evidence is presented in both lawsuits. 21 iv. Conclusion 22 As for the final factor, whether rights or interests established in the prior judgment would 23 be destroyed or impaired by prosecution of the second action, the Court finds that this factor does 24 not clearly counsel whether the two lawsuits are duplicative. However, the test is not to be applied 25 “mechanistically,” and the Court finds that the other factors, including the most important factor, 26 establish that the claim-splitting doctrine applies. See Mpoyo v. Litton Electro-Optical Sys., 430 27 F.3d 985 , 987 (9th Cir. 2005) (“We have often held the common nucleus criterion to be outcome 1 No. 18-CV-04598-JSC, 2019 WL 359417 , at *6 (N.D. Cal. Jan. 29, 2019) (“And although it is not 2 clear that any judgment in the instant action could potentially ‘destroy or impair rights’ any rights 3 yet to be established in Magadia, that factor is not dispositive.”). Accordingly, the Court finds that 4 the claim-splitting doctrine bars all three claims in this lawsuit against the City Employee 5 Defendants. Since amendment cannot cure this deficiency, the claims against the City Employee 6 Defendants are DISMISSED WITH PREJUDICE. 7 D. Defendant Jacobs’s Motion 8 Mr. Ramachandran asserts all four claims against Defendant Jacobs: a First Amendment 9 retaliation claim under 42 U.S.C. § 1983 , a Fourteenth Amendment equal protection claim under [10] 42 U.S.C. § 1983 , a RICO claim, and a claim for intentional infliction of emotional distress. See 11 FAC ¶¶ 121-137. Defendant Jacobs argues that the intentional infliction of emotional distress 12 claim is barred by the claim-splitting doctrine because it could have been raised in the 2017 state 13 court lawsuit between the two parties. Jacobs MTD 22-24. Additionally, she argues that Mr. 14 Ramachandran’s failure to address the intentional infliction of emotional distress claim in his 15 opposition brief means it is waived. Reply 1-2, ECF 82. Defendant Jacobs argues the other three 16 claims are protected by the Noerr-Pennington doctrine, which protects a person’s right to petition 17 the government for a redress of grievances. Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 18 2006). The Court agrees with Ms. Jacobs that all claims against her should be dismissed. 19 i. The Intentional Infliction of Emotional Distress Claim is Abandoned 20 While addressing the claim-splitting doctrine in his opposition brief, Mr. Ramachandran 21 focuses only on the first federal lawsuit, and Defendant Jacobs is not a party to that suit. See 22 Opp’n 35-36. He also fails to address Defendant Jacobs’s argument that he has failed to plead any 23 requisite outrageous conduct to support this claim. The Court finds that Mr. Ramachandran 24 abandoned this claim. See Jenkins v. County of Riverside, 398 F.3d 1093 , 1095 n.4 (9th Cir. 2005) 25 (“Jenkins abandoned her other two claims by not raising them in opposition.”), Ramirez v. 26 Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531 , at *6 (N.D. Cal. Jan. 13, 2014) 27 (citing Jenkins and finding claims not addressed in opposition to motion to dismiss abandoned). 1 No. 13-01608 LB, 2013 WL 2422781 , at *4 (N.D. Cal. June 3, 2019) (dismissing abandoned 2 claim with prejudice). Accordingly, the intentional infliction of emotional distress claim against 3 Defendant Jacobs is DISMISSED WITH PREJUDICE. Moreover, the Court agrees with 4 Defendant Jacobs that Mr. Ramachandran has failed to allege outrageous conduct. His claims 5 against Defendant Jacobs center on her alleged installation of security cameras on her own 6 property, FAC ¶ 63, and filing written complaints against him with the City. Whether she was 7 right or wrong in her complaints, she undoubtedly has pursued the civilized course of conduct by 8 seeking City enforcement of local laws rather than self-help. Such conduct cannot plausibly be 9 seen as exceeding the bounds of that usually tolerated in a civilized community. 10 ii. The Noerr-Pennington Doctrine Bars Remaining Claims against Defendant Jacobs [11] When neighbors who share a fence have a property dispute, options for resolution are [12] limited. One option is fisticuffs, which, unfortunately, Mr. Ramachandran previously alleged in a [13] state court lawsuit detailing a June 2017 incident with Defendant Jacobs’s husband. Ex. 1, Cross14 Complaint ¶¶ 38-42, ECF 59-1. Another, more peaceful option is to petition the local government [15] to intervene. Understandably, the law encourages the latter. [16] “Under the Noerr–Pennington doctrine, those who petition any department of the [17] government for redress are generally immune from statutory liability for their petitioning [18] conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (citing Empress LLC v. City [19] & County of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005)). Courts must give “adequate breathing [20] space to the right of petition” and “must construe federal statutes so as to avoid burdening conduct [21] that implicates the protections afforded by the Petition Clause unless the statute clearly provides [22] otherwise.” Sosa, 437 F.3d at 931 (internal quotations and citations omitted). The Ninth Circuit [23] has found that Noerr–Pennington applies against both Section 1983 claims and RICO claims. [24] Sosa, 437 F.3d at 931-32 (applying to RICO claim), Boulware v. Nev. Dep’t of Human Res., 960 25 F.2d 793, 800 (9th Cir. 1992) (applying to Section 1983). Pre-litigation demand letters are covered [26] by the doctrine as well. Sosa, 437 F.3d at 931 . [27] Defendant Jacobs sent a letter, through her lawyer, to Defendant Diaz, the City Attorney, 1 demanding that the City take action against the code violations allegedly present on Mr. 2 Ramachandran’s property. Ex. 11, July 2, 2018 Letter 1, ECF 59-11. This is petitioning conduct in 3 its purest form. Mr. Ramachandran’s lawsuit plainly imposes a burden on Defendant Jacobs’s 4 petitioning rights. Nevertheless, Mr. Ramachandran argues that Noerr–Pennington does not apply 5 for several reasons.4 First, he argues that Defendant Jacobs’s installation of twelve video cameras 6 in her yard, which allegedly monitor his house, is not petitioning activity covered by Noerr– 7 Pennington. Opp’n 22; FAC ¶ 63. Accepting all well-pled facts as true and drawing all inferences 8 in favor of Mr. Ramachandran, as the Court must do, the Court does not find that this allegation 9 relates to either Section 1983 claim or the RICO claim. Mr. Ramachandran alleges that the 10 installation of the cameras violates his privacy. FAC ¶ 63. This allegation, taken as true, cannot 11 establish either Section 1983 claim or the RICO claim. This allegation may have supported the 12 intentional infliction of emotional distress claim, but that is irrelevant because that claim has been 13 abandoned, and, in any case, the allegation does not rise to the level of outrageous behavior. 14 Accordingly, the Court does not find that this allegation prevents the application of the Noerr– 15 Pennington doctrine. 16 Next, Mr. Ramachandran argues that Defendant Jacobs’s petitioning conduct is not 17 protected by Noerr–Pennington because it falls into the exception for sham litigation. Opp’n 2218 23. Mr. Ramachandran argues that the summary of alleged violations in Defendant Jacobs’s July 19 3, 2018 letter was false and fraudulent and that she knew this when she had the letter sent. Id. It is 20 true that “objectively baseless” claims are not covered under Noerr–Pennington. Sosa, 437 F.3d at 21 938. However, it is not plausible to argue that Defendant Jacobs’s pre-suit demand letter was 22 objectively baseless because that allegation contradicts matters properly subject to judicial notice. 23 Mr. Ramachandran incorporated excerpts of Defendant Jacobs’s July 3, 2018 letter into his 24 complaint. FAC ¶ 80. Defendant Jacobs has requested the Court take judicial notice of the full 25 letter and its 21 exhibits. This is proper under the incorporation-by-reference doctrine. Khoja, 899 [27] 4 Mr. Ramachandran apparently does not appreciate the irony of suing Ms. Jacobs for petitioning 1 F.3d at 1002 (“The doctrine prevents plaintiffs from selecting only portions of documents that 2 support their claims, while omitting portions of those very documents that weaken—or doom— 3 their claims.”). Based on the copious number of photographs submitted in support of the demand 4 letter, and the content of the photographs, the only valid conclusion is that Defendant Jacobs had a 5 basis for sending the letter. If “[t]he goal of a true sham litigation is to force a result other than that 6 for which the causes of action involved were designed,” then Defendant Jacobs’s letter clearly was 7 no sham, as there can be no argument that it was aimed to force the City to remedy the alleged 8 code violations on Mr. Ramachandran’s property. Menjivar v. Trophy Properties IV DE, LLC, No. 9 C 06-03086 SI, 2006 WL 2884396 , at *18 (N.D. Cal. Oct. 10, 2006) (citing Freeman v. Lasky, 10 Haas, & Cohler, 410 F.3d 1180, 1185 (9th Cir. 2005)). 11 “The sham litigation exception does not apply so long as the party ‘was genuinely seeking 12 governmental action.’” UCP Int’l Co. Ltd. v. Balsam Brands Inc., 420 F. Supp. 3d 966 , 980 (N.D. 13 Cal. 2019 ), (quoting Oregon Nat. Res. Council v. Mohla, 944 F.2d 531, 535 (9th Cir. 1991)). The 14 Court finds the only plausible inference from the complaint and judicially noticed documents is 15 that Defendant Jacobs was genuinely seeking government action. Accordingly, the remaining 16 claims against Defendant Jacobs are barred by the Noerr–Pennington doctrine and, since no 17 amendment could cure this deficiency, the claims are DISMISSED WITH PREJUDICE. [18] 19 IV. ORDER 20 For the foregoing reasons, IT IS HEREBY ORDERED that Mr. Ramachandran’s claims 21 for First Amendment retaliation under 42 U.S.C. § 1983 against all Defendants; Fourteenth 22 Amendment equal protection under 42 U.S.C. § 1983 against the City Employee Defendants and 23 Defendant Jacobs; RICO against all Defendants; and an intentional infliction of emotional distress 24 against Defendant Jacobs are DISMISSED WITH PREJUDICE. The only remaining claim is 25 claim five for Malicious Prosecution under 42 U.S.C. § 1983 . That claim was not the subject of 26 these motions and the Court offers no comment on its validity. [27] 1 || Dated: February 8, 2021 kom Lh ham tn) [2] BETH LABSON FREEMAN 3 United States District Judge [11] a 12 © [16] Z 18