ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
This matter came before the court on June 22, 2016, for hearing of defendants’ motions to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. Nos. 51, 55, 57, 59, 63, 64.) Attorneys Patricia K. Oliver, R. Rex Parris, and Jennifer F. Novak appeared on behalf of plaintiffs Committee to Protect our Agricultural Water, Mike Hopkins, and John Wedel. Attorneys Matthew T. Kline and Dimitri D. Portnoi appeared on behalf of defendant Occidental Oil and Gas Corporation, and the California Resources Corporation. Attorney Christopher R. Rodriguez appeared on behalf of defendant Western States Petroleum Association. Attorneys' William E. Thompson and Zach Hughes appeared on behalf of defendant Chevron U.S.A., Inc. Attorney Keli N. Osaki appeared on behalf of defendant California Independent Petroleum Association. Deputy Attorney General Kenneth ’G. Lake appeared on behalf of defendant California Division of Oil, Gas, and Geothermal Resources, Governor Edmund G. Brown, Timothy R. Kustic, and Mark Ne-chodom. Attorneys Joel M. Athey, Kristina Azlin, and Kern County Counsel Theresa A. Goldner appeared on behalf of defendant Lorelei H. Oviatt. Following oral argument, defendants’ various motions were taken under submission.
The task of addressing six separate motions to dismiss and all of the arguments raised in support of and in opposition to. those motions has proven to be somewhat cumbersome. In the end, the court has concluded that the allegations of the operative complaint are deficient with respect to each of the claims presented. In addition, the court has concluded that some of those deficiencies cannot be cured. For the reasons explained more fully below, the court will grant defendants’ motions to dismiss.
FACTUAL BACKGROUND
On August 31, 2015 plaintiffs Committee to Protect our. Agricultural Water, Mike Hopkins, and John Wedel, commenced this action in the United States District Court for the Central District of California. (Doc. No. 1.) On August 31, 2015, the case was transferred to .the Eastern District of California pursuant to 28 U.S.C. 1404(a). (Doc. No. 95.)
This action now proceeds before the court on plaintiffs’ First Amended Complaint (“FAC”), filed June 16, 2015. (Doc.
The FAC alleges in relevant part as follows. Oil development 'in California is subject to both federal and state regulation. The federal Safe Drinking Water Act of 1974 (“SDWA”) provides rules for protection of public drinking water supplies. (Id. at 4); see also 42 U.S.C. §§ 300(f) et seq. Under the SDWA, the Environmental Protection Agency '(“EPA”) is authorized to regulate underground injection of fluid through wells, and to oversee states implementing these federal standards. (Doc. No. 16 at 25); see also 42 U.S.C. §§ 300(h), et seq. The EPA has specifically approved California’s underground injection control program. (Doc. No. 16 at 25); see also 40 C.F.R. § 147.250. Pursuant to California’s program, companies must obtain permits when they seek to use water disposal injection wells, known as Class II wells, to stimulate oil production. (Doc. No. 16 at 25.); see also Cal. Pub. Res. Code §§ 3000 et seq. The CDC’s DOGGR is charged with granting such permits. Id.
In 2008, California, oil companies began to increase their use of Class II wells in California. (Id.) Around 2010, oil and gas companies began to require more well-drilling permits than were previously needed. (Id.) In -response to the increased need, the oil and gas companies began contacting government officials in an attempt to streamline the process for DOGGR issuance of well-drilling permits. (Id.)
Plaintiffs allege that as early as September 27, 2011, defendants formed an “enterprise” to illegally increase oil production and maximize profits and tax revenue by allowing oil companies to inject salt water into fresh water in violation of the SDWA. (Id.) According to plaintiffs, this violated 18 U.S.C. §§ 241, 1341, 1343, 1346.43, 1512(b), and 1513(b), and thus, constitutes racketeering activity. (Id.)
' The FAC asserts the following claims against all defendants: (i) claims under the Racketeer Influence and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d); and (ii) civil rights claims under 42 U.S.C. § 1983 and § 1985(3). (Id. at 48, 51.). Plaintiffs seek injunctive relief and monetary damages. (Id. at 53-54.)
On August 10,. 2015, defendants Occidental, CIPA, Chevron, WSPA, and Oviatt filed individual motions to dismiss, (Doc. Nos. 51, 55, 57, 59, 63), and defendants Governor Brown, DOGGR, Rustic, and Ne-chodom (“state defendants”), filed a joint motion to dismiss, (Doc. No. 64). On. August 20, 2015 plaintiffs filed opposition papers to defendants’ motions to dismiss. (Doc. Nos. 71, 73-77.) Defendants filed their replies on August 27, 2015. (Doc. Nos. .81, 83, 85, 88, 90, 91.)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. Makaeff v. Trump University, LLC,
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding,
ANALYSIS
In their various motions to dismiss, defendants collectively advance eight arguments: (i) plaintiffs’ claims are entirely barred by the Noerr-Pénnington doctrine; (ii) plaintiffs’ claims are barred by the Eleventh Amendment; (iii) plaintiffs’ claims are barred by absolute immunity; (iv) plaintiffs’ claims are barred by qualified immunity; (v) plaintiffs fail to state a cognizable RICO claim, as they lack standing and have not met federal pleading standards; (vi) plaintiffs fail to adequately plead claims under 42 U.S.C. § 1983 or § 1985(3); (vii) plaintiffs Hopkins and Wedel have failed to join necessary parties under Federal Rule of Civil Procedure 12(b)(7); and • (viii) plaintiffs Hopkins’ claims, are barred by the applicable statute of limitations. Additionally, both plaintiffs and defendants Occidental and CRC, Oviatt, Chevron, and WSPA request that the court , take judicial notice of several documents and other items. (Doc. Nos. 53, 58, 61, 63-2, 72.)
Below, the court will first address the parties’ requests for judicial notice, and, thereafter, will turn to the arguments advanced by each of the defendants in support of their motions to dismiss.
I. Judicial Notice
When ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested .and the plaintiffs’ compkint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles,
a. State Court Documents and Corporate Filings
Defendants Occidental, CRC, and Chevron, request that the court judicially notice the following three documents: the original and First Amended Complaints filed in Palla Farms v. Crimson Resource Management Corp., et al., Case No. S-1500CV-283013-DRL; a corporate filing for Monache Meadows Farming Co., LLC; and a corporate filing for Palla Farms, LLC. (Doc. Nos. 53 at 2-3; 61 at 4.) The latter two documents are on file with the California Secretary of State. (Id.)
The court grants the request for judicial notice of the Palla Farms complaints, but only for purposes of noticing the existence of the lawsuit and the claims presented therein. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
b. Kern County Planning Department Documents
Defendant Oviatt requests that the court take judicial notice of the following documents: minutes from the Kern County Board of Supervisors meetings held on November 6, 2012, November 13, 2012, December 11, 2012, and January 22, 2013; letters from defendant Oviatt to the Kern County Board of Supervisors, dated January 22, 2013, April 30, 2013, and June 4, 2013; documents related to Oil & Gas Zoning Ordinance Amendments, including a Notice of Decision from August 30, 2013, a presentation to the Kern County Board of Supervisors from September 16, 2013, and an Executive Summary from July 2015; a Kern County Staff Report on revisions to Kern County Zoning Ordinance 2015 C, from July 27, 2015; and a Kern County public meeting schedule from August 9, 2015. (Doe. No. 58 at 2-5.)
Because these documents are publicly available official records of the Kern County Planning Department, they constitute “matters of public record” which may be judicially noticed. Intri-Plex Technologies, Inc. v. Crest Group, Inc.,
Defendant Chevron requests that the court take judicial notice of the following documents: the “Proposed Text of the Aquifer Exemption Compliance Schedule Regulations” prepared by the DOGGR, dated May 29,2015; a letter from DOGGR Supervisor Steve Bohlen from February 6, 2015; a memorandum from the California Environmental Protection Agency, dated March 2, 2015; and a press release from the Office of Governor Brown, dated January 13, 2012. (Doc. No. 61 at 2-3.) Again, because, these documents are matters of public record, having been prepared and made public by official government agencies, the court grants defendant Chevron’s requests for judicial notice. See United States v. 14.02 Acres of Land More or Less,
d.California Secretary of State Documents
Defendant WSPA requests that the court take judicial notice of a report concerning lobbying activity for WSPA between July 1, 2013, and September 30, 2013, published on the California Secretary of State website. (Doc. No. 63-2 at 2.) As this report is a matter of public record maintained by a governmental agency, the court grants WSPA’s request for judicial notice. See United States v. 14.02 Acres of Land More or Less,
e.Plaintiffs’ Requests for Judicial Notice & Submission of Chernow Declaration
Plaintiffs request that the court judicially notice one hundred and fifteen items, comprising over seven hundred pages of factual statements, images, letters, emails, and newspaper articles. (Doc. No. 72.) Plaintiffs do not offer specific arguments supporting judicial notice of each item, but instead argue in conclusory fashion that the documents “are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Id. at 2.) Additionally, plaintiffs have lodged a declaration of CDC official Derek Chernow in support of their opposition to defendants Occidental and CRC’s motion to dismiss. (Doc. No. 78.)
Defendants Occidental, CRC, and Oviatt oppose plaintiffs’ requests for judicial notice, and request that the court strike both plaintiffs’ request for judicial notice and the Chernow declaration. (Doc. Nos. 82, 84, 92.) With respect to plaintiffs’ requests for judicial notice, defendants argue that plaintiffs have not met their burden of showing that the items of which they seek judicial notice are not reasonably subject to dispute. (Doc. No. 82 at 3.) Specifically, defendants argue that “plaintiffs do not authenticate the documents, identify which document falls into which category, or provide any authority for the proposition that any documents obtained pursuant to a public records request is automatically noticeable.” (Doc. No. 84 at 2.) With respect to the Chernow declaration, defendants argue that it is improper in the context of a
The court agrees with defendants in large part. While the court may take judicial notice of matters of public record under Federal Evidence Rule 201, it may not take judicial notice of contested facts. See Ritter v. Hughes Aircraft Co.,
However, because the court has found it unnecessary to examine the Chernow declaration, in analyzing the defendants’ motions to dismiss plaintiffs’,complaint, the court will deny defendants’ motion to strike that declaration as moot. See Forest-Keeper v. Benson, No. 1:14-cv-00341-LJO-SKO,
II. The Noerr-Pennington Doctrine
Defendants first argue that the FAC should be dismissed because plaintiffs’ claims are barred by the First Amendment’s Noerr-Pennington doctrine.
The Noerr-Pennington doctrine derives from the First Amendment’s guarantee of the “right of the people ... to petition the Government for a redress of grievances.”, U.S. Const. amend. I; United Mine Workers v. Pennington,
Immunity under Noerr-Pennington is not absolute, however. In particular, immunity is withheld when the petitioning is a “sham.” Kottle v. Northwest Kidney Ctrs.,
The scope of the Noerr-Pen-nington sham exception depends on the branch of government involved. Kottle,
If the relevant petitioning activity involves judicial processes, the sham exception is broader. In judicial settings, misrepresentations to adjudicatory bodies do invoke the sham exception to Noerr-Pennington. See Allied Tube & Conduit Corp.,
Finally, if the petitioning involves an executive agency, the scope of the sham exception depends on whether the executive entity more resembles a judicial body or a political entity. See Forro Precision, Inc. v. International Bus. Machines Corp.,
In their motions to dismiss, defendants each argue that plaintiffs’ claims are entirely barred by the Noerr-Pennington doctrine, because those claims seek to attach liability to petitioning conduct protected under the First Amendment. (Doc. Nos. 51 at 18-23; 55 at 20; 57 at 24; 59-1 at 17; 63-1 at 8; 64-1 at 17-19.)
Plaintiffs contest the defendants’ arguments in this regard. (Doc. Nos. 71, 73, 74, 75, 76, 77.) While plaintiffs do not deny that their claims are based on defendants’ petitioning activities, they argue that the sham exception applies here. (Doc. No. 71 at 14.) However, plaintiffs do not clearly explain the scope of the sham exception they seek this court to apply. (Id. at 16 n.3.)
In reply, defendants argue that the sham exception is inapplicable in this case.
Defendants’ arguments are persuasive with respect to defendants Occidental, Chevron, CIPA, and WSPA. The court first concludes that the defendants’ acts as alleged in the FAC constitute protected petitioning activity. In their FAC, plaintiffs bring claims against defendants Occidental, Chevron, CIPA, and WSPA based the following conduct: (i) “closed-door” gatherings between defendants and DOGGR officials in 2012 and 2013, (Doc. No. 16 at 30, 38-39, ¶¶ 139, 189-196); (ii) threats by CIPA and WSPA to file suit against the DOGGR based on well-drilling permit policies, (Id. at 27, ¶¶ 124-125); (iii) political contributions by oil company defendants to defendant Governor Brown, (Id. at 33, ¶¶ 154-155, 198); (iv) marketing and public relations campaigns by Occidental, Chevron, CIPA, and WSPA, (Id. at 42-43, ¶¶ 209-210); and (v) letter-writing campaigns by WSPA and CIPA to defendant Governor Brown, (Id. at' 27-28, ¶¶ 127, 131). All such alleged conduct falls within the scope of protected petitioning. See Boone,
Furthermore, the sham exception does not apply to the alleged conduct by defendants Occidental, Chevron, CIPA, and the WSPA. As noted above, the scope of the sham exception hinges on the type of petitioning conduct at issue. Since the relevant petitioning activity here involves an executive agency, the DOGGR, the scope of the exception depends on whether the DOGGR more closely resembles a judicial body or a legislative entity. See Kottle,
According to the allegations of the FAC, the DOGGR is the executive agency charged with enforcing the SDWA in California and issuing permits to companies seeking to use Class II wells to stimulate oil production. (Doc. No. 16 at 21-22, ¶¶ 95, 100.) At oral argument on the pending motions, plaintiffs described the permit-issuing process as “essentially ministerial,” indicating that applicants must fulfill a “checklist” of requirements before being granted permits, with such permits auto
Accordingly, the court finds that the alleged conduct of defendants Occidental, Chevron, CIPA, and WSPA does not fall within the sham exception, and that plaintiffs’ claims against these defendants are barred by the First Amendment’s Noerr-Pennington doctrine.
Defendants’ arguments are less persuasive, however, with respect to. the applicability of the Noerr-Pennington doctrine to government defendants DOGGR, Governor Brown, Rustic, Nechodom, and Oviatt. Plaintiffs’ claims against these-government defendants are premised on alleged conduct including: (i) defendant Governor Brown’s personnel decisions concerning Miller and Chernow, (Doc. No. 16 at 49, ¶ 238); (ii) defendant Governor Brown’s declining to provide documents in response to Public Records Act requests, (Id.); (iii) defendant DOGGR, Rustic, and Oviatt’s private meetings with oil companies and trade groups, (Id. at 30, 38-40, ¶¶ 139, 189-196, 201); and (iv) defendant Oviatt and defendant Nechodom’s communications with unidentified farmers concerning complaints about contamination, (Id. at 48, ¶ 238.)
As defendants correctly observe, Noerr-Pennington can apply to government actors acting in their official capacities. See Manistee Town Ctr. v. City
Here, plaintiffs’ claims against the government defendants .are primarily premised' on the alleged interactions of those defendants with private oil companies and trade groups, and not on attempts by those government defendants to engage with other state entities for the sake of “procuring favorable government action.” Kottle v. Northwest Kidney Ctrs.,
III. Eleventh Amendment
■ Defendants next argue that plaintiffs’ claiiris against defendants DOGGR, Governor Brown, Nechodom, and Rustic are barred by the Eleventh Amendment.
The Eleventh Amendment prohibits federal courts from hearing suits brought by private citizens against state governments without the state’s consent. Hans v. Louisiana,
State immunity extends to state agencies and to state officers who act on behalf of the state. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
There are various exceptions to Eleventh Amendment immunity. First, Congress may abrogate the states’ sovereign immunity when it unequivocally expresses its intent to do so, and when it acts pursuant to a valid exercise of power. Townsend v. Univ. of Alaska,
To determine whether Ex parte Young applies, a court “need only
An entity invoking Eleventh Amendment immunity generally bears the burden of asserting and ultimately proving those matters necessary to establish its defense. Del Campo v. Kennedy,
Here, defendants DOGGR and CIPA assert in their motions to dismiss that plaintiffs’ claims against defendants DOGGR, Governor Brown, Rustic, Nechodom are barred by the Eleventh Amendment and should be dismissed for lack of subject matter jurisdiction. (Doc. Nos. 55 at 26-27; 64-1 at 14-15.) Defendants make three specific arguments in this regard. First, defendants argue that the DOGGR is immune from liability under Eleventh Amendment immunity and, as a state agency, is not subject to the Ex parte Young exception. (Doc. Nos. 55 at 26-27; 64-1 at 14-15.) Second, defendant DOGGR argues that plaintiffs cannot seek monetary damages against defendants Governor Brown, Rustic, and Nechodom, because the Eleventh Amendment bars all kinds of relief other than prospective relief. (Doc. No. 64-1 at 16.) Finally, defendant DOGGR argues that defendants Governor Brown, Rustic, and Nechodom are immune from liability under the Eleventh Amendment, and that Ex parte Young does not apply. (Doc. No. 64-1 at 17.) Defendant DOGGR contends that Ex parte Young does not apply to claims against defendants Governor Brown and Nechodom because there are no allegations establishing that they did not have a sufficiently close connection to the enforcement of the allegedly unconstitutional acts. (Id.) In particular, defendant argues that only current DOGGR supervisors have “direct authority and principal responsibility for enforcing” legislation related to the issuance of well-drilling permits. (Id.) Defendant also contends that the Eleventh Amendment bars plaintiffs’ claims against former DOGGR Supervisor Rustic. (Id.) While defendants concede that Ex parte Young can apply to current DOGGR supervisors, they argue that former supervisors do not have .the type of direct connection to allegedly unconstitutional activities required under Ex parte Young. (Id.)
In their opposition to defendants’ motions to dismiss, plaintiffs do not contest that the Eleventh Amendment bars claims against defendant DOGGR. (Doc. No. 77.) Plaintiffs also do not deny that the Eleventh Amendment bars all relief other than prospective injunctive relief. (Doc. No. 77
The court concludes that the Eleventh Amendment bars all claims' against defendant DOGGR,' claims against defendants Governor Brown, Nechodom, and Kustic in their official capacities for monetary relief, and claims against defendants Governor Brown and Kustic for injunctive relief. First, claims against the DOGGR are barred as a matter of law because the DOGGR' is a state agency protected by Eleventh Amendment immunity. See National Audubon Society, Inc. v. Davis,
Second, plaintiffs’ claims for monetary relief against defendants Governor Brown, Nechodom, and Kustic in their official capacities are also barred by the Eleventh Amendment. As noted above, the Eleventh Amendment bars official capacity suits against government entities seeking monetary damages. See Pena,
Plaintiffs’ claims against defendants Governor Brown and Kustic for prospective injunctive relief are also barred by the Eleventh Amendment. The FAC alleges that defendant Governor Brown “requested records about the permitting process,” (Doc. No. 16 at 29, ¶ 140); advised the DOGGR on its permitting process, (Id. at 5-6, 31, ¶¶ 23, 148); and fired a DOGGR supervisor based on her refusal to approve certain well-drilling permits, subsequently converting the position of DOGGR supervisor to a political appointment, (Id. at 6, 33, ¶¶ 23-25, 156). However, the FAC does not allege facts suggesting that defendant Governor Brown has the requisite enforcement authority to directly issue the permits in question or to change the rules governing the permit process. Thus, plaintiffs may not invoke Ex parte Young with respect to claims against defendant Governor Brown, and plaintiffs’ claims for prospective injunctive relief against this defendant are barred by the Eleventh Amendment. See, e.g., Associa
Plaintiffs also may not invoke Ex parte Young in pursuing claims against defendant Kustic, the former DOGGR Supervisor. It is undisputed that the current DOGGR Supervisor has a direct enforcement connection to the allegedly unconstitutional actions identified by plaintiffs. However, a number of district courts in this circuit have concluded that Ex parte Young does not apply to former government officials sued in their official capacities, even if those officials may have previously been subject to suit under the Ex parte Young doctrine. See, e.g., Marilley v. McCamman, No. C-11-02418 DMR,
Next, defendant Nechodom is immune from suit in his official capacity under the Eleventh Amendment,' but may properly be sued for prospective injunctive relief. In the FAC, plaintiffs allege the following: that defendant Nechodom was a director of the CDC at the time of the challenged action; that he “[set] policies to permit injection wells into or near fresh water”; and that he attended regular meetings with DOGGR officials and California oil'and gas companies to negotiate the granting of underground injection permits. (Doc. No. 16 at 17, 34, 51, ¶¶ 76, 162,
IV. Absolute Immunity
Defendants also argue that the plaintiffs’ claims against defendants Governor Brown, Nechodom, Rustic, and Oviatt are barred by absolute immunity.
Legislators and judges have absolute immunity from suits stemming from acts committed within the jurisdiction of their position. See Johnson v. Reagan,
“Although legislators undertaking legislative acts are absolutely immune from suit, they receive less protection when performing executive acts.” Cinevision Corp. v. City of Burbank,
Judges and those performing quasi-judicial functions are absolutely immune from liability for damages based on acts performed within their judicial capacities. Stump v. Sparkman,
For legislative and judicial absolute immunity, the party asserting the immunity carries the burden of proof. See Hafer v. Melo,
Defendants move to dismiss plaintiffs’ RICO and § 1983 claims against defendants Governor Brown, Nechodom, Rustic, and Oviatt on the basis of absolute immunity. Defendants first invoke absolute legislative immunity. Defendant DOGGR argues that absolute legislative immunity applies to all government defendants because plaintiffs’ claims are based on the DOGGR’s promulgation of policies and regulations concerning underground well injection. (Doc. No. 64-1 at 26.) Meanwhile, defendant Oviatt argues that plaintiffs’ specific claims against her stem entirely from her legislative acts—her involvement in county-wide zoning legislation. (Doc. Nos. 57 at 18-19; 64-1 at 25-26.)
Defendants next argue that, insofar as plaintiffs’ claims relate to DOGGR permitting decisions, such claims are barred by quasi-judicial absolute immunity. (Doc. No. 64-1 at 26-27.) Defendant DOGGR contends that permitting decisions are adjudicatory in nature, since they are subject to a statutory complaint process and to judicial review, and that defendants are thus absolutely immune from suit premised on their involvement in those permitting decisions. (Id.)
In their oppositions, plaintiffs argue that the individual government defendants are not protected by absolute immunity. They
Here, plaintiffs’ claims against defendants Governor Brown, Nechodom, Rustic, and Oviatt are based on the following alleged conduct: (i) defendant Governor Brown acquiring certain permit approval records, communicating with DOGGR officials about the operation of the permitting program, and making DOGGR hiring decisions with the aim of controlling the well-drilling permit process, (Doc. No. 16 at 5-6, 29, 31, 33, ¶¶ 23-25, 148, 158); (ii) defendant Nechodom “setting policies to permit injection wells into or near fresh water,” endorsing a flexible permit-granting process by DOGGR ■ supervisors, and attending meetings with DOGGR officials and oil companies to negotiate the granting of underground injection permits, (Id. at 6,- 17, 34; 51, ¶¶26, 76, 162, 251); (iii) defendant Rustic issuing -underground injection permits to certain oil companies, and meeting, with oil and trade, groups to discuss environmental issues, ■ (Id. at 30, 38-40, ¶¶ 139, 189-196, 201); and (iv) defendant Oviatt communicating with defendant Nechodom to discüss environmental issues, and working with mther defendants to intimidate witnesses, suppress research, destroy documents, and withhold information from the public, (Id. at 7, 34, 35, at ¶¶ 35-37, 163, 166, 171). Based upon these allegations in the FAC -it appears that plaintiffs base their claims on conduct unrelated to the DOGGR’s promulgation of environmental regulations. Though the FAC makes general reference to defendant Nechodom’s involvement in ■ setting DOGGR environmental policies, it does not appear that plaintiffs pursue liability against defendant Nechodom based on his involvement in enacting DOGGR regulations. The court therefore concludes that defendants have not met their burden of demonstrating the applicability of absolute legislative immunity to any of the individual government defendants. See Hafer,
Absolute judicial immunity is inapplicable to claims against defendants Governor Brown and Oviatt, since the FAC pleads no facts indicating that these defendants were involved in the DOGGR’s permitting process. With respect to 'plaintiffs’ claims against defendants Nechodom and Rustic, the applicability of absolute judicial immunity depends on whether their alleged involvement in DOGGR permitting constitutes quasi-judicial conduct. While defendants argue generally that DOGGR permitting process is adjudicatory in nature, they, have failed to address the factors articulated by the Ninth Circuit for identifying quasi-judicial activities., (Doc. No. 64-1 at 26-27.) Defendants point out only that DOGGR permit decisions are subject to a statutory complaint process, without analyzing whether the decision to award a permit is itself akin to a judicial proceeding. (Id.) Accordingly, the court concludes that defendants have not borne their burden of establishing the applicability of quasi-judicial immunity here. See Swenson v. Siskiyou Cty, No. 2:08-cv-1675 KJM CMK,
Accordingly, the court concludes plaintiffs’ claims against defendants Governor Brown, Neehodom, Kustic, and Oviatt are not barred by absolute immunity.
V. Qualified Immunity
Defendants also argue that .plaintiffs’ claims , against defendants Governor Brown, Neehodom, Kustic, and Oviatt are barred by qualified immunity.
Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person, would have known'.” Jeffers v. Gomez,
“A government official’s conduct violate[s] clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood .that what he -is doing violates that right.’ ” Ashcroft v. al-Kidd,
Plaintiffs bear the burden of proving the existence of. a “clearly established” right at the time of the allegedly impermissible conduct. Tarabochia v. Adkins,
Defendants DOGGR and Oviatt argue that plaintiffs’ claims against Governor Brown, Nechodom, Rustic, and Oviatt are barred by qualified immunity. In particular, defendants contend that plaintiffs’ FAC does not sufficiently allege defendants violated any clearly established statutory or a constitutional rights and, in any event, defendants could have reasonably believed that their actions were legal. (Doc. Nos. 57 at 21-22; 64-1 at 27-28.)
Plaintiffs contend that defendants are not entitled to qualified immunity, because their actions were unlawful and they could not have reasonably believed otherwise. (Doc. Nos. 76 at 15-17; 77 at 25-26.) In this regard, plaintiffs reference the FAC’s allegations of SDWA and state law violations. (Doc. Nos. 76 at 17; 77 at 25-26.)
The court concludes that plaintiffs’ claims against defendants Governor Brown, Nechodom, Rustic, and Oviatt for monetary damages are barred by qualified immunity. As noted above, plaintiffs pursue liability against these defendants based on a potpourri of conclusory factual allegations, including claims of defendants’ conspiring to violate the SDWA, illegally meeting with private entities to discuss environmental policies, blocking public comment on environmental laws, destroying government documents, and intimidating witnesses. (Id. at 5-7, 17 29-31, 33-34, 35, 38-40, 48, 51 at ¶¶ 23-25, 35-37, 76, 139, 148, 158, 162-63, 166, 171, 189-196, 201, 238, 251). Notably, these broad, highly charged general claims are made without specific factual allegations supporting them. As discussed in further detail below, plaintiffs in their FAC allege no particular conduct by these defendants amounting to a statutory or constitutional violation. See infra, Sections VI-VTI. Plaintiffs thus fail to satisfy the first element of the two-prong test for overcoming qualified immunity. See, e.g., Dupris v. McDonald, No. 08-8132-PCT-PGR, 08-8133-PCT-PGR,
VI. RICO claims
Defendants argue that plaintiffs’ RICO claims against them should be dismissed because plaintiffs lack standing to bring these claims and have failed to sufficiently plead the elements of a RICO claim in their FAC, The court addresses each argument in turn.
a. Standing
To maintain an action in federal court, plaintiffs must allege facts showing that they have Article III standing. Lujan v. Defenders of Wildlife,
Associations must meet additional requirements in order to have Article III
Plaintiffs bringing claims under the federal RICO statute must also meet additional standing requirements. Under RICO’s civil enforcement mechanism, “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962] may sue therefore in any appropriate United States district court.” 18 U.S.C. § 1964(c). To have standing under § 1964(c), a plaintiff must allege: (i) “that his alleged harm qualifies as injury to his business or property;” and (ii) “that his harm was ‘by reason of the RICO violation, which requires the plaintiff to establish proximate causation.” Canyon County v. Syngenta Seeds, Inc.,
In their motions to dismiss, defendants Occidental and CRC, Chevron, CIPA, and Oviatt, argue thát plaintiffs lack standing under Article III and RICO. Defendants first contend that the Committee plaintiff lacks Article III standing to seek monetary relief because associations cannot sue for money damages on behalf of their members. (Doc. Nos. 51 at 24; 53-1 at 10-11; 55 at 22-23; 57 at 25; 59-1 at 15; 63-1 at 10-11.)
Defendants Occidental and CRC, CIPA, Oviatt, and WSPA also contend that plaintiffs lack standing under § 1964(c) of RICO. Plaintiffs’ claims for injunctive relief fail, defendants argue, because private parties cannot seek equitable relief in RICO actions. (Doc. Nos. 51 at 23; 55 at 22-23; 57 at 25; 63-1 at 10-11.) Defendants contend that plaintiffs’ claims for monetary damages against individual defendants Wedel and Hopkins also fail because plaintiffs have not sufficiently alleged injury or causation. (Doc. Nos. 51 at 24; 55 at 23; 57 at 25-26; 59-1 at 15; 63-1 at 11-13.) First, defendants assert that plaintiffs have not adequately alleged injury to business or property, and that plaintiff Wedel has not alleged facts showing a
In.their oppositions to defendants’ motions to dismiss, plaintiffs argue they do have Article III standing. (Doc. No. 71 at 25-26.) First, plaintiffs argue that courts have not conclusively rejected the possibility of associational. standing to seek monetary relief, and that the plaintiff Committee. here satisfies the Hunt factors. (Id.) Second, plaintiffs argue they have standing under § 1964(c) of RICO. (Doc, No. 71 at 23-24.) Plaintiffs do not respond to defendants’ argument that private parties cannot sue for injunctive relief under RICO. (Id.) However, plaintiffs contend that they have sufficiently alleged both injury and causation. They assert that the FAC adequately alleges a connection between the relevant harm, damage to plaintiffs’ property from compromised water quality, and the alleged statutory violation, breach of the SDWA. (Id. at 24.) According to plaintiffs, no more is required for RICO standing. (Id.) Additionally, plaintiffs deny that plaintiff Hopkins’.pending state lawsuit defeats injury or proximate cause with respect to his RICO claims presented in the FAC, as there has not been a final adjudication of that state court action which was initiated before new facts emerged that form the basis of the instant suit. (Id. at 24-25.), . .
The court finds defendants’ arguments persuasive. Given that plaintiffs’ claims for monetary relief would “necessarily involve individualized proof and thus the participation of association members,” the Committee lacks associational standing to seek monetary damages. United Union of Roofers v. Ins. Corp. of Am.,
Plaintiffs Hopkins and Wedel have also failed to establish their standing under RICO. The court first notes that plaintiffs have satisfied the civil RICO standard for injury. The FAC alleges the following injuries suffered by plaintiffs Hopkins and Wedel: (i) “deprivation ... of [plaintiff Hopkins and Wedel’s] property and their right to petition the government” about environmental issues, (Id. at 50-52, ¶¶ 242, 253-55), and' (ii) “lower yields” in farming operations managed by the farmer plaintiffs, leaving plaintiff Hopkins with “no choice but to remove an entire orchard of cherry trees,” (Doc. No. 16 at 6-7, 15, 50-51, ¶¶ 30, 68-68, 246). It is the case that deprivation of “the right to petition the government” is not a tangible' and concrete financial loss, and does not constitute injury to “business or property” as required by § 1964(c). See Guerrero,
Nonetheless, plaintiffs’ Hopkins and Wedel fail to satisfy the.proximate cause requirement for standing under § 1964(c) of the RICO statute. The FAC sets out an excessively attenuated theory of causation. It does not clearly allege how the defendants’ conduct led to a concrete impact on
b. Pleading Sufficiency
Defendants additionally argue that plaintiffs’ RICO claims fail under federal pleading standards.
The civil RICO statutes allow individuals to file suit and recover treble damages against individuals who, through a “pattern óf racketeering activity,” acquire an interest in, or conduct the business of, an enterprise engaged in interstate or foreign commerce. 18 U.S.C. §§ 1962(b), 1962(c), 1964(d). In particular, § 1962(c) prohibits conducting the affairs of an enterprise engaged in interstate or foreign commerce through a pattern of racketeering activities. RICO also creates a private cause of action against individuals who conspire to engage in such prohibited activity. 18 U.S.C. § 1962(d).
To state a RICO claim under § 1962(c), a plaintiff must allege: (i)-conduct (ii) of an enterprise (ii) through a pattern (iv) of racketeering activity, and (v) injury in the plaintiffs’ business or property by the conduct constituting the violation. Sedima, S.P.R.L. v. Imrex Co., Inc.,
To plead a violation of § 1962(d), meanwhile, a plaintiff must allege “either an agreement that is a substantive violation of RICO or that the defendants agreed to commit, or participated in, a violation of two predicate offenses.” Howard v. America Online, Inc.,
Generally, plaintiffs pursuing RICO claims under both §§ 1962(c) and
Here, defendants argue that plaintiffs’ RICO claims should be dismissed because they have failed to adequately plead the existence of a RICO enterprise or a pattern of racketeering activity. The court analyzes both arguments below.
i. RICO enterprise
First, defendants argue that plaintiffs’ RICO claims are subject to dismissal because their FAC fails to adequately allege the existence of a RICO “enterprise” under § 1962(c).
The RICO statute defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). To show an association-in-fact enterprise, plaintiffs must plead three elements. First, plaintiffs must plead a common purpose. See Eclectic Props. E., LLC v. Marcus & Millichap Co.,
In general, there is “no restriction upon the associations embraced by the definition of enterprise.” United States v. Feldman,
In their motions to dismiss, defendants collectively assert three reasons why plaintiffs have failed to adequately allege a RICO enterprise in the FAC. First, defendants Occidental and CRC, CIPA, Oviatt, and WSPA, contend that plaintiffs have not alleged that defendants associated together for a common purpose of engaging in a specific course of conduct. (Doc. Nos. 51 at 27; 55 at 30; 57 at 27; 59-1 at 24-25; 63 at 14-15.) Second, the same defendants contend that plaintiffs havé failed to allege facts indicating the structure of any claimed enterprise. (Doc. Nos. 51 at 27; 55 at 30-31; 57 at 27; 59-1 at 25-26; 63-1 at 14.) Finally, defendants Occidental and CRC, and CIPA argue that plaintiffs have pot pled facts indicating that defendants operated with longevity as a continuous unit. (Doc. Nos. 51 at 27; 55 at 30.)
In their opposition plaintiffs argue that the FAC sufficiently pleads an association-in-fact enterprise by alleging that defendants acted with a common purpose of increasing profits, and engaged in ongoing communications suggestive of an organized conspiracy. (Doc, No. 71 at 23.) The court finds plaintiffs’ argument in this regard to be unpersuasive.
In the FAC, plaintiffs allege that defendants “formed an ‘enterprise,’ ” with a common purpose “to maximize profits, increase revenues, and avoid the consequences of the contamination- of fresh water.” (Doc. No. 16 at 11, 34, 50, ¶¶ 51, 163, 244.) In pursuit of their common purpose, the FAC states, defendants -engaged in mail and wire ■ communication to discuss environmental regulations in Kern County, (Id, at 7, ¶ 37. It is alleged, for example, that defendant Oviatt sent an email to defendant Nechodom stating that Kern County and the CDC “have the same goal” with respect to environmental regulation. (Id. at 7, ¶ 37.) Additionally, the FAC alleges that defendant oil companies contrib
Similarly, plaintiffs have failed to sufficiently allege either a formal or an informal organizational structure amongst the named defendants. The • FAC merely alleges in conclusory and unnecessarily fervid fashion that; defendants “held secret meetings ... to discuss legislative and litigation matters”; that- “[e]ach Defendant has participated in the operation and management of the Enterprise”; and that the group “reached to the highest of California’s government officials.” (Id. at 10, ¶¶49, 50; 50, ¶244.) However, the FAC does not. allege specific facts as to the nature of the connection between defendants. It also does not contain factual allegations explaining the structure of the alleged enterprise, or explain how defendants coordinated to create a vehicle with mechanisms for carrying out RICO predicate crimes. See Gomez, LLC,
Neither do plaintiffs adequately allege that defendants coordinated their activities as a continuing unit. In the FAC, plaintiffs merely allege without any elaboration that defendants engaged in a “continuing and related pattern of racketeering' activity,” which began “[a]s early as September 27, 2011, and continu[ed] up to and including
Ultimately, in light of plaintiffs’ failure to allege a RICO enterprise with a common purpose, cohesive structure, and continuing operation, the court must conclude that the FAC does not “contain sufficient factual matter” to state a plausible claim to relief under RICO. See generally Ashcroft v. Iqbal,
ii. Racketeering activity pattern
Defendants also argue that plaintiffs have failed to adequately plead a pattern of racketeering activity under RICO in the FAC.
The RICO statute defines “racketeering activity” as any act indictable under several provisions of Title 18 of the United States Code, including the predicate acts of wire fraud, § 1343, mail fraud, § 1341, and tampering with or retaliating against federal witnesses, §§ 1512, 1513. See 18 U.S.C. § 1961(1); Sanford,
To make out a claim for the RICO predicate act of wire or mail fraud, plaintiffs must allege (i) a scheme or artifice devised with (ii) the specific intent to defraud and (iii) use of the United States mail or interstate telephone wires in furtherance thereof. See Orr v. Bank of America, NT & SA,
As noted above, RICO fraud claims must meet the heightened pleading standards of Federal Civil Procedure Rule 9(b). See generally Vess v. Ciba-Geigy Corp.,
To plead a pattern of racketeering activity, plaintiffs must allege that defendants committed at least two of the statutorily enumerated predicate acts.
In their motions to dismiss, defendants collectively argue that plaintiffs have failed to adequately plead a RICO predicate offense or a pattern of such offenses. First, defendants argue that none of the seven RICO predicates alleged by plaintiffs are sufficient to state a claim, as they are either not listed in the RICO statute or are not supported by specific, concrete factual allegations in the FAC. (Doc. Nos. 51 at 28-31; 55 at 28-30; 57 at 29-31; 59-1 at 19-24; 63-1 at 15-16.) Second, defendants .CIPA, Oviatt, Chevron, argue that plaintiffs have not adequately alleged a
In opposing defendants’ motions to dismiss, plaintiffs argue that their FAC alleges a plausible pattern of racketeering activity. In their written submissions, plaintiffs argue that the FAC adequately pleads RICO predicate acts of mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, as required under Rule 9(b). (Doc. No. 71 at 19-21.) At oral argument on the pending motion, plaintiffs also maintained that the FAC sufficiently alleges the predicate acts of witness -tampering, 18 U.S.C. §§ 1512— 13, and honest services fraud, 18 U.S.C. § 1346. (Doc. No. 165 at 35.) Finally, plaintiffs argue the FAC sufficiently pleads a pattern of racketeering activity under RICO, in that it “alleges government fraud that took place over a four year period and multiple episodes.” (Doc. No. 71 at 22-23.)
Plaintiffs’ FAC alleges seven distinct RICO predicates—conspiracy against rights, 18 U.S.C. § 241; conspiracy to defraud the United States, 18 U.S.C. § 371; tampering with or retaliating against witnesses, 18 U.S.C. §§ 1512-13; honest services fraud, 18 U.S.C. § 1346; mail and wire fraud, 18 U.S.C. § 1341 and '§ 1343. (Doc. No. 16 'at 49.) As noted by defendants, however, two of the statutory offenses alleged by plaintiffs, -conspiracy against rights and conspiracy to defraud the United States, 18 U.S.C. §§ 241 or 371, are not listed as predicate acts under the RICO statute. See 18 U.S.C. § 1961(1); see also Rector v. Baca,
Plaintiffs have also failed to adequately allege predicate acts based on federal witness tampering, 18 U.S.C. §§' 1512-13. The FAC does not allege any facts concerning what persons or entities were involved in the alleged witness tampering offenses or facts indicating when or how any acts of tampering or retaliation took place. Indeed, the FAC fails to allege even the existence of any relevant court proceedings. Given the complete absence of supporting factual allegations, plaintiffs cannot be said to have plausibly alleged predicate offenses based on violations of 18 U.S.C. §§ 1512-13. See Vierria v. Cal. Highway Patrol,
Plaintiffs similarly fail to allege a predicate offense of honest services fraud under 18 U.S.C. § 1346. To support their honest services fraud claim, plaintiffs merely allege the following: (i) that defendants Occidental and Chevron made political contributions to Governor Brown in 2012, to support campaign programs and tax increase propositions, (Doc. No. 16 at 33, ¶¶ 154-55); (ii) that defendant WSPA took state legislators to dinner in September 2013, (Id. at 40, ¶¶ 198-99); and (iii) that defendants Occidental, CDC, and Chevron took defendant Rustic to dinner in November-2013, (Id. at 40, ¶ 201). Plaintiffs do not allege facts in any way suggesting that defendants accepted money or benefits in exchange for official action. Nor do plaintiffs allege facts indicating that defendants otherwise retained monetary sums received from a third party. Without specific factual allegations supporting claims of bribery or -kickbacks, plaintiffs
Finally, plaintiffs have not adequately pled the predicate acts of mail or wire fraud. Plaintiffs allege only the following in support of their mail and wire fraud claims: (i) defendants Governor Brown, Nechodom, Kustic, and Oviatt “utilize[ed] mail and wire fraud to deprive Californians of compliance with the [SDWA] ”; (ii) defendant Governor Brown used wire communications to threaten, and eventually fire, CDC official Derek Chernow and DOGGR official Elena Miller based on their refusal to violate the SDWA; (iii) defendant Oviatt sent wire communications “threatening witnesses and obstructing the right of farmers to petition the courts”; (iv) defendant Kustic sent wire communications “promising to be ‘flexible’ in permitting wells”; (v) defendants Chevron, Occidental, and CRC “sent fraudulent communications via mail and electronic wires ... suggesting that [DOGGR official] Miller was imposing new regulations,” “suggesting they complied with regulations designed to protect fresh water,” and “touting] the safety of fracking”; and (vi) defendants WSPA and CIPA used electronic wires to misrepresent that there were “unnecessary delays in Sacramento’s review of oil field injection projects,” and mailed “fraudulent letters suggesting that failing to issue [well-drilling] permits cost the people in California jobs.” (Id. at 27, 43, 48, ¶¶ 125-128, 211-215, 238.)
In order to adequately allege claims of mail or wire fraud, however, plaintiffs must satisfy the requirements of Federal Civil Procedure Rule 9(b). See United States ex rel. Lee v. SmithKline Beecham, Inc.,
Because plaintiffs have failed to sufficiently allege an instance of racketeering activity under RICO, plaintiffs have necessarily failed to sufficiently allege a pattern of such activity. See Orr v. Bank of America, NT & SA,
iii. RICO conspiracy
Next, defendants argue that plaintiffs have failed to adequately allege a RICO conspiracy under 18 U.S.C. § 1962(d).
The RICO statute provides that “it shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” 18 U.S.C. § 1962(d). However, a plaintiff “cannot claim that a conspiracy to violate RICO exist[s] if they do not adequately plead a substantive violation of RICO.” Howard v. America Online Inc.,
In their motions to dismiss, defendants Occidental and CRC, CIPA, Oviatt, and Chevron argue that plaintiffs have failed to adequately plead a RICO conspiracy under § 1962(d) because they have not adequately alleged a substantive RICO claim. (Doc, Nos. 51 at 2; 55 at 27; 57 at 31-32; 59-1 at 26.) Plaintiffs oppose defendants’ arguments, relying on the same factual allegations in the FAC which they point to in support of their substantive RICO claims. (Doc. Nos. 73 at 16-17; 74 at 18-19; 75 at 16; 76 at 20-21; 77 at 29-32.) For the reasons addressed above, plaintiffs’ argument in this regard falls short.
Because plaintiffs have failed to adequately allege a § 1962(c) RICO claim, they cannot plausibly allege a RICO conspiracy under § 1962(d). See Howard,
VII. Civil Rights Claims
Defendants also argue that plaintiffs’ civil rights claims under 42 U.S.C. § 1983 and § 1985 should be dismissed because plaintiffs have alleged neither a violation of their constitutional rights cognizable under
a. Section 1983
Defendants first contend that plaintiffs’ § 1983 claims should be dismissed because plaintiffs have not adequately pled a constitutional violation and also have not pled a private-public conspiracy sufficient to support a § 1983 claim against non-state actor defendants.
The Civil Rights Act provides as follows:
Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Thus, to make out a cognizable claim under § 1983, a plaintiff must allege facts showing that: (i) the conduct complained of was committed by a person acting under color of state law; (ii) this conduct deprived a person of constitutional rights, and (iii) there is an actual connection or link between the actions of the defendants and the deprivation allegedly suffered by plaintiff. See Parratt v. Taylor,
The first element of a § 1983 claim limits liability to persons who are acting under color state law. Neither a state nor its officials acting in their official capacities are considered “persons” for purposes of § 1983. Will v. Michigan Dep’t of State Police,
With respect to the second element, the FAC alleges that plaintiffs were deprived of their First Amendment petitioning rights and Fifth Amendment rights under the Takings Clause. The First Amendment
The Fifth Amendment Takings Clause
In their motions to dismiss, defendants collectively, assert three reasons why plaintiffs have failed to state a cognizable § 1983 claim in their FAC. First, defendants CIPA and DOGGR argue that plaintiffs cannot bring § 1983 claims against defendants DOGGR, Governor Brown, and Oviatt in their official capacities, because government officials are not “persons” for' purposes of § 1983, and are not subject to suit in their official capacities under that provision. (Doc. Nos. 55 at 24; 64-1 at 15 n.2.) Second, defendants Occidental and CRC, CIPA, Chevron,- and WSPA argue that plaintiffs cannot maintain a § 1983 action against defendants Occidental and CRC, Chevron, WSPA, or CIPA, because plaintiffs have failed to sufficiently alleged a private-public conspiracy such that the conduct of the private parties named could be found to constitute state action. (Doc. No. 51 at 32-33; 55. at 25; 59-1 at 29; 63-1 at 17-18.) Third, defendants argue that plaintiffs have failed to adequately plead violation of either the First Amendment Petition Clause or the Fifth Amendment Takings Clause, (Doc. Nos. 51 at 33-34; 55 at 32-34; 57 at 33-34; 59-1 at 30-32; 64-1 at 24-25.) Specifically, defendants contend that plaintiffs have failed to plead facts alleging a violation of their constitutional rights or their exhaustion of state remedies as required to state a claim under the Fifth Amendment Takings Clause. (Doc. Nos. 51 at 34; 55 at 32-34; 57 at 33-35; 59-1 at 30-32 & n.6; 63-1 at 18-19; 64-1 at 23-25.)
Plaintiffs oppose defendants’ motions to dismiss in this regard, arguing that the FAC adequately' states a claim under § 1983. Plaintiffs do not respond to defendants’ arguments that they cannot bring § 1983 claims' against defendants DOGGR, Governor Brown, and Oviatt in their official capacities: • (Doc. No.. 75.) However, ■plaintiffs argue that they have properly brought claims against private actor defendants, in that their FAC adequately alleges a § 1983 conspiracy between private and public defendants. (Doc. No. 71 at 30;) Additionally, plaintiffs argue that they have sufficiently alleged violations of both the First Amendment Petition Clause and the Fifth Amendment Takings Clause. (Doe. No. 71 at 30.) Finally, with respect to the Fifth Amendment claim, plaintiffs contend that an inverse condemnation action may be brought without pleading exhaustion of state remedies if property has already been damaged. (Doc. No. 71 at 30-31.)
Because neither a state nor its officials acting in their official capacities are considered “persons” for purposes of § 1983, plaintiffs cannot assert official capacity claims' against government defendants Governor Brown, Nechodom, Rustic, and Oviatt. See Will v. Michigan Dep’t of State Police,
Furthermore, . plaintiffs have failed to allege that private defendants Occidental and CRC, CIPA, Chevron, and
The court also finds that plaintiffs have failed to adequately plead violations of the First or Fifth Amendment. In support of their claim of a First Amendment violation, the FAC alleges in conclusory fashion that plaintiffs were (i) “block[ed] ... from complaining about contamination of water” and “from expressing concerns about water quality”; and (ii) denied their right to “free access to information under California Public Records. Act, the Bagley-Keene Act, and the Brown Act.” (Id. at 52, ¶ 256.) However, plaintiffs have failed to plead facts indicating how they were blocked from expressing concerns to government officials. Plaintiffs also have not provided sufficient factual allegations that, if proven, would demonstrate that they wei’e unconstitutionally denied access to information. See, e.g., Houchins v. KQED, INC.,
Plaintiffs have also fail to adequately plead a § 1983 claim based on a violation of the Fifth Amendment. In the FAC, plaintiffs allege they were deprived of their “constitutional right to own property under the Fifth Amendment.” (Doc. No. 16 at 51, ¶ 249.) Plaintiffs contend that the DOGGR’s policy of improperly allowing well-drilling permits “constitutes a regulatory taking because such contamination diminishes the value of the farms.” (Id. at 51, ¶ 257.) Plaintiffs do not allege, however, that they sought and were denied just compensation for any alleged property deprivation through state inverse condemnation procedures before bringing their § 1983 Takings Clause claim. See Colony Cove Props., LLC v. City of Carson,
b. Section 1985 Claim
Title 42 U.S.C. § 1985(3) provides:
[i]f two or more persons in any State or Territory conspire ..., for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
To state a cause of action under § 1985(3), plaintiffs must allege and prove four elements: (i) a conspiracy; (ii) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (iii) an act in furtherance of this conspiracy; (iv) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Sever v. Alaska Pulp Corp.,
To plead a deprivation of equal protection, the second element of a § 1985 claim, a plaintiff must allege “a deprivation of [a] right motivated by some racial, or ... other[ ] class-based” animus. Sever,
Defendants move to dismiss this cause of action, contending that plaintiffs have failed to adequately plead their § 1985 claim. Defendants make two persuasive arguments. First, defendants Occidental and CRC, Chevron, and DOGGR argue that plaintiffs have failed to allege either a
In their opposition to defendants’ motion to. dismiss, plaintiffs do not directly address the sufficiency of their § 1985(3) claim. (Doc. Nos. 71, 73-77.)
The court now finds that plaintiffs’ § 1985(3) claim is inadequately pled. Since the' court has already found that plaintiffs have riot adequately alleged a conspiracy or a violation of constitutional rights, plaintiffs are necessarily barred from pursuing a claim under § 1985. See supra,, Section VI(a); see also Peloza v. Capistrano Unified Sch. Dist.,
VIII. Leave to Amend
Although currently proceeding on a first amended complaint, plaintiffs have requested that they be granted further leave to amend in the event that the court grants defendants’ motions to dismiss. (Doc. No. 73 at 10.)
The court has carefully considered whether plaintiffs are capable of further amending their FAC to state any cognizable claims for relief. A district court
Applying these standards, the court denies leave to amend with respect to the plaintiff Committee’s claims for monetary relief, as amendment of the complaint in that regard would.be futile for the reasons discussed in this order. Leave to amend is also denied with respect to plaintiffs’ claims under RICO for injunctive relief. Finally, the court denies leave to amend with respect to all of plaintiffs’ claims found by the court to be barred by Eleventh Amendment immunity, including: all claims against defendant DOGGR, official capacity claims for monetary relief against defendants Governor Brown, Rustic, Ne-chodbrn and Oviatt, and claims for injunc-five relief against defendants ' Governor Brown and Rustic.
Although concerned that it may well be the case, the court cannot yet say ’it is clear that plaintiffs’ remaining claims are not salvageable by amendment.
The court cannot, refer to a prior pleading in ord.er to make plaintiffs second amended complaint, complete. Local Rule 220 requires that an amended complaint be
Finally, as expressed at the hearing on these motions, the court is concerned regarding the unnecessary and inflammatory rhetoric employed in the allegations of the FAC that is now being dismissed. Plaintiffs’ counsel is advised that such a pleading style is not consistent with Rule 8’s requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief,” hampers the court’s ability to assess the sufficiency of the allegations, and should not be included in any second amended complaint plaintiffs may elect to file. See Newton v. Gates, No. 1:08-cv-2321-WSD,
CONCLUSION
For all of the reasons set forth above, the court grants defendants’ motions to dismiss (Doc. Nos. 51, 55, 57, 59, 63 and 64.). Specifically:
1. Plaintiff Committee’s claims for monetary relief are dismissed with prejudice and without leave to amend;
2. Plaintiffs’ claims against defendant DOGGR are dismissed with prejudice and without leave to amend.
3. Plaintiffs’ RICO claims for injunc-tive relief are dismissed with prejudice and without leave to amend.
4. Plaintiffs’ claims for monetary relief against defendants Governor Brown, Rustic, Nechodom, and Oviatt in their official capacity are dismissed ■ with prejudice and without leave to amend.
5. Plaintiffs’ claims for injunctive relief against defendants Governor Brown and Rustic are dismissed with prejudice and without leave to amend.
6. Plaintiffs’ claim for injunctive relief against defendant Nechodom is dismissed with leave to amend.
7. Plaintiffs’ claims for monetary relief against defendants Governor Brown, Rustic, Nechodom, and Oviatt in their personal capacity are dismissed with leave to amend.
8. Plaintiffs’ RICO and § 1983 claims against defendants Occidental and CRC, Chevron, WSPA, and CIPA are dismissed with leave tlo amend.
9. Plaintiffs are granted twenty-one days from the issuance of this order in which to file a second amended complaint. Any failure to do so will result in the dismissal of this action.
IT IS SO ORDERED.
Notes
. Under California Resources Code § 3013, "the [CDC] director and the [DOGGR] supervisor, acting with the approval of the [CDC] director, shall have all powers, including the authority to adopt rules and regulations, which may be necessary to carry out the purposes of this division.”
. "Judges are not like pigs, hunting for truffles buried in briefs.” Christian Legal Soc. Chapter of University of California v. Wu,
. Moreover, even if the judicial sham exception applied rather than the legislative one, plaintiffs have not pled sufficient grounds for applying that exception here. Plaintiffs' alleged injuries stem from the outcome 'of the government processes^ the issuance of the permits themselves, rather .than from the government process. See Manistee Town Center v. City of Glendale,
. In arguing that their .alleged conduct brings them within the Noerr-Pennington doctrine, the government defendants rely in large part on the decision in Boone. In this court’s view, that argument misses the mark. First, the defendant at issue in the Boone decision was a private development company clearly engaged in petitioning activity, not a govern- • ment official.
. California Public Resources Code § 3103 reads: "This division shall be liberally construed to meet its purposes, and the director and the supervisor, acting with the approval of the director, shall have all powers, including the authority to adopt rules and regulations, which may be necessary to carry out the purposes of this division.”
. Defendant DOGGR also argues that absolute and qualified immunity bar plaintiffs’ RICO and § 1983 claims against it. (Doc. No. 64-1 at 25-29.) Having found that the Eleventh Amendment entirely precludes plaintiffs’ claims against defendant DOGGR, the court need not reach the issue of whether defendant DOGGR is entitled to absolute or qualified immunity.
. Plaintiffs with standing may seek treble damages, costs, and attorney’s fees under the civil RICO statute. See 18 U.S.C. § 1962(c). However, private parties cannot pursue in-junctive relief under RICO. See Religious Tech. Ctr. v. Wollersheim,
. Defendant Chevron also argues that plaintiffs’ failure to allege injury or causation defeats standing, but contends that plaintiffs have failed to satisfy the requirements of Article III rather than those of § 1964(c) of RICO, (Doc. No. 59-1 at 15-17.)
. Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).
. See n.9, above.
. The RICO statute provides that a pattern "requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).
. Defendants Occidental, CRC, and Oviatt argue that honest services fraud cannot serve as an independent predicate offense under RICO, separate from the related predicate acts of wire and mail fraud. (Doc. Nos. 51 at 29; 57 at 29). However, contrary to defendants' arguments, the Ninth Circuit has not clearly stated this proposition. See Portfolio Investments LLC v. First Sav. Bank Northwest, 583 Fed.Appx, 814, 816 (9th Cir. 2014) (finding that plaintiff lacked standing to bring RICO claims, and specifically declining to reach the issue of whether honest-services fraud can ever serve as a predicate RICO act). But see United States v. Boscarino,
. The joint action test asks "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Franklin,
. The First Amendment provides: "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” . U.S. Cons, amend. I. ¡
. The Fifth Amendment provides: "private property [shall not] be taken for public use, without just compensation.” U.S. Const, amend. V.
.. Indeed, at the hearing on the pending motion, plaintiffs’ counsel conceded that the § 1985(3) claim “is something that we are not fighting to keep in the lawsuit.” (Doc. No. 165' at 34.)
. Defendants also argue that the claims brought by plaintiffs Hopkins and Wedel are barred due to failure to join necessary parties, and that plaintiff Hopkins’ claims are time barred. Because the court has already found that the claims brought by plaintiffs Hopkins and Wedel fail on a number of other grounds, .the court need not reach defendants' addition,al arguments for dismissal of those claims at this time.
. Although the operative pleading before the court is the FAC, it was filed by plaintiffs as a matter of right,’ prior to the appearance of any defendant in this action. (Doc. No. 16.) Therefore, this is the first order issued in this action in response to a motion to dismiss brought on ■ behalf of a defendant.
. The court acknowledges the arguments of all defendants, and particularly that made on behalf of defendant Oviatt, that dismissal should be with prejudice because plaintiffs cannot allege facts supporting any cognizable claims against them. As noted, that may be the case. However, the defendants’ arguments for dismissal without leave to amend are essentially based upon the premise that because they did nothing actionable, amendment cannot cure the FAC’s deficiencies. That is a presumption that the court is simply not able to engage in at this point, particularly in light of the. assurances, of plaintiffs’ counsel that additional factual allegations can in good faith be made by plaintiffs in support of some of their claims.