(PS) Narayan v. County of Sacramento ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRAKASH NARAYAN, No. 2:19-cv-0466-TLN-CKD PS 12 Plaintiff, 13 v. ORDER & FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., (ECF Nos. 138, 141, 143, 159, 163) 15 Defendants. 16 17 18 Presently before the court are a dispositive motion for summary judgment by the last 19 remaining defendants in this action, and multiple surrounding motions by pro se plaintiff Prakash 20 Narayan.1 (ECF Nos. 138, 141, 143, 159, 163.) Plaintiff’s motions consist of (1) a motion for 21 leave to amend the complaint (ECF Nos. 138, 141)2; (2) a motion to vacate the undersigned’s 22 October 15, 2021 order modifying the prior Scheduling Order (ECF No. 143); and (3) an 23 amended ex parte application to enter default judgment in plaintiff’s favor (ECF No. 163). All of 24 1 Because plaintiff is self-represented, all pretrial proceedings are referred to the 25 undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(21). 26 2 Plaintiff’s notice of motion (ECF No. 141) was received by the court several days after his 27 memorandum in support with the attached proposed amended complaint (ECF No. 138). Although these documents were docketed as separate motions to amend, they are in fact part and 28 parcel of the same motion. 1 the motions, except the ex parte application, have been fully briefed; and the court heard remote 2 arguments on plaintiff’s motion to amend on December 8, 2021. (See ECF No. 154.) The court 3 deemed hearings unnecessary for the other motions, which were submitted on the papers pursuant 4 to Local Rule 230(g). Having considered the parties’ arguments, the law, and the relevant facts, 5 the court DENIES plaintiff’s motion to vacate the court’s October 15th schedule modification 6 order (ECF No. 143) and recommends GRANTING defendants’ dispositive motion for summary 7 judgment (ECF No. 159) and DENYING plaintiff’s motion to amend and application for default 8 judgment (ECF Nos. 138, 141, 163). 9 I. BACKGROUND 10 Plaintiff filed this action in March 2019 against three sets of defendants: Wells Fargo 11 Bank; the City of Sacramento; and the County of Sacramento, the Sacramento County Assessor, 12 and Sacramento County Tax Collector Ben Lamera (collectively, “the County defendants”). 13 (ECF No. 1.) Overall, plaintiff alleges unfair debt collection practices arising from the improper 14 addition of delinquent public utilities charges to his County property tax bills over several years. 15 The court granted plaintiff leave to proceed in forma pauperis, but in screening the 16 complaint under 28 U.S.C. § 1915(e) found that the complaint failed to establish the court’s 17 subject matter jurisdiction because it failed to state a federal claim. (ECF Nos. 2, 4.) The court 18 granted plaintiff leave to amend, and in May 2019, plaintiff filed a First Amended Complaint 19 (“FAC”) against the same defendants. (ECF No. 12.) In a June 27, 2019 re-screening order, the 20 court found the FAC adequately pleaded the elements of a Fair Debt Collection Practices Act 21 (“FDCPA”) claim—“if just barely”—and ordered service of the FAC on defendants. (ECF 22 No. 13.) The County defendants filed an answer to the FAC on July 18, 2019 (ECF No. 17), and 23 the FAC remains the currently operative complaint. 24 The FAC asserts five causes of action under the FDCPA and two ostensible causes of 25 action for “t[a]mpering with public records” and “public corruption.” (ECF No. 12 at 1-9.) For 26 the FDCPA claims, plaintiff alleges that he received “deceptive” County property tax bills that 27 included assessments for unpaid City utility debts without him ever receiving a record of what the 28 debts were for. (Id. at 1-2.) Wells Fargo—plaintiff’s mortgage lender—paid these “phony” 1 assessments of “several thousands” of dollars for several years, out of plaintiff’s mortgage escrow 2 account. (Id. at 2-3.) Plaintiff claims that the County defendants violated the FDCPA as well as 3 California Health and Safety Code § 5473 by (1) adding the City debts to the County property tax 4 rolls without validating the debts and without approval from the County Board of Supervisors, 5 and (2) failing to produce records substantiating these debts upon request. (Id. at 2-3, 8.) The 6 tampering claim does not include allegations against any County defendants; and the corruption 7 claim against the County is that by not verifying the debts being added to plaintiff’s property 8 taxes, the County aided and abetted the City’s corrupt conduct. (Id. at 8-10.) 9 In early 2020, the court first dismissed Wells Fargo and then the City from the action, in 10 part because neither qualified as a “debt collector” within the meaning of the FDCPA. (ECF 11 Nos. 50 (Wells Fargo F&Rs) at 4-5; 61 (order adopting); 67 at 3-4 (City F&Rs); 59 (order 12 adopting).) The County defendants did not move to dismiss, having previously filed an answer. 13 In July 2020, the court issued a Pretrial Scheduling Order to govern the remainder of the 14 litigation between plaintiff and the County defendants. (ECF No. 85.) As relevant, the 15 Scheduling Order set a July 30, 2021 discovery deadline and a September 10, 2021 deadline for 16 all non-discovery law and motion to be completed. (Id. at 2-3.) The Scheduling Order also 17 provided that “[n]o further joinder of parties or amendments to pleadings is permitted except with 18 leave of court, good cause having been shown.” (Id. at 2.) 19 Since the filing of the FAC, plaintiff has twice tried to further amend the complaint (not 20 counting the present motion to amend). In June 2020, plaintiff filed a purported Second 21 Amended Complaint, which the court ordered stricken because it was filed without defendants’ 22 consent and without leave of court. (ECF Nos. 77, 79.) In late July 2020, plaintiff moved for 23 leave to amend the complaint to add the “sewer department” as a new defendant for also violating 24 California Health and Safety Code § 5473 by adding sewer charges to plaintiff’s property taxes 25 without the County Board of Supervisors’ approval. (ECF No. 89.) The court denied leave to 26 amend both because plaintiff failed to attach a proposed amended complaint and because of the 27 potential prejudice to defendants in having to defend against arguably unrelated claims after the 28 action had been pending for more than a year. (ECF No. 104 at 3.) 1 Since then, the docket has been filled primarily with plaintiff’s various attempts to 2 disqualify the undersigned from continuing to preside over this case. Because none of plaintiff’s 3 motions alleged facts supporting plaintiff’s assertions of bias, the undersigned consistently denied 4 the motions without referral to another judge. See Toth v. Trans World Airlines, Inc., 862 F.2d 5 1381, 1388 (9th Cir. 1988) (only after determining the legal sufficiency of § 144 affidavit is a 6 judge obligated to reassign decision on merits to another judge; where “bias or prejudice alleged 7 arose from conduct during the judicial proceeding,” the motion and affidavit were legally 8 insufficient). Plaintiff’s variously styled motions objected to the court purportedly misapplying 9 the filing deadlines for responsive pleadings and other papers—and for ruling against plaintiff on 10 his successive motions without any further oral argument since the initial hearing on Wells 11 Fargo’s motion to dismiss. (See, e.g., ECF Nos. 95, 105, 108, 113, 117, 119-124, 130-31, 135.) 12 On September 9, 2021, the County defendants moved to modify the Scheduling Order to 13 allow their filing of a dispositive summary judgment motion beyond the September 10th deadline 14 set for dispositive motions. (ECF No. 125.) On October 15, 2021, the court granted defendants’ 15 motion. (ECF No. 139, hereinafter “Schedule Modification Order.”) Based on the briefing 16 presented by both sides, the court found good cause to both (a) re-open discovery to permit 17 plaintiff to conduct any properly noticed depositions of County officials no later than 18 November 19, 2021, and (b) permit the parties to file any summary judgment motion so that it 19 could be heard on or before January 19, 2022. (Id. at 8.) The court specified that, under the 20 Local Rules, that would require such motion to be filed and noticed no later than December 22, 21 2021. (Id.) 22 On December 17, 2021, the County defendants timely filed their motion for summary 23 judgment which is now before the court. (ECF No. 159.) By that time, plaintiff had filed an 24 intervening motion to further amend the complaint and to vacate the Schedule Modification 25 Order. (ECF Nos. 138, 141, 143.) Accordingly, the court addresses plaintiffs’ motions—along 26 with his later-filed ex parte application for default judgment—before turning to the merits of 27 defendants’ summary judgment motion. 28 //// 1 II. PLAINTIFF’S MOTION TO AMEND 2 On October 12, 2021, a few days before the court issued its Schedule Modification Order, 3 plaintiff filed the instant motion to amend. (ECF Nos. 141 (notice of motion), 138 (memo & 4 proposed amended complaint).) At the court’s prompting, plaintiff noticed the motion to amend 5 for hearing on December 8, 2021. (ECF Nos. 140, 142.) The County defendants filed their 6 opposition on November 24, 2021, and plaintiff filed a reply and an uninvited additional amended 7 reply. (ECF Nos. 150, 151, 153.) Before the hearing on the motion, plaintiff also filed a “Protest 8 Under First Amendment Rights,” again complaining of the lack of oral argument opportunities 9 and the undersigned’s purported bias against him. (ECF No. 152.) 10 The court held a remote hearing on the motion to amend, as scheduled, on December 8, 11 2021, with counsel appearing for the County defendants and plaintiff appearing on his own 12 behalf. (ECF No. 154.) The court invited plaintiff to give any arguments he wished to provide on 13 his motion, and plaintiff argued (as he did in his reply papers) that the defendants’ opposition was 14 untimely. Plaintiff stated that he did not wish to say anything further, due to his belief that the 15 undersigned was illegally remaining as the judge in this case despite his recusal motions. County 16 counsel represented that defendants’ opposition was timely served and filed 14 days before the 17 hearing, in compliance with the Local Rules, and was also emailed to plaintiff the same day. 18 At the hearing, the court informed the parties that it was taking the motion under 19 submission, along with plaintiff’s separately filed November 15, 2021 motion to vacate the 20 Schedule Modification Order (ECF No. 143). (See ECF Nos. 154, 156.) The court also informed 21 the parties that in the interim neither of plaintiff’s motions displaced the current scheduling 22 deadlines, so dispositive motions were still due to be filed by December 22, 2021. 23 A. Plaintiff’s Proposed Amended Complaint 24 Plaintiff styles his proposed amended complaint, attached to his motion, as a “Third 25 Amended Complaint.” (ECF No. 138 at 6-28.) However, because plaintiff was never granted 26 leave to file an amended complaint beyond the present FAC, this would in fact be his Second 27 Amended Complaint—if leave were granted. The court simply refers to the document as the 28 “proposed amended complaint” and recommends denying leave to amend because the proposed 1 amended complaint would be futile and highly prejudicial at this late stage in the case. 2 Through the proposed amended complaint, plaintiff seeks to add some 12 new causes of 3 action based on allegedly revelatory admissions he received from County counsel while litigating 4 this case. (See ECF No. 141 at 1-2.) Plaintiff argues that, during the discovery process, he 5 learned that the County does not know the details of the utility bills or other City charges that 6 were added to the County tax rolls he is contesting—nor does it possess records of the underlying 7 bills. (Id.; ECF No. 138 at 1-2, 19, 23.) Based on these discoveries, plaintiff seeks to add ten 8 purported causes of action under federal criminal statues (multiple sections of title 18 of the U.S. 9 Code, and 34 U.S.C. § 10272) regarding concealment and false statements; a cause of action 10 under the Fair Credit Billing Act, 15 U.S.C. §§ 1666-1666j (“FCBA”); and a purported cause of 11 action under IRS Publication 583, requiring entities to keep federal tax records for at least five 12 years. (ECF No. 138 at 7-15.) 13 The County defendants oppose the motion to amend on the grounds that the proposed 14 amendment is both futile and brought in bad faith. (ECF Nos. 150, 150.1 (attaching discovery 15 responses, production, and communications).) Plaintiff’s replies argue only that the motion 16 should be granted as unopposed because defendants’ opposition should be found untimely. (ECF 17 Nos. 151, 153.) 18 B. Legal Standard 19 After a party has amended as a matter of course, further amendment is allowed only with 20 consent of the opposing parties or leave of the court. Fed. R. Civ. P. 15(a). A court should freely 21 grant leave to amend a pleading when justice so requires. Id. “However, liberality in granting 22 leave to amend is subject to several limitations. Those limitations include undue prejudice to the 23 opposing party, bad faith by the movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. 24 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (cleaned up). Absent prejudice, 25 futility, or a strong showing of any of the remaining factors, a presumption in favor of granting 26 leave to amend exists under Rule 15(a). Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 27 1052 (9th Cir. 2003); Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (“Futility alone 28 can justify the denial of a motion to amend.”). Still, granting leave to amend is a matter of 1 discretion, and the court’s discretion to deny leave is “particularly broad” in cases such as this one 2 where the plaintiff has previously amended the complaint. Cafasso, 637 F.3d at 1058. 3 C. Analysis 4 In light of plaintiff’s prior opportunity to amend and the futility of the proposed 5 amendment, the undersigned recommends denying leave to amend. Plaintiff’s proposed amended 6 complaint is entirely futile because it fails to state any cognizable claim against the remaining 7 defendants. Ten of the twelve proposed new causes of action assert violations of provisions 8 within Title 18 of the U.S. Code, the federal criminal code. (ECF No. 138 at 7-14.) However, 9 plaintiff as a private citizen has no authority to bring claims under criminal statutes. See Allen v. 10 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right of action for 11 violation of criminal statutes). The other two proposed causes of action, under the FCBA and 12 IRS Publication 583, are equally futile. 13 The FCBA, which amended the Truth in Lending Act, governs relationships between 14 borrowers and lenders, primarily in the context of credit cards. See Am. Exp. Co. v. Koerner, 452 15 U.S. 233, 234 (1981); Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 880 (9th Cir. 2011) 16 (“Congress enacted the FCBA in order to regulate billing disputes involving ‘open end consumer 17 credit plans.’” (quoting 15 U.S.C. § 1666)). A lender, or “creditor” under the FCBA is one who 18 “regularly extends . . . consumer credit” and “is the person to whom the debt arising from the 19 consumer credit transaction is initially payable.” 15 U.S.C. § 1602(g); see Hasan v. Chase Bank 20 USA, N.A., 880 F.3d 1217, 1220 (10th Cir. 2018). 21 In addition to failing to specify which of the many provisions of the FCBA he wishes to 22 assert, plaintiff fails to demonstrate how any of the County defendants qualify as a “creditor” who 23 would be subject to the FCBA in the first place. The County of Sacramento and its property tax 24 assessors and collectors are plainly not in any kind of lending relationship with plaintiff. They 25 merely notified plaintiff of his existing debts, which did not arise through any original extension 26 of credit to plaintiff. Accordingly, the proposed addition of a claim under the FCBA is futile. 27 As to IRS Publication 583, “IRS publications, though aimed at explaining existing tax law 28 to taxpayers, do not have the force of law.” United States v. Josephberg, 562 F.3d 478, 498 (2d 1 Cir. 2009). Plaintiff provides no basis for imputing a private cause of action for a purported 2 violation of this IRS publication. See Jaurez v. Dimon, 2015 WL 5297501, at *3 (C.D. Ill. 3 Sept. 10, 2015) (dismissing with prejudice claims under IRS Code of Publications because it “is 4 not a statute and does not provide a cause of action”). Therefore, this proposed cause of action is 5 futile as well. 6 While there are several other reasons to deny further leave to amend as well, the fact that 7 none of the proposed claims could possibly proceed against the named defendants is sufficient, 8 alone, to deny the motion. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (“Futility 9 alone can justify the denial of a motion to amend.”). 10 D. Plaintiff’s Untimeliness & Default Arguments 11 Throughout this litigation, plaintiff has misunderstood and misapplied the relevant Federal 12 Rules and Local Rules governing response times—both as to pleadings and motions—despite the 13 court’s many attempts to explain them. In reply to defendants’ opposition to this motion, plaintiff 14 argues that the motion should be treated as unopposed because (a) the opposition was not filed 15 within 21 days of the filing of the motion to amend, and (b) he did not receive the opposition until 16 December 1, 2021, leaving him fewer than 21 days to reply. (ECF Nos. 151 at 2, 153.) 17 The County defendants’ opposition was timely filed because it was filed and served 14 18 days before the noticed hearing date. See Local Rule 230(c) (oppositions to motions “shall be 19 filed and served not less than fourteen (14) days preceding the noticed (or continued) hearing 20 date”). Although it is regrettable if plaintiff did not receive the opposition papers in the mail until 21 December 1st, service was effective upon placing the documents in the mail on November 24th— 22 and the court notes the papers were also sent by courtesy email on November 24th. (ECF 23 No. 150.2.) Contrary to plaintiff’s belief that he deserved 21 days to reply to the opposition, the 24 court’s Local Rules ensure a moving party only seven (7) days to reply, by making the reply due 25 7 days preceding the hearing date. See Local Rule 230(d). The court acknowledges that this 26 short deadline can be difficult for pro se litigants to meet, but those are the rules that all litigants 27 must follow—and, in any event, the court has in fact considered both of the replies that plaintiff 28 filed for this motion. 1 Most importantly, as it also factors into plaintiff’s request for default judgment (addressed 2 next), defendants were not required to respond to plaintiff’s motion to amend within 21 days of its 3 filing. The filing of a motion for leave to amend is not the same as filing an actual amended 4 complaint, which only occurs (at this stage) once the court has granted permission. If the court 5 were to grant the instant motion to amend, defendants would then have a specified amount of 6 time—from the date of service of the approved amended complaint—to substantively respond to 7 the complaint. See Fed. R. Civ. P. 15(a)(3) (setting minimum response time of at least 14 days 8 from service of the amended pleading unless the court orders otherwise). However, plaintiff’s 9 filing of his proposed amended complaint as an attachment to his motion for leave to amend did 10 not trigger this deadline. It only triggered the normal motion-opposition deadline requiring an 11 opposition brief 14 days prior to the noticed hearing date. Because defendants met this deadline, 12 their opposition was not untimely. 13 III. EX PARTE APPLICATION FOR DEFAULT JUDGMENT 14 Under the mistaken belief that the County defendants were required to respond to his 15 proposed amended complaint no later than November 12, 2021, plaintiff on November 15, 2021 16 filed three requests for the Clerk of Court to enter default as to each of the County defendants. 17 (ECF Nos. 144, 145, 147.) Noting that these defendants’ answer had been filed in response to the 18 original FAC, the Clerk declined these requests. (ECF Nos. 146, 148, 149.) 19 On January 7, 2022, after the County defendants filed the now-pending motion for 20 summary judgment, plaintiff filed the instant ex parte application for the court to enter default 21 judgment against the County defendants—and an amended application on January 11, 2022. 22 (ECF Nos. 162, 163.) Defendants filed oppositions to both ex parte applications. (ECF Nos. 165, 23 165.1.) On the same mistaken theory, plaintiff argues that the Clerk improperly denied his 24 requests for entry of default. (See ECF Nos. 162 at 2, 163 at 3-6.) Plaintiff also resurrects an 25 argument asserted throughout this litigation—usually within a motion for recusal—that the 26 County defendants’ July 18, 2019 answer was an untimely response to the FAC. (ECF No. 163 27 at 4.) 28 1 As just explained, no response to plaintiff’s October 2021 proposed amended complaint 2 was (or is) required because he has not been granted leave to file that proposed amended 3 complaint. The County defendants filed an answer (ECF No. 17) to the only complaint operative 4 in this action, the FAC, so the Clerk properly declined to enter default against them.3 Plaintiff’s 5 ex parte application for default judgment on the so-called Third Amended Complaint, in addition 6 to being procedurally improper, should therefore be denied on its merits. 7 MOTION TO VACATE SCHEDULE MODIFICATION ORDER 8 Plaintiff’s final motion to be addressed here is his November 15, 2021 motion to vacate 9 the Schedule Modification Order issued by the undersigned on October 15, 2021. (ECF No. 143, 10 moving to vacate ECF No. 139.) The motion was fully briefed and taken under submission. 11 (ECF Nos. 143, 155-158.4) Plaintiff argues that the court’s Schedule Modification Order 12 extending the discovery and dispositive motions deadlines should be vacated because he believes 13 the undersigned is acting as an “illegal judge” by continuing to preside in the case despite 14 plaintiff filing prior motions for recusal alleging bias and prejudice. (See generally ECF 15 No. 143.) 16 No part of plaintiff’s “motion to vacate” challenges the substance of the Schedule 17 Modification Order. Plaintiff simply argues that the court’s decision to grant the County 18 defendants’ requested extension of the dispositive-motions deadline was another example of the 19 undersigned’s bias in favor of defendants and against plaintiff. Plaintiff cites 28 U.S.C. § 144 20 throughout his moving papers, arguing that his prior recusal motions make any and all of the 21 undersigned’s orders since April 2021 “illegal.” Therefore, the undersigned construes this 22 23 3 In the Schedule Modification Order (which remains valid, as discussed in the next 24 section), the court addressed plaintiff’s argument attacking the timeliness of defendants’ answer. (ECF No. 139 at 2-3, 5-6.) In addition to the analysis contained therein which the undersigned 25 reaffirms, the court notes that the County defendants filed their answer to the FAC on July 18, 2019—within 21 days of the court’s re-screening order finding jurisdiction based on the FAC and 26 directing service of the FAC on all defendants. (ECF Nos. 13, 17.) 27 4 Plaintiff’s original reply was inadvertently captioned as “Plaintiff Disclosure,” which he 28 later corrected with an amended reply. (ECF Nos. 157, 158.) 1 “motion to vacate” as yet another variation of plaintiff’s many previous motions for judicial 2 disqualification.5 3 As he has on many prior occasions, plaintiff argues that the granting of defendants’ 4 motion is an “indication of super prejudice, biased racist” because the undersigned has denied 5 basically all of plaintiff’s motions filed over the course of this case—and because his filing of a 6 § 144 motion should have automatically disqualified the undersigned from proceeding as judge in 7 this case. (ECF No. 143 at 2-3, 5, 8.) 8 In an order signed on May 6, 2021, the court provided a detailed explanation of why 9 plaintiff’s formulaic recusal motions were insufficient. (ECF No. 115.) The court discussed both 10 28 U.S.C. § 144 (establishing procedure for litigants to move for judicial recusal) and 28 U.S.C. 11 § 455 (the self-enforced recusal statute) and concluded that plaintiff’s motions did not allege any 12 specific facts showing bias or prejudice based on anything other than the court’s legal rulings in 13 the case. (Id.) See Liteky v. United States, 510 U.S. 540, 555 (1994) (unless judge’s actions 14 “display a deep-seated favoritism or antagonism that would make fair judgment impossible,” 15 judicial bias or prejudice formed during current or prior proceedings is insufficient for recusal) 16 (discussing § 455(a)). 17 //// 18 19 5 The court does not construe the motion as Objections to the Schedule Modification Order, 20 to be addressed by the District Judge, because it was filed far more than 14 days after the Schedule Modification Order issued. See Fed. R. Civ. P. 72(a) (permitting objections within 14 21 days of service of order and stating that a “party may not assign as error a defect in the order not timely objected to). 22 23 Further, even if the motion could be construed as a substantive request to revise the Schedule Modification Order, it does not even attempt to satisfy the criteria for modifying a 24 previously issued order. See Fed. R. Civ. P 54(b) (permitting revision of any order prior to entry of final judgment); Persistence Software, Inc. v. Object People, Inc., 200 F.R.D. 626, 627 (N.D. 25 Cal. 2001) (“[A] court should generally leave a previous decision undisturbed absent a showing that it either represented clear error or would work a manifest injustice.”); see also Local 26 Rule 230(j) (requiring the moving party to provide “what new or different facts or circumstances 27 are claimed to exist which did not exist or were not shown upon such prior motion” or “what other grounds exist for the motion” and “why the facts or circumstances were not shown at the 28 time of the prior motion”). 1 Anticipating further recusal motions, the undersigned advised that such motions would be 2 summarily denied unless they provided the requisite specificity and a basis in something other 3 than the court’s rulings in the case. (ECF No. 115 at 4.) Because each of plaintiff’s subsequent 4 recusal motions leveled only conclusory assertions of bias, they were summarily denied as 5 warned. 6 The instant motion to vacate fares no better. Plaintiff flatly repeats his assertions that the 7 undersigned must be “racist,” “prejudice,” and “biased” based solely on having denied most of 8 plaintiff’s motions and granted most of defendants’ motions. (ECF No. 143 at 2-3, 5, 8.) As 9 plaintiff was informed before, the mere filing of a § 144 motion does not automatically terminate 10 a judge’s power to continue with any given case. Rather, § 144 requires a “timely and sufficient 11 affidavit” stating “the facts and the reasons for the belief that bias or prejudice exists.” 28 U.S.C. 12 § 144. Only if the movant’s affidavit is legally sufficient must the recusal motion be heard by a 13 judge other than the target of the motion. United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 14 1999), as amended on denial of reh’g (Mar. 17, 1999); Toth v. Trans World Airlines, Inc., 862 15 F.2d 1381, 1388 (9th Cir. 1988). Plaintiff has never submitted a legally sufficient affidavit or 16 even argument for recusal. Therefore, the undersigned continues to dutifully serve as the 17 magistrate judge assigned to this case. See United States v. Holland, 519 F.3d 909, 912 (9th Cir. 18 2008) (“We are as bound to recuse ourselves when the law and facts require as we are to hear 19 cases when there is no reasonable factual basis for recusal.”); United States v. Sierra Pac. Indus., 20 759 F. Supp. 2d 1198, 1200-01 (E.D. Cal. 2010) (judges “must not simply recuse out of an 21 abundance of caution when the facts do not warrant recusal. Rather, there is an equally 22 compelling obligation not to recuse where recusal in not appropriate.”). 23 A reasonable person reviewing the record in this case would not question the 24 undersigned’s impartiality. See Holland, 519 F.3d at 913. The undersigned’s rulings display no 25 “deep-seated favoritism or antagonism that would make fair judgment impossible.” See Liteky, 26 510 U.S. at 555. The fact that defendants have succeeded on more of their motions than has 27 plaintiff is owing to the merits of their respective legal positions, not due to any prejudice against 28 plaintiff as an individual. Plaintiff is, of course, free to challenge the undersigned’s rulings on the 1 instant motions (and prior motions) in objections directed to the assigned District Judge, and then 2 in any appeal plaintiff might wish to file. However, these adverse rulings do not provide a basis 3 for recusal. Accordingly, plaintiff’s motion to vacate—construed as a further motion to recuse— 4 is denied. 5 IV. MOTION FOR SUMMARY JUDGMENT 6 On December 17, 2021, shortly before the December 22nd deadline for filing dispositive 7 motions, the County defendants filed their motion for summary judgment and supporting papers. 8 (ECF Nos. 159-159.5.) The motion, which has been fully briefed, was taken under submission. 9 (ECF Nos. 160, 161, 164.) 10 A. Legal Standard 11 Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary 12 judgment, identifying each claim or defense—or the part of each claim or defense—on which 13 summary judgment is sought.” Summary judgment is proper when the movant “shows that there 14 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 15 law.” Fed. R. Civ. P. 56(a). 16 A shifting burden of proof governs motions for summary judgment under Rule 56. 17 Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 18 376, 387 (9th Cir. 2010). The moving party bears the initial burden of informing the court of the 19 basis for the motion, and identifying portions of the pleadings, depositions, answers to 20 interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of 21 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to meet its burden, 22 “the moving party must either produce evidence negating an essential element of the nonmoving 23 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 24 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 25 Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If a moving party fails to 26 carry its burden of production, then “the non-moving party has no obligation to produce anything, 27 even if the non-moving party would have the ultimate burden of persuasion.” Id. at 1102-03 (9th 28 Cir. 2000) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)). 1 If the moving party meets its initial responsibility, the opposing party must establish that a 2 genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith 3 Radio Corp., 475 U.S. 574, 585-87 (1986). The opposing party must demonstrate (1) that the fact 4 in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing 5 law,” and (2) that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could 6 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 7 (1986). In attempting to establish the existence of this factual dispute, the opposing party may 8 not rely upon the allegations or denials of its pleadings but is required to tender evidence of 9 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 10 contention that the dispute exists. See Fed. R. Civ. P. 56(c); In re Oracle Corp. Sec. Litig., 627 11 F.3d at 387 (opposing party “must show more than the mere existence of a scintilla of evidence”) 12 (citing Anderson, 477 U.S. at 252). 13 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 14 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 15 v. Cent. Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). 16 B. Analysis 17 The County defendants move for summary judgment as to all claims asserted against them 18 in the FAC. (ECF No. 159 at 2.) As best the court can tell, the FAC asserts against the County 19 defendants (1) various violations of the Fair Debt Collection Practices Act (“FDCPA”), 20 (2) violation of California Health and Safety Code § 5473, and (3) a purported claim of aiding 21 and abetting “public corruption.” (ECF No. 12 at 1-10.) The court addresses each in turn. 22 1. FDCPA Claims 23 The FAC contains four FDCPA claims against the County defendants, asserting violations 24 of FDCPA § 812, 15 U.S.C. § 1692j (furnishing deceptive forms) (ECF No. 12 at 1); FDCPA 25 § 809, 15 U.S.C. § 1692h (validation of debts) (id. at 2-3); FDCPA § 808, 15 U.S.C. § 1692g 26 //// 27 //// 28 //// 1 (unfair practices) (id. at 3); and FDCPA § 807, 15 U.S.C. § 1692f (false or misleading 2 representations) (id. at 4).6 3 Rather than attempting to negate—or show an absence of evidence supporting—an 4 essential element of plaintiff’s FDCPA claims, the County defendants argue that they are entitled 5 to summary judgment as a matter of law based on two affirmative defenses. First, they argue that 6 they are not subject to the FDCPA because they fall under its “government actor” exemption, see 7 15 U.S.C. § 1692a(6)(C); and second, they argue that the FDCPA claims are barred by the statute 8 of limitations, see 15 U.S.C. § 1692k(d). (ECF No. 159.1 at 4-6.) 9 One of the hazards of seeking summary judgment on these affirmative defenses7—which 10 neither side’s briefs address—is that in order to assert an affirmative defense later in the case, the 11 party must have “‘affirmatively state[d]’ that defense in a responsive pleading.” Corbin v. Time 12 Warner Entertainment-Advance/Newhouse P’ship, 821 F.3d 1069, 1080 (9th Cir. 2016) (quoting 13 Fed. R. Civ. P. 8(c)(1)); Passa v. City of Columbus, No. 2:03-CV-81, 2007 WL 3125130, at *5 14 (S.D. Ohio Oct. 24, 2007) (“Exemptions to [remedial statutes like the FDCPA] must be 15 specifically pled as an affirmative defense or will be deemed waived.”). 16 The County defendants’ answer to the FAC does affirmatively state a (rather generic) 17 statute-of-limitations defense as their Second Affirmative Defense. (ECF No. 17 at 4.) However, 18 the only hint the answer contains that they might assert the government actor exemption is found 19 in a paragraph answering the allegations of the second cause of action: “. . . County Defendants 20 deny they had any legal obligation to plaintiff under the Fair Debt Collection Practices Act 21 6 A fifth FDCPA claim, under 15 U.S.C. § 1692e (harassment or abuse), was asserted only against previously dismissed defendant the City of Sacramento. (ECF No. 12 at 4-5.) 22 23 7 Although the Ninth Circuit has not addressed whether the FDCPA’s government actor exemption is an affirmative defense, courts generally view it as such. See Schneider v. Bank of 24 Am. N.A., No. CIV. S-11-2953 LKK, 2014 WL 2118327, at *7 n.25 (E.D. Cal. May 21, 2014) (noting that the 9 separate exceptions to § 1692a(6) “debt collector” definition “are in the nature 25 of affirmative defenses”; Murphy v. Stephens & Michaels Associates, Inc., 2011 WL 1465761 at *1 (S.D. Cal. 2011) (“whether Defendant falls within an exception to the ‘debt collector’ 26 definition under 15 U.S.C. Section 1692a is an affirmative defense”); see also Scott v. Jones, 964 27 F.2d 314, 316 (4th Cir. 1992) (“Jones asserted the affirmative defense that he was not a ‘debt collector’ as defined in the FDCPA . . . .”). And statutes-of-limitations defenses are categorically 28 deemed affirmative defenses. Fed. R. Civ. P. 8(c)(1). 1 (‘FDCPA’) 15 U.S.C. §1692 and therefore deny each and every allegation contained therein 2 which pertains to them.” (Id. at 2.) Because the bases for lacking any “legal obligation to 3 plaintiff” under the FDCPA could be wide-ranging, and this language does not appear in the 4 section of the answer devoted to Affirmative Defenses, the court cannot conclude that the County 5 defendants adequately asserted the defense of exclusion from the definition of “debt collector” in 6 their answer. 7 “However, defendants may raise an affirmative defense for the first time in a motion for 8 summary judgment . . . if the delay does not prejudice the plaintiff.” Magana v. Com. of the N. 9 Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), as amended (May 1, 1997). “The failure to 10 raise a defense is prejudicial if the party against whom the issue is raised may have tried its case 11 differently or advanced distinct legal arguments against the issue.” Heejoon Chung v. U.S. Bank, 12 N.A., 250 F. Supp. 3d 658, 675 (D. Haw. 2017) (citing Sram Corp. v. Shimano, Inc., 25 F. App’x. 13 626, 629 (9th Cir. 2002)). 14 Although it is unclear why the County defendants would not assert their government actor 15 defense right away, the court still finds the prolonged delay in this case not prejudicial given the 16 nature of the defense and the unique circumstances of this case. First, plaintiff himself does not 17 argue that he was harmed by defendants’ failure to raise this defense any earlier. Rather, 18 recognizing plaintiff’s pro se status, the court took it upon itself to ensure that the defense could 19 properly be considered at this stage. Second, although this case has been going on a long time, 20 there is every indication that the majority of plaintiff’s time spent litigating the case was directed 21 to arguing for default judgment based on what he viewed to be untimely responses, or filing 22 unsupported motions challenging the undersigned’s objectivity in the case. (See, e.g., ECF 23 No. 126 at 3-4 (noting that “center of this case [has] been getting fair judge” and that the case was 24 therefore “on stand still”).) Defendants’ earlier assertion of the government actor defense would 25 not have deterred plaintiff from either focus. Third and most importantly, the government actor 26 defense, as it applies in this case, is not one that could be overcome through discovery efforts. 27 Plaintiff named the three County defendants in this suit precisely because they are government 28 actors, and no amount of discovery on that subject would change the applicability of this defense 1 here. See Ulin v. Lovell’s Antique Gallery, No. 09-CV-2268-IEG (BGS), 2010 WL 2839417, at 2 *8 (S.D. Cal. Jul. 19, 2010) (barring defendant from asserting FLSA exemption argument for the 3 first time at summary judgment because plaintiffs were prejudiced by their inability to conduct 4 discovery into that issue). Other than having the case terminated sooner, the court can see no 5 difference that an earlier assertion of this defense would have made. Accordingly, the court 6 proceeds to consider the merits of the government actor defense on the present motion. 7 i. Government Actor Exemption 8 The FDCPA was enacted, among other reasons, “to eliminate abusive debt collection 9 practices by debt collectors.” 15 U.S.C. § 1692(e). “The FDCPA regulates the collection of 10 ‘debts’ by ‘debt collectors’ by regulating the number and type of contacts a debt collector may 11 make with the debtor.” Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 2009). 12 The FDCPA defines “debt collector” as “any person who uses any instrumentality of interstate 13 commerce or the mails in any business the principal purpose of which is the collection of any 14 debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or 15 asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, within the same definition, 16 the FDCPA explicitly excludes a number of categories of persons, among them “any officer or 17 employee of the United States or any State to the extent that collecting or attempting to collect 18 any debt is in the performance of his official duties.” 15 U.S.C. § 1692a(6)(C). This 19 exclusionary provision is sometimes referred to as the “government actor” exemption. The Ninth 20 Circuit in Brannan v. United Student Aid Funds, Inc. recognized this exemption as applying “only 21 to an individual government official or employee who collects debts as part of his government 22 employment responsibilities.” 94 F.3d 1260, 1263 (9th Cir. 1996). 23 Here, the FDCPA claims at issue are directed toward the County of Sacramento, the 24 Sacramento County Assessor, and the Sacramento County Tax Collector Ben Lamera. (ECF 25 No. 12 at 1.) Although the individual defendants (the County Assessor and the County Tax 26 Collector) are never mentioned in the body of the FAC, any FDCPA claims against them fail as a 27 matter of law because these individuals fall squarely under the government actor exemption. 28 //// 1 In referring to “any officer or employee of . . . any State,” the government actor 2 exemption also explicitly extends to officers and employees of “any political subdivision of any 3 [State].” 15 U.S.C. § 1692a(8) (defining the term “State” to include “any State” in the country, 4 “or any political subdivision of any [State]”). In California, “counties are political subdivisions 5 of the state.” Brewster v. Cty. of Shasta, 112 F. Supp. 2d 1185, 1190 n.13 (E.D. Cal. 2000), aff’d, 6 275 F.3d 803 (9th Cir. 2001) (citing Moor v. Alameda Cty., 411 U.S. 693 (1973)). The County 7 Assessor and the County Tax Collector are employees of Sacramento County whose titles alone 8 make clear that they “collect[] debts as part of [their] government employment responsibilities.” 9 15 U.S.C. § 1692a(6)(C). Thus, they are excluded from the FDCPA’s definition of “debt 10 collector.” Because the FDCPA claims against them fail as a matter of law, the individual 11 County defendants are entitled to summary judgment on these claims. 12 Whether Sacramento County itself is also a “government actor” exempt from the FDCPA 13 is less clear from the text of the statute. However, Brannan itself—despite its seemingly 14 straightforward statement that the exemption applies “only to an individual government official or 15 employee”—appears to acknowledge the possibility that a government entity could also qualify 16 under the exemption. See 94 F.3d at 1263 (interpreting the exemption as not covering a private 17 nonprofit organization with a government contract because “it is not a government agency or 18 employee” (emphasis added)). And the vast majority of courts to have considered the question 19 have found the FDCPA to exclude government agencies and municipalities as “debt collectors.”8 20 8 See Oakley v. Williams, No. 1:20-cv-01336-CMA-NYW, 2021 WL 4173908, at *19 (D. 21 Colo. Feb. 2, 2021) (concluding that Colorado Department of Corrections was not a “debt collector” under § 1692a(6)(C)); Tatten v. City & Cty. of Denver, No. 16-CV-01603-RBJ-NYW, 22 2017 WL 5172244, at *17 (D. Colo. Feb. 3, 2017) (dismissing FDCPA claims against the City 23 and County of Denver because they are not “debt collectors” under § 1692a(6)(C)), report and recommendation adopted, 2017 WL 1435854 (D. Colo. Mar. 29, 2017), aff’d, 730 F. App’x 620 24 (10th Cir. 2018); Geiger v. Fed. Bureau of Prisons, 487 F. Supp. 2d 1155, 1159 (C.D. Cal. 2007) (holding that the Consumer Credit Protection Act (“CCPA”), which encompasses and shares 25 definitional terms with the FDCPA, was inapplicable to plaintiff’s claims “because [the federal Bureau of Prisons] is not a ‘debt collector’ within the meaning of CCPA” (citing § 1692a(6)(C)); 26 United States v. Morgan, No. 1:02-CR-109, 2006 WL 2168173, at *6 n.7 (N.D. Ind. July 31, 27 2006) (“The Bureau of Prisons is not a ‘debt collector’ as defined in [the FDCPA].”); Hawes v. Lee, No. 1:05-CV-00134, 2005 WL 8165094, at *2 (M.D.N.C. Dec. 6, 2005) (holding that 28 FDCPA claims against County Department of Social Services failed, noting that “‘debt collector’ 1 The undersigned joins with these courts in finding a political subdivision of a state, like 2 Sacramento County, excluded from the FDCPA “to the extent that collecting or attempting to 3 collect any debt is in the performance of [its] official duties.” 15 U.S.C. § 1692a(6)(C). 4 The County defendants provide a declaration by a Senior Accounting Manager in the 5 Auditor-Controller Division of the Sacramento County Department of Finance, attesting that 6 Sacramento County issues real property tax bills, which in some instances contain “special 7 assessment charges for delinquent [City of Sacramento] code enforcement and nuisance 8 abatement activity charges as well as delinquent City utility charges” in addition to “delinquent 9 sewer charges imposed by the Sacramento Area Sewer District.” (ECF No. 159.4, Emslie Decl. 10 ¶ 3,[9] Ex. A (property tax bills issued to plaintiff for fiscal years 2012 – 2019).) These are the 11 charges that plaintiff cites as the basis for his FDCPA claims against the County. Defendants 12 13 exception also applies to government agencies attempting to collect debts in the performance of their official duties”(emphasis original)); Georgeadis v. Cty. of Fairfield, No. C2-99-204, 2000 14 WL 1459418, at *3 (S.D. Ohio Sept. 25, 2000) (granting summary judgment for county, county 15 court, and county sheriff’s department because they are not “debt collectors” under the FDCPA); Jones v. Intuition, Inc., 12 F. Supp. 2d 775, 779 n.3 & 780 (W.D. Tenn. 1998) (noting that 16 § 1692a(6)(C) “exempts government entities or officers from suit” (emphasis added) and therefore holding state agency exempt from suit). But see Passa v. City of Columbus, No. 2:03- 17 CV-81, 2007 WL 3125130, at *6-10 (S.D. Ohio Oct. 24, 2007) (holding that § 1692a(6)(C) applies “only to individuals, not to a governmental subdivision or agency”). 18 19 9 Plaintiff briefly argues that Mr. Emslie’s declaration should be “rejected” because it is signed with an electronic signature. (ECF No. 160 at 11.) Plaintiff is correct that the declaration 20 is deficiently executed. This court’s Local Rules only accept a non-attorney’s electronic signature (using “/s/” and that person’s name) when it is accompanied by “a statement that 21 counsel has a signed original.” L.R. 131(f). Mr. Emslie is not an attorney, and there is no accompanying statement that the original signature is on file with counsel. (ECF No. 159.4 at 3.) 22 23 However, “[a]t the summary judgment stage, [the court does] not focus on the admissibility of the evidence’s form. [It] instead focus[es] on the admissibility of its contents.” 24 Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). In other words, the court can consider the evidence if its contents could be presented in an admissible form at trial. Id. at 1037. 25 Therefore, although the declaration was deficiently executed, the court understands it to contain information about which Mr. Emslie has personal knowledge and is competent to testify and that 26 could be presented by defendants in an admissible form. See Dietle v. Miranda, No. 2:14-cv- 27 1728-WBS-AC-P, 2017 WL 387253, at *3-4 (E.D. Cal. Jan. 26, 2017) (considering declaration on summary judgment despite deficient electronic signature), report and recommendation 28 adopted, 2017 WL 714390 (E.D. Cal. Feb. 22, 2017). 1 have presented sufficient evidence that the County—by issuing the subject property tax bills 2 through its Department of Finance—was acting in the performance of its official duties. 3 Accordingly, the County also is not a “debt collector” subject to the FDCPA, under 4 § 1692a(6)(C). Because the FDCPA claims against the County must thus fail as a matter of law, 5 all County defendants are entitled to summary judgment on these claims.10 6 2. California Health and Safety Code § 5473 & “Public Corruption” Claims 7 The final two sets of claims also warrant summary judgment for defendants. In scattered 8 parts of the FAC, plaintiff cites to California Health and Safety Code § 5473 in connection with 9 allegations that the County improperly added “phony” City utilities debts to his property tax bills. 10 (ECF No. 12 at 2, 8, 10.) To the extent the FAC can be read as asserting a viable claim under 11 § 5473, such claim does not lie against the County based on the evidence before the court. 12 Section 5473 is found in the portion of the California Health and Safety Code that allows 13 local entities to prescribe and collect fees for water, sewer, and sanitation services that the entities 14 furnish to residents, and to collect such fees on the property tax roll (if they so choose) by 15 following certain procedures. See Cal. Health & Safety Code art. 4, “Sanitation and Sewerage 16 Systems,” §§ 5470–5474.10 (hereinafter “article 4”). Specifically, § 5471 “grants local entities 17 power to prescribe and collect fees” for these services, while § 5473 “grants them the power to 18 have such charges collected on the tax roll.” Util. Audit Co. v. City of Los Angeles, 112 Cal. 19 App. 4th 950, 957 (2003). 20 10 The court therefore need not address defendants’ alternative statute-of-limitations 21 argument. However, the court notes that—contrary to defendants’ assertion—the most recent of the contested property tax bills preceding the filing of this case on March 14, 2019 includes a 22 listed “delinquent sewer” charge. (ECF No. 159.4 at 11 (2018-2019 secured property tax bill).) 23 There is no evidence of when this property tax bill was issued, but county tax bills for secured property must be mailed on or before November 1 of each year. See Cal. Rev. & Tax. Code 24 § 2610.5. Assuming this bill was sent to plaintiff after March 14, 2018, the claims at least as to that bill would appear timely. See Lyons v. Michael & Assocs., 824 F.3d 1169, 1171 (9th Cir. 25 2016) (“A claim under the FDCPA must be brought ‘within one year from the date on which the violation occurs.’” (quoting 15 U.S.C. § 1692k(d)). That most recent bill could then also 26 potentially save the claims based on any time-barred earlier bills as well. See Joseph v. J.J. Mac 27 Intyre Companies, L.L.C., 281 F. Supp. 2d 1156, 1159-62 (N.D. Cal. 2003) (discussing mixed views of “continuing violation theory” for FDCPA statute of limitation and finding the theory 28 applicable in that case). 1 In order to collect water and sewer/sanitation service charges via the tax roll, alongside 2 general taxes, the service-providing entity must elect to do so through an ordinance or resolution 3 approved by a two-thirds vote of the members of its legislative body. Cal. Health & Safety Code 4 § 5473. The service-providing entity may also limit this election to apply “only to delinquent 5 charges.” Id. § 5473a. A service-providing entity that elects to collect these service charges 6 and/or service-fee delinquency charges through the tax roll must follow a number of procedures 7 each year—including preparing a “written report” describing the parcel of real property receiving 8 the services and the amount of the charge—before its legislative body makes a final 9 determination about whether each charge should be collected on the tax roll that year. Id. 10 §§ 5473.1–5473.3. Upon the service-providing entity’s final determination, a copy of its 11 approved written report of the properties to be charged is “file[d] with the county auditor” who 12 then “shall enter the amounts of the charges against the respective lots or parcels of land as they 13 appear on the current assessment roll.” Id. § 5473.4. 14 Here, plaintiff’s § 5473 claim arises from the City of Sacramento providing delinquent 15 City “utilities” charges to the County for collection through the County property tax roll, 16 repeatedly, over many years. (ECF No. 12 at 2 (“Defendant City of Sacramento at some point 17 provided utility bill phony debt to Defendant County of Sacramento.” (citing § 5473)); id. at 13 18 (email from City of Sacramento Department of Utilities attaching special assessment letters 19 communicating “the City’s intention to transfer a portion of the account’s delinquent utility 20 balance” to the County property taxes).) Though not stated expressly in the FAC, that claim also 21 seems to arise from delinquent sewer service charges transferred to the County taxes from the 22 Sacramento Area Sewer District (“SASD”), a local sewer utility formerly known as the 23 Sacramento County Sanitation District No. 1. (ECF No. 159.4, Emslie Decl. ¶ 6; id. at 5-11 24 (property tax bills showing City charges and SASD/CSD delinquent sewer charges).) See Cal. 25 Health & Safety Code § 4730.11 (setting composition of the SASD governing board). 26 With its motion for summary judgment, the County provides evidence that these 27 delinquent utilities charges and delinquent sewer charges were indeed transferred to the County 28 and added to plaintiff’s property tax bills from 2012 – 2019. (Emslie Decl. ¶¶ 3, 6; id. at 5-11.) 1 The utilities services were provided to plaintiff’s property by the City of Sacramento, and the 2 sewer services were provided by the SASD. (Emslie Decl. ¶ 3; ECF No. 159.3 Floyd Decl. ¶ 2.) 3 The delinquency charges for plaintiff’s unpaid service-fee obligations to those entities were 4 transferred to the County at the City’s and SASD’s requests. (Emslie Decl. ¶ 6.) Assuming that 5 article 4 governs the collection of the charges in question, it seems that this transference occurred 6 as prescribed in §§ 5473.1–5473.4 discussed above.11 Whether the City or SASD had a duty to 7 comply, or actually complied, with article 4 is not before the court because the only claim to be 8 resolved on this motion is the purported § 5473 claim against the County. 9 Neither the County auditor nor any other County official or governing body had “a role in 10 determining, reviewing, or approving” the amount of the charges transferred from the City or the 11 SASD. (Emslie Decl. ¶ 5.) Nor was any County review of these transferred charges required 12 under article 4 prior to their addition to the property tax roll each year. Notwithstanding 13 plaintiff’s frustration with the lack of independent review, § 5473.4 plainly makes the County 14 auditor’s addition of the fees automatic and nondiscretionary. See Cal. Health & Safety Code 15 § 5473.4 (upon receipt of entity’s final determination of charges, “the county auditor shall enter 16 the amounts of the charges against the respective lots or parcels of land”). 17 Thus, any claim plaintiff might arguably have under § 5473 would lie only against the 18 City and/or SASD, the service-providing entities in this scenario, not against the County. 19 Contrary to plaintiff’s bare allegations, the evidence submitted shows that the County Board of 20 Supervisors—the legislative body for the County of Sacramento—had no role to play in 21 approving the charges at issue for inclusion on the property tax roll because the charges were not 22 23 24 11 Because it is unclear from the record what “utilities” the City charges were for, it is unclear whether article 4 (and § 5473) actually applies to the City charges in question. However, 25 the SASD likely qualifies an entity covered by article 4. See Cal. Health & Safety Code § 5470(e) (defining “entity” to mean “counties, cities and counties, cities, sanitary districts, 26 county sanitation districts, county service areas, sewer maintenance districts, and other public 27 corporations and districts authorized to acquire, construct, maintain and operate sanitary sewers and sewerage systems”). 28 1 for services provided by the County.12 (Floyd Decl. ¶ 2 (averring that the utilities charges at issue 2 “are charged by the City of Sacramento, not the County of Sacramento,” and the “[s]ewer 3 services are provided by the [SASD], not the County of Sacramento”).) Thus, the County’s role 4 was purely ministerial and does not implicate § 5473. 5 In opposition, plaintiff supplies no evidence to demonstrate a genuine dispute of material 6 fact as to the nature of the County’s role in adding the contested charges to the tax bills. Indeed, 7 plaintiff provides no evidence of the type contemplated for summary adjudication at all, see Fed. 8 R. Civ. P. 56(c)(1), other than his own declaration which merely repeats his legal arguments (ECF 9 No. 160 at 20-22). Plaintiff vehemently argues that the County must prove that it can add charges 10 to his property taxes without records of what those charges are for. (Id. at 10, 17-18.) However, 11 this gets the law backward. The County has, via this motion, met its initial burden to produce 12 evidence showing that plaintiff—who carries the ultimate burden of persuasion on his claims at 13 trial—lacks evidence that § 5473 should apply to the County for the charges at issue, in the first 14 place. See Nissan, 210 F.3d at 1102. Moreover, the law as explained above demonstrates that it 15 is the service-provider entities who must satisfy the various procedural requirements for adding 16 charges to the tax rolls (including providing the “written report” of the charges before 17 transmitting them for tax assessment), not the County. Plaintiff, in response, has not established 18 the existence of a material factual dispute. Accordingly, summary judgment should be entered 19 for the County as to any claims under § 5473.13 See Matsushita, 475 U.S. at 585-87. 20 12 Again, assuming article 4 applies at all, the governing legislative bodies of the City of 21 Sacramento and of SASD would be the ones responsible for compliance in electing to collect utility and sewer charges through the tax rolls. One nuance unacknowledged by defendants is 22 that the members of the County Board of Supervisors are, by law, also members of the SASD 23 board of directors. See Cal. Health & Safety Code § 4730.11 (establishing composition of SASD’s governing board). However, even if the same individuals are members of both boards, 24 they would not be acting in their capacity as “the County Board of Supervisors” when making decisions for the SASD. 25 13 In addition, it is not clear that one can even bring a direct cause of action for violation of 26 § 5473. Article 4 specifically provides a cause of action for property owners to recover any 27 charges (a) previously paid under protest (b) which the provider-entity’s legislative body refuses to refund: 28 (cont’d) 1 Plaintiff’s “public corruption” claim against the County defendants essentially mirrors his 2 § 5473 claim—alleging that the County aided the City in its corrupt acts by placing 3 uncorroborated debts on the property tax rolls. (ECF No. 12 at 5, 8.) Plaintiff cites no legal basis 4 for a “public corruption” cause of action, and in any event, the County has shown that it acted 5 pursuant to a statutory ministerial duty by placing the disputed debts on the tax bills. 6 Accordingly, summary judgment should be entered for the County defendants on this claim as 7 well. 8 C. Plaintiff’s Opposition Arguments 9 Plaintiff’s only substantive opposition to the motion for summary judgment is addressed 10 above. The rest of plaintiff’s opposition papers consist of arguments regarding the timeliness of 11 various responses (addressed in earlier sections above), the undersigned’s purported prejudice 12 (also addressed above), and scattered assertions that he was unable to conduct the necessary 13 depositions to prosecute his case. (ECF No. 160.) 14 Plaintiff makes the same arguments regarding his inability to conduct depositions that he 15 made in his September 2021 opposition to the motion to modify the scheduling order. (Compare 16 id. at 8, 11, with ECF No. 126 at 3-4, 9-12.) In order to give plaintiff more time to conduct 17 depositions, the Schedule Modification Order re-opened discovery (which had originally closed 18 on July 30, 2021) for one month and informed plaintiff of the required steps to serve a deposition 19 notice. (ECF No. 139 at 7-8 (re-opening discovery specifically to “permit[] plaintiff to properly 20 notice and conduct the desired depositions”).) Despite this opportunity, at no point—either 21 before or after discovery was re-opened—has plaintiff “served County Defendants with a 22 After fees, rates, tolls, rentals or other charges are fixed pursuant to this article, 23 any person may pay such fees, rates, tolls, rentals or other charges under protest and bring an action against the city or city and county in the superior court to 24 recover any money which the legislative body refuses to refund. Payments made and actions brought under this section, shall be made and brought in the manner 25 provided for payment of taxes under protest and actions for refund thereof in Article 2, Chapter 5, Part 9, of Division 1 of the Revenue and Taxation Code, 26 insofar as those provisions are applicable. 27 Cal. Health & Safety Code § 5472. Section 5473 contains no language creating a private right of 28 action separate from the process provided in § 5472. 1 deposition notice to depose any County representative,” or “identified any individuals that might 2 be deposed, or proposed dates when depositions might occur.” (Floyd Decl. ¶¶ 3, 6.) 3 Accordingly, the undersigned sees no reason to construe plaintiff’s opposition arguments as a 4 Rule 56(d) motion for a continuance to conduct additional discovery; nor would good cause 5 support granting such a continuance, given plaintiff’s failure to take advantage of the previous 6 extension provided. 7 In sum, the undersigned recommends granting summary judgment for each of the County 8 defendants on all claims asserted against them in the FAC. 9 ORDER 10 For the above reasons, it is HEREBY ORDERED that: 11 1. Plaintiff’s motion to vacate the court’s October 15, 2021 order (ECF No. 143) is construed 12 as a successive motion for judicial recusal and is DENIED; and 13 2. In light of the below recommendations, all motion practice in this action is STAYED 14 pending resolution of these findings and recommendations. With the exception of 15 objections to the findings and recommendations and any non-frivolous motions for 16 emergency relief, the court will not entertain or respond to any motions or other filings 17 until the findings and recommendations are resolved. 18 RECOMMENDATIONS 19 Further, it is HEREBY RECOMMENDED that: 20 1. Plaintiff’s motion for leave to amend the complaint, separately docketed as two events 21 (ECF Nos. 138, 141) be DENIED; 22 2. Plaintiff’s amended ex parte application for default judgment (ECF No. 163) be DENIED; 23 3. Defendants’ motion for summary judgment (ECF No. 159) be GRANTED; 24 4. Judgment be entered in favor of defendants the County of Sacramento; Sacramento 25 County Assessor; and Sacramento County Tax Collector Ben Lamera on all claims 26 asserted against them in the First Amended Complaint; and 27 5. The Clerk of Court be directed to CLOSE this case. 28 //// ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 3 || days after being served with these findings and recommendations, any party may file written 4 || objections with the court and serve a copy on all parties. Such a document should be captioned 5 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 || shall be served on all parties and filed with the court within seven (7) days after service of the 7 || objections. The parties are advised that failure to file objections within the specified time may 8 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 9 || Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 10 | Dated: January 24, 2022 / ae □□ / a Ly a i CAROLYN K DELANEY 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 19.nara.466 16 17 18 19 20 21 22 23 24 25 26 27 28 26