Uberti v. Sonoma County Board of Supervisors ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 GEORGE CHRISTOPHER UBERTI, 11 Plaintiff, No. C 19-04025 WHA 12 v. 13 VALERIE BROWN, SUSAN GORIN, MICHAEL ORDER GRANTING KERNS, DAVID RABBITT, TIMOTHY SMITH, DEFENDANTS’ MOTION 14 SHIRLEE ZANE, PAUL KELLEY, MICHAEL TO DISMISS AND MCGUIRE, JAMES GORE, MICHAEL REILLY, DENYING PLAINTIFF'S 15 EFREN CARRILLO, LYNDA HOPKINS, RODNEY MOTION FOR SUMMARY DOLE, DONNA DUNK, DAVID SUNDSTROM, JUDGMENT 16 ERICK ROESER, ROBERT BOITANO, PAMELA TORILATT, and JONATHAN KADLEC, 17 18 Defendants. 19 20 In this Sherman Act action by a pro se plaintiff, a county consolidation of government 21 offices is not an action of “trade or commerce,” so the claim must be dismissed. 22 STATEMENT 23 Pro se plaintiff raised two antitrust claims against agents of the County of Sonoma 24 following their decision in 2006 to consolidate the County Offices of the Auditor-Controller 25 with the Treasurer-Tax Collector into the Office of the Auditor-Controller with the Treasurer-Tax 26 Collector (“ACTTC”). Defendants Valerie Brown, Susan Gorin, Michael Kerns, David Rabbitt, 27 Timothy Smith, Shirlee Zane, Paul Kelley, Michael McGuire, James Gore, Michael Reilly, Efren 1 Boitano, Pamela Torilatt, and Jonathan Kadlec (“defendants”) are past and current members of the 2 Board of Supervisors, and prior employees and heads of the ACTTC. The County’s Board of 3 Supervisors approved the consolidation by passing Ordinance No. 5604. The consolidation 4 occurred pursuant to California Government Code Section 24304.2 which stated, 5 “[n]otwithstanding Section 24300, in the Counties of Lake, Mendocino, Santa Cruz, Sonoma, 6 Trinity, and Tulare, the board of supervisors, by ordinance, may consolidate the duties of the 7 offices of Auditor-Controller and Treasurer-Tax Collector into the elected office of Auditor- 8 Controller-Treasurer-Tax Collector.” Four of the named defendants headed the ACTTC, and two 9 of the named defendants were former office employees, although plaintiff sues all defendants as 10 “a single actor” (Opp. at 3). 11 The ACTTC oversees grant agreements to nonprofits in Sonoma County. The complaint 12 alleges that following the consolidation, the ACTTC ceased being independent and thus somehow 13 violated the Sherman Act. Defendants moved to dismiss, to which plaintiff replied and moved for 14 summary judgment. Because plaintiff lacks standing and the governmental office consolidation is 15 not an action of “trade or commerce,” defendants’ motion to dismiss is GRANTED and plaintiff’s 16 motion for summary judgment is DENIED. 17 ANALYSIS 18 As a threshold issue, plaintiff lacks standing to bring this case. Plaintiff sued agents of 19 the County alleging improper auditing of government funds following the office consolidation 20 (Sec. Amd. Compl. at 17). However, our court of appeals rejects municipal taxpayer standing. 21 See Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 624 F.3d 1043, 1082 22 (9th Cir. 2009); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006). 23 Furthermore, plaintiff asserted that the consolidation led to improper auditing practices which 24 caused him harm. The Second Amended Complaint alleges that a number of charitable and 25 housing nonprofits in the County failed to submit financial statements this year. Plaintiff asserts 26 that, as a former homeless person and current renter (instead of home-owner), in the County, 27 the improper auditing may affect his social and economic wellbeing. To confer standing from 1 136 U.S. 1540, 1545 (2016). Here, such injury is merely speculative. Standing cannot be 2 || conferred. 3 Moreover, plaintiff's Sherman Act claims are without legal merit. The Sherman Act 4 || prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in 5 restraint of trade or commerce.” 15 U.S.C. § 1. Our court of appeals recognized in Sheppard v. 6 || Lee that normal governmental operations are not subject to antitrust claims. 929 F.2d 496 7 (9th Cir. 1991). In Sheppard, the plaintiff brought a number of Sherman Act claims against a 8 county after the board of supervisors passed a regulation which prevented him from running for 9 || office. The district court dismissed the action for failure to raise a valid claim under the Sherman 10 || Act, and our court of appeals affirmed. “Neither the business of conducting the government 11 nor the holding of a political office constitutes ‘trade or commerce’ within the meaning of the 12 Sherman Act...[t]he operation of the government is neither a commercial activity nor a 13 competitive one.” Ibid. at 498 —99. Like in Sheppard, defendants here exercised normal 14 || governmental operations in consolidating the government offices pursuant to California code. 3 15 Therefore, the consolidation falls outside the ambit of the Sherman Act. a 16 CONCLUSION 3 17 For the aforementioned reasons, defendants’ motion to dismiss is GRANTED and 18 plaintiff's motion for summary judgment is DENIED. Being futile, leave to amend is DENIED. 19 This case is ready for the appellate process and plaintiff should take care to take all steps 20 needed to perfect his appeal. 21 22 IT IS SO ORDERED. 23 24 Dated: February 20, 2020. ee WILLIAM ALSUP 26 UNITED STATES DISTRICT JUDGE 27 28