Blackshire v. Cnty. of Yuba

648 F.Supp.3d 1221

Lemuel BLACKSHIRE, Plaintiff, v. COUNTY OF YUBA, a Public Entity, Brandon Hendriz, an individual,and Does 1 through 10, inclusive, Defendants.

No. 2:19-cv-02307-TLN-AC

United States District Court, E.D. California

Filed January 3, 2023

Signed January 2, 2023

George H. Jones, Law Office of George H. Jones, Sacramento, CA, for Plaintiff.

William C. Maloney, Carl L. Fessenden, Porter Scott, PC, Sacramento, CA, for Defendants.

ORDER

Troy L. Nunley, United States District Judge

This matter is before the Court on Defendants County of Yuba ("County") and Branden Hendrix's¹ ("Hendrix") (collectively, "Defendants") Motion for Summary Judgment. (ECF No. 25.) Plaintiff Lemuel Blackshire ("Plaintiff") filed an opposition. (ECF No. 26.) Defendants filed a reply. (ECF No. 28.) For the reasons stated herein, Defendants' motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND²

On September 8, 2018, Plaintiff went to the River Front Sports Complex ("Sports Complex") in Marysville, California, in Yuba County. (ECF No. 26-12 at 5.) Plaintiff had been invited by the Yuba/Sutter Soccer Club ("Soccer Club") to participate as a vendor in a soccer tournament. (ECF No. 28-2 at 3.) At the Sports Complex, he set up his Brotha Lem's BBQ food truck near the soccer field to sell and serve food. (ECF No. 26-12 at 5.) Plaintiff was the only African American food vendor present. (ECF No. 28-2 at 10.)

Plaintiff did not have an active permit to operate his food truck in Yuba County.³ (ECF No. 26-12 at 6.) Plaintiff began operating his food truck and selling food to the public even though he did not have a permit. (Id.) Plaintiff is aware that operating a food truck requires certain licensing and/or permits based on the location, and he knew this prior to 2018. (Id. at 2.)

Also on September 8, 2018, Hendrix was employed by the County in the Department of Environmental Health and his title was "Environmental Health Specialist." (Id. at 3.) Hendrix was a registered and certified health inspector for the County, and responsible for inspecting and permitting mobile food trucks within Yuba County. (Id.) Hendrix had authority to perform unannounced inspections of food trucks at any time of day, on any day, if he observed a situation involving food trucks that presented a possible public health safety risk.⁴ (Id.)

On September 8, 2018, Hendrix was at the Sports Complex attending his daughter's soccer game and he observed three food trucks operating without a permit: (1) Plaintiff's food truck; (2) a pizza food truck; and (3) a café food truck. (Id. at 7.) Hendrix knew the three food trucks did not have a permit because Yuba County is a very small community and he did not recognize the three food trucks. (Id.) Hendrix verified all three food trucks did not have a permit. (Id. at 8-9.)

Hendrix approached Plaintiff's food truck and told Plaintiff's daughter, who was helping Plaintiff, that the food truck did not have a valid permit. (ECF No. 28-2 at 6-7.) Hendrix added that he was from the health department. (Id.) After Plaintiff saw Hendrix, Plaintiff recognized Hendrix as a health inspector with the County. (Id. at 6.) Plaintiff asked if Hendrix was on official business, and Hendrix responded by asking if that was Plaintiff's excuse for not having a permit. (Id. at 7.) Hendrix said he was on duty 24/7 and he needed to inspect Plaintiff's truck. (Id.) Hendrix yelled and pointed his finger at Plaintiff's daughter and told her not to take any more orders. (Id.) Hendrix then said if they took one more order, then he was going to call the sheriff. (Id.)

Thereafter, Hendrix inspected Plaintiff's food truck, including turning on the hot water, checking to see if Plaintiff had bleach, and measuring the temperature of the refrigerator and saucepot. (Id. at 9.) Hendrix then looked into Plaintiff's freezer and told Plaintiff in an arrogant voice to "cover those burgers up." (Id.) Hendrix stepped off Plaintiff's food truck and allowed Plaintiff to continue serving food on September 8, 2018, after he did not observe any obvious public health hazards. (Id.; ECF No. 26-12 at 11.) Hendrix had inspected Plaintiff's food truck in the same way that he would have inspected a similar food truck that stores, prepares, and serves meat to the public. (ECF No. 26-12 at 9.)

Plaintiff watched Hendrix walk over to the pizza food truck where Hendrix performed an inspection. (Id. at 8-9; ECF No. 28-2 at 10.) Hendrix did not step onto the pizza food truck, but instead stuck his head inside the truck to peer around. (ECF No. 28-2 at 10.) Hendrix asked the pizza food truck owner if the owner had a County permit, which the owner did not have. (Id. at 9.) Hendrix checked that the pizza food truck had hot and cold water and cleaning supplies, and he performed a visual inspection of the interior. (ECF No. 26-12 at 9.) Hendrix then nicely told the pizza food truck owner that they needed a County permit. (ECF No. 28-2 at 10.) Hendrix confirmed there were no obvious public health hazards and allowed the pizza food truck to continue operating on September 8, 2018. (ECF No. 26-12 at 9.)

Hendrix also inspected the café food truck. (Id. at 8-9.) Hendrix checked that the café food truck had hot and cold water and cleaning supplies, and he performed a visual inspection of the interior. (Id. at 9.) Hendrix confirmed there were no obvious public health hazards and allowed the café food truck to continue operating on September 8, 2018. (Id.)

Altogether, Hendrix instructed Plaintiff and the two other food truck operators that they would need to get a County permit to continue serving food in Yuba County in the future. (Id. at 12.) Hendrix's inspection of Plaintiff's food truck took longer than that of the pizza and café food trucks because the other food trucks were not storing raw meat or cooking food on the food trucks. (Id. at 9.) Plaintiff's truck posed a greater possibility of risk to the public because it had raw meat and prepared food in the food truck. (Id.)

On September 10, 2018, the County's Environmental Health Division sent a letter to Brotha Lem's BBQ, the pizza food truck operator, the café food truck operator, and the Soccer Club. (Id. at 12; ECF No. 28-2 at 11.) The letter concerned the unlawful operation without a health permit on September 8, 2018. (ECF No. 26-12 at 12.) Each letter had the same language. (Id.)

On September 20, 2018, Plaintiff went to the County's Environmental Services Department to pay the permitting fee and apply for a permit. (Id. at 13.) There, he spoke with Margaret Hochstrasser ("Hochstrasser") and asked for Hendrix. (ECF No. 28-2 at 11.) Hochstrasser said she would check to see if Hendrix was available, and then said Hendrix was not there. (Id.) Hochstrasser got on the phone with Hendrix, and Hendrix instructed her to tell Plaintiff that his permit was only good for the soccer field. (Id. at 11-12.) Plaintiff was charged the standard amount for a food truck that cooks food on the premises. (ECF No. 26-12 at 13.) Plaintiff then paid the permit fee but did not receive a permit. (ECF No. 28-2 at 11.)

On October 3, 2018, Plaintiff went to the County's Environmental Services Department for a food truck inspection. (ECF No. 26-12 at 13.) It is the County's custom and practice to perform the inspection after the fees are paid. (Id.) Two inspectors performed the inspection of Plaintiff's food truck. (ECF No. 28-2 at 12.) They took pictures of the inside of Plaintiff's food truck, something that had never happened during an inspection of Plaintiff's food truck. (Id.) The pictures were taken to show Hendrix who was not present and to assist in the inspection process. (ECF No. 26-12 at 13.) No County employee made a discriminatory statement or used a racial slur during the inspection. (Id. at 14.) Plaintiff did not receive his permit on that day. (ECF No. 28-2 at 12.)

After the inspection, the County's Environmental Services Department sent Plaintiff a letter on October 3, 2018. (ECF No. 26-12 at 14.) The letter identified items that need to be changed, provided, or explained prior to the issuance of a permit. (Id.) Plaintiff never responded to the October 3rd letter, and he never made any attempt to correct the deficiencies to get a permit. (Id.) Plaintiff never made any attempts after October 3, 2018, to receive a County permit. (Id.)

A similar letter was sent to the pizza food truck operator after the inspection of that truck in September 2018. (Id.) After the events of September 8, 2018, the pizza food truck paid the appropriate fee, received an inspection, responded to the County's letter, completed the application process, and received a permit. (Id. at 15.) The café food truck never sought a permit. (Id.)

On April 30, 2019, Plaintiff filed the instant action in the Yuba County Superior Court. (ECF No. 1 at 8.) On November 15, 2019, Defendants removed the action to this Court. (Id. at 1.) On December 23, 2019, Plaintiff filed the operative Second Amended Complaint ("SAC"). (ECF No. 7.) Plaintiff's SAC alleges six causes of action: (1) discrimination pursuant to 42 U.S.C. § 1981 ("§ 1981") against the County; (2) discrimination pursuant to California Civil Code § 51 against the County; (3) retaliation pursuant to California Civil Code § 51 against the County; (4) fraud against Hendrix; (5) defamation against Hendrix; and (6) intentional infliction of emotional distress ("IIED") against Hendrix. (ECF No. 7.) On July 7, 2021, Defendants filed the instant motion for summary judgment. (ECF No. 25.) On July 30, 2021, Plaintiff filed an opposition. (ECF No. 26.) On August 5, 2021, Defendants filed a reply. (ECF No. 28.)

II. STANDARD OF LAW

Summary judgment is appropriate when the moving party demonstrates no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under summary judgment practice,...