Cox v. Mariposa Cnty.

445 F.Supp.3d 804

Jerry COX, an individual Plaintiff,

v.MARIPOSA COUNTY; Mariposa County Sheriff's Office; Sheriff Deputy William Atkinson; Sheriff Deputy Wesley Smith; Ashley Harris ; California ReceiverShip Group; Mark Adams; and Does 1 through 100, inclusive, Defendants.

CASE NO. 19-CV-01105-AWI-BAM

United States District Court, E.D. California.

Signed May 1, 2020

Frederick J. Geonetta, Kenneth N. Frucht, Geonetta & Frucht LLP, Oakland, CA, for Plaintiff.

John Mamoru Fujii, Silver & Wright LLP, Irvine, CA, for Defendants Mariposa County, Mariposa County Sheriff's Office, Sheriff Deputy William Atkinson, Sheriff Deputy Wesley Smith.

Ashley Harris, San Luis Obispo, CA, pro se.

Andrew Fitzgerald Adams, California Receivership Group, Santa Monica, CA, for Defendants California Receivership Group, Mark Adams.

ORDER DENYING SPECIAL MOTION TO STRIKE BY DEFENDANTS MARIPOSA COUNTY, MARIPOSA COUNTY SHERIFF'S OFFICE, SHERIFF DEPUTY WILLIAM ATKINSON, AND SHERIFF DEPUTY WESLEY SMITH

Anthony W. Ishii, District Judge

INTRODUCTION

In 2015, Mariposa County (the "County") brought criminal charges against Plaintiff Jerry Cox ("Cox") in connection with a rape that allegedly occurred on property owned by Cox (the "Property"). The charges were ultimately dropped, but while the criminal case was still pending, the County secured an expansive civil warrant to inspect the Property, identified more than 100 putative code violations, and initiated a receivership (the "Receivership") in which Mark Adams ("Adams") and his company, California Receivership Group ("CRG," and together with Adams, the "Receiver") were tasked with bringing Cox's property up to code. The Receiver ultimately put the Property on the market to recover many thousands of dollars in costs relating to the Receivership, and Cox found himself destitute and homeless.

Cox filed this action on August 12, 2019 alleging multiple claims under state and federal law against the County, the Mariposa County Sheriff's Office ("MCS"), and two sheriff's deputies (the County, MCS and two sheriff's deputies are referred to herein as the "County Defendants"), as well as Adams, CRG and Cox's alleged victim, Ashley Harris ("Harris"). This Order addresses the County Defendants' special motion to strike pursuant to section 425.16 of the California Code of Civil Procedure.¹ Doc. No. 14. For the reasons set forth below, the Court will deny the motion.

BACKGROUND

I. Factual Background ²

The following summary is distilled from declarations and exhibits filed in connection with this motion,³ with occasional reference to allegations in the Complaint.⁴ The Court notes that neither side filed evidentiary objections and does not believe that any of the facts below are in dispute, but any such disputes would not affect the outcome of this motion.

Cox purchased Bison Creek Ranch, which comprises three parcels totaling more than 400 acres in Mariposa, California in 2000 (the "Property"). Doc. No. 26, page 2 of 135, ¶¶3-4. At all times relevant to this action, the Property has been owned by either Cox or JDC Land Company, LLC ("JDC Land Company"), a California limited liability company of which Cox is the principal and 100% owner.⁵ See No. 26, page 2 of 135, ¶ 3.

The Property was zoned for "Agricultural Production Use and Compatible Uses" under California's Williamson Act in 1990. Doc. No. 26, page 2 of 135, ¶¶ 3, 4. Cox contends that the Property has since been used only for agritourism, but the County maintains that the Property has been used for short term rentals without proper permitting and that transient occupancy taxes are owed on the Property. Doc. No. 26, page 2 of 135, ¶ 5.

A. November 2015: Criminal Case Against Cox

In November 2015, the MCS arrested and jailed Cox for allegedly raping Harris on the Property. Doc. No. 26, page 5 of 135, ¶¶ 10-11. In 2015 and 2016, the County filed criminal complaints in Mariposa Superior Court charging Cox with multiple felonies in connection with the alleged incident, including forcible rape with a special allegation of great bodily injury, kidnapping, criminal threats and battery. Doc. No. 1 ¶ 74.

Nearly two years of contentious discovery ensued, in which Cox claims the MCS and the County failed to collect and divulge exculpatory evidence. Doc. No. 26, page 5 of 135, ¶¶ 11-12. At some point, deposition testimony came to light indicating that Harris had lied under oath, and on August 14, 2017, the County dismissed the criminal case against Cox pursuant to section 1385 of the California Penal Code (which provides for dismissal of a criminal action "upon the application of the prosecuting attorney"). Id.; see also Cal. Penal Code § 1385.

B. October 13, 2016: Civil Warrant for Inspection of the Property

On October 13, 2016—while the criminal case against Cox was still pending—the County secured a civil search warrant for the Property (the "Warrant"), Doc. No. 25, page 80 of 97, which stated, in pertinent part, as follows:

THIS INSPECTION WARRANT IS HEREBY DIRECTED TO any Code Enforcement Officer, Building and Safety Official or Inspector, Fire Inspector, Environmental Inspector, Planning or Zoning Inspector, Animal Control Officer ..., Health Officer, Tax Officer, Assessor, Peace Officer and/or any other law enforcement related agent or agent of the County (collectively "You").

YOU ARE HEREBY COMMANDED TO conduct an inspection of the Subject Property as authorized by Code of Civil Procedure sections 1822.50 through 1822.60 ("Inspection"). The Inspection shall include all areas of the interior and exterior of all buildings, structures, homes, houses, rooms, barn, garages, vehicles, basements, attics, sheds, units, open fields, yards, storage facilities, compartments, drawers, cabinets, papers, and electronic files located on the Subject Property.

Doc. No. 25, page 80 of 97.

The Warrant was based on declarations of the Mariposa County Planning Director, Sarah Williams ("Sarah Williams Declaration"); the Mariposa County Building Director, Michael Kinslow ("Kinslow Declaration"); the Mariposa County Director of Environmental Health, David Conway ("Conway Declaration"); and the Mariposa County Treasurer, Tax Collector, and County Clerk, Keith Williams ("Keith Williams Declaration"). Doc. No. 24, page 78 of 97.

1. Sarah Williams Declaration

The Sarah Williams Declaration stated that Ms. Williams had been the Planning Director with the Mariposa County Planning Department for more than four years, Doc. No. 25, page 85 of 97, ¶¶ 1-2, and that the following inspection activity had occurred on the Property:

• June 3, 2008: the County Planning Department "discovered violations of [ ] applicable zoning regulations and unauthorized transient rental use of the [ ] Property" and "sent the Owner a notice [ ] ordering that the [ ] Property be brought into compliance with the law," Doc. No. 25, page 86 of 97, ¶ 5;

• August 12, 2008: the County Building Department and California Department of Forestry and Fire Protection "determined that certain buildings were not properly constructed in accordance with code specifications" and the Building Department "issued a notice ... ordering that the structures be brought into compliance," id., page 86 of 97, ¶ 6;

• August 25, 2008: the Building Department "confirmed that [ ] building violations remained on the [ ] Property," "further observed that a designated agricultural storage building was being used for human occupancy," and "issued another notice to the Owner and Property Manager ... ordering that the [ ] Property be brought into compliance," id., page 86 of 97, ¶ 7;

• October 26, 2011: the Mariposa County District Attorney's Office "conducted an aerial inspection of the [ ] Property," id., page 86 of 97, ¶ 10;

• November 9, 2011: the Mariposa County District Attorney's Office "re-inspected the [ ] Property" in some unspecified fashion, id., page 86 of 97, ¶ 11;

• January 27, 2012: the Building Department and County Health Department "inspected the [ ] Property" in some unspecified fashion, id., page 86 of 97, ¶ 12;

• January 31, 2012: the County Assessor and Recorder's Office "inspected the [ ] Property" in some unspecified fashion, id., page 87 of 97, ¶ 13; and

• February 2, 2012: the County Health Department "re-inspected the [ ] Property." Id., page 87 of 97, ¶ 14.

In addition to the foregoing, the Sarah Williams Declaration states that on September 1, 2015, a sheriff's deputy inspected the Property "as part of a criminal investigation of a damaged power meter" and "confirmed that a number of [ ] violating conditions continued to persist on the [ ] Property, including unpermitted construction, electrical hazards, land use and zoning violations, and unlawful transient occupancy." Doc. No. 25, page 88 of 97, ¶ 19.

2. Kinslow Declaration

The Kinslow Declaration states that Mr. Kinslow had been the Building Director for the County of Mariposa since 2010, Doc. No. 25, page 91 of 97, ¶¶ 1-2, and that the following inspection activity had taken place on the Property:

• August 12, 2008: inspectors from the County Building Department and the Department of Forestry and Fire Protection inspected the Property, "determined that certain buildings were not properly constructed in accordance with code specifications," and "issued a notice ... ordering that the structure be brought into compliance," Doc. No. 25, page 91 of 97, ¶ 5;

• August 25, 2008: the Building Department "re-inspected the [ ] Property, [ ] confirmed that the building violations remained, [ ] further observed that a designated agricultural storage building was being improperly used for human occupancy" and issued a notice ordering that the Property be brought into compliance, id., page 92 of 97, ¶ 6;

• January 27, 2012: Kinslow himself inspected the Property and observed the "[u]permitted construction of a barn, gazebo, deck and a metal agricultural storage facility," as well as "unlawful occupancy of a designated agricultural storage facility." Id., page 92 of 97, ¶ 8.

3. Conway Declaration

The Conway...