Filed 12/18/19 Drake v. County of Shasta CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

—-

JIM DRAKE et al.,

Plaintiffs and Appellants,

v.

COUNTY OF SHASTA et al.,

Defendants and Respondents.

C086813

(Super. Ct. No. 184384)

Jim and Amber Drake sued the County of Shasta and law enforcement entities and officers alleging a violation of rights in connection with the cultivation of marijuana. Although the Drakes had medical marijuana prescriptions, they cultivated marijuana outdoors in knowing violation of the Shasta County Code. The trial court granted defendants’ motion for summary judgment.

The Drakes now contend (1) the trial court abused its discretion in denying their second motion for leave to amend the complaint, and (2) the trial court erred in granting summary adjudication as to their (A) state constitutional causes of action, (B) state common law causes of action, and (C) federal constitutional causes of action.

We conclude (1) the trial court did not abuse its discretion in denying the second motion for leave to amend because it could properly consider the Drakes’ lack of diligence and that the proposed amendment raised new facts, and (2) the trial court properly granted summary adjudication (A) as to the state constitutional causes of action because there is no private right of action associated with the alleged state constitutional violations, (B) as to the state common law causes of action because defendants have statutory immunity, and (C) as to the federal constitutional causes of action because the individual defendants have immunity and the Drakes have not established municipal liability.

We will affirm the judgment.

BACKGROUND

At the time of the searches of the Drakes’ property, Shasta County Code former section 17.88.320 (Ordinance No. SCC 2014-02) prohibited outdoor cultivation of marijuana and cultivation of more than 12 plants on any premises. Cultivation of marijuana in a manner not allowed by the Shasta County Code was declared a public nuisance. The county ordinance also provided for enforcement of the marijuana provisions. As relevant here, the enforcement provision stated: “[I]n the performance of his or her functions, the Enforcing Officer is authorized to request and inspect any evidence that serves to confirm compliance with [the marijuana provisions] of the Shasta County Code including, but not limited to the following: . . . (2) the legal Residence of the person or persons involved in the Cultivation . . . .” The Drakes knew their outdoor cultivation of marijuana was prohibited by county ordinance.

On July 24, 2015, defendant Shasta County Code Enforcement Officer Marc Pelote and defendant Shasta County Sheriff’s Deputy Tom Barner visited the Drakes’ Shasta County property to investigate a report of illegal marijuana cultivation. They encountered a gate at the front of the property with a “No Trespassing” sign. Jim Drake had tied twine from the front gate to trees and bushes, extending to the adjoining property line but not encircling the property. He put up twine in anticipation of putting in a garden and to keep people and deer out. There was no barrier between the gate and the front porch, front door, or backyard fence.

Officer Pelote and Deputy Barner entered the property through the gate and walked to the front door. They smelled marijuana. Officer Pelote knocked on the front door but no one answered. Deputy Barner walked to the side of the house, and when he returned to the front porch he told Officer Pelote he had seen more than 12 marijuana plants in the backyard. Officer Pelote left his card and a copy of the Shasta County marijuana cultivation ordinance, and Officer Pelote and Deputy Barner left the property. Having been made aware of the investigation, the Drakes moved 16 of their 18 marijuana plants to Trinity County.

On July 30, 2015, Officer Pelote returned to the Drakes’ property with defendants Shasta County Sheriff’s Deputies Gary Barnhart and Carey Erickson. Because the gate was locked, Deputies Barnhart and Erickson entered the property by stepping through the strands of twine at the front perimeter of the property and knocked on the front door. No one answered, so they knocked on the door of a recreational vehicle parked in an unfenced area at the side of the house. Deputy Barnhart went to the back of the house through an open, unfenced area. He observed a partially knocked down chain link fence and two marijuana plants cultivated outside but within the fenced area. Having observed the marijuana illegally cultivated outside, Deputy Barnhart entered the fenced area through the part that had been knocked down and seized the marijuana plants.

The Drakes originally filed this action against the County of Shasta, Officer Pelote and Deputy Barnhart, alleging nine causes of action for state constitutional violations, state common law torts, and federal constitutional violations. Defendants filed a motion for summary judgment. The Drakes moved for leave to amend and defendants stipulated to allow the amendment. The trial court granted the motion for leave to amend and the Drakes filed their first amended complaint. However, the amended complaint did not correct the deficiencies identified in defendants’ motion for summary judgment, it instead added Deputies Barner and Erickson as defendants.

When defendants filed a second motion for summary judgment, the Drakes sought defendants’ stipulation to file a second amended complaint to address the complaint’s deficiencies. Specifically, the Drakes desired to amend their causes of action alleging state constitutional violations (which are not actionable) to allege violations of Civil Code section 52.1. And they desired to amend one of their causes of action alleging federal constitutional violations to allege a claim under Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [56 L.Ed.2d 611] (Monell) to assert the Shasta County ordinance was unconstitutional. Defendants refused to stipulate to another amendment, and the trial court denied the Drakes’ subsequent motion for leave to amend the complaint. The trial court granted defendants’ motion for summary judgment and entered judgment against the Drakes.

DISCUSSION

I

The Drakes contend the trial court abused its discretion in denying their second motion for leave to amend. We review the denial of a motion for leave to amend a complaint for abuse of discretion. (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.)

Citing cases explaining that amendment is liberally allowed (see, e.g., Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945), the Drakes’ further note that some amendments are granted on the eve of trial. (See City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563 (City of Stanton).) But here, the denial of the second motion for leave to amend was not an abuse of discretion. In ruling on a motion for leave to amend the complaint, the trial court can consider whether further delay is unwarranted because of the plaintiff’s lack of diligence. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) In this case, the Drakes waited until after the first summary judgment motion was filed to seek leave to amend, thereby delaying trial, but their first amended complaint did not address the deficiencies identified in the first summary judgment motion. It was not until defendants filed a second summary judgment motion that the Drakes sought to address the deficiencies. Their delay showed a lack of diligence.

The trial court could also consider whether the proposed amendment raised new factual issues. (City of Stanton, supra, 207 Cal.App.3d at p. 1563.) The amendment sought by the Drakes to assert causes of action based on Civil Code section 52.1 would have required them to prove (and defendants to defend against) allegations that the state constitutional violations occurred by threat, intimidation, or coercion. (Civ. Code, § 52.1.) Those were new factual issues.

Under the circumstances, the trial court did not abuse its discretion in denying the second motion for leave to amend the complaint.

II

The Drakes also claim the trial court erred in granting summary judgment. We independently review the trial court’s order. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.)

A

The Drakes acknowledge that the second and fourth causes of action of the first amended complaint, asserting state constitutional violations, did not state a cause of action. We agree. There is no private right of action to enforce article I, section 1 [inalienable rights] or section 13 [search and seizure] of the California Constitution, although an action may be available as provided by statute under certain circumstances. (See Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 314, fn. 15 [no private right of action for state constitutional violation]; Civ. Code, § 52.1 [provides tort cause of action for threats, intimidation, or coercion that interferes with a constitutional or statutory right].) Therefore, the trial court properly determined the first amended complaint did not state a cause of action for violation of state constitutional provisions in the second and fourth causes of action.

B

The Drakes asserted a first cause of action for common law invasion of privacy, a fifth cause of action for trespass, a sixth cause of action for conversion, an eighth cause of action for intentional infliction of emotional distress, and a ninth cause of action for negligent infliction of emotional distress. The trial court determined that defendants are immune from the Drakes’ state common law causes of action under Government Code sections 821.8 and 815.2, subdivision (b). The Drakes claim this was error.

Government Code section 821.8 provides: “A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law. Nothing in this section exonerates a public employee from liability for an injury proximately caused by his own negligent or wrongful act or omission.” In addition, Government Code section 815.2, subdivision (b) provides: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The trial court concluded defendants are immune from liability because the entry on the Drakes’ property was impliedly authorized by the county ordinance concerning enforcement of marijuana cultivation, which stated in pertinent part that an enforcing officer was authorized to inspect evidence that serves to confirm compliance with the marijuana provisions of the Shasta County Code including, but not limited to, the legal residence of the persons involved in the cultivation. (Shasta County Code, former § 17.88.320.) On appeal, the Drakes do not address the county ordinance. Rather, they argue the entry on the property was not authorized because it was done without a warrant in violation of the Fourth Amendment to the United States Constitution. But as we explain in the next part of this opinion, the entry on the property was consistent with an authorized effort to initiate consensual contact with the Drakes. Accordingly, the Drakes fail to carry their burden on appeal to establish that the trial court erred in finding immunity and in granting summary adjudication as to the state common law causes of action. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgment presumed correct and error must be affirmatively shown].)

C

The Drakes asserted violations of their federal constitutional rights in a third cause of action under 42 U.S.C. § 1983 based on an allegedly unconstitutional search and seizure, and in a seventh cause of action asserting municipal liability under Monell, supra, 436 U.S. 658.

The Cause of Action Based on Unconstitutional Search and Seizure

In their motion for summary judgment, defendants argued they are entitled to qualified immunity regardless of whether their actions violated the Drakes’ federal constitutional rights because qualified immunity attached to defendants’ actions. The trial court agreed with defendants. The Drakes now contend the trial court erred in finding that defendants are entitled to qualified immunity for their entries onto the Drakes’ property.

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘ “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ’ [Citation.]” (Mullenix v. Luna (2015) __ U.S. __, __ [193 L.Ed.2d 255, 259] (Mullenix).) “The plaintiff bears the burden of demonstrating that the law was clearly established at the time of the alleged violation, and it is a heavy burden indeed.” (Mitchell v. Miller (1st Cir. 2015) 790 F.3d 73, 77.) “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ [Citation.] . . . Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ [Citation.]” (Mullenix, at p. 259.)

An inquiry into whether qualified immunity applies requires a court to determine whether the defendant’s conduct was contrary to a “case directly on point” or “existing precedent . . . [that] placed the statutory or constitutional question beyond debate.” (Mullenix, supra, 193 L.Ed.2d at p. 259.) Here, the trial court found, among other things, that defendants’ conduct did not violate clearly established constitutional rights because the entry on the property was consistent with attempting to contact the Drakes (as opposed to searching the property).

An officer may approach a home to initiate consensual contact with the occupants (the so-called “knock and talk” rule), even though doing so puts the officers within the curtilage of the home. (United States v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1187-1188.) As the court explained in Perea-Rey, it is permissible for an officer to enter a residential property to contact the inhabitants, and the constitutionality of such an entry hinges on whether the officer’s actions are consistent with an attempt to initiate consensual contact with the occupants. (Ibid.)

The Drakes argue the entries on their property were not done to initiate consensual contact but instead were done to search the property. But regardless of the subjective intent of the officers, the record shows the entries were consistent with efforts to initiate consensual contact. The efforts to knock on the front door and the door of a recreational vehicle on the property, and the leaving of a card, are all consistent with a desire to make contact and communicate. Contrary to the Drakes’ argument, our analysis does not depend on the actual subjective intentions of those entering the property.

The Drakes nevertheless claim the entry on the property was not permissible under Perea-Rey because the entry went beyond an effort to knock on the front doors. But qualified immunity applies unless there is a case directly on point or the precedent places the constitutional question beyond debate. (Mullenix, supra, 193 L.Ed.2d at p. 259.) While we understand the Drakes’ concern with the scope of the entry on the property, we cannot say that the legal implications of the circumstances in this case are beyond debate.

The trial court also referenced defendants’ argument that the Drakes were involved in a closely regulated industry. Some closely regulated industries have no reasonable expectation of privacy and warrantless administrative searches may be permissible. Lawmakers may legislate that such industries are subject to reasonable searches. (People v. Paulson (1990) 216 Cal.App.3d 1480, 1484-1485.) Here, for example, the Shasta County Code impliedly authorized administrative searches of marijuana cultivation. (Shasta County Code, former § 17.88.320.) It is at least arguable that the Shasta County Code permitted defendants to inspect the Drakes’ marijuana cultivation as a closely regulated industry. The Drakes offer no precedent that puts the question beyond doubt.

Accordingly, we conclude the trial court properly found qualified immunity attached to protect defendants from liability under 42 U.S.C. § 1983.

The Monell Cause of Action

A municipality may be held liable under 42 U.S.C. § 1983 for violation of a person’s federal constitutional rights if the entity, itself, caused the violation. (Monell, supra, 436 U.S. at p. 690.) “To establish Monell liability, ‘ “a plaintiff must ‘identify the challenged policy, [practice, or custom,] attribute it to the [municipality] itself, and show a causal link between the execution of the policy, [practice, or custom,] and the injury suffered.’ ” ’ [Citation.] . . . (Beswick v. City of Philadelphia (E.D.Penn. 2001) 185 F.Supp.2d 418, 427.)” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1064.)

In their Monell cause of action, the Drakes alleged that Shasta County’s “policies, practices, and customs” caused the violations of their federal constitutional rights. They did not allege the county ordinance, Shasta County Code former section 17.88.320, caused the violations. The trial court granted summary adjudication on the Drakes’ Monell claim because the Drakes failed to allege a constitutional violation adopted as official policy by Shasta County. The trial court also noted “summary adjudication of this seventh cause of action is essentially conceded by [the Drakes].” This comment by the trial court was prompted by the Drakes’ argument in their opposition to the motion for summary judgment, in which they wrote: “[The Drakes] are moving the court for leave to amend. One of the proposed amendments is to correct any insufficiency in the Monell claim. [The Drakes] do intend to challenge the county ordinance, which they contend is illegal because it violates the Fourth Amendment to the United States Constitution.” Of course, the second motion for leave to amend the complaint was denied, so the operative complaint does not allege that the county ordinance caused the constitutional violations.

Despite the Drakes’ failure to allege that the county ordinance caused the violations of their federal constitutional rights, and their concession that amendment would be needed to make that allegation, the Drakes argue on appeal that the trial court erred by granting summary adjudication as to the Monell cause of action because the individual defendants were acting pursuant to Shasta County Code former section 17.88.320 when they allegedly violated the Drakes’ federal constitutional rights and that the violation was caused by the county ordinance. We conclude appellate consideration of this argument is precluded by the Drakes’ concession of the issue in the trial court. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 [party may not change position on appeal].) Furthermore, the Drakes provide no authority in their opening brief for their appellate argument that they have a valid Monell cause of action. The Drakes fail even to give a full citation to, or description of, Monell in their opening brief. Propositions for which no authority is cited are forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.