Opposition To MTD No 3

1 Craig Anthony Gelber
Post Office Box 1786

2 Willits, California 95490
(707) 354-1277
3 E-Mail: CGelber707@gmail.com
4 Pro Se Plaintiff
5 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
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7 CRAIG ANTHONY GELBER, Case No. 323-cv-00681-JSC
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Plaintiff, PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
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v. AND MOTION TO STRIKE
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CITY OF WILLITS, BRIAN BENDER, AND [FRCP RULE 12(b)(6) AND 12(f)]
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DAVEY BOWLES, in their individual and
official capacities, Jointly and Severally and Date: January 4, 2024
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DOES 1 through 25, inclusive, Time: 10:00 a.m.
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Defendants
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AND THIRD
AMENDED COMPLAINTS, Gelber v. City of Willits, et al., U.S.D.C., Northern California District, Case No. 3:23-cv-00681-JSC
1 TO ALL DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
2 For his Opposition to Defendants’ Motion to Dismiss and Motion to Strike Portions of
3 Plaintiff’s Second Amended Complaint (“SAC”) and Third Amended Complaint (“TAC”), pursuant
4 to Fed. R. Civ. Proc., Rules 12(b)(6) and 12(f), Plaintiff CRAIG ANTHONY GELBER hereby
5 submits the following and requests that Defendants’ motion be denied and that they be ordered to
6 answer to the Complaint.
7 MEMORANDUM OF POINTS AND AUTHORITIES
8 I. STATEMENT OF ISSUES
9 Plaintiff Craig Anthony Gelber (“Gelber”) brings this action against Defendants City of
10 Willits, City of Willits Water Department1, Brian Bender, in his official capacity as City Manager
11 and in his individual capacity and Davey Bowles in his employee capacity as Building
12 Inspector/Code Enforcement Officer and in his individual capacity (collectively “Defendants”), for
13 violating his civil rights under 42 U.S.C. § 1983 and common-law breach of contract and breach of
14 good faith and fair dealing—not out of his attempts to obtain municipal water service, as Defendants
15 have stated in their present motion to dismiss/motion to strike (“MTD”) (Dkt. 44, 1:20), but out of
16 his attempt to keep his municipal water service that he already had. This was at an abandoned
17 property that was an REO of Deutsche Bank was foreclosed on by them. Plaintiff was in the property
18 a total of 512 days, whereby 408 of those days he suffered without water service, due to Defendants’
19 disconnecting it against his will, without opportunity for a hearing first, without a notice that
20 contained the required items to make it legal. Plaintiff protested the disconnection and attempted to
21 have an appeal regarding the matter, but Defendants ignored him and disconnected the water
22 anyway.
23 Plaintiff’s Second Amended Complaint (SAC) was filed on November 15, 2023, meeting
24 the deadline on the time to file by seconds and admittedly contained a “myriad of errors and
25 omissions.” On November 30, 2023, he filed a First Motion for Leave to file a Third Amended
26 Complaint (“TAC”) with his proposed third amended complaint attached to it (Dkt. 45). On
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The City of Willits Water Department is not a separate entity, but rather, a department of the
28 City of Willits. The City is thus sued on behalf of its water department, and all references to
Defendant City is deemed to include its water department.
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1 December 1, 2023, the Court granted Plaintiff’s motion and ordered him to file his TAC by
2 December 5, 2023 (Dkt. 46.) Plaintiff did not see the order until after the fact, but filed his TAC on
3 December 6, 2023 (Dkt. 47); a day late. To avoid undue prejudice to the Defendants, who had
4 recently submitted their Motion to Dismiss/Motion to Strike Portions (“MTD”) of Plaintiff’s Second
5 Amended Complaint (“SAC”), the Court ordered that Defendants’ MTD to the SAC be construed
6 as if against Plaintiff’s TAC. Plaintiff was ordered to file his opposition to the MTD to the SAC and
7 TAC by January 4, 2024, whereby Plaintiff submits this document.
8 Plaintiff respectfully requests that the Court deny the Defendants’ Motion to Dismiss with
9 prejudice and order them to answer the complaint, and to deny Defendants’ Motion to Strike Portions
10 of his TAC. Specifically:
11 1. The first claim for relief for violation of the 14th Amendment right to substantive due process
12 brought under 42 U.S.C. § 1983 has been amended to properly state a claim;
13 2. The second claim for relief for violation of the 14th Amendment right to procedural due
14 process brought under 42 U.S.C. § 1983 has been amended to properly state a claim;
15 3. Bender and Bowles are not entitled to qualified immunity;
16 4. The third claim for relief for violation of the 14th Amendment right to procedural due
17 process brought under 42 U.S.C. § 1983 and Monell might need one more amendment to add
18 a claim for relief for violating the Equal Protection Clause under the 14th Amendment;
19 5. The fourth claim for breach of contract against the City contains sufficient facts to warrant
20 a trial;
21 6. The fifth claim for breach of the implied covenant of good faith and fair dealing properly
22 contains sufficient factual material that justifies a trial; and
23 7. Plaintiff added a claim for declaratory relief in his TAC which Defendants have not seen
24 until after their MTD was filed so as of present, there has been no challenge of this claim for
25 relief.
26 Further, the Defendants request to strike portions of Plaintiff’s TAC should be denied
27 because:
28 1. Equitable relief is proper;
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1 2. Research has demonstrated that a government entity cannot be given a judgment against it
2 for punitive damages because those monies would come out of the pockets of the taxpayers,
3 and therefore it is improper, Plaintiff concedes here;
4 3. The motion to strike plaintiff’s prayer for attorney’s fees was ruled on by Judge Corley prior
5 and denied. Plaintiff has actually obtained, but not retained, counsel. The lawyer, out of
6 Sausalito, California has stated he will represent plaintiff, but is not willing to come on board
7 until after the case has survived a motion to dismiss. Therefore, the prayer for attorney fees
8 pursuant to 42 U.S.C. § 1988 should not be stricken.
9 4. Plaintiff disagrees that Paragraphs 21-31 are redundant, immaterial, impertinent, or
10 scandalous. Paragraph 62, whatever. Paragraphs 65-68 should be allowed because this
11 actually happened, the witness will competently testify to these matters, they are conscience-
12 shocking, and indirect evidence is evidence, therefore these paragraphs should stay.
13 Paragraphs 88-92, Plaintiff would like them to stay, but that is a call to be made by the judge.
14 Paragraph 112 should stay because it demonstrates what Plaintiff suffered and how it affected
15 him. This is relevant if/when the time to assess damages arises. Paragraph 113 can go. This
16 is where Plaintiff’s deadline was not going to be met and he was in the midst of a panic
17 attack.
18 5. Exhibit C was left out of the exhibits that were attached to the TAC, so this point is moot.
19 I. STATEMENT OF FACTS AS ALLEGED BY PLAINTIFF
20 Plaintiff alleges that the City and City employees improperly disconnected his water utility
21 service to real property where he was an occupant, while in the midst of pursuing an adverse
22 possession claim at the real property, which was a bank-owned REO foreclosure property.
23 Defendants continue to call Plaintiff a trespasser, and accuse him of unlawfully occupying the
24 property, and Plaintiff continues to object to those labels. Willits Municipal Ordinance § 14.08.170
25 definition of owner reads [emphasis added]:
26 “ ‘Owner’ means the person(s) owning an interest in the fee, or the
person(s) in whose name the legal title to the property appears, by
27 deed duly recorded in the county recorder's office or the person(s)
in possession of the property or buildings under claim of, or
28 exercising acts of ownership over same for himself, or as executor,
administrator, guardian or trustee of the owner(s).”
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1 and Plaintiff’s status as an occupant of the property where he held “possession of, and exercised
2 acts of ownership over same for himself” well- qualified him as an owner under the ordinance, for
3 all intents and purposes.
4 Plaintiff filled out an application for water service with Defendants on December 7, 2020,
5 whereby he marked the box for an owner status pursuant to the above code. Defendants hand -
6 delivered a letter on or about January 15, 2021 which stated that Plaintiff had two weeks to provide
7 them with proof of ownership (specifically a deed, title policy, mortgage statement) or else they
8 would disconnect his water service on February 1, 2021. Plaintiff did not have any of those things,
9 but he responded with a correspondence on or about January 28, 2021 in which he told the
10 Defendants he was in the property performing an adverse possession claim.
11 Defendants ignored that letter and proceeded to disconnect Plaintiff’s water on February
12 1, 2021. They removed the meter on February 8, and red-tagged the property on February 9, 2021.
13 Plaintiff claims the red-tag was illegal and it gives the Defendants unclean hands whereby they
14 are barred from asserting a defense in this matter.
15 II. LEGAL ARGUIMENT
16 A. The TAC Should Withstand Dismissal Under FRCP Rule 12(b)(6).
17 The allegations of the Complaint are sufficient to establish the existence of an actual
18 controversy over the exercise of constitutional rights, breach of contract and breach of the implied
19 covenant of good faith and fair dealing, warranting declaratory relief, monetary relief, or both.
20 The standards applicable to reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
21 were summarized as follows in Baggett v. Hewlett-Packard Co., 582 F.Supp.2d 1261 (C.D.Cal.
22 2007): “A complaint must be dismissed when a plaintiff’s allegations fails to state a claim upon
23 which relief can be granted. Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires
24 only, ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’
25 Fed.R.Civ.P. 8(a)(2). ‘[O]rdinary pleading rules are not meant to impose a great burden upon a
26 plaintiff.’ Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).
27 ‘Specific facts are not necessary; the statement need only “give the defendant fair notice of what the
28 . . . claim is and the grounds upon which it rests.’ Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197,
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1 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
2 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). The Court must accept as true all factual allegations
3 in the complaint and must draw all reasonable inferences from those allegations, construing
4 the complaint in the light most favorable to the plaintiff. (Emphasis added.) Westlands Water
5 Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). Dismissal without leave to amend is
6 appropriate only when the Court is satisfied that the deficiencies of the complaint could not possibly
7 be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) [and additional
8 citations]. Id., 582 F.Supp.2d at p. 1265. To survive a motion to dismiss pursuant to Rule 12(b)(6),
9 factual allegations must be sufficient, when taken as true, to raise a right to relief above the
10 speculative level, on the assumption that all the allegations in the complaint are true, even if doubtful
11 in fact. [Citation.] A complaint may proceed even though proof seems improbable or recovery is
12 very remote and unlikely. See, Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
13 “If there are two alternative explanations, one advanced by defendant” (that Plaintiff was a
14 trespasser unlawfully occupying the property), “and the other advanced by plaintiff” (that the
15 governing ordinance definition of owner encompassed his residency at the property), “both of which
16 are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca,
17 652 F.3d 1202 (9th Cir. 2011).
18 In the instant case, the facts, as Plaintiff has alleged them, do support a cognizable legal
19 theory. That legal theory is simply: the Constitution provides that citizens have the right to acquire
20 property. Plaintiff was in the midst of an adverse possession claim where the process to acquire
21 the property was ongoing. All living things need water to live, and Defendants had no right to
22 disconnect Plaintiff’s water service for the reasons they did, and during the water shutoff moratorium
23 in place by Governor Newsom’s Executive Order N-42-20 during the COVID-19 Pandemic.
24 Plaintiff’s cognizable legal theory goes on to include the Defendants’ municipal ordinance
25 § 14.08.170 definition of owner which includes, “the person(s) in possession of the property or
26 buildings under claim of, or exercising acts of ownership over same for himself.” The above
27 portion of the ordinance encompasses Plaintiff’s living situation, does it not? Plaintiff was in actual
28 and peaceable possession of the premises and in control of the property. Defendants are bound to
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1 adhere to their own ordinance, as “[T]o render their explanation plausible, plaintiffs must do more
2 than allege facts that are merely consistent with both their explanation and defendants competing
3 explanation.” In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104 (9th Cir. 2013) citing Iqbal,
4 556 U.S. at 678, 129 S.Ct. 1937. Plaintiff has accomplished that.
5 Additionally, Plaintiff’s TAC is complete with factual content, supported by relevant and
6 necessary, supporting exhibits which further factually enhance his assertions. Bailey v. Citibank,
7 N.A., 66 Cal.App.5th 335, 280 Cal. Rptr.3d 346 (2021), recognizes that a person has the right to
8 pursue adverse possession as a means of acquiring property.
9 A test to withstand dismissal requires a complaint to provide “well-pleaded facts, not legal
10 conclusions, that ‘plausibly give rise to an entitlement to relief.’ ” The determination of whether a
11 complaint meets this standard is “a context-specific task that requires the reviewing court to draw
12 on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). When a
13 heightened pleading standard, such as that required of FRCP Rule 9 for fraud claims, does not apply,
14 the complaint “need only satisfy the FRCP Rule 8(a) notice pleading standard … to survive a Rule
15 12(b)(6) dismissal.” Edwards v. Marin Parkcitation Inc., 356 F.3d 1058, 1062 (9th Cir. 2004).
16 Under Rule 8(a), a plaintiff must “give the defendant fair notice of what the claim is and the grounds
17 upon which it rests.” Twombly, 550 U.S. at 555 (citation and internal quotation marks omitted.)
18 Plaintiff has done that. Plaintiff also relies on the lesser pleading standard for pro se litigants.
19 Continental Collieries, Inc. v. Shober, 130 F. 2d 631, 635 (CA3 1942)(“No matter how
20 likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a
21 claim, to an opportunity to try to prove it”). A district court weighing a motion to dismiss asks “not
22 whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
23 support the claims”). (Bell Atl. Corp. v. Twombly (2007) 550 U.S. 544, 563, fn. 8 [127 S.Ct. 1955,
24 167 L.Ed.2d 929].)
25 While the Defendants, in their MTD (Dkt. 44, 7:18-19), claim that Gelber “continues to
26 assert unnecessary and irrelevant allegations that fail to support cognizable causes of action against
27 Defendants, and lacks necessary facts to support the claims asserted,” Plaintiff’s TAC has been
28 revised, and is quite clear on which claims are directed at which defendants. This whole paragraph
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1 of Defendants’ MTD insinuates that Plaintiff has done nothing more than shuffle Defendants and
2 their capacities around, and then claim they are confused by that. The Ninth Circuit has created a
3 presumption in favor of personal-capacity suits: The court has “presumed that officials necessarily
4 are sued in their personal capacity where those officials are named in a complaint, even if the
5 complaint does not explicitly mention the capacity in which they are sued.” Romano, 169 F.3d at
6 1186. Thus, when officials are named personally in a complaint and the plaintiff seeks money
7 damages, the court must presume that the plaintiff asserts a personal-capacity suit. See Shoshone-
8 Bannock Tribes v. Fish & Game Comm'n, Idaho, 42 F.3d 1278, 1284 (9th Cir.1994). “Any other
9 construction would be illogical where the complaint is silent as to capacity, since a claim for damages
10 against state officials in their official capacities is plainly barred.” Id.
11 As with the confusion to which capacities which defendants were sued in, leaving the
12 Defendants bewildered and left unable to answer to the complaint, most of Defendants’ MTD is
13 boilerplate and copied and pasted except for a few paragraphs, which content is not sufficient
14 demonstration to qualify for dismissal. It is conclusory, immaterial, and should not sway a judge to
15 dismiss. Due process of law involves two types of processes: (a) procedural due process – Is the
16 process fair? and (b) substantive due process - Does the government have the right to bring the
17 action in the first place? Plaintiff also relies on the Ninth Amendment to the U.S. Constitution
18 which ensures that the rights of citizens will be protected whether these rights are listed in the
19 Constitution, or not. It also leaves that what rights are not listed is an opportunity for interpretation.
20 B. The First Claim For Relief For Violation of 14th Amendment Substantive Due Process
21 Under 42 U.S.C. § 1983 Does Not Fail to State a Claim.
22 Gelber’s first claim for relief is asserted under 42 U.S.C. § 1983 against Defendant Bender
23 whereby Gelber alleges claims for violation of 14th Amendment substantive due process rights when
24 Defendants disconnected his water service at the property. “Substantive due process forbids the
25 government from depriving a person of life, liberty, or property in such a way that shocks the
26 conscience or interferes with the rights implicit in the concept of ordered liberty. The theory
27 underlying substantive due process, as distinct from procedural due process, is that by barring certain
28 government actions regardless of the fairness of the procedures used to implement them, it serves to
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1 prevent governmental power from being used for purposes of oppression. A threshold requirement
2 to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property
3 interest protected by the Constitution. Once that threshold is met, substantive due process cases
4 typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other
5 cases. When a fundamental right is recognized, substantive due process forbids the infringement of
6 that right at all, no matter what process is provided, unless the infringement is narrowly tailored to
7 serve a compelling state interest. When the action does not infringe a fundamental right the statute
8 need only bear a reasonable relation to a legitimate state interest to justify the action.” Culinary
9 Studios, Inc. v. Newsom, F.Supp.3d 1042, Case No. 1:20-CV-1340 AWI EPG, United States District
10 Court, E.D. California.
11 In light of the above, and as per Defendants’ quotation (See Doc. 44, 8:6-14) that “Gelber
12 previously asserted that he had a ‘fundamental right to acquire property through adverse possession’
13 (Dkt. No. 35 at 8) ‘which this Court found inadequate to … another’s property.’ (Order, Dkt. No.
14 42 p.4) and ending with, ‘[n]otwithstanding Gelber’s change in theory now to claim a fundamental
15 right to water utility service, his SAC still fails to state facts to support a substantive due process
16 claim against Bender or the City, and the first claim should be dismissed without leave to amend.’ ”
17 Yes, Gelber has changed his theory, and as per the quote on pgs. 11-12 of the TAC, by State Senator
18 Bill Dodd, D-Napa: “Access to water is a fundamental right of all Californians.” (Dkt. 47, 11:24.)
19 Although the Fourteenth Amendment's Due Process Clause states only that “[n]o person
20 shall . . . be deprived of life, liberty, or property, without due process of law,” courts have long held
21 that it also provides substantive protections for certain unenumerated fundamental rights. Indeed,
22 the Supreme Court has a long history of recognizing unenumerated fundamental rights as protected
23 by substantive due process. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d
24 349 (1972) (to use contraception); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
25 (1967) (to marry); Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952) (to bodily
26 integrity); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655
27 (1942) (to have children); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070
28 (1925) (to direct the education and upbringing of one's children).
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1 In Frates v. Great Falls, 568 F.Supp. 1330, U.S.D.C. Mont., (1983) although the
2 notification procedure utilized by the city in terminating water service did not satisfy due process
3 requirements, the court found that the customer received adequate notice to satisfy due process
4 requirements. The court noted that the customer received notice, in fact, of the procedure to be
5 utilized in challenging the charges due. The court rejected the customer's allegation that the city
6 acted in retaliation for the customer's exercise of his First Amendment rights because the termination
7 was set in motion long before the customer petitioned for redress. Finally, the court awarded the
8 customer reasonable attorney fees because the court recognized the constitutional impropriety of the
9 general notice procedure that the city used in terminating service. In Plaintiff’s case, he pointed out
10 in his pleadings that all he received was a letter from Defendants telling him that he had to supply
11 them with documents and if he didn’t, they were going to disconnect. That is in no way a proper
12 termination notice. It did not give the other required information necessary for a proper termination,
13 such as who he could speak with as a representative of the City concerning his rights over the
14 termination prior to disconnection or a policy in place to contest the upcoming disconnection. (Dkt.
15 47, pg. 8, ¶42).
16 When state law precludes the termination of utility service other than for good cause, there
17 arises a legitimate claim of ‘entitlement’ within the protection of the Due Process Clause.
18 Accordingly, a customer is entitled to a constitutionally adequate notice and hearing procedure prior
19 to termination, in order to afford reasonable assurance against erroneous or arbitrary withholding of
20 essential services. The Fourteenth Amendment places procedural constraints on the actions of
21 government that work a deprivation of interests enjoying the statute of “property” within the
22 meaning of the Due Process Clause. Although the underlying substantive interest is created by an
23 independent source such as state law, federal constitutional law determines whether that interest
24 rises to the level of a “legitimate claim of entitlement” protected by the Due Process Clause. Board
25 of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann,
26 408 U.S. 593, 602, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
27 In the case of Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 56 L. Ed. 2d 30,
28 98 S. Ct. 1554 (1978), the United States Supreme Court held that a Tennessee municipal
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1 utility violated a customer's right to due process of law when it terminated service for nonpayment
2 of charges, without affording the customer adequate notice and a hearing. The Court concluded
3 that when state law precludes the termination of utility service other than for good cause, there arises
4 “a ‘legitimate claim of entitlement’ within the protection of the Due Process Clause.” Id. at 11-12.
5 Accordingly, the Court held that the customer was entitled to a constitutionally adequate notice and
6 hearing procedure prior to termination, in order “to afford reasonable assurance against erroneous
7 or arbitrary withholding of essential services.” Id. at 18.
8 Defendants claim in their MTD (Dkt. 44, 8:8-9) that “Gelber previously asserted he had a
9 ‘fundamental right to acquire property through adverse possession’ ” and therefore, due to him not
10 giving citations to that effect, his theory was inadequate. However, the key portion of that statement
11 was taken out of context. What plaintiff was asserting was that he had the “fundamental right to
12 acquire property [through adverse possession].” The right to acquire property was the fundamental
13 right raised. Plaintiff argues it shouldn’t matter how. Additionally, Defendants state that “[h]is
14 property interest thus, was prospective at best. A future contingent interest is not a vested property
15 right,” (Dkt. 44, 9:22-23). This statement should be objected to, because it is conclusory. Gelber
16 actually had a present possessory property interest because he was in immediate peaceable and
17 actual possession of the property.
18 Plaintiff objects to the use of Blocktree Properties, LLC v. Public Utility District No. 2 of
19 Grant County Washington, 380 F.Supp.3d, U.S.D.C., E.D.Wash. (2019) as a citation to support
20 Defendants’ theories because that case is not on point whatsoever. For substantive due process,
21 Gelber can state that he had a contractual right to water service therefore, a property interest in
22 receiving water service is his “fundamental” right. Gelber is not claiming a property interest in his
23 investment that he put into cleaning the property and abating the nuisance [to dispute Blocktree].
24 Mentioning the amount of monies that Gelber invested in cleaning up the property and abating the
25 nuisance are to illustrate damages in the case.
26 In Frates v. Great Falls, 568 F.Supp. 1330 (Mont.D. 1983), “the court awarded the customer
27 [plaintiffs] reasonable attorney fees because the court recognized the constitutional impropriety of
28 the general notice procedure that the city used in terminating service.” In this case, Plaintiff as well
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1 suffered a constitutional impropriety in the notice procedure that the city used in terminating his
2 service, and asks this court to consider, if anything, an award to him for his time spent on this case
3 by preparing the complaint, first, second, and third amended complaints, and the oppositions to the
4 three (3) motions to dismiss, whereby plaintiff is entitled to recoup the cost of pro se attorney fees.
5 The Third Circuit has held that a non-owner who resided at the owner's house with the
6 owner's permission had a reasonable expectation of privacy in the house, despite the fact that he
7 was not a tenant. Eiland v. Jackson, 34 Fed.Appx. 40, 41-42 (3d Cir.2002). Therefore, there are
8 instances where a person has certain inalienable rights. California Civil Code, Division 3, Part 4 of
9 Title 5 could imply that a party becomes a legal tenant after 29 days if the owner has knowledge
10 they are living in their property, which Deutsche Bank had knowledge that Gelber was residing there.
11 In Cadle v. Newton Falls, Cadle contends that he has a claim of entitlement to his water
12 services which creates a property interest. Cadle cites Memphis Light, Gas & Water Division v.
13 Craft, 436 U.S. 1 (1978), in support of his claim that public utility services are cognizable property
14 interests. In that case, the Supreme Court held that plaintiffs had a cognizable property interest in
15 their public water service. The Supreme Court, however, based its determination in Craft on
16 Tennessee law, which prohibited the termination of such service “at will.” The Court stated that
17 “the availability of [] local-law remedies is evidence of [Tennessee's] recognition of a protected
18 interest.” Id. at 11. See also, Myers v. City of Alcoa, 752 F.2d 196 (6th Cir.), (cert. denied), 474
19 U.S. 901 (1985) (noting that the property interest recognized in Craft was based, at least in part, on
20 the obligation for providing utility services under Tennessee law). There appears to be no
21 obligations or remedies for the receipt of water services in Ohio. Therefore, we conclude that Cadle
22 has no interest in his water service which is protected by substantive due process. (citing Cadle v.
23 Newton Falls.)
24 California, however, has case law which states that its inhabitants are to be furnished water
25 service, without discrimination. Therefore, Gelber has an interest in his water service which is
26 protected by substantive due process. See, County of Del Norte v. City of Crescent City, 71
27 Cal.App.4th 96, 84 Cal.Rptr.2d 179 (1999). “[T]he transferee of a water company or a water system
28 has the same duties and obligation as the transferor, and the inhabitants of the district of the district
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1 have the right to receive water from the city to the same extent they formerly had [citations]; and
2 the city must assume the duty to supply water without discrimination.” Id. The principle receives
3 universal recognition, says the supreme court of Indiana, in State ex. rel. Wood v. Consumers’ Gas
4 Trust Co., 157 Ind. 345, 61 N.E. 674, 55 L.R.A. 245; “No statute has been deemed necessary to aid
5 the courts in holding that, when a person or company undertakes to supply a demand which is
6 affected by a public interest, it must supply all alike who are like situated, and not discriminate in
7 favor of nor against any.” See also, Leavitt v. Lassen Irr. Co. 157 Cal. 82, 106 P. 404, 29 L.R.A.
8 (N.S.) 213 (1909).
9 Additionally, Plaintiff has alleged facts that he considers to be conscience-shocking in his
10 TAC, and asks the Court to leave that final determination to the jury when the case is at trial.
11 C. The Second Claim For Relief For Violation of Procedural Due Process Under 42 U.S.C.
12 § 1983 Properly States A Claim Against Bender
13 “Due process . . . is not a technical conception with a fixed content unrelated to time, place
14 and circumstances. [D]ue process is flexible and calls for such procedural protections as the
15 particular situation demands.” Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18
16 (1976) “A successful procedural due process claim requires a plaintiff to show (1) the deprivation
17 of a liberty or property interest and (2) the absence of due process.” Mecca v. United States, 389
18 Fed.Appx. 775 (2010).
19 “An elementary and fundamental requirement of due process in any proceeding which is to
20 be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested
21 parties of the pendency of the action and afford them an opportunity to present their objections. The
22 notice must be of such nature as reasonably to convey the required information, and it must afford a
23 reasonable time for those interested to make their appearance.” Frates v. Great Falls, (D.Mont1983)
24 568 F.Supp. 1330, 1337 (citing) (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 94 L.
25 Ed. 865, 70 S. Ct. 652 (1950) (citations omitted).
26 Protected interests in property are normally not created by the Constitution, rather, they are
27 created and defined by an independent source such as state statutes or rules entitling the citizen to
28 certain benefits. (See Board of Regents v. Roth, 565 U.S. at 577.) The United States Supreme Court
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1 has emphasized that the hallmark of property is an “entitlement grounded in state law, which cannot
2 be removed except for ‘good cause.’ ” (See Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L.
3 Ed. 2d 265, 102 S. Ct. 1148 (1982)); (See also Memphis Light, Gas and Water Div. v. Craft,
4 supra; Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975); Roth v. Bd. of Regents,
5 supra.) A person's interest in a benefit or entitlement is a property interest protected by the
6 requirements of due process if there are rules or explicit understandings that support the person’s
7 claim to the benefit or entitlement. See, Perry v. Sindermann, 408 U.S. at 601. In light of these
8 propositions, this court must determine whether or not Montana, or the City of Great Falls, has
9 created a substantive interest in continued water services. If it has, the next area of inquiry, as noted,
10 is whether or not that interest rises to the level of entitlement. See, Memphis Light, Gas
11 and Water Div. v. Craft, supra at 9.
12 “A water service customer has a legitimate claim of entitlement to continued water service.
13 Indeed, the only law extant on the subject is statutory. Nonetheless, a review of the pertinent
14 statutory law supports the conclusion that a customer’s expectation of the continued availability of
15 water service from the public utility, managed and controlled by the defendants, is legitimate and is,
16 in fact secured by existing rules and understandings. See, (Frates v. Great Falls (D.Mont. 1983) 568
17 F.Supp. 1330, 1336.)
18 Section 5 of Article X of the California Constitution reads, “The use of all water now
19 appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared
20 to be a public use, and subject to the regulation and control of the State, in the manner to be
21 prescribed by law.”
22 Section 6 of Article X of the California Constitution authorizes municipalities, within the
23 State of California, “The right to collect rates or compensation for the use of water supplied to any
24 county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be
25 exercised except by authority of and in the manner prescribed by law.”
26 In Frates v. Great Falls (D.Mont. 1983) 568 F.Supp. 1330, 1336-1337 , it was determined,
27 “The declaration by the State of Montana, in the pertinent enabling legislation, that municipally
28 owned water service utilities are to be created for the benefit of the public, taken in conjunction with
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1 the fact that the services provided by such utilities may be terminated only for cause, establishes that
2 a customer has a justified expectation of continued water service, created and secured by existing
3 state and local law. Accordingly, a customer serviced by a municipally-owned water service utility in
4 the State of Montana may assert a “legitimate claim of entitlement” within the protection of
5 the Due Process Clause of the Fourteenth Amendment. (citing) Memphis Light, Gas and Water Div.
6 v. Craft, 436 U.S. at 11-12. This case and the state laws in Montana and California are on-point
7 enough to warrant that a similar determination finding in favor of the Plaintiff when ruling on this
8 MTD.
9 Fourteenth Amendment procedural due process creates a “guarantee of fair procedure”
10 whereby an individual can assert that [s]he was deprived of a life, liberty, or property interest without
11 due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).
12 However, as a threshold matter, the aggrieved party must demonstrate that [s]he possessed an interest
13 protected by the Fourteenth Amendment in order to bring a successful procedural due process
14 claim. Acierno v. Cloutier, 40 F.3d 597, 616 (3d Cir.1994); Renchenski v. Williams, 622 F.3d 315,
15 325 (3d Cir.2010). This property interest must be one which is legally protected by a source outside
16 of the Due Process Clause: “Property interests, of course, are not created by the Constitution. Rather
17 they are created and their dimensions are defined by existing rules or understandings that stem from
18 an independent source such as state law-rules or understandings that secure certain benefits and that
19 support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S.
20 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Third Circuit held in Abbott v. Latshaw, 164
21 F.3d 141, 144 (3d Cir.1998) that “possessory interests” in property are protected by the Fourteenth
22 Amendment.
23 A factual situation, or circumstance (substantive predicate) exists in California State
24 law, within the California Water Code, Division 24, known as the Safe, Clean, Reliable Water
25 Supply Act. Section 78500.2(d) of that Act reads:
26
“The state should plan to meet the water supply needs of all beneficial uses of water,
27 including urban, agricultural, and environmental, utilizing a wide range of strategies
including water conservation and recycling, conjunctive use of surface and
28
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groundwater supplies, water transfers, and improvements in the state’s water storage
1
and delivery systems to meet the growing water needs of the state.”
2
Section 78500.4 of the Water Code states:
3
“In enacting this measure, the people of California declare all of the following to be
4
the objectives of this act:
5 (a) To provide a safe, clean, affordable, and sufficient water supply to meet the
needs of California residents, farms, and businesses.
6 (b) To develop lasting water solutions that balance the needs of the state’s economy
and its environment.
7
(c) To restore ecological health for native fish and wildlife, and their natural habitats,
8 including wetlands.
(d) To protect the integrity of the state’s water supply system from catastrophic failure
9 due to earthquakes and flooding.
(e) To protect drinking water quality.
10
(f) To protect the quality of life in our communities by ensuring recreational
11 opportunities and maintaining parks, trees, and plants.”
12
This is in furtherance of Willits Municipal Ordinance §14.04.060, which was mentioned in
13
the TAC (Dkt. 47 ¶71). Additionally, Section 2 of Article X of the California Constitution
14
provides:
15
“It is hereby declared that because of the conditions prevailing in this State the
16 general welfare requires that the water resources of the State be put to beneficial use
17 to the fullest extent of which they are capable, and that the waste or unreasonable use
or unreasonable method of use of water be prevented, and that the conservation of
18 such waters is to be exercised with a view to the reasonable and beneficial use
thereof in the interest of the people and for the public welfare.” (Emphasis
19 added.)
20 Section 102 of the Water Code states that, “All water within the State is the property of the people
21 of the State, but the water may be acquired by appropriation in the manner provided by law.”
22 Section 104 states, “It is hereby declared that the people of the State have a paramount interest in
23 the use of all the water of the State and that the State shall determine what water of the State, surface
24 and underground, can be converted to public use or controlled for public protection.” Section 106
25 reads: “It is hereby declared to be the established policy of this State that the use of water for
26 domestic purposes is the highest use of water and that the next highest use is for irrigation.
27
D. Bender and Bowles Are Not Entitled To Qualified Immunity On Any Claims Against
28 Them.
Because qualified immunity is not merely a defense to liability, but renders a defendant
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1 completely immune to suit, a court should determine at the earliest possible stage whether
2 a grant of qualified immunity would be proper given the facts of the case taken in the light most
3 favorable to the plaintiff. Pearson v. Callahan, 555 U.S. 223, 236, 242, 129 S.Ct. 808, 172 L.Ed.2d
4 565 (2009). (citing) Giles, 571 F.3d at 325-26. Given the afore citation, Defendants cannot
5 accurately state that they are entitled to qualified immunity because as per the above, there is
6 evidence that will be introduced to support a finding that qualified immunity criteria does not apply
7 in this case.
8 Government officials are shielded by such immunity for performing discretionary functions
9 “as long as their actions could reasonably have been thought consistent with the rights they are
10 alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). It is not necessary to
11 show that their action has been held unlawful, but it must be shown that “in the light of pre-existing
12 law the unlawfulness [of their action] [was] apparent.” Id. at 640.
13 In Cadle v. Newton Falls, 961 F.2d 1576, the defendant water utility workers of the city
14 entered upon the property of plaintiff in order to disconnect his water service. Plaintiff filed suit that
15 included violation of the 14th Amendment, and the 4th Amendment for an illegal search. The Sixth
16 Circuit Court of Appeals held that, “Under the circumstances of this case, defendants reasonably
17 believed that they could lawfully enter upon Cadle’s property. Therefore, they are entitled to
18 qualified immunity.” (See HN4, 1992 U.S. App. LEXIS 10267.) In contrast, Cadle enhances
19 Plaintiff’s contention because it is sufficiently on-point to demonstrate that Defendants are not
20 entitled to qualified immunity in this case. (See Dkt. 47, pg. 97, Exh. “P”), where Defendant Bowles
21 is asking questions about the legality of shutting off plaintiff’s water. This was just five days prior
22 to Defendants shutting off plaintiff’s water. This demonstrates that defendant Bowles did not
23 reasonably believe he could legally shut off plaintiff’s water and that he had questions on the matter,
24 just five days prior to shutoff. He demonstrates he is unsure of “squatter’s rights”. Indeed, Bowles
25 did not have sufficient ability to be 100% sure that what he was doing was legal.
26 In Defendants’ MTD (Dkt. 43, 12:5-16) Plaintiff still argues that Bender, in June of 2021,
27 at the time Plaintiff and a witness approached him to have his application placed on the city council
28 agenda (pursuant to WMO §14.04.060), by Bender refusing to do it, he acted arbitrarily and
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1 capriciously, and his animus overrode his professional judgment, contrary to the ordinance. He was
2 a wrongful act that caused Plaintiff culpable injury. Plaintiff had been instructed by the council on
3 how to get to his resolution described in the ordinance. Step One was to be placed on the agenda.
4 Step Two was to submit his application for relief. Step Three was for the council to vote on the
5 matter. What came after remained to be seen by how well Gelber presented his complaint and how
6 the council voted. The substantive predicate having been met, Gelber had a chance to allow him to
7 continue receiving water service. Gelber, as a member of the community had a right not be
8 discriminated against and to receive the public water service that all other residents were allowed to
9 receive. Bender’s job was to simply put the item on the council’s future agenda. When he refused
10 to do that, it took on a personal capacity by him saying, “No. Just no.” It is not unlike the above
11 reference to the TAC Exhibit “W”, where Bender answered to the firing of a police officer, “Because
12 I can.” His actions were under color of law because had he not held the position of city manager, he
13 would not have been able to personally and individually deny Gelber’s request. It was Bender’s job
14 to put the item on the agenda, but by him saying “No. Just no,” he had stepped into another set of
15 shoes, so to speak. If anything, this should be a matter for a jury to decide at trial.
16 As defendants state (Dkt. 44, 12:12-16) “[e]ven if Gelber had a protected interest in
17 receiving water…Bender, in his personal capacity, cannot offer procedural protections related to
18 water utility service, a hearing or any City action, and no statute or ordinance specifies the outcome
19 Bender, or any individual acting in their personal capacity, must reach “if the substantive predicates
20 have been met.” As stated hereinabove, Gelber did have a fundamental right to water utilities, and
21 Bender in his both his personal and official capacities could not offer procedural protections…but
22 the ordinance does specify the outcome which would be the matter being voted on by the council.
23 The act of their voting is the outcome, and substantive predicate is making the application to the
24 council. Had Bender been doing his job, he was obligated to put the matter on the agenda. Which
25 is why he is charged individually. He stepped out of his city manager shoes to tell Gelber “No. Just
26 no.”
27 Defendants’ reliance to support their statement, “Where the claimed ‘entitlement’ is merely an
28 entitlement to a procedure, the Supreme Court held this inadequate even for standing. (Id. at 764.)”
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1 is insufficient to support their statement. The citation actually reads, “That, however, would be an
2 entitlement to nothing but procedure, which cannot be the basis for a property interest. Pp. 758-764.”
3 (citing) Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005).
4 This demonstrates the mindset of the city manager in his individual capacity, as to using his
5 position to make personal decisions while wearing the shoes of someone in an official capacity.
6 This mindset is not unlike the way Plaintiff was treated. Were it not for his official position, Bender
7 would not have been able to make discriminatory personal acts against Plaintiff and others.
8 E. The Third Claim For Relief Against The City For Violation of Proecdural Due Process
9 Based on § 1983 Monell Liability Should Not Be Dismissed.
10 Plaintiff requests leave to amend this claim for relief to add a claim for violating his rights
11 under the Equal Protection Clause of the 14th Amendment under his Monell claim, as a class of
12 one. The Defendants denied the plaintiff access to water for a discriminatory reason alone. Because
13 he was pursuing adverse possession; which they “disliked” (TAC, Exh. “P”, pg. 96). The claim would
14 allege that the Defendants favor applicants for water service who do not pursue adverse possession,
15 as opposed to those that do pursue adverse possession, and the state action was motivated solely by
16 a “spiteful effort to ‘get’ him for reasons wholly unrelated to any legitimate state objective. Village
17 of Willowbrook v. Olech, 528 U.S. 562 (2000) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7
18 1995).
19 Under Monell v. New York City Dept. of Social Services, local governing bodies and local
20 officials sued in their official capacities can be held directly liable under § 1983 for constitutional
21 deprivations that occur pursuant to an official policy, custom, or decision. Plaintiff's Monell claim
22 alleges that Defendants denied him access to water for discriminatory reasons, solely because he
23 was pursuing adverse possession of the property.
24 Plaintiff seeks leave to amend his Monell claim to add a claim for violation of his rights under
25 the Equal Protection Clause of the 14th Amendment, as a class of one. Defendants favored applicants
26 for water service who did not pursue adverse possession, and the state action was motivated solely
27 by a spiteful effort to harm Plaintiff for reasons unrelated to any legitimate state objective. This
28 claim is supported by the decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
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1 Local governments, including Defendants in this case, can be sued directly under § 1983 for
2 monetary, declaratory, and injunctive relief when the alleged unconstitutional action implements or
3 executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by
4 those whose acts represent official policy. Moreover, local governments can be held liable for
5 constitutional deprivations resulting from governmental customs, even without formal approval
6 through official decision-making channels. Citations to support this are Pembaur v .City of
7 Cincinnati, 475 U.S. 469 (1986): In this case, the Supreme Court further clarified that municipalities
8 may also be sued under § 1983 for constitutional deprivations resulting from a single decision by
9 municipal policymakers under appropriate circumstances. See also, Board of the County
10 Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997) and City of St. Louis v.
11 Praprotnik, 485 U.S. 112 (1988).
12 Plaintiff has sufficiently alleged facts to support a plausible Monell claim against Defendants,
13 and dismissal at this stage would be premature and deprive Plaintiff of the opportunity for discovery.
14 Factual issues exist that preclude determining the validity of the claim as a matter of law, and
15 Plaintiff should be allowed to proceed with the claim.
16 Local governing bodies (and local officials sued in their official capacities) can, therefore,
17 be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations
18 where, as here, the action that is alleged to be unconstitutional implements or executes a policy
19 statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts
20 or acts may fairly be said to represent official policy. In addition, local governments, like every other
21 § 1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental
22 “custom” even though such custom has not received formal approval through the government's
23 official decision-making channels. Pp. 690-691. (Monell v. New York City Dept, of
24 Social Services (1978) 436 U.S. 658, 659, 98 S.Ct. 2018, 56 L.Ed.2d 611.)
25 F. The Fourth Claim For Breach of Contract Should Survive the Rule 12(b)(6) Motion.
26 Gelber asserts, for this claim, an implied contract for water service. Plaintiff again objects
27 to all labels in this section by defendants that he was a trespasser and unlawfully occupying the
28 property. Plaintiff had marked the box on his water service application that said, “I own this home.”
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1 This was not a fraudulent misrepresentation, as accused by defendants. The form did not have a box
2 available for “Adverse Possession,” so he chose the one that fit his situation most closely. He
3 definitely wasn’t renting. He was not there as an agent. His intent was to own the property, so that
4 is the box he chose. He was justified in selecting that box because, the city’s municipal ordinance
5 definition of owner includes someone “in possession of the premises, making a claim thereto for
6 himself.” The city must abide by their own laws or risk a label of unclean hands for intentionally
7 ignoring their own ordinance so they could deny water service to a person. The doctrine of unclean
8 hands also can bar a defendant from asserting an equitable defense. See, Jarrow Formulas, Inc. v.
9 Nutrition Now, Inc., 304 F.3d 829, 841-42 (9th Cir. 2002) (noting that a defendant with unclean
10 hands is barred from asserting the equitable defense of laches). “It is fundamental to [the] operation
11 of the doctrine that the alleged misconduct by the [party] relate directly to the transaction concerning
12 which the complaint is made.” Arthur v. Davis, 126 Cal. App. 3d 684, 693-94, 178 Cal. Rptr. 920
13 (Cal. Ct. App. 1981).
14 Defendants are acting in bad faith when they claim that Plaintiff has either fraudulently
15 misrepresented or presented a material misrepresentation involving the implied in-fact contract for
16 water service alleged in the TAC. The only reason they disconnected his water service was because
17 they were discriminating against him due to his establishing an adverse possession claim. It
18 shouldn’t matter if he was claiming adverse possession. Adverse possession is not illegal in
19 California. (See CCP §§ 318-325.) By the way, pursuant to CCP § 320, which reads:
20
“No entry upon real estate is deemed sufficient or valid as a claim, unless an action
21 be commenced thereupon within one year after making such entry, and within five
years from the time when the right to make it descended or accrued.”
22
23 Plaintiff did commence an action in Mendocino County Superior Court (See Case No.
24 21CV00585, In re: Verified Petition for Transfer of Title of 283 Sherwood Road, Willits, California
25 95490: A.P.N.: 005-070-24-00, filed on 8/09/2021) and did so within one year of making such
26 entry. This validated plaintiff’s claim and entry on the property. In any case, this is not a matter for
27 the defendants are misplaced in their allegations to decide if plaintiff was justified in using the Willits
28 Municipal Ordinance § 14.08.170 definition of owner.
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1 Defendants appear to imply that there is a condition precedent in the implied in-fact contract
2 with Gelber for water service, effectually, that unless the applicant could supply proof to justify
3 checking one of the three available boxes on the application [when demanded to do so], that the
4 Defendants were not required to fulfill their end of the implied contract by providing water service.
5 See California Civil Code § 1434 (Conditional Obligation) and California Civil Code § 1436
6 (Condition Precedent). There was no condition precedent in the implied-in-fact contract between
7 plaintiff and the defendants, and plaintiff disputes any existence of such.
8 Had there been a condition precedent stating as much, it would be ambiguous. There are
9 varying definitions of owner, apparently. First, there is the Willits Municipal Ordinance definition
10 of owner, which includes a person in possession of the premises and making a claim thereto for
11 himself. Second, there is the owner whose property is owned free and clear without a mortgage.
12 Third, there is the owner whose property is not paid for yet and who is making mortgage payments.
13 They have a deed of trust, but they don’t really own the property because it can be taken away from
14 them if they default on their payments. This creates an ambiguity as to owner.
15 “[T]o the extent there is any ambiguity in the words in a contract, those ambiguities must
16 be resolved against the drafter. To be sure, where ambiguities arise, the rule of contra proferentem
17 is not always a dispositive maxim. But where the ambiguity arises in a contract drafted solely by
18 one side and offered to others on a take-it-or-leave-it basis, (as in this case) then contra proferentem
19 is determinative.”
20 When an ambiguity is found the court’s task turns to identifying and enforcing the parties’
21 intent when the contract was made. In doing so, courts should examine the circumstances
22 surrounding the making of the contract as well as its stated or apparent purpose. While this may
23 help to identify what the parties intended to do, courts also will want to examine available extrinsic
24 evidence to buttress a conclusion the contractual context suggests.
25 Extrinsic evidence is admissible to aid the court in resolving an ambiguity. Extrinsic
26 evidence is anything outside of the four corners of the contract, including what the parties previously
27 said or did. For example, courts typically examine how the parties performed prior to the dispute
28
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1 as this often is considered persuasive evidence of their intention from the start. Where applicable,
2 courts also may look to how the parties previously have acted in their earlier dealings.
3 Providing proof after checking one of the boxes for the applicant status is not a condition of
4 the contract. The intent of the parties, “to be ascertained from a fair and reasonable construction of
5 the language used in light of all the surrounding circumstances,” determines whether a provision in
6 a contract is a condition or a covenant. (quoting 5 Williston on Contracts § 663 p. 127 (3d
7 ed.)). Examples of provisions that function as conditions include: (1) use of the words “subject to,”
8 which “clearly indicate[s] an intent to impose a condition precedent which, unless satisfied, would
9 prevent specific performance of the contract”; and (2) “(t)his agreement is subject to … obtaining
10 a satisfactory report for subdivision purposes,” which “clearly indicate[s] an intent to impose a
11 condition precedent which, not having been satisfied, prevented specific performance of
12 [the] contract.” Dan Bunn, 285 Ore. at 143. (Sleash, LLC v. One Pet Planet, LLC (D.Or. Aug 6,
13 2014, No. 3:14-cv-00863-ST) 2014 U.S.Dist.LEXIS 109253, at *44-45.)
14 Contract conditions are generally disfavored because promises “set the parties’ liability from
15 the outset—and conditions therefore [*47] will not be found unless there is unambiguous language
16 indicating that the parties intended to create a conditional obligation.” 13 Williston
17 on Contracts §38:13 (footnote omitted). (Sleash, LLC v. One Pet Planet, LLC (D.Or. Aug. 6, 2014,
18 No. 3:14-cv-00863-ST) 2014 U.S.Dist.LEXIS 109253, at *46-47.)
19 Civil Code section 1654 reads, “In cases of uncertainty not removed by the preceding rules, the
20 language of a contract should be interpreted most strongly against the party who caused the
21 uncertainty to exist.”. “[T]his [Civil Code section 1654] canon applies only as a tie breaker, when
22 other canons fail to dispel uncertainty.” Pacific Gas & Electric Co. v. Superior Court (1993) 15
23 Cal.App.4th 576, 596, 19 Cal.Rptr.2d 295 (disapproved on other grounds in Advanced Micro
24 Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th362, 376-377, 36 Cal.Rptr.2d 581, 885 P.2d 994.)
25 The general rule of contract interpretation is that where a contract is reasonably susceptible
26 to more than one meaning, that meaning is generally preferred which operates against the party who
27 supplies the words or from whom a writing otherwise proceeds (Sutter Home Winery, Inc. v. Vintage
28 Selections, Ltd. (9th Cir. 1992) 971 F.2d 401, 404.) Also, in Kunin v. Benefit Trust Life Ins. Co.,
-22-
1 (9th Cir. 1990) 910 F.2d 53, 19 A.L.R.5th 1017, appellant’s failure to define the scope of the term
2 “mental illness” in its policy created an ambiguity which was construed in favor of appellee. If an
3 ambiguity persists in the contract after resort to extrinsic evidence, the doctrine of contra
4 proferentem must be applied, which construes any ambiguity in the contract against the drafter.
5 (Intel Corp.v. VIA Techs., Inc., U.S.D.C., N.D.Cal. (2001) 174 F.Supp.2d 1038). “The conduct of
6 the parties after execution of the contract and before any controversy has arisen as to its effect
7 affords the most reliable evidence of the parties’ intentions.” Kennecott Corp. v. Union Oil Co. of
8 California (1987) 196 Cal.App.3d 1179, 1189, 242 Cal.Rptr. 403.)
9 G. Dismissal Of The Fifth Claim For Breach of the Covenant of Good Faith and Fair
10 Dealing Should Be Denied With Prejudice And Defendants Ordered To Answer.
11 There is an implied covenant of good faith and fair dealing in every contract that neither
12 party will do anything which will injure the right of the other to receive the benefits of the agreement.
13 (Kransco v. American Empire Surplus Lines, Inc Co., 23 Cal. 4th 390 (2000). “The scope of the duty
14 of good faith and fair dealing depends upon the purposes of the particular contract because the
15 covenant is aimed at making effective the agreement’s promises.” Id. Thus, a party's obligation is
16 only to perform the obligations imposed by the contract in good faith. There is no “free-floating”
17 duty of good faith and fair dealing that injects substantive terms into the parties’ contract.
18 (Microsoft Corp. v. Motorola, Inc. (W.D.Wash. 2013) 963 F.Supp.2d 1176, 1179.)
19 Plaintiff again objects to any and all labels in this section by defendants that he was a
20 trespasser and unlawfully occupying the property. Grounds: Assumes facts not in evidence. Gelber
21 also objects to any and all references in this section (Dkt. 44, 20:3) that the contract was procured
22 by him by fraud or material misrepresentation and voidable. Grounds: Assumes facts not in
23 evidence. The alleged implied contract was not procured by fraud or material misrepresentations by
24 Gelber, as alleged by the defendants; therefore, it is not a voidable contract.
25 Plaintiff also objects to the statement “applied for water service on December 7, 2020,
26 misrepresenting his ownership of the property; water service began on December 8 based on
27 Gelber’s material misrepresentation of ownership and authority to obtain such service; Gelber
28 received notice on January 15, 2021 to provide proof of lawful ownership or occupancy of the
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1 property within two weeks or water service would be discontinued; water service was discontinued
2 on February 1, 2021. (SAC ¶¶37-41; FAC ¶43.)” (Dkt. 44, 20:23) By this statement, Defendants
3 have misrepresented to the Court that on their application for water service form when an applicant
4 is checking one of the three boxes (owner, renter, agent) that what they are doing is legally binding
5 them to grant authority to the water department to deliver water service (See Dkt. 47, Exh. D). In
6 fact, nowhere on this document/contract are there any binding words to that effect. The only reason
7 Defendants ask for the owner, renter, or agent status is simply to determine the amount of the security
8 deposit needed at the start-up of the water service account. Evidence of this is at the bottom of pg.
9 50 of the TAC. It didn’t matter if he was an owner or an applicant; only to the amount of the security
10 deposit to charge.
11 Plaintiff did nothing to cause harm or detriment to Defendants in regard to this implied
12 contract. Plaintiff did not do anything to injure the defendants’ position as to the contract. They
13 prevented him from receiving the benefit of the contract, not the other way around. The defendants’
14 allegations in their MTD only serve as even more proof of their violating this covenant. And of their
15 propensity for dishonesty.
16 All contracts contain an implied covenant of good faith and fair dealing. The duty of good
17 faith and fair dealing requires a party to a contract not to act in bad faith in such a way that will
18 deprive the other party of the benefits of the agreement. The term “good faith” is an “excluder”
19 phrase which is without general meaning or meanings of its own and serves to exclude a wide range
20 of heterogeneous forms of bad faith. Bad faith implies unfair dealing, not mistaken judgment. Thus,
21 allegations which assert such a claim must show that the conduct of the defendant demonstrates a
22 failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad
23 judgment or negligence but rather by a conscious and deliberate act. Taldan Inv. Co. v. Comerica
24 Mortg. Corp., U.S.D.C., N.Cal.Dist. (1990) U.S. Dist. LEXIS 19951.
25 When Gelber tried to mitigate the damages, Defendants ignored him. They even gave Gelber
26 at letter to prove they were ignoring and intended to continue to ignore any and all attempts Gelber
27 would make in the future to communicate with them. (See Dkt. 47, pg.73.) “A contract must, if
28 possible, be interpreted to make it lawful, operative, definite, reasonable, and capable of being
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1 carried into effect” (Civ. Code, § 1643). “However broad may be the terms of a contract, it extends
2 only to those things concerning which it appears that the parties intended to contract” (Civil Code,
3 section 1648.)
4 In the law of contract, a court may reform a contract to reflect the true intent of the
5 parties if both parties were mistaken about the content or effect of the contract. Restatement
6 (Second) of Contracts § 155 (1981). The court may reform the contract to capture the terms upon
7 which the parties had a meeting of the minds. See, Am. President Lines, Ltd. v. United States, 821
8 F.2d 1571, 1582 (Fed. Cir. 1987); Schongalla v. Hickey, 149 F.2d 687, 690 (2d Cir. 1945).
9 (Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, 801, 310 Cal.Rptr.3d 241.)
10 “Thus, a party who evades the spirit of the contract, willfully renders imperfect
11 performance, or interferes with performance by the other party, may be liable for breach of the
12 implied covenant of good faith and fair dealing.” 23 Williston on Contracts § 63:22 (4th
13 ed.) (quotation marks, alterations, and citation omitted); see also Restatement (Second) of Contracts
14 § 205, cmt’d (“A complete catalogue of types of bad faith is impossible, but the following types are
15 among those which have been recognized in judicial decisions: evasion of the spirit of the bargain,
16 lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to
17 specify terms, and interference with or failure to cooperate in the other party's performance.”).
18 Multimedia Patent Trust v. Microsoft Corp., 525 F.Supp.2d 1200, 1212 (S.D. Cal. 2007).
19 CONCLUSION
20 Plaintiff has satisfied federal pleading standards by alleging facts to support plausible
21 claims for relief against the defendants. While the plaintiff believes the complaint is legally and
22 factually sufficient as drafted, if the Court determines that any claims are inadequately pled, the
23 plaintiff requests leave to amend to cure any remaining defects. Dismissal of any claims is
24 inappropriate at this preliminary stage, prior to the plaintiff having an opportunity for discovery, as
25 factual issues exist that preclude determining the validity of the claims as a matter of law. Therefore,
26 the defendants’ motion should be denied in its entirety.
27 Dated: January 4, 2024
28
By: Craig Anthony Gelber
-25- Pro se Plaintiff

Opposition To MTD No 3

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1 Craig Anthony Gelber

Post Office Box 1786

5 UNITED STATES DISTRICT COURT

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