Barich v. City of Cotati

Background

George Edward Barich sued the City of Cotati and Damien O’Bid under 42 U.S.C. § 1983, a federal law allowing claims against state actors for constitutional violations. He alleged First Amendment retaliation and Fourteenth Amendment due-process violations arising from a city code-enforcement proceeding concerning alleged violations at his property.

An administrative hearing officer, Gary Weiner, ultimately ordered Barich to correct three violations and pay the City of Cotati $266,884.34 in fines and administrative costs. Barich did not appeal that final administrative order to the Sonoma County Superior Court under California Government Code § 53069.4. He instead filed this federal case.

Defendants’ Argument

The defendants moved to dismiss the entire case under Federal Rule of Civil Procedure 12(b)(6), arguing that the administrative proceeding had preclusive effect because Barich failed to pursue available judicial review. The court distinguished this issue from exhaustion of administrative remedies. The question was whether the completed administrative proceeding prevented Barich from relitigating issues in federal court.

Court’s Analysis

The court applied a two-step test. First, it considered whether the administrative proceeding had sufficient safeguards to be treated like a state-court judgment. Those safeguards require that the agency act in a judicial capacity, resolve disputed issues properly before it, and provide the parties an adequate opportunity to litigate.

The court found the first requirement satisfied. Barich received notice, was represented by counsel, presented witnesses and evidence, participated in site-inspection and hearing procedures, made oral and written arguments, and received written decisions. The court rejected his arguments that the inability to subpoena witnesses or record the site inspection automatically prevented the proceeding from being sufficiently judicial.

The court also found that the hearing officer had authority to address the code violations and the selective-prosecution issue. It further found that Barich had an adequate opportunity to litigate because he raised arguments about selective prosecution and bias through oral and written submissions.

The court then applied traditional collateral-estoppel criteria, which prevent relitigation of an issue when the issue is identical, was finally decided on the merits, and involved the same party or a party legally connected to the earlier proceeding. The court found that Barich participated in the administrative proceeding, that the hearing officer decided the selective-prosecution and code-violation issues, and that Barich could have sought judicial review but did not.

The court also concluded that Barich could not avoid preclusion by describing the same payment and hearing-officer-selection allegations as “bribery” in federal court after raising the underlying facts and legal theory during the administrative proceeding.

The court did not find the existing allegations sufficient to show that Weiner was an impartiality-compromised decisionmaker under Haas v. County of San Bernardino. However, at the hearing, Barich said he could add facts alleging that the agreement with Weiner promised future employment and that Weiner later obtained additional employment through Attorney Smith. The court stated that such facts could affect the analysis of impartiality.

Disposition

The court GRANTED the defendants’ motion to dismiss without prejudice for failure to exhaust judicial remedies. Barich may file an amended complaint within 14 days, limited to adding facts about any promise or provision of future employment to Weiner by Attorney Smith. He must also provide a redlined version of the amended complaint. The court stated that if Barich successfully alleges facts showing that Weiner was not impartial under Haas, a future motion to dismiss on this ground would appear futile.