Mohamed, et al v. County of Sacramento

Filing 12

ORDER signed by District Judge John A. Mendez on 11/07/2016 ORDERING that defendant's 5 Motion to Dismiss is GRANTED with leave to amend. If Plaintiffs elect to submit a First Amended Complaint, they shall file it within twenty days of the date of this Order. Defendants shall file their responsive pleadings within twenty days thereafter. (Butolph, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13

JOSEPH MOHAMED, SR. and SHIRLEY
MOHAMED (as Trustees of the
Joseph Mohamed Sr. and Shirley
Mohamed Charitable Remainder
Unitrust II),

14

17
18

2:16-cv-01327-JAM-EFB

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Plaintiffs,

15
16

No.

v.
COUNTY OF SACRMENTO, a Public
Agency; and BRIAN WASHKO
(individually and as Chief
Building Official for the
County of Sacramento); and DOES
1 through 100, inclusive,

19
Defendants.
20
Plaintiffs Joseph Mohamed Sr. and Shirley Mohamed filed this

21
22

§ 1983 action against Brian Washko and the County of Sacramento

23

(“Defendants”).

24

Fed. R. Civ. P. 12(b)(6).

25

motion.

ECF No. 1.

Defendants move to dismiss under
ECF No. 5.

Plaintiffs oppose the

ECF No. 7. 1

26
27
28

1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for September 20, 2016.
1

1
2

I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs own eighty acres of land in Sacramento County.

3

Compl. ¶ 10.

4

that property to a third party.

5

contract stated that Plaintiffs would add to the purchase price

6

any costs spent to improve the land.

7

involved building a Planned Unit Development (“PUD”).

8

Plaintiffs named it Alhambra Farms, and the plan included the

9

Alhambra Farms Equestrian Center (“Equestrian Center”).

10

They entered into a land sale contract to sell
Id.

An addendum to the

Id. ¶ 12.

One improvement
Id. ¶ 13.

Id.

In 2007, Plaintiffs discussed their PUD with the County of

11

Sacramento (“County”).

12

application meeting request, which included their proposal to

13

build ten homes, a full-size riding arena, horse stables, a

14

caretaker’s home, and a private clubhouse.

15

six County departments met with Plaintiffs, including the

16

Sacramento County Planning and Building Inspection Department

17

(“PBI”).

18

Plaintiffs build sixteen homes, each with five acres, and

19

Plaintiffs amended their PUD proposal accordingly.

20

Id. ¶ 15.

First, Plaintiffs submitted a pre-

Id. ¶ 14.

Five to

The Commissioners recommended that

Id.

Plaintiffs wanted their Equestrian Center to include

21

“agricultural exempt” (“ag exempt”) buildings.

22

Code § 16.02.080 governs “ag exempt” building permits.

23

Plaintiffs applied for these permits, that Section stated, in

24

relevant part, an “agricultural building” shall qualify for an

25

“exempt building permit” if it is located on land with twenty or

26

more acres used primarily for agricultural uses, and the

27

following conditions are met:

28

A.

Sacramento County
When

An Exempt Building Permit is applied for by the
2

1

property owner or authorized agent.

2

B.

3

building

4

parcel

5

location on the property in relation to property lines

6

and other buildings.

7

C.

8

Development

9

location of the proposed building is permitted by the

A plot plan is submitted indicating the proposed
and
and

The

all

existing

showing

Director

for

of

Department

buildings
each

the

the

on

size,

Planning

determines

the

and

that

the

subject

use,

and

Community
use

and

10

Zoning Code of Sacramento County.

11

D.

12

of the parcel that requires a minimum floor elevation

13

(not in a flood plain).

14

E.

15

is

16

application, the initial site check, the final project

17

inspection

(to

18

maintenance

of

19

The fee basis is 4 hours of a Building Inspector II’s

20

time at the current hourly billing rate.

21

F.

22

plumbing, electrical, and mechanical permits will be

23

required (if included with the project) for the above

24

exempted items.*

25

*If

26

required, floor plans describing the size and use of

27

all rooms shall be submitted.

28

The proposed building is not located on a portion

A processing fee for the Exempt Building Permit
paid

by

the

applicant

verify
related

to

cover

location
Building

of

the

required

project)

Inspection

and

records.

Unless otherwise exempted by this Code, separate

electrical,

mechanical,

Id.
3

or

plumbing

permits

are

1

California Building Code § 202 defines an “agricultural

2

building” as “[a] structure designed and constructed to house

3

farm implements, hay, grain, poultry, livestock, or other

4

horticultural products.

5

human habitation or a place of employment where agricultural

6

products are processed, treated, or packaged; nor shall it be a

7

place used by the public.”

8
9
10

This structure shall not be a place of

Id. (emphasis added).

Five years after their pre-planning discussions with the
County, Plaintiffs submitted applications to PBI to receive “ag
exempt” permits to construct the following buildings:

11

1.

Hay Barn I

12

2.

Agricultural Barn

13

3.

Horse Stables

14

4.

Riding Arena

15

5.

Hay Barn II

16

See id. ¶¶ 18, 22.

17

Then Plaintiffs sent a letter to Roger Fuller, the PBI

18

Inspector, confirming that these five buildings would not involve

19

commercial use.

20

plan.

21

Plaintiffs’ plot plan and the “ag exempt” permits for all five

22

buildings (the “Original Five”).

23

Id. ¶ 21.

Id. ¶ 24.

Plaintiffs also submitted their plot

On October 15, 2012, the County approved

Id. ¶¶ 21, 25.

Afterwards, Plaintiffs applied for several permits to add

24

electrical and plumbing services.

Id. ¶ 26.

25

adding these services to the Original Five, Plaintiffs requested

26

electrical services for a Restroom Building—a building they did

27

not have a permit to build.

28

County issued the electrical and plumbing permits for the

Id. ¶¶ 26, 30.

4

In addition to

Nevertheless, the

1

Original Five and the Restroom Building.

2

Id. ¶¶ 27-30.

Soon after, PBI inspectors began conducting final

3

inspections.

They started with Hay Barn I, the Agricultural

4

Barn, and the Riding Arena.

5

Brian Washko—Chief Building Official for the County—about whether

6

these were, in fact, “ag exempt” buildings.

7

ultimately, the County approved Hay Barn I, the Agricultural

8

Barn, and the Riding Arena.

9

focused on Hay Barn II.

The inspectors raised questions to

Id. ¶ 31.

Id. ¶¶ 5, 31.

Yet,

Then the PBI inspectors

After their final inspection, PBI

10

inspectors raised the same questions to Washko, but, again, the

11

County approved Hay Barn II as an “ag exempt” building.

12

¶ 32.

13

Id.

After the County approved most of the Original Five as “ag

14

exempt” buildings, Plaintiffs turned their attention to the

15

Restroom Building.

16

install plumbing—even though, still, they did not have a permit

17

to build the restroom itself.

18

with Washko to discuss permits for the Restroom Building.

19

¶ 35.

20

Restroom Building, and they gave Washko design drawings.

21

¶¶ 35-36.

22

Building and told PBI personnel to add it to the existing permit

23

for the Horse Stables.

24

First, they submitted an application to

Id. ¶ 34.

Then Plaintiffs met
Id.

Plaintiffs told Washko they wanted a permit to build the
Id.

Washko issued an “ag exempt” permit for the Restroom

Id. ¶ 37.

Plaintiffs and Washko also discussed the Equestrian Center.

25

They reviewed issued permits, Plaintiffs’ completed work, and the

26

County’s inspections.

27

that they had nearly finished building the Original Five.

28

id.

Id. ¶ 35.

Plaintiffs also informed Washko

5

See

1

But, in August 2014, Plaintiffs’ Alhambra Farms project came

2

to a halt.

Although PBI inspectors had inspected the nearly

3

complete Horse Stables and Restroom Building, Washko inspected

4

the Equestrian Center and reached a new conclusion.

5

40.

6

revoking permits for the Horse Stables, the Restroom Building,

7

and the Riding Arena because they were intended for public—rather

8

than agricultural—use and so they were not “ag exempt” buildings.

9

Id. ¶¶ 40-41.

Id. ¶¶ 39-

He sent a letter to Plaintiffs (the “Washko Letter”),

The County never conducted final inspections for

10

the Horse Stables or the Restroom Building, and all work on these

11

buildings stopped.

12

issued a “Notice of Violation” and “Stop Work Order” for the

13

Horse Stables, the Restroom Building, and the Riding Arena.

14

¶ 44.

15

Id. ¶¶ 42-43.

In January 2015, the County

Plaintiffs initiated the appeals process.

Id.

First, they filed

16

an administrative appeal with the Building Board of Appeals

17

(“Board”).

18

revoke the permits for the Horse Stables, the Restroom Building,

19

and the Riding Arena.

20

Sacramento County Superior Court.

21

affirmed the Board’s decision to revoke the “ag exempt” permits

22

for the Horse Stables and the Restroom Building, but reversed the

23

decision to revoke the permit for the Riding Arena.

24

to Compl., Judgment on Writ of Mandate at 2.

25

the Superior Court’s decision regarding the Horse Stables and the

26

Restroom Building to the Third District Court of Appeal.

27

¶ 47.

28

Id. ¶ 45.

The Board upheld Washko’s decision to

Id.

Then Plaintiffs appealed to the
Id. ¶ 46.

The Superior Court

See Exh. U

Plaintiffs appealed

Compl.

Plaintiffs also own two other properties they claim are at
6

1

issue here.

2

(“Myrtle Avenue Property”).

3

building (the “Garage”), which does not have a permit, though

4

Plaintiffs allege the seller did not disclose this when they

5

bought it.

6

applied for a permit to add electrical power to the Garage, but

7

the County issued a Notice of Violation.

8

the necessary fees and requested a final inspection.

9

PBI inspector passed the electrical work on one condition:

The first property is located at Myrtle Avenue

Id.

Id. ¶ 59.

The lot has a metal

Plaintiffs discovered the problem when they

Id.

Plaintiffs paid
Id.

The

10

Plaintiffs had to add slats to a fence.

11

however, was never finalized because Washko intervened and

12

directed the PBI staff to not final the permits and to issue more

13

notices of violation.

14

is a commercial building, so the entire property must conform to

15

commercial standards.

16

Id.

Id.

The permit,

The County maintains that the Garage

Id.

The second property is a commercial property (“Power Inn

17

Property”).

Id.

Plaintiffs leased this property to A-1

18

Distributing, Inc. (“A-1”).

19

not restore the property to its pre-lease condition.

20

Plaintiffs realized that A-1 made physical changes in the

21

building without obtaining the requisite permits.

22

Plaintiffs worked cooperatively with PBI personnel to receive the

23

necessary permits and made repairs with the understanding that

24

the County would not fine or penalize them.

25

completed the corrective work and sought a final release from the

26

County, but Washko refused to accept the terms previously agreed

27

to by PBI personnel and Plaintiffs.

28

final permits or sign off on the property unless Plaintiffs paid

Id.

After the lease ended, A-1 did

7

Id.

Id.

Id.

Id.

Plaintiffs

Washko would not issue

1
2

fines and penalties.

Id.

Plaintiffs sued Washko and the County in federal court under

3

42 U.S.C. § 1983.

Plaintiffs allege that Defendants denied them

4

procedural due process under the Fourteenth Amendment, retaliated

5

against them for engaging in First Amendment activities, denied

6

them equal protection of the law, and committed an

7

unconstitutional taking under the Fifth Amendment.

8

move to dismiss.

Defendants

9
10

II.

OPINION

11

A.

Section 1983 Claims

12

Section 1983 vindicates federal rights, but does not itself

13

constitute a substantive right.

See Albright v. Oliver, 510

14

U.S. 266, 271 (1994) (internal citation omitted).

15

successfully bring a § 1983 claim, a plaintiff must show that “a

16

person acting under color of state law committed the conduct at

17

issue” and “that the conduct deprived the claimant of some

18

right, privilege, or immunity protected by [federal law].”

19

v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).

20

§ 1983 imposes liability for violating constitutional rights,

21

but not for violating duties arising from tort law.

22

v. McCollan, 443 U.S. 137, 146 (1979).

To

Leer

Simply put,

See Baker

23

To allege a § 1983 claim against a city, a plaintiff must

24

allege facts showing that the city had a custom or policy that

25

caused the plaintiff’s constitutional injury.

26

Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

27

custom” under Monell is a “longstanding practice...which

28

constitutes the ‘standard operating procedure’ of the local
8

See Monell v.
A “policy or

1

government entity.”

2

308 F.3d 968, 984 (9th Cir. 2002) (internal citation omitted).

3

“[T]he complaint must allege the policy, as well as its causal

4

relationship to the constitutional injury, in sufficient

5

detail.”

6

01746, 2014 WL 1616440, at *5 (E.D. Cal. Apr. 18, 2014).

Ulrich v. City & Cnty. of San Francisco,

Hass v. Sacramento Cnty. Sheriff’s Dep’t, No. 2:13-cv-

7

B.

8

Defendants ask the Court to take judicial notice of the

9

Judicial Notice

following:

(1) the Sacramento County Superior Court’s Judgment

10

on Writ of Mandate (attached to Defendants’ Request for Judicial

11

Notice [“RJN”] as Exh. A); and (2) the Superior Court’s Ruling

12

on Submitted Matter (Id.).

RJN at 1-2.

13

from the state court case.

RJN at 2.

14

Both documents arise

A court may take judicial notice of a fact that is not

15

reasonably disputed if it “can be accurately and readily

16

determined from sources whose accuracy cannot reasonably be

17

questioned.”

18

courts may consider “matters of public record.”

19

Advisors Inc. v. Schwab Inv., 779 F.3d 1036, 1042 (9th Cir.

20

2015) (internal citation omitted).

21

include court filings.

22

Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts may take

23

judicial notice of court filings and other matters of public

24

record).

25

Fed. R. Evid. 201(b)(2).

On a motion to dismiss,
Northstar Fin.

“Matters of public record”

See Reyn’s Pasta Bella, LLC v. Visa USA,

The Court takes judicial notice of the Superior Court’s

26

Judgment on Writ of Mandate and its Ruling on Submitted Matter

27

because both constitute matters of public record not subject to

28

reasonable dispute.
9

1

C.

2

Analysis
1.

3

Issue Preclusion

Defendants argue that issue preclusion bars Plaintiffs’

4

complaint because the Superior Court decided issues identical

5

here.

6

of an issue of fact or law actually litigated and resolved in a

7

valid court determination essential to the prior judgment, even

8

if the issue recurs in the context of a different claim.”

9

v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (internal

Mot. at 9-10.

This doctrine “bars successive litigation

White

10

citation and quotation marks omitted).

11

“a federal court must give to a state-court judgment the same

12

preclusive effect as would be given that judgment under the law

13

of the State in which the judgment was rendered.”

14

citation and quotation marks omitted).

15

Under 28 U.S.C. § 1738,

Id. (internal

To determine preclusive effect, a federal court follows

16

state preclusion rules.

See id.

In California, issue

17

preclusion applies when (1) the issue sought to be precluded

18

from relitigation is identical to the issue decided in the

19

former proceeding; (2) the issue was actually litigated in the

20

former proceeding; (3) the issue was necessarily decided in the

21

former proceeding; (4) that proceeding resulted in a final

22

decision on the merits; (5) the party against whom preclusion is

23

sought is the same as, or in privity with, the party to the

24

former proceeding; and (6) applying issue preclusion would

25

“[preserve] the integrity of the judicial system, [promote]

26

judicial economy, and [protect] litigants from harassment by

27

vexatious litigation.”

28

Mendocino Cnty., 795 P.2d 1223, 1225-27 (Cal. 1990).

See Lucido v. Superior Court of

10

1

Defendants argue that issue preclusion bars this federal

2

suit because the issues decided in Superior Court are identical

3

to those here, the Superior Court issued a final judgment on the

4

merits, and Plaintiffs were a party in the state case.

5

9-12.

6

Plaintiffs disagree for two reasons.

Mot. at

First, there is no

7

final judgment because Plaintiffs appealed the Superior Court

8

decision to the Third District Court of Appeal.

9

Second, the issues raised in Superior Court differ from those

Opp. at 10.

10

here because they involve more constitutional claims.

11

Defendants do not address either point in their reply brief.

12

Id.

The Court agrees with Plaintiffs that issue preclusion does

13

not apply.

14

have a pending appeal.

15

judgment exists when “prior adjudication of an issue in another

16

action is...‘sufficiently firm’ to be accorded preclusive

17

effect.”

18

App. 4th 1538, 1564 (2006) (internal citations omitted).

19

well settled under California law that a trial court judgment

20

pending on appeal is not final.

21

(West 2016) (“An action is deemed to be pending from the time of

22

its commencement until its final determination upon appeal, or

23

until the time for appeal has passed, unless the judgment is

24

sooner satisfied.”).

25

142

26

consider whether decision subject to appeal).

27
28

First, there is no final judgment because Plaintiffs
Compl. ¶ 47; Opp. at 10.

A final

Border Bus. Park, Inc. v. City of San Diego, 142 Cal.
It is

See CAL. CIV. PROC. CODE § 1049

See also Border Bus. Park, Inc.,

Cal.App.4th at 1564 (when assessing whether decision final,

Second, the issues here vary from those raised in Superior
Court.

Here, Plaintiffs include facts about their Myrtle Avenue
11

1

and Power Inn Properties.

2

more constitutional violations (i.e., the First Amendment, the

3

Equal Protection Clause under the Fourteenth Amendment, and the

4

Fifth Amendment).

5

does not bar Plaintiffs’ complaint here.

6

2.

Compl. ¶ 59.

Id. ¶¶ 59, 66, 73.

And Plaintiffs allege

In sum, issue preclusion

First Cause of Action: Procedural Due Process
Under the Fourteenth Amendment

7
8
9

Plaintiffs bring their first § 1983 claim against all
Defendants, alleging that the Washko Letter, the County’s

10

subsequent “Notice of Violation” and “Stop Work Order,” and the

11

Board’s administrative hearing denied them due process under the

12

Fourteenth Amendment.

13

Plaintiffs challenge Defendants’ decision to revoke the “ag

14

exempt” permits for the Horse Stable, the Restroom Building, and

15

the Riding Arena.

16

Compl. ¶¶ 40-45.

Specifically,

Id. ¶ 48.

The Fourteenth Amendment provides that “[n]o state

17

shall...deprive any person of life, liberty, or property,

18

without due process of law.”

19

state a procedural due process claim, a plaintiff must allege

20

(1) a protectable liberty or property interest, (2) the

21

government deprived him of that interest, and (3) the government

22

denied him adequate procedural protections.

23

Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)

24

(internal citations omitted).

25

U.S. Const. amend. XIV, § 1.

To

See Foss v. Nat’l

Defendants argue that Plaintiffs have not stated a claim

26

because they have not shown a lack of due process.

27

Plaintiffs say they have because the Washko Letter, the County’s

28

subsequent notices, and the administrative hearing all occurred
12

Mot. at 14.

1

without notice and without a reasonable opportunity to be heard

2

at a hearing.

3

hearing’s restrictive time frame prevented them from presenting

4

evidence about the County’s pre-application involvement with

5

Alhambra Farms or evidence about the County’s zoning

6

restrictions.

7

that Plaintiffs conceded that the County did not deprive them of

8

a fair hearing when they did not appeal that portion of the

9

Superior Court’s decision.

10

Opp. at 13.

Plaintiffs also allege that the

Opp. at 13; Compl. ¶ 45.

Defendants maintain

Reply, ECF No. 8, at 2.

The Court finds that this claim should be dismissed, but

11

for a different reason than that raised by Defendants.

12

threshold question under a Fourteenth Amendment claim is whether

13

the claimant has a protectable property interest.

14

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

15

cognizable property interest is a “legitimate claim of

16

entitlement” resulting from an independent source like federal

17

or state law.

18

due process claims based on discretionary decisions related to

19

land use permit applications cannot be maintained.

20

v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988) (affirming

21

district court’s conclusion that plaintiff did not have

22

legitimate claim of entitlement to approval of his minor plat

23

application).

24

461MJP, 2012 WL 8671871, at *3-4 (W.D. Wash. Mar. 1, 2012)

25

(concluding plaintiff lacked protectable property interest in

26

proposed trail construction project because City had discretion

27

whether to grant permit and plaintiff had not shown any local or

28

state law entitling her to permit).

Id.

The

Bd. of
A

The Ninth Circuit has held that procedural

See Bateson

See also Richter v. City of Des Moines, No. C10-

13

1

Defendants cited California Building Code § 105.6 as

2

grounds for revoking Plaintiffs’ “ag exempt” permits for the

3

Horse Stables, the Restroom Building, and the Riding Arena.

4

That Section provides:

5
6
7
8
9
10

The Building Official may, in writing, suspend or
revoke a permit issued under the provisions of this
Code, or other relevant laws, ordinances, rules, or
regulations, whenever the permit is issued in error or
on the basis of incorrect, inaccurate, or incomplete
information, or in violation of any ordinance or
regulation of any of the provisions of this Code.
Id. (emphasis added).
Plaintiffs have no protectable property interest in the

11

revoked permits.

12

gives Washko, as Chief Building Official, discretion whether to

13

revoke a permit.

14

any local or state law entitling them to these permits.

15

Bateson squarely forecloses Plaintiffs’ procedural due process

16

claim, this Court grants Defendants’ motion to dismiss the First

17

Cause of Action.

18

Section 105.6 uses discretionary language and

Equally important, Plaintiffs have not shown
Because

Dismissal under Rule 12(b)(6) with prejudice and without

19

leave to amend is appropriate “only if it appears beyond doubt

20

that the plaintiff can prove no set of facts in support of his

21

claim which would entitle him to relief.”

22

F.3d 729, 732 (9th Cir. 2001) (citations and internal quotation

23

marks omitted).

24

improperly revoked Plaintiffs’ permit for the Riding Arena, but

25

it did not address whether Plaintiffs acquired a fundamental

26

vested right in that revoked permit.

27

Ruling on Submitted Matter at 9.

28

can prove facts supporting their procedural due process claim as

Navarro v. Block, 250

The Superior Court held that the County

14

See Exh. U to Compl.,

So, it is possible Plaintiffs

1

to the revoked permit for the Riding Arena.

2

dismisses the First Cause of Action with leave to amend.

3

3.

Second Cause of Action:
of the First Amendment

The Court therefore

Retaliation in Violation

4
5

Plaintiffs bring a second § 1983 claim against all

6

Defendants, alleging that Defendants unfairly penalized them in

7

“retaliation for, and to inhibit, the exercise of protected

8

First Amendment activities.”

9

Plaintiffs claim Washko acted under County policy or custom when

10

he engaged in retaliatory activities and ratified this treatment

11

on the Myrtle Avenue and Power Inn Properties.

12

Compl. ¶ 59.

Specifically,

Id.

To state a First Amendment retaliation claim, a plaintiff

13

must allege that (1) he engaged in a constitutionally protected

14

activity, (2) defendant’s conduct would chill a person of

15

ordinary firmness from future constitutionally protected

16

activity, and (3) defendant’s desire to chill plaintiff’s speech

17

was a but-for cause of their allegedly unlawful conduct.

18

Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013).

19

See

Defendants argue that Plaintiffs’ claim must be dismissed

20

because they only pled deprivations for which the County

21

provided due process.

22

issues related to the Myrtle Avenue and Power Inn Properties are

23

unripe because Plaintiffs never appealed those claims to the

24

County and, so, Plaintiffs have not satisfied the final decision

25

requirement.

26

the County issued the Notice of Violation and other penalties

27

before Plaintiffs appealed the revoked permits.

28

(emphasis added).

Mot. at 14-15.

Id. at 12.

They also note that

And, finally, Defendants contend that

15

Id. at 15

1

Conversely, Plaintiffs maintain that they have properly

2

stated a claim.

First, they emphasize that Defendants

3

misconstrued their complaint:

4

Avenue and Power Inn Properties to support their retaliation

5

claim.

6

exists a sufficient factual connection between these properties

7

and the Equestrian Center because (1) Washko’s refusal to issue

8

a permit for the Myrtle Avenue Property came one month after he

9

inspected the Equestrian Center; and (2) Washko’s refusal to

Opp. at 11.

Plaintiffs included the Myrtle

Second, Plaintiffs explain that there

10

issue a permit for the Power Inn Property came nearly 1.5 years

11

after the Washko Letter.

12

reply brief, Defendants contend that they “[did] not address

13

every argument made by Plaintiffs in their Opposition because

14

they either do not make sense legally, or they were sufficiently

15

addressed in the underlying motion.”

16

Id. at 15 (emphasis added).

In their

Reply at 4.

Both parties appear not to have addressed the dispositive

17

issue.

The threshold inquiry for a First Amendment retaliation

18

claim involves assessing whether the claimant has engaged in a

19

constitutionally protected activity.

20

1193.

21

they claim the First Amendment protects.

22

that Defendants violated their civil rights “by penalizing

23

[them] unfairly in retaliation for, and to inhibit, the exercise

24

of protected First Amendment activities.”

25

allegation cannot survive Rule 8’s pleading standard.

26

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that,

27

to avoid dismissal, plaintiff must allege “enough facts to state

28

a claim to relief that is plausible on its face”).

See Ford, 706 F.3d at

But, here, Plaintiffs have not identified the activities

16

They simply allege

This conclusory
See Bell

This Court

1
2

dismisses this cause of action with leave to amend.
4.

Third Cause of Action: Equal Protection Under
the Fourteenth Amendment

3
4

Plaintiffs bring a third § 1983 claim against all

5

Defendants, alleging that Defendants denied them equal

6

protection of the law when Defendants imposed conditions on them

7

they did not impose on persons similarly situated.

8

Plaintiffs also allege that Defendants acted under County policy

9

or custom to ratify this disparate treatment.

10

Compl. ¶ 66.

Id.

The Fourteenth Amendment provides that “[n]o state shall...

11

deny to any person within its jurisdiction the equal protection

12

of the laws.”

13

the equal protection clause of the Fourteenth Amendment is to

14

secure every person...against intentional and arbitrary

15

discrimination, whether occasioned by express terms of a statute

16

or by its improper execution through duly constituted agents.”

17

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

18

(internal citation and quotation marks omitted).

19

here, state action does not implicate a fundamental right or a

20

suspect classification, a claimant successfully brings a “class

21

of one” equal protection claim when he “alleges that [he] has

22

been intentionally treated differently from others similarly

23

situated and that there is no rational basis for the difference

24

in treatment.”

25

U.S. Const. amend. XIV, § 1.

“[T]he purpose of

Where, as

Id.

The parties dispute whether Plaintiffs have successfully

26

stated a “class of one” claim.

Defendants say that Plaintiffs

27

have not because (i) they do not identify a similarly situated

28

class or disparate treatment and (ii) they provide no factual
17

1

support.

2

Washko arbitrarily and unilaterally established different

3

conditions for them.

4

that when a plaintiff brings an equal protection claim based on

5

selective enforcement of valid laws, that plaintiff can show

6

that the defendant’s rational basis is pretext for an

7

impermissible motive.

8

“[did] not address every argument made by Plaintiffs in their

9

Opposition because they either do not make sense legally, or

Mot. at 14.

Conversely, Plaintiffs reiterate that

Opp. at 12.

Id. at 13.

Plaintiffs also emphasize

Defendants repeat that they

10

they were sufficiently addressed in the underlying motion.”

11

Reply at 4.

12

The Court agrees with Defendants.

Plaintiffs have not

13

stated a “class of one” equal protection claim because they

14

neither identify persons similarly situated nor show any

15

disparate treatment.

16

plaintiffs successfully stated “class of one” claim after

17

alleging Village required 33-ft easement for plaintiffs but 15-

18

ft easements for similarly situated property owners).

19

RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1156 (9th Cir.

20

2004) (alleging City treated larger Marina businesses

21

differently from their competitors outside the Marina).

22

Court dismisses with leave to amend the Third Cause of Action

23

against all Defendants.

See Olech, 528 U.S. at 563-65 (concluding

See also

The

24
5.
25

Fourth Cause of Action:
Amendment

Takings Under the Fifth

26
Plaintiffs bring their final § 1983 claim against all
27
Defendants, alleging that revoking the permits and Washko’s
28
18

1

interference with the understanding between PBI personnel and

2

Plaintiffs constituted unconstitutional takings.

3

Plaintiffs also allege that Defendants engaged in this conduct

4

under County policy or custom that directed Defendants to

5

unjustly implement the County Code.

6

Compl. ¶ 73.

See id.

For a takings claim to be ripe for review, the claimant must

7

satisfy two requirements:

8

compensation element.

9

858 (9th Cir. 1995).

the final decision requirement and the

See Dodd v. Hood River Cnty., 59 F.3d 852,
The Ninth Circuit has instructed lower

10

Courts to decline to rule on takings claims when the facts show

11

that the property owner has not received a final and definitive

12

decision from a land use regulatory body.

13

decision-makers must be given an opportunity for review before a

14

court considers ripe an as-applied challenge to a land use

15

regulation.

16

See id.

Local

See id.

A state agency’s final decision triggers the second ripeness

17

requirement—the compensation element.

18

jurisdiction to consider an as-applied takings claim until the

19

state denies “just compensation.”

20

violation occurs until just compensation has been denied.”

21

at 859 (internal citation and quotation marks omitted).

22

plaintiff satisfies this element if he pursued remedies available

23

under state law.

24

A federal court lacks

See id.

“No constitutional
Id.

A

See id. at 860.

Defendants make two arguments in support of their motion to

25

dismiss Plaintiffs’ claim.

First, Defendants argue that the

26

takings claim is unripe for review because Plaintiffs never

27

sought compensation from the County.

28

if the claim is ripe, Plaintiffs’ “diminution in value” claim
19

Mot. at 13.

Second, even

1

fails because they cannot show that the regulation prohibits all

2

economically beneficial use of land since Plaintiffs concede that

3

these buildings are not commercial properties.

4

Id.

Plaintiffs, on the other hand, contend that their claim is

5

ripe and they have stated a claim because they are seeking

6

compensation now.

7

maintain that they have stated a claim because the way Defendants

8

enforced the Sacramento County Code deprived them of all

9

economically beneficial use of property.

Opp. at 12 (emphasis added).

And Plaintiffs

Id. at 11.

Plaintiffs

10

add that “[f]or the County to prevail, proving that the buildings

11

have value, the County would have to change the zoning of the

12

property.”

13

Id. at 12.

Defendants repeat in their reply that they “[did] not

14

address every argument made by Plaintiffs in their Opposition

15

because they either do not make sense legally, or they were

16

sufficiently addressed in the underlying motion.”

17

The Court agrees with Defendants.

Reply at 4.

Plaintiffs’ takings claim

18

is unripe for review.

As to the revoked permits, Plaintiffs say

19

nothing in their complaint about having sought compensation from

20

the County.

21

compensation, Opp. at 12, does not save them.

22

a complaint based on its allegations, not new facts or claims

23

raised in a Rule 12(b)(6) opposition brief.

24

Fresno, No. CV F 10-1628, 2011 WL 284971, at *18 (E.D. Cal. Jan.

25

26, 2011) (emphasizing that allegations in opposition papers “are

26

irrelevant for Rule 12(b)(6) purposes”).

27

Myrtle Avenue Property, Plaintiffs have not satisfied the final

28

decision requirement because they never raised this issue with a

And their statement that the County denied them

20

A court evaluates

See Arres v. City of

With respect to the

1

land use regulatory body.

2

final decision requirement met when Planning Director, County

3

Planning Commission, and the Board of County Commissioners

4

reviewed petition).

5

for review, this Court dismisses with leave to amend the Fourth

6

Cause of Action against all Defendants.

See Dodd, 59 F.3d at 858 (concluding

Because Plaintiffs’ takings claim is unripe

7
8
9

III.

ORDER

For the reasons set forth above, the Court GRANTS WITH LEAVE

10

TO AMEND Defendants’ Motion to Dismiss.

11

submit a First Amended Complaint, they shall file it within

12

twenty days of the date of this Order.

13

their responsive pleadings within twenty days thereafter.

14
15

IT IS SO ORDERED.
Dated: November 7, 2016

16
17
18
19
20
21
22
23
24
25
26
27
28
21

If Plaintiffs elect to

Defendants shall file