Mohamed, et al v. County of Sacramento

Filing 18

ORDER granting in part and denying in part 14 Motion to Dismiss signed by District Judge John A. Mendez on 2/27/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

No.

2:16-cv-01327-JAM-EFB

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS & STRIKE

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COUNTY OF SACRAMENTO; BRIAN
WASHKO (individually and as
Chief Building Official for
the County of Sacramento);
and DOES 1 through 100,
inclusive,
Defendants.

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Plaintiffs Joseph Mohamed Sr. and Shirley Mohamed amended

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their previously dismissed Complaint and once again sue

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Defendants Brian Washko and the County of Sacramento for

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violating their rights under 42 U.S.C. § 1983 and breaching a

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contract between the County and Plaintiffs.

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(“FAC”), ECF No. 13.

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dismiss, challenging Plaintiffs’ FAC under Rule 12(b)(6) and Rule

First Am. Compl.

Defendants once again bring a motion to

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12(f).

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Mot., ECF No. 14.
I.

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Plaintiffs oppose.

ECF No. 15. 1

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs own eighty acres of land in Sacramento County.

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FAC ¶ 10.

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land, naming it Alhambra Farms.

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Alhambra Farms Equestrian Center (“Equestrian Center”).

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They built a Planned Unit Development (“PUD”) on the
Id. ¶ 13.

The plan included the
Id.

In 2007, Plaintiffs discussed their PUD with the County of

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Sacramento (“County”).

First, Plaintiffs submitted a pre-

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application meeting request, which included their proposal to

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build ten homes, a full-size riding arena, a caretaker’s home,

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and a private clubhouse.

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departments met with Plaintiffs, including the Sacramento County

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Planning and Building Inspection Department (“PBI”).

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Id. ¶ 14.

Five to six County

Id. ¶ 15.

Plaintiffs wanted their Equestrian Center to include

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

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Code § 16.02.080 governs “ag exempt” building permits.

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Plaintiffs applied for these permits, that Section stated, in

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

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

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more acres used primarily for agricultural uses, and certain

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conditions are met.

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Sacramento County
When

Id. (citing the conditions).

California Building Code § 202 defines an “agricultural

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

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

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horticultural products.

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This structure shall not be a place of

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for January 24, 2017. In deciding this motion, the
Court takes as true all well-pleaded facts in the complaint.
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human habitation or a place of employment where agricultural

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

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place used by the public.”

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Id.

Five years after their pre-planning discussions with the

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County, Plaintiffs submitted applications to receive “ag exempt”

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permits to construct Hay Barn I, the Agricultural Barn, the

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Riding Arena, and Hay Barn II.

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See FAC ¶¶ 18, 22.

Plaintiffs then sent a letter to Roger Fuller, the PBI
Inspector, confirming these four buildings would not involve

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commercial use.

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plan.

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

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buildings (the “Original Four”).

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Plaintiffs applied for several permits to add electrical and

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plumbing services.

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Id. ¶ 24.

Id. ¶ 21.

Plaintiffs also submitted their plot

On October 15, 2012, the County approved

Id. ¶¶ 21, 25.

Afterwards,

Id. ¶¶ 26-28.

Soon after, PBI inspectors began conducting final

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inspections.

They started with Hay Barn I, the Agricultural

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Barn, and the Riding Arena.

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

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

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ultimately, the County approved Hay Barn I, the Agricultural

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Barn, and the Riding Arena.

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on Hay Barn II.

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

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

The inspectors raised questions to

Id.

Id. ¶ 31.

Yet,

Then the PBI inspectors focused

After their final inspection, PBI inspectors

Id. ¶ 32.

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After the County approved the Original Four as “ag exempt”

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buildings, Plaintiffs met with Washko to discuss the Equestrian

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Center.

They reviewed issued permits, Plaintiffs’ completed
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work, and the County’s inspections.

Id. ¶ 35.

In August 2014, Plaintiffs’ Alhambra Farms project came to

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a halt.

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letter to Plaintiffs revoking the permits for the Stables, Riding

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Arena and Restroom Building. Id. ¶ 40.

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asserted that he was revoking these permits because they were

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intended for public rather than agricultural use and were

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therefore not “ag exempt” buildings (“Washko Letter”).

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¶¶ 40-41.

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Washko inspected the Equestrian Center and then wrote a

In his letter, Washko

Id.

In January 2015, the County issued a “Notice of

Violation” and a “Stop Work Order”.

Id. ¶ 44.

Plaintiffs initiated the appeals process.

First, they filed

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an administrative appeal with the Building Board of Appeals

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(“Board”).

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revoke the permits.

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Sacramento County Superior Court.

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reversed the board’s decision to revoke the Riding Arena permit

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but upheld the County’s decision regarding the Stables and

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Restroom Building permits.

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Mandate at 2 (attached to FAC as Exh. U). Plaintiffs filed an

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appeal with the Third District Court of Appeal contesting the

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Superior Court decision regarding the Stables and Restroom

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Building. This appeal is still pending.

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Id. ¶ 45.

The Board upheld Washko’s decision to
Id.

Then Plaintiffs appealed to the
Id. ¶ 46.

The Superior Court

See Judgment on Petition for Writ of

Plaintiffs bring several claims against Defendants in this

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amended complaint.

Plaintiffs allege Defendants denied them

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procedural due process under the Fourteenth Amendment, retaliated

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against them for engaging in First Amendment activities, and

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committed an unconstitutional taking under the Fifth Amendment.

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See generally FAC.

Plaintiffs also bring a breach of contract
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claim against only the County.

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dismiss/strike Plaintiffs’ FAC.

Id. at 18.

Defendants move to

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II.

OPINION

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A.

Section 1983 Claims

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Section 1983 vindicates federal rights, but does not itself

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constitute a substantive right.

See Albright v. Oliver, 510

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

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

To

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person acting under color of state law committed the conduct at

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issue” and “the conduct deprived the claimant of some right,

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

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

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§ 1983 imposes liability for violating constitutional rights,

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but not for violating duties arising from tort law.

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

Leer v.

Simply put,

See Baker

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B.

Judicial Notice

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Defendants ask the Court to take judicial notice of (1) the

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Order Granting Defendants’ Motion to Dismiss (“Order”) (attached

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to Defendants’ Request for Judicial Notice [“RJN”] as Exh. A),

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and (2) Plaintiffs’ First Amended Complaint (attached to

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Defendants’ RJN as Exh. B).

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unnecessary given that both documents are already part of the

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record in this case.

ECF No. 14-2. This RJN is

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C.

Defendants’ Motion to Strike

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A district court “may strike from a pleading an

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insufficient defense or any redundant, immaterial, impertinent,

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or scandalous matter” to avoid expending time and money
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“litigating spurious issues by dispensing with those issues

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[before] trial....”

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Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)

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(quotation marks, citation, and first alteration omitted), rev’d

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on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517

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(1994).

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See Fed. R. Civ. P. 12(f).

See also

Defendants move to strike all allegations pertaining to the

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revoked Horse Stables and Restroom Building permits, arguing

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that they are immaterial and impertinent because the Court

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previously dismissed Plaintiffs’ procedural due process claim as

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to those revoked permits.

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law, Plaintiffs argue it is procedurally improper for Defendants

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to move to strike because they filed only a motion to dismiss.

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Opp’n at 7-8.

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it proper, Defendants cannot construe the Court’s Order as

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limiting this case only to the Riding Arena.

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Mot. at 3-4.

Without citing any case

But, Plaintiffs continue, even if the Court deems

Defendants are correct.

Id. at 8.

First, Defendants properly moved

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to strike.

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permits a responsive pleading, the responding party must move to

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strike before responding to the pleading.

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(“on motion made by a party ... before responding to the

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pleading”).

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Mot. at 1, 3-4.

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Rule 12(f) provides that when, as here, a Court

Fed. R. Civ. P. 12(f)

Defendants have done so—albeit in the same motion.
This comports with Rule 12(f)’s plain language.

Second, the Court granted Plaintiffs leave to amend this

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procedural due process claim only as it pertained to the revoked

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permit for the Riding Arena (which the Superior Court held had

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been improperly revoked by the County) and not as to the revoked

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Horse Stables and Restroom Building permits, see Order at 12-15.
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Because the Court’s Order procedurally bars allegations about

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the revoked Horse Stables and Restroom building permits, the

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Court grants Defendants’ motion to strike all allegations about

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those permits as immaterial and impertinent.

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F.2d at 1527-28 (striking allegations procedurally barred by

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statute of limitations and res judicata).

See Fantasy, 984

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D.

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Defendants move to dismiss Plaintiffs’ first and fourth

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Defendants’ Rule 12(b)(6) Motion to Dismiss

causes of action for failure to state a claim.
1.

First Cause of Action:

Mot. at 1.

Procedural Due Process

Under the Fourteenth Amendment
Plaintiffs bring their first § 1983 claim against all

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Defendants, alleging that the Washko Letter, the County’s

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

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Board’s administrative hearing denied them due process under the

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Fourteenth Amendment.

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Plaintiffs challenge Defendants’ decision to revoke the Riding

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Arena permit, insisting that Plaintiffs acquired vested rights

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in that permit once they—relying on that permit—spent millions

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building the project.

See FAC ¶¶ 49-58.

Specifically,

Id. ¶ 51.

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

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... deprive any person of life, liberty, or property, without

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due process of law.”

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procedural due process claim, a plaintiff must allege (1) a

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protectable liberty or property interest, (2) the government

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

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adequate procedural protections.

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

U.S. Const. amend. XIV, § 1.

To state a

See Foss v. Nat’l Marine

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citations omitted).

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property interest in a benefit protected by the due process

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clause results from a ‘legitimate claim of entitlement’ created

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and defined by an independent source, such as state or federal

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law.”

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The Ninth Circuit has clarified that “[a]

Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988).
Defendants contend Plaintiffs failed to state a claim

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because (1) § 105.6 gave the County discretion to revoke the

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Riding Arena permit, and (2) Plaintiffs have not identified

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local or state law entitling them to this permit.

Mot. at 4.

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Plaintiffs disagree, arguing they have sufficiently alleged a

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vested right in the Riding Arena permit.

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The Court agrees with Plaintiffs.

Opp’n at 9-12.
Defendants’ first

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argument—that § 105.6 gave the County discretion to revoke the

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Riding Arena—fails because that discretion applied only if the

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County issued a permit based on “incorrect, inaccurate, or

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incomplete information.”

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the County issued the Riding Arena permit based on truthful

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information because Plaintiffs built exactly what they applied

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for—a Riding Arena.

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(attached to FAC as Exh. U).

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under § 105.6 to revoke the Riding Arena permit.

California Building Code § 105.6.

Yet

See Ruling on Submitted Matter at 14
So, the County lacked discretion

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Defendants’ second argument that Plaintiffs have not

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identified law entitling them to the Riding Arena permit also

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fails.

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arose under an equitable estoppel theory.

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(Plaintiffs acquired a vested right in Riding Arena permit

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because they spent millions of dollars building it in reliance

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on the issued permit).

Plaintiffs allege their legitimate entitlement claim
See FAC ¶ 51

This sufficiently identifies state law
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granting Plaintiffs a vested right in the Riding Arena permit—a

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right whose “impairment or destruction must not transgress

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constitutional principles.”

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Reg’l Comm’n, 101 Cal. App. 3d 38, 49 (1980)(“[A]n owner of

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property acquires a vested right to construct a building where

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the conduct of the government amounts to a representation that

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such construction is fully approved and legal, and in reliance

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on such representation the owner materially changes position.”).

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Because Plaintiffs have alleged a protectable property interest

See Stanson v. San Diego Coast

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in the revoked Riding Arena permit, the Court denies Defendants’

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motion to dismiss the first cause of action.

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2.

Fourth Cause of Action:

Breach of Contract

In drafting their FAC, Plaintiffs added a new claim brought

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against only the County, alleging that the County breached a

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written agreement when it revoked the Riding Arena permit.

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¶¶ 73, 78.

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because they never sought, and this Court never granted, leave

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to amend to add new causes of action.

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Id.

Defendants argue Plaintiffs failed to state a claim

Mot. at 4.

When a plaintiff amends a complaint by adding new claims

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without first seeking leave, a court may dismiss those new

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claims for failure to state a claim.

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States, 482 F.3d 1058, 1060 n.4 (9th Cir. 2007) (declining to

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remand to district court to allow leave to amend complaint to

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add new claim when plaintiffs did not seek district court’s

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leave).

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not grant leave to amend to add a new claim, the Court dismisses

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the fourth cause of action without prejudice.

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Upton, 703 F. Supp. 2d 1037, 1051 (E.D. Cal. 2010) (dismissing

See Synagogue v. United

Because Plaintiffs did not request and the Court did

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See Clarke v.

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eighth claim because it was “entirely new and leave to amend to

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allege it was neither requested nor granted”).

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The Court need not fully address the County’s other

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arguments in support of its motion to dismiss this breach of

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contract claim, however, the Court notes that this claim as

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currently pled in the FAC seems to lack specificity regarding

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the exact terms of the alleged contract(s) and the manner in

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which the breach occurred.

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III.

ORDER

For the reasons set forth above, the Court GRANTS in part

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and DENIES in part Defendants’ Motion to Dismiss/Strike as

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follows:

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1.

Defendants’ motion to strike all allegations pertaining

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to the revoked Horse Stables and Restroom Building permits as

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immaterial and impertinent is GRANTED;

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2.

Defendants’ motion to dismiss the first cause of action

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is DENIED to the extent it is brought against the revoked Riding

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Arena permit; and

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3.

Defendants’ motion to dismiss the fourth cause of

action is GRANTED WITHOUT PREJUDICE.
If Plaintiffs want to amend their FAC to include a new cause

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of action against the County for breach of contract, they shall

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file a second amended complaint within twenty days from the date

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of this Order.

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action.

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days thereafter.

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case will proceed on the remaining claims, and Defendants shall

Plaintiffs shall not include other new causes of

Defendants’ responsive pleadings are due within twenty
If Plaintiffs elect not to amend their FAC, the

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file their answer to the FAC within thirty days from the date of

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this Order.

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IT IS SO ORDERED.
Dated: February 27, 2017

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