Vogt v. City of Orinda et al

Filing 29

ORDER by Judge Claudia Wilken GRANTING 11 MOTION TO DISMISS AND GRANTING LEAVE TO AMEND. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 12/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDWARD VOGT,

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No. C 11-2595 CW

Plaintiff,

ORDER GRANTING
MOTION TO DISMISS
AND GRANTING LEAVE
TO AMEND

v.
CITY OF ORINDA and EMMANUEL URSU,
Defendants.
________________________________/

United States District Court
For the Northern District of California

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INTRODUCTION
Edward Vogt brings this complaint against the City of Orinda

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and Emmanuel Ursu.

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that Defendants violated his rights under the Fifth Amendment

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takings clause.

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suffered as a result of the loss of value to these properties.

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Defendants move to dismiss.

From the pleadings Plaintiff appears to claim

He requests compensation for actual damages

Plaintiff opposes the motion.

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BACKGROUND
On the "Civil Cover Sheet," Plaintiff checked the box

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indicating that this dispute involves real property.

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complaint alleges that the City of Orinda "imposed illegal,

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arbitrary and irrational limits on my real estate (two lots)

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causing me great loss of value these properties."

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that Defendant Ursu, intentionally and with malice, blocked,

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delayed and hindered Plaintiff's use of the two lots.

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of these actions, Plaintiff claims that the market value of his

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lots has been greatly reduced.

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His

He also claims

As a result

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LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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United States District Court
For the Northern District of California

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

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complaint could be amended to cure the defect requiring dismissal

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"without contradicting any of the allegations of [the] original

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complaint."

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Cir. 1990).

In determining whether

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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DISCUSSION
In their motion to dismiss, Defendants understandably assume

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that Plaintiff is making a takings claim and argue that he did not

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attempt to obtain just compensation for his loss as required under

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Williamson County Regional Planning Commission v. Hamilton Bank,

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473 U.S. 172, 194 (1985).

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asserts that he is actually alleging a violation of his right to

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equal protection under the Fourteenth Amendment.

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However, in his opposition Plaintiff

Relying on Village of Willowbrook v. Olech, 528 U.S. 562

United States District Court
For the Northern District of California

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(2000), Plaintiff argues that his right to equal protection has

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been violated because Defendants made unreasonable demands of him

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during his attempts to make improvements on his property over the

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past ten years.

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claims brought by a "class of one," where the plaintiff alleges

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intentional differential treatment from others similarly situated

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and where there is no rational basis for the difference in

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treatment.

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sufficiently plead a violation of equal protection where she

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alleged that the village had irrationally and arbitrarily required

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a larger easement from her than similarly situated neighbors in

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order to connect her to the municipal water supply.

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The Supreme Court has recognized equal protection

Olech, 528 U.S. at 564.

In Olech, the plaintiff

Here Plaintiff has alleged no facts, even liberally

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construed, which might conceivably support either his status as a

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"class of one" or a claim that his right to equal protection was

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violated by Defendants.

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claim.

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able to amend the complaint to state a claim under Olech, as he

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asserts is his intent.

He does not recite the elements of such a

However, it is not inconceivable that Plaintiff would be

In order to do this, Plaintiff must plead
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facts that show that he was treated differently than others who

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were similarly situated, without a rational basis for the

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discrepancy.

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to amend.

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Accordingly, the complaint is dismissed with leave

Plaintiff makes reference to a violation of his right to due

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process.

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property are generally subsumed by the takings clause, where the

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government's action relating to land use "lacks any substantial

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relation to public health, safety, or general welfare" a claim can

While claims of due process relating to deprivation of

United States District Court
For the Northern District of California

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be made for a violation of substantive due process rights.

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Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 853 (2007).

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However, Plaintiff fails to plead facts that would support such a

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claim.

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for violation of substantive due process, it is dismissed with

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leave to amend.

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Crown

Accordingly, to the extent that Plaintiff makes a claim

Defendants argue that because Plaintiff unequivocally states

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that he is not asserting a takings claim, any takings cause of

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action should be dismissed with prejudice.

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numerous times in his opposition that he not alleging any

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government taking of his land.

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dismissed without leave to amend.

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Plaintiff maintains

Therefore the takings claim is

Defendants also argue that Plaintiff's claim against the City

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should be dismissed because he failed to plead that any

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constitutional violations arose from City policy or custom, as

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required in cases alleging constitutional violations by public

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entities.

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(1978).

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City, Plaintiff would have to allege facts tending to show that

Monell v. Dept. of Social Services, 436 U.S. 658, 690

In order to proceed on an amended complaint against the

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his rights were violated as a result of an identified City policy

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or custom.

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Defendants further contend that the claims against Defendant

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Ursu personally should be dismissed because he is entitled to

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qualified immunity.

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immunity unless Plaintiff can plead facts in an amended petition

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showing that he violated Plaintiff's clearly established

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constitutional rights.

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(2009).

United States District Court
For the Northern District of California

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Defendant Ursu is entitled to qualified

Pearson v. Callahan, 555 U.S. 223, 232

Plaintiff is granted leave to amend his complaint within

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fourteen days so long as he can truthfully cure the deficiencies

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noted above.

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If Plaintiff files an amended complaint, Defendants shall

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answer or file a motion to dismiss fourteen days thereafter.

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Defendants moves to dismiss, Plaintiff's opposition shall be due

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seven days after the motion is filed.

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seven days after that.

If

Any reply shall be due

This motion will be decided on the papers.

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CONCLUSION

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The motion to dismiss is GRANTED with leave to amend with

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respect to the equal protection claim.

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substantive due process claim in the amended complaint, if he

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truthfully can allege one.

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leave to amend.

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Plaintiff may include a

The takings claim is DISMISSED without

IT IS SO ORDERED.

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Dated: 12/6/2011

CLAUDIA WILKEN
United States District Judge

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