Vogt v. City of Orinda et al

Filing 40

ORDER by Judge Claudia Wilken Granting Defendants' 35 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 5/2/2012)

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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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Plaintiff,

ORDER GRANTING
DEFENDANTS' MOTION
TO DISMISS

v.
CITY OF ORINDA and EMMANUEL URSU,

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No. C 11-2595 CW

Defendants.
________________________________/

United States District Court
For the Northern District of California

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Defendants City of Orinda (the City) and Emmanuel Ursu move

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to dismiss Plaintiff Edward Vogt's First Amended Complaint (1AC)

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on the ground that he has failed to state a claim upon which

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relief may be granted.

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Defendants have filed a reply.

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Plaintiff has filed an opposition and
The matter was taken under

submission and decided on the papers.

Having considered all the

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papers filed by the parties, the Court grants the motion to
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dismiss.
BACKGROUND

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On December 6, 2011, the Court issued an Order Granting

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Motion to Dismiss and Granting Leave to Amend (Docket No. 29), in

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which it held that Plaintiff had failed to allege an equal

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protection claim brought by a "class of one" because he had

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alleged no fact to support his status as a "class of one" or that
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his right to equal protection was violated by Defendants.

The

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Court explained that, to state such a claim, Plaintiff must plead

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facts showing that he was treated differently than others who were

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similarly situated to him, without a rational basis for the

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discrepancy.

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a violation of his right to substantive due process based on the

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deprivation of a property right, Plaintiff must allege that

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The Court also explained that, to state a claim for

Defendants' actions lacked any substantial relation to public

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health, safety or the general welfare.

The Court also held that,

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to proceed against the City, Plaintiff must allege facts tending

United States District Court
For the Northern District of California

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to show that his rights were violated as a result of an identified

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City policy or custom and, to state a claim against Ursu

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personally, Plaintiff must plead that he violated Plaintiff's

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clearly established constitutional rights.

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The following facts are from Plaintiff's 1AC and the
documents of which the Court takes judicial notice.1

In 2001,

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Plaintiff applied to have a "simple" lot line adjustment between
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his two adjoining properties located in Orinda.

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refused to perform what was, under California lot line adjustment

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law, a simple administrative approval.

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engaged in delaying tactics such as requesting architect's and

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surveyor's drawings, a full topographic survey and map, analysis

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Defendants

Instead, Defendants

of the kind of houses that might be built on the lots, photos of

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The Court grants Defendants' and Plaintiff's requests for
judicial notice. See Fed. R. Civ. P. 12(d); Mir v. Little Co.,
844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice
of matters of public record without converting motion to dismiss
into motion for summary judgment).
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"story poles" to indicate potential house floors and gables, and

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indemnification in the event the City was sued for its approval of

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the lot line adjustment.

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Plaintiff alleges that the requirements imposed by the City
were in violation of California law.

In 2006, Plaintiff sued the

City in state court for a writ of mandate to require the City to

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obey the law.

In 2008, the state court issued its decision

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holding that Plaintiff had submitted overwhelming "evidence to

United States District Court
For the Northern District of California

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support [his] contention that the [Orinda City] Council sought to

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impose conditions on the granting of the lot line adjustment in

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direct contravention of Gov't Code section 66412, subdivision

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(d).2

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took steps to obtain the water and sewer permits is disingenuous

The Respondent's assertion that Petitioner 'voluntarily'

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at best."

Vogt v. City of Orinda, Superior Court of Contra Costa

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County, Case No. 6-1494, Peremptory Writ of Mandate, September 3,
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2008.

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of Plaintiff's lot line application to whether it conformed to the

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local general plan or any applicable specific plan, zoning or

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building ordinances.

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the court issued this order, Defendants still had not approved the

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The court ordered the City to limit its review and approval

Id.

Plaintiff alleges that, two years after

lot line adjustment and that the Council approved the request only

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California Government Code section 66412(d) exempts lot
line adjustments of four and fewer existing adjoining parcels from
complying with certain domestic water and sewer requirements.
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after he threatened to sue the individuals on the Council for

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contempt of court.

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Defendants submit a copy of Orinda City Council Resolution

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24-10, an appeal of the Planning Commission's adoption of the

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negative declaration for approval of Plaintiff's lot line

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adjustment, which indicates that the Orinda City Council approved

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the lot line adjustment after preparing a detailed initial study
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and issuing a negative declaration in compliance with the

United States District Court
For the Northern District of California

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California Environmental Quality Act, California Public Resources

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Code section 21000 et seq.

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Plaintiff alleges that Defendants' requirements were

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arbitrary and unreasonable and were directed at Plaintiff but not

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at other people in the City who had, over the years, similarly

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asked for lot line adjustments to their properties.

Plaintiff

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alleges that "these examples are in the files of Orinda and will
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be fully revealed by later subpoena."

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fact that the City approved his request after he threatened to sue

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the City Council shows "that there was no substantial relation

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between defendants' land use actions and the public health, safety

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or general welfare."

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Plaintiff alleges that the

Plaintiff also alleges that the City has a policy to keep its

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"semi-rural" character and this policy is the basis for its
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"denial of Plaintiff's constitutional and statutory rights to use

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and improve his property reasonably, without arbitrary constraints

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and bogus requirements."
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Plaintiff alleges that Ursu is the head of the City's

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planning department and is responsible for the enormous delay,

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expense, and arbitrary requirements that the City imposed on

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Plaintiff for the past ten years.

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the City's "semi-urban" policy, even though the policy causes the

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He alleges that Ursu enforces

City to violate federal constitutional and statutory laws.

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Specifically, Plaintiff alleges that Ursu refused to certify
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Plaintiff's papers from the City Council so that they could be

United States District Court
For the Northern District of California

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recorded because Plaintiff's surveyor's stamp was out of date on

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the old papers but, when the surveyor said that his stamp was not

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out of date, Ursu certified the papers.

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that Ursu demanded that Plaintiff write a check for thousands of

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dollars to the City for an illegal fee, but Plaintiff paid it

Plaintiff also alleges

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because he was anxious to record the lot line adjustment.
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Defendants submit that the fee was a mandatory filing fee required
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by the California Department of Fish and Game.
LEGAL STANDARD

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A complaint must contain a "short and plain statement of the

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claim showing that the pleader is entitled to relief."

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Civ. P. 8(a).

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Fed. R.

When considering a motion to dismiss under Rule

12(b)(6) for failure to state a claim, dismissal is appropriate

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only when the complaint does not give the defendant fair notice of
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a legally cognizable claim and the grounds on which it rests.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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considering whether the complaint is sufficient to state a claim,
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In

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the court will take all material allegations as true and construe

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them in the light most favorable to the plaintiff.

NL Indus.,

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Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

However, this

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principle is inapplicable to legal conclusions; "threadbare

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recitals of the elements of a cause of action, supported by mere

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conclusory statements," are not taken a true.

Ashcroft v. Iqbal,

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556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550
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U.S. at 555).
DISCUSSION

United States District Court
For the Northern District of California

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Defendants argue that, although Plaintiff's 1AC sets forth

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the elements of each claim, it is legally insufficient because the

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claims are not supported with factual allegations.

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I. Equal Protection of a Class of One

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Equal protection claims brought by a "class of one" can be
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stated when the plaintiff alleges that he or she has been
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intentionally treated differently from others similarly situated

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and that there is no rational basis for the difference in

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treatment.

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(2000).

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intentionally demanded a thirty-three foot easement as a condition

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

In Olech, the plaintiff's allegations that the Village

of connecting her property to the municipal water supply when the

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Village required only a fifteen-foot easement from other similarly
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situated property owners, that the Village's demand was irrational
and wholly arbitrary, and that the Village ultimately connected

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her property after receiving a fifteen-foot easement, were

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sufficient to state an equal protection claim.

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Id. at 565.

Plaintiff has not alleged any facts showing Defendants

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treated other people who are situated similarly to him

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differently.

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To do this, Plaintiff must allege that Defendants

granted other similar requests for lot line adjustments in a

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shorter time and with fewer requirements than in Plaintiff's case.
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Plaintiff merely alleges that the names of the people who have

United States District Court
For the Northern District of California

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been treated differently from him are in the City's files and he

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will obtain them when discovery commences.

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of the Federal Rules of Civil Procedure, Plaintiff must allege

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facts sufficient to show that he is entitled to relief.

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Microelectionics Corp. v. Apple, Inc., 2009 WL 2972374, *1 (N.D.

However, under Rule 8

See Elan

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Cal.) (Rule 8 does not unlock the doors of discovery for a
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plaintiff armed with nothing more than conclusions).
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In fact, allegations in other sections of the 1AC support the

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contrary conclusion.

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policy to keep the City semi-rural "is the basis of Orinda's

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reputation as being extraordinarily difficult for permits and

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building of any kind, and it is the basis for Orinda's denial of

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For instance, Plaintiff alleges that the

plaintiff's constitutional and statutory rights to use and improve

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his property reasonably."

According to this allegation, the City

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treats all requests for permits to improve property similarly to

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the way it treated Plaintiff's.

Furthermore, the newspaper

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articles Plaintiff submits in support of his opposition are
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written by property owners who also have had to wait a long time

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to receive City approval for permits to improve their property.

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Again, this shows that the City treats people attempting to

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improve their property similarly to Plaintiff.

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Defendants' motion to dismiss this claim is granted.

Because

Plaintiff has been granted leave to amend this claim and has

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failed to do so, it is dismissed without leave to amend.
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United States District Court
For the Northern District of California

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II. Substantive Due Process Claim
Defendants argue that Plaintiff's conclusory allegations

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cannot meet the requirements of a substantive due process claim.

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To state a substantive due process claim challenging a land

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use action, a plaintiff must allege that the city's delays in

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processing the plaintiff's application did not further any

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legitimate government interest.

North Pacifica LLC v. City of

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Pacifica, 526 F.3d 478, 485 (9th Cir. 2008); Shanks v. Dressel,
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540 F.3d 1082, 1088 (9th Cir. 2008).

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eschewed . . . heightened [means-ends] scrutiny when addressing

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substantive due process challenges to government regulation' that

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does not impinge on fundamental rights."

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action "like a discrete permitting decision is at issue, only

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"The Supreme Court has 'long

Id.

When government

'egregious official conduct can be said to be arbitrary in the

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constitutional sense;' it must amount to an abuse of power lacking
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any 'reasonable justification in the service of a legitimate
governmental objective.'"

Id.

Official decisions that are based

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on erroneous legal interpretations are not necessarily

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constitutionally arbitrary.

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Id. at 1089.

In Shanks, the plaintiffs alleged that the city improperly

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granted a building permit to a third party, which caused their

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property to decrease in value.

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Id.

The court held that the

granting of a building permit to a third party was a routine, if

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perhaps unwise or legally erroneous decision, which fell short of
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being constitutionally arbitrary.

Id.

The court noted that there

United States District Court
For the Northern District of California

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was no suggestion of a sudden change in course, malice, bias,

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pretext or anything more than a lack of due care on the city's

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part.

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fairly debatable that Spokane rationally furthered its legitimate

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interest in facilitating residential housing in a residential

Id. at 1089.

The court also noted that it was "at least

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neighborhood by issuing a building permit to the Dressels.

When

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reviewing a substantive due process challenge, this suffices; our
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task is not to balance 'the public interest supporting the

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government action against the severity of the private

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deprivation.'"

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Id.

Plaintiff's allegations are, as a matter of law, insufficient
to state a claim that Defendants violated his substantive due
process rights.

Like the plaintiffs in Shanks, Plaintiff alleges

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that Defendants made a routine decision regarding approval of his
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request for a lot line adjustment.

Even if Defendants'

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application of the law was legally erroneous, under Shanks, this

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does not rise to the level of a due process violation.
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Furthermore, Plaintiff himself alleges that Defendants were

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motivated by a desire to maintain Orinda's semi-rural character,

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thus providing a rational governmental interest to support their

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actions.

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substantive due process claim, to balance the public interest

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As stated in Shanks, it is not the Court's task, in a

supporting the government action against the severity of the

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private deprivation.

It is sufficient that there is a legitimate

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governmental interest that is rationally related to Defendants'

United States District Court
For the Northern District of California

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action.

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Defendants acted out of malice, bias, pretext or anything more

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than a lack of due care.

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And, as in Shanks, Plaintiff does not suggest that

Therefore, Defendants' motion to dismiss this claim is
granted.

Because Plaintiff has been granted leave to amend this

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claim and has failed to remedy its deficiencies, dismissal is
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without leave to amend.
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Because Plaintiff has not alleged facts sufficient to state

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claims of constitutional violations against Defendants, the Court

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does not address Defendants' arguments that these claims must be

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dismissed against the City for not stating a policy or practice

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and against Ursu for not alleging unconstitutional conduct.

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Furthermore, because Plaintiff has not sufficiently alleged

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constitutional violations, his request for an injunction "ordering
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Defendants to cease obstructing my legal requests and to act in

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good faith toward me and to treat me in the future legally and

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reasonably and like any other property owner" is denied.
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CONCLUSION

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For the foregoing reasons, Defendants' motion to dismiss

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Plaintiff's 1AC is granted.

Dismissal is without leave to amend.

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IT IS SO ORDERED.

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Dated: 5/2/2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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