1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ALWEISS, individually and No. 2:21-cv-00784-JAM-DB as a class representative for 12 all similarly situated permit applicants who are class 13 members, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 Plaintiffs, 15 v. 16 CITY OF SACRAMENTO, et al., 17 Defendants. 18 19 Daniel Alweiss (“Plaintiff” or “Alweiss”) filed a six-count 20 complaint against the City of Sacramento and two members of its 21 Planning Department, Thomas Pace and Teresa Haenggi, collectively 22 (“Defendants”), alleging four constitutional claims under 42 23 U.S.C. § 1983 and two claims under California law for unfair 24 business practices and negligence. See Compl., ECF No. 1. 25 Defendants move to dismiss Plaintiff’s claims for failure to 26 state a claim upon which relief can be granted. See Mot. to 27 Dismiss (“Mot.”), ECF No. 11. Plaintiff opposes the motion. See 28 Opp’n, ECF No. 13. Defendants replied. See Reply, ECF No. 15. 1 For the reasons set forth below, the Court GRANTS Defendants’ 2 motion to dismiss.1 3 4 I. BACKGROUND 5 Alweiss applied for a conditional use permit with the City 6 of Sacramento’s Planning Department on March 15, 2019. Compl. 7 ¶ 11. Alweiss also met with a Planning Department agent to 8 review the conditional use permit application and related fees. 9 Id. Alweiss paid $14,111.08 on this occasion in application 10 fees. Id. ¶ 12. Two months later, in May, Alweiss received an 11 invoice from the Planning Department for an additional $2,500. 12 Id. ¶ 15. Alweiss alleges that “there [i]s no statutory or City 13 Code authority for this fee,” and he sent a letter stating as 14 much to Defendant Pace, Planning Director for the City of 15 Sacramento. Id. ¶ 16. In December, Alweiss received another 16 invoice for $125. Id. ¶ 18. Alweiss paid both invoices “under 17 protest” eight months later, on August 19, 2020. Id. ¶ 19. 18 Alweiss filed his Complaint on April 30, 2021. See Compl. 19 20 II. OPINION 21 A. Judicial Notice 22 Plaintiff has requested the Court take judicial notice of 23 two documents, submitted as Exhibits A-B. See Pl.’s Req. for 24 Judicial Notice (“RJN”), ECF No. 7-1. Exhibit A is a record of 25 decision from Plaintiff’s appeal of administrative fees. Ex. A 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 14, 2021. 1 to RJN. Exhibit B contains Plaintiff’s City of Sacramento Claim 2 form and Notice of Claim rejection. Ex. B to RJN. Both 3 exhibits are suitable for judicial notice as matters of public 4 record. United States v. Black, 482 F.3d, 1041. However, 5 because the parties dispute whether Plaintiff exhausted his 6 administrative remedies, the facts within these exhibits are 7 subject to reasonable dispute and cannot be judicially noticed. 8 Mot. at 10; Opp’n at 10. Thus, the Court grants Plaintiff’s 9 request for judicial notice of Exhibits A-B only for the fact 10 that these documents exist but not for the contents within them. 11 Defendant requests the Court take judicial notice of 12 relevant portions of the Sacramento Municipal Code (SMC), 13 specifically § 17.800.020(b), entitled “Application fee 14 options.” A municipal code section is an appropriate matter for 15 judicial notice. See Long Beach Area Peace Network v. City of 16 Long Beach, 574 F.3d 1011, 1026 (9th Cir. 2009) (taking judicial 17 notice of a local ordinance, a local regulation, and a local 18 municipal code). Accordingly, the Court takes judicial notice 19 of SMC § 17.800.020(b). 20 B. Legal Standard 21 Federal Rule of Civil Procedure 8(a)(2) requires “a short 22 and plain statement of the claim showing that the pleader is 23 entitled to relief.” When a plaintiff fails to “state a claim 24 upon which relief can be granted,” the Court must dismiss the 25 suit. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss, 26 a plaintiff must “plead enough facts to state a claim to relief 27 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 28 550 U.S. 544, 570 (2007). Plausibility under Twombly requires 1 “factual content that allows the Court to draw a reasonable 2 inference that the defendant is liable for the misconduct 3 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4 “At this stage, the Court ‘must accept as true all of the 5 allegations contained in a complaint.’” Id. But it need not 6 “accept as true a legal conclusion couched as a factual 7 allegation.” Id. Additionally, the Court should grant leave to 8 amend, unless the “pleading could not possibly be cured by the 9 allegation of other facts.” Cooks, Perkiss, & Leiche, Inc. v. 10 N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 11 1990). 12 C. Claim One: Unlawful Taking 13 “The Takings Clause of the Fifth Amendment, made applicable 14 to the states through the Fourteenth, provides that private 15 property shall not be taken without just compensation.” Lingle 16 v. Chevron U.S.A Inc., 544 U.S. 528, 536 (2005). “[A] 17 reasonable user fee is not a taking if it is imposed for the 18 reimbursement of the cost of government services.” United 19 States v. Sperry, 493 U.S. 52, 63 (1989). Moreover, the Supreme 20 Court “has never held that the amount of a user fee must be 21 precisely calibrated to the use that a party makes of Government 22 services.” Id. at 60-61. User fees are constitutional so long 23 as they are “not so excessive as to belie their purported 24 character as user fees.” Id. at 62. 25 Plaintiff alleges that certain permit fees imposed by the 26 City of Sacramento pursuant to SMC § 17.800.020 effected an 27 unconstitutional taking. Compl. ¶ 30. Plaintiff alleges he 28 paid an initial application fee when he first submitted his 1 application for a conditional use permit. Id. ¶ 12. Plaintiff 2 then received and paid two more invoices for costs associated 3 with processing his permit. Id. ¶¶ 15, 18. Despite paying 4 multiple fees, Plaintiff disputes only the constitutionality of 5 the latter fees. Id. ¶ 29. As to the initial fee, Plaintiff 6 concedes that the initial fee “was a reasonable fee for the 7 reimbursement of the cost of government services associated with 8 Plaintiffs’ [sic] permit applications.” Id. (internal citations 9 omitted). 10 As to the subsequent fees, Plaintiff contends that they 11 were unconstitutional exactions, because “there is no ordinance 12 or language in the Municipal Code, or any City regulation, 13 specifically authorizing such additional fees or to support the 14 characterization of these additional fees as ‘Application 15 Fees.’” Id. ¶ 32. On the contrary, the Sacramento Municipal 16 Code section entitled “Application Fee” specifically authorizes 17 the city planning director to seek an “additional fee” if “the 18 costs of processing the application exceeds the initial fee 19 paid.” SMC § 17.800.020(b)(1). In reviewing Section 20 17.800.020, the Court finds it contains two main subsections 21 that should be read together. Subsection (a), “Application fee 22 established,” establishes and imposes an application fee upon 23 applicants for a permit. SMC § 17.800.020(a).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ALWEISS, individually and No. 2:21-cv-00784-JAM-DB as a class representative for 12 all similarly situated permit applicants who are class 13 members, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 Plaintiffs, 15 v. 16 CITY OF SACRAMENTO, et al., 17 Defendants. 18 19 Daniel Alweiss (“Plaintiff” or “Alweiss”) filed a six-count 20 complaint against the City of Sacramento and two members of its 21 Planning Department, Thomas Pace and Teresa Haenggi, collectively 22 (“Defendants”), alleging four constitutional claims under 42 23 U.S.C. § 1983 and two claims under California law for unfair 24 business practices and negligence. See Compl., ECF No. 1. 25 Defendants move to dismiss Plaintiff’s claims for failure to 26 state a claim upon which relief can be granted. See Mot. to 27 Dismiss (“Mot.”), ECF No. 11. Plaintiff opposes the motion. See 28 Opp’n, ECF No. 13. Defendants replied. See Reply, ECF No. 15. 1 For the reasons set forth below, the Court GRANTS Defendants’ 2 motion to dismiss.1 3 4 I. BACKGROUND 5 Alweiss applied for a conditional use permit with the City 6 of Sacramento’s Planning Department on March 15, 2019. Compl. 7 ¶ 11. Alweiss also met with a Planning Department agent to 8 review the conditional use permit application and related fees. 9 Id. Alweiss paid $14,111.08 on this occasion in application 10 fees. Id. ¶ 12. Two months later, in May, Alweiss received an 11 invoice from the Planning Department for an additional $2,500. 12 Id. ¶ 15. Alweiss alleges that “there [i]s no statutory or City 13 Code authority for this fee,” and he sent a letter stating as 14 much to Defendant Pace, Planning Director for the City of 15 Sacramento. Id. ¶ 16. In December, Alweiss received another 16 invoice for $125. Id. ¶ 18. Alweiss paid both invoices “under 17 protest” eight months later, on August 19, 2020. Id. ¶ 19. 18 Alweiss filed his Complaint on April 30, 2021. See Compl. 19 20 II. OPINION 21 A. Judicial Notice 22 Plaintiff has requested the Court take judicial notice of 23 two documents, submitted as Exhibits A-B. See Pl.’s Req. for 24 Judicial Notice (“RJN”), ECF No. 7-1. Exhibit A is a record of 25 decision from Plaintiff’s appeal of administrative fees. Ex. A 26
27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for September 14, 2021. 1 to RJN. Exhibit B contains Plaintiff’s City of Sacramento Claim 2 form and Notice of Claim rejection. Ex. B to RJN. Both 3 exhibits are suitable for judicial notice as matters of public 4 record. United States v. Black, 482 F.3d, 1041. However, 5 because the parties dispute whether Plaintiff exhausted his 6 administrative remedies, the facts within these exhibits are 7 subject to reasonable dispute and cannot be judicially noticed. 8 Mot. at 10; Opp’n at 10. Thus, the Court grants Plaintiff’s 9 request for judicial notice of Exhibits A-B only for the fact 10 that these documents exist but not for the contents within them. 11 Defendant requests the Court take judicial notice of 12 relevant portions of the Sacramento Municipal Code (SMC), 13 specifically § 17.800.020(b), entitled “Application fee 14 options.” A municipal code section is an appropriate matter for 15 judicial notice. See Long Beach Area Peace Network v. City of 16 Long Beach, 574 F.3d 1011, 1026 (9th Cir. 2009) (taking judicial 17 notice of a local ordinance, a local regulation, and a local 18 municipal code). Accordingly, the Court takes judicial notice 19 of SMC § 17.800.020(b). 20 B. Legal Standard 21 Federal Rule of Civil Procedure 8(a)(2) requires “a short 22 and plain statement of the claim showing that the pleader is 23 entitled to relief.” When a plaintiff fails to “state a claim 24 upon which relief can be granted,” the Court must dismiss the 25 suit. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss, 26 a plaintiff must “plead enough facts to state a claim to relief 27 that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 28 550 U.S. 544, 570 (2007). Plausibility under Twombly requires 1 “factual content that allows the Court to draw a reasonable 2 inference that the defendant is liable for the misconduct 3 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4 “At this stage, the Court ‘must accept as true all of the 5 allegations contained in a complaint.’” Id. But it need not 6 “accept as true a legal conclusion couched as a factual 7 allegation.” Id. Additionally, the Court should grant leave to 8 amend, unless the “pleading could not possibly be cured by the 9 allegation of other facts.” Cooks, Perkiss, & Leiche, Inc. v. 10 N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 11 1990). 12 C. Claim One: Unlawful Taking 13 “The Takings Clause of the Fifth Amendment, made applicable 14 to the states through the Fourteenth, provides that private 15 property shall not be taken without just compensation.” Lingle 16 v. Chevron U.S.A Inc., 544 U.S. 528, 536 (2005). “[A] 17 reasonable user fee is not a taking if it is imposed for the 18 reimbursement of the cost of government services.” United 19 States v. Sperry, 493 U.S. 52, 63 (1989). Moreover, the Supreme 20 Court “has never held that the amount of a user fee must be 21 precisely calibrated to the use that a party makes of Government 22 services.” Id. at 60-61. User fees are constitutional so long 23 as they are “not so excessive as to belie their purported 24 character as user fees.” Id. at 62. 25 Plaintiff alleges that certain permit fees imposed by the 26 City of Sacramento pursuant to SMC § 17.800.020 effected an 27 unconstitutional taking. Compl. ¶ 30. Plaintiff alleges he 28 paid an initial application fee when he first submitted his 1 application for a conditional use permit. Id. ¶ 12. Plaintiff 2 then received and paid two more invoices for costs associated 3 with processing his permit. Id. ¶¶ 15, 18. Despite paying 4 multiple fees, Plaintiff disputes only the constitutionality of 5 the latter fees. Id. ¶ 29. As to the initial fee, Plaintiff 6 concedes that the initial fee “was a reasonable fee for the 7 reimbursement of the cost of government services associated with 8 Plaintiffs’ [sic] permit applications.” Id. (internal citations 9 omitted). 10 As to the subsequent fees, Plaintiff contends that they 11 were unconstitutional exactions, because “there is no ordinance 12 or language in the Municipal Code, or any City regulation, 13 specifically authorizing such additional fees or to support the 14 characterization of these additional fees as ‘Application 15 Fees.’” Id. ¶ 32. On the contrary, the Sacramento Municipal 16 Code section entitled “Application Fee” specifically authorizes 17 the city planning director to seek an “additional fee” if “the 18 costs of processing the application exceeds the initial fee 19 paid.” SMC § 17.800.020(b)(1). In reviewing Section 20 17.800.020, the Court finds it contains two main subsections 21 that should be read together. Subsection (a), “Application fee 22 established,” establishes and imposes an application fee upon 23 applicants for a permit. SMC § 17.800.020(a). Subsection (b), 24 “Application fee options,” describes when and how the 25 application should be paid. SMC § 17.800.020(b). In detail, 26 subsection (b) presents two fee options for the planning 27 director to choose from. Id. The first option is a “Fee based 28 on estimate of processing costs,” which includes an “initial 1 fee” based on “an estimate of staff time and resources” followed 2 by an “additional fee” if the actual costs exceed the initial 3 estimate. Id. The second option is a “Fee based on actual 4 processing costs,” which includes a “deposit” followed by 5 “monthly invoices” to cover fees as they accrue. Id. Both 6 options result in an application fee that encompasses multiple 7 payments. Thus, under the Sacramento Municipal Code, what 8 Plaintiff describes as initial and later fees are partial 9 payments of the same application fee. As such, Plaintiff’s 10 concession that the initial fee was a “was a reasonable fee for 11 the reimbursement of the cost of government services” applies 12 also to the later fees. Compl. ¶ 29. All three fees alleged in 13 the complaint are, therefore, user fees and not takings within 14 the meaning of the United States Constitution. See Koontz v. 15 St. Johns River Water Mgmt. Dist., 570 U.S. 595, 597 (2013) (“It 16 is beyond dispute that taxes and user fees are not takings”) 17 (internal citations omitted). 18 Further, Plaintiff does not allege any facts that the fees 19 charged were “clearly excessive as to belie their purported 20 character" as administrative fees. Sperry, 493 U.S. at 62. In 21 the absence of allegations otherwise, the Court concludes these 22 fees were reasonable user fees under the standard set by Sperry. 23 Id. 24 Having only alleged reasonable user fees, Plaintiff has not 25 alleged sufficient facts to support a claim under the Takings 26 Clause. Accordingly, Plaintiff’s Takings Clause claim is 27 dismissed with prejudice. No further amendment of this claim is 28 permitted as such amendment would be futile. Deveraturda v. 1 Globe Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006). 2 D. Claim Two: Procedural Due Process 3 The Fourteenth Amendment to the United States Constitution 4 provides that “[n]o state shall . . . deprive any person of 5 life, liberty or property, without due process of laws.” United 6 States Const. Amend XIV. As a threshold requirement, Plaintiff 7 must show a liberty or property interest that is protected by 8 the Constitution. Board of Regents v. Roth, 408 U.S. 564, 569 9 (1972). Once Plaintiff demonstrates a constitutional interest 10 is at stake, the basic requirements of procedural due process 11 must be met, which is “a right to notice and an opportunity to 12 be heard at a meaningful time and in a meaningful manner.” 13 Mathews v. Eldridge, 424 U.S. 319, 339-43 (1976). Only 14 “extraordinary situations where some valid governmental interest 15 is at stake . . . justifies the postponing of the hearing until 16 after the event.” United States v. James Daniel Good Real 17 Prop., 510 U.S. 43, 53 (1993). 18 Plaintiff has not made a threshold showing of a property 19 interest that is affected by official action. Board of Regents 20 v. Roth, 408 U.S. at 569. When describing his “existing 21 property interests,” Plaintiff states only that he “own[s], or 22 ha[s] owned, real property,” but he does not allege how his real 23 property interests were threatened by government action. Compl. 24 ¶ 42. Even though the Court “must accept as true all of the 25 allegations contained in a complaint” at the motion to dismiss 26 stage, a bare recitation of real property ownership without any 27 threat of deprivation of that interest does not adequately 28 support a claim for procedural due process. Ashcroft v. Iqbal, 1 556 U.S. at 678. 2 Accordingly, Plaintiff’s procedural due process claim is 3 dismissed with prejudice. See Deveraturda v. Globe Aviation 4 Sec. Servs., 454 F.3d. at 1049. 5 E. Claim Three: Substantive Due Process 6 The substantive component of the Fourteenth Amendment Due 7 Process Clause “forbids the government from depriving a person 8 of life, liberty, or property in such a way 9 that . . . interferes with rights implicit in the concept of 10 ordered liberty,” no matter how many procedural safeguards are 11 in place. Engquist v. Oregon Dept. of Agric., 478 F.3d 985, 996 12 (9th Cir 2007). To state a claim for a substantive due process 13 violation, Plaintiff must show that a challenged state action 14 either “shocks the conscience” or arbitrarily deprives him of a 15 fundamental right. United States v. Salerno, 481 U.S. 739, 746 16 (1987). 17 Defendants contend that Plaintiff has failed to state a 18 substantive due process claim. Mot. at 15. Defendants 19 correctly point out that Plaintiff “fails to cite any case or 20 other legal authority that supports any due process claim, 21 whether substantive or procedural.” Reply at 6. Reviewing the 22 complaint, the Court finds that Plaintiff has not identified a 23 single fundamental right implicated by the actions of the City 24 nor any action that “shocks the conscience.” Accordingly, the 25 Court dismisses the Plaintiff’s substantive due process claim 26 with prejudice. Deveraturda v. Globe Aviation Sec. Servs., 454 27 F.3d at 1049. 28 /// 1 F. Claim Four: Ex Post Facto Clause 2 Plaintiff does not oppose Defendant’s motion to dismiss 3 Plaintiff’s Ex Post Facto Law claim. Opp’n at 13. Plaintiff 4 concedes the issue, stating that he is “persuaded by Defendant’s 5 authority.” Id. at footnote 2. Accordingly, this Court finds 6 that any further amendment would be futile and dismisses this 7 claim with prejudice. Deveraturda v. Globe Aviation Sec. 8 Servs., 454 F.3d at 1049. 9 G. Supplemental Jurisdiction 10 A district court may sua sponte decline to exercise 11 supplemental jurisdiction over pendant state law claims if it 12 “has dismissed all claims over which it has original 13 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court had original 14 jurisdiction over Plaintiff's § 1983 claims against the City of 15 Sacramento. Having dismissed them, the Court, therefore, 16 declines to exercise supplemental jurisdiction over the 17 remaining state law claims. 18 19 III. SANCTIONS 20 This Court issued its Order re Filing Requirements (“Filing 21 Order”) on May 3, 2021. ECF No. 3-2. The Filing Order limits 22 opposition memoranda to fifteen pages. Filing Order at 1. The 23 Filing Order also states that an attorney who exceeds the page 24 limit must pay monetary sanctions of $50 per page. Id. 25 Plaintiff exceeded the Court’s fifteen-page limit on opposition 26 memoranda by one page. See Opp’n. The Court therefore ORDERS 27 Defendant’s counsel to pay $50.00 to the Clerk for the Eastern 28 District of California no later than seven days from the date of eee EI OIE OE EE EDS eee
1 this Order. 2 3 Iv. ORDER 4 For the reasons set forth above, the Court GRANTS 5 Defendants’ Motion to Dismiss Plaintiff’s First, Second, Third 6 | and Fourth claims under 42 U.S.C. § 1983 WITH PREJUDICE. 7 GRANTS Defendants’ Motion to Dismiss Plaintiff’s unfair business 8 | practices claim under California law without prejudice; and 9 GRANTS Defendants’ Motion to Dismiss Plaintiff’s negligence claim 10 under California law without prejudice. 11 IT IS SO ORDERED. 12 Dated: December 22, 2021 13 he Me 14 teiren staves odermacr 7008 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10