Alweiss v. City of Sacramento

Opinion

DANIEL ALWEISS, individually and No. 2:21-cv-00784-JAM-DB as a class representative for all similarly situated permit applicants who are class members, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiffs, v. CITY OF SACRAMENTO, et al., Defendants. Daniel Alweiss (“Plaintiff” or “Alweiss”) filed a six-count complaint against the City of Sacramento and two members of its Planning Department, Thomas Pace and Teresa Haenggi, collectively (“Defendants”), alleging four constitutional claims under 42 U.S.C. § 1983 and two claims under California law for unfair business practices and negligence. See Compl., ECF No. 1. Defendants move to dismiss Plaintiff’s claims for failure to state a claim upon which relief can be granted. See Mot. to Dismiss (“Mot.”), ECF No. 11. Plaintiff opposes the motion. See Opp’n, ECF No. 13. Defendants replied. See Reply, ECF No. 15. For the reasons set forth below, the Court GRANTS Defendants’ motion to dismiss.1 Alweiss applied for a conditional use permit with the City of Sacramento’s Planning Department on March 15, 2019. Compl. ¶ 11. Alweiss also met with a Planning Department agent to review the conditional use permit application and related fees. Id. Alweiss paid $14,111.08 on this occasion in application fees. Id. ¶ 12. Two months later, in May, Alweiss received an invoice from the Planning Department for an additional $2,500. Id. ¶ 15. Alweiss alleges that “there [i]s no statutory or City Code authority for this fee,” and he sent a letter stating as much to Defendant Pace, Planning Director for the City of Sacramento. Id. ¶ 16. In December, Alweiss received another invoice for $125. Id. ¶ 18. Alweiss paid both invoices “under protest” eight months later, on August 19, 2020. Id. ¶ 19. Alweiss filed his Complaint on April 30, 2021. See Compl. A. Judicial Notice Plaintiff has requested the Court take judicial notice of two documents, submitted as Exhibits A-B. See Pl.’s Req. for Judicial Notice (“RJN”), ECF No. 7-1. Exhibit A is a record of decision from Plaintiff’s appeal of administrative fees. Ex. A

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

this Order. Iv. ORDER For the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s First, Second, Third and Fourth claims under 42 U.S.C. § 1983 WITH PREJUDICE. GRANTS Defendants’ Motion to Dismiss Plaintiff’s unfair business practices claim under California law without prejudice; and GRANTS Defendants’ Motion to Dismiss Plaintiff’s negligence claim under California law without prejudice. Dated: December 22, 2021 he Me teiren staves odermacr 7008 10