D' Souza v. City of San Clemente

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2025
• Docket: 24-2423
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREDA PHILOMENA D' SOUZA, No. 24-2423 D.C. No. Plaintiff - Appellant, 8:20-cv-01863-FLA-DFM v. MEMORANDUM* CITY OF SAN CLEMENTE, a municipal corporation; ADAM ATAMIAN; ANTHONY KURTZ,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding

Submitted May 20, 2025** Pasadena, California

Before: GRABER, WARDLAW, and JOHNSTONE, Circuit Judges.

Plaintiff Freda Philomena D’Souza timely appeals from the summary

judgment entered in favor of the City of San Clemente, Adam Atamian, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Anthony Kurtz (collectively, “Defendants”) on Plaintiff’s claim brought under

42 U.S.C. § 1983. On de novo review, Barton v. Off. of Navajo, 125 F.4th 978,

982 (9th Cir. 2025), we conclude that the record does not create a genuine dispute

of material fact suggesting that Defendants violated Plaintiff’s constitutional

rights.1 We therefore affirm. See, e.g., King v. County of Los Angeles, 885 F.3d

548, 556 (9th Cir. 2018) (“To establish a claim under § 1983, [the plaintiff] must

show the violation of a federal right . . . .”).2

1. Relying on two different theories of relief, Plaintiff asserts that the City

violated her right to procedural due process. “A section 1983 claim based upon

procedural due process . . . has three elements: (1) a liberty or property interest

protected by the Constitution; (2) a deprivation of the interest by the government;

(3) lack of process.” Houston v. Maricopa County, 116 F.4th 935, 945 (9th Cir.

2024) (alteration in original) (quoting Armstrong v. Reynolds, 22 F.4th 1058, 1066

(9th Cir. 2022)).

1 Consequently, the district court properly entered summary judgment on the issue of the City’s liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). See Napouk v. Las Vegas Metro. Police Dep’t, 123 F.4th 906, 924 (9th Cir. 2024) (“[B]ecause we have found no constitutional violation, we also affirm the district court’s grant of summary judgment on the Monell claims.”), reh’g denied, 131 F.4th 1113 (9th Cir. 2025). 2 The district court also declined to exercise supplemental jurisdiction over Plaintiff’s state-law claim, a decision that Plaintiff asks us to reverse only if her “federal claims are reinstated.” Because we affirm the entry of summary judgment as to Plaintiff’s § 1983 claim, we do not address her state-law cause of action.

2 24-2423 Plaintiff’s first theory relates to two aspects of Ordinance No. 1654, which

the City enacted in 2018, and the City’s enforcement thereof: (1) a provision

allowing property owners of nonconforming short-term leasing units (“STLUs”) to

continue operating during a two-year amortization period; and (2) a provision

authorizing an eight-year extension of the amortization period for owners “in good

standing.”

Regarding the former provision, Plaintiff asserts that the City

unconstitutionally “terminat[ed] her two year permitted amortization period.”

Even if true, Plaintiff continued operating her STLUs throughout the amortization

period, and the government did not issue a cease-and-desist notice until July 1,

2020, after the amortization period ended.

Meanwhile, the latter provision states that eight-year extensions will be

provided only if “the owner is in good standing,” meaning that the owner is

“current on remittance of [certain local taxes].” Here, the City’s administrative

process concluded with a finding that Plaintiff was not in “good standing” when

she applied for the extension, a determination that Plaintiff does not challenge in

this appeal. The ordinance therefore did not grant Plaintiff a protected property

interest relating to the eight-year extension. See Wedges/Ledges of Cal., Inc. v.

City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (stating legal standard); Doyle v.

City of Medford, 606 F.3d 667, 673 (9th Cir. 2010) (“[A] statute may create a

3 24-2423 property interest if it mandates a benefit when specific non-discretionary factual

criteria are met.” (emphasis added)).

With respect to her second theory, Plaintiff contends that, under the

“appearance of bias” test, the City violated procedural due process when it

“unilateral[ly] designat[ed]” a “third party hearing officer regarding [certain]

administrative citations.” To make out such a claim, a plaintiff “must ‘overcome a

presumption of honesty and integrity’ on the part of decision-makers” by

demonstrating that “the adjudicator’s pecuniary or personal interest in the outcome

of the proceedings . . . create[s] an appearance of partiality.” Stivers v. Pierce, 71

F.3d 732, 741 (9th Cir. 1995) (emphasis omitted) (quoting Withrow v. Larkin, 421

U.S. 35, 47 (1975)). Here, nothing in the record suggests that the hearing officer’s

designation created an unconstitutional appearance of bias.

2. Plaintiff also contends that the City’s legislative acts were “arbitrary and

irrational in violation of substantive due process.” To proceed on that claim,

Plaintiff must identify a genuine factual dispute suggesting that the ordinance has

“no substantial relation to public health, safety, morals, or general welfare.”

Samson v. City of Bainbridge Island, 683 F.3d 1051, 1058 (9th Cir. 2012) (quoting

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994)). Here,

evidence in the record shows that the ordinance was adopted in part to “ameliorate

4 24-2423 the negative impacts created by short-term-lodging uses on traditional

neighborhood settings,” and Plaintiff does not point to any contrary evidence.3

3. Next, Plaintiff claims that the City’s implementation of the ordinance

violated the Takings Clause. “A use restriction that is ‘reasonably necessary to the

effectuation of a substantial government purpose’ is not a taking unless it saps too

much of the property’s value or frustrates the owner’s investment-backed

expectations.” Sheetz v. County of El Dorado, 601 U.S. 267, 274 (2024) (quoting

Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123, 127 (1978)).

Plaintiff produced evidence suggesting that the “STLU permit extension denials”

lowered the value of her property by 27.5%, but we have previously deemed much

steeper drops in value insufficient to establish a taking. See Colony Cove Props.,

LLC v. City of Carson, 888 F.3d 445, 451 (9th Cir. 2018) (noting the lack of cases

in which “a court has found a taking where diminution in value was less than 50

percent” (quoting CCA Assocs. v. United States, 667 F.3d 1239, 1246 (Fed. Cir.

2011))). And Plaintiff fails to address her investment-backed expectations in any

meaningful way. See Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir.

3 Plaintiff asserts only that the City acted unconstitutionally by “denying an extension request . . . in violation of the automatic [bankruptcy] stay.” But Plaintiff does not explain how or why that assertion—which is, if anything, contradicted by evidence in the record—bears on her substantive due process claim.

5 24-2423 2009) (“Arguments made in passing and inadequately briefed are waived.”). The

district court thus properly entered summary judgment on this claim.4

4. The record does not contain evidence sufficient to support Plaintiff’s

claim for retaliation in violation of the First Amendment. Plaintiff undoubtedly

engaged in a protected activity when she sought relief in bankruptcy court. See

Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“The right

of access to the courts is subsumed under the first amendment right to petition the

government for redress of grievances.”). Nothing in the record suggests, however,

that “the protected activity was a substantial or motivating factor in the [City’s]

conduct.” Bello-Reyes v. Gaynor, 985 F.3d 696, 700 (9th Cir. 2021) (quoting

Capp v. County of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019)). In arguing to

the contrary, Plaintiff relies principally on Soranno’s Gasco. But the details that

we deemed “suspicious” in that case, which pertained to “the timing and nature of

the [administrative action] and notice,” are missing here. Soranno’s Gasco, 874

F.2d at 1316.

5. Finally, Plaintiff asserts that the City conducted an unreasonable search

in violation of the Fourth Amendment by “continuous[ly] surveill[ing]” her

4 Because we conclude that, as a matter of law, no taking occurred, we need not address Plaintiff’s contention that the amortization periods authorized in the ordinance fail to provide “just compensation.” See United States v. 300 Units of Rentable Hous., 668 F.3d 1119, 1124 (9th Cir. 2012) (per curiam) (“There was no taking, and therefore no just compensation for an alleged taking was due.”).

6 24-2423 property. Plaintiff references the Fourth Amendment’s “common law trespassory

test” but does not identify any actions that may have constituted a trespass.

Evidence in the record shows that, in seeking to determine whether Plaintiff was

operating an STLU without a permit, the City searched for advertisements on

websites like hotels.com, observed cars with out-of-state license plates parked

outside of Plaintiff’s property, and spoke with individuals who were on the

property’s balcony. So far as we can tell, there is no evidence that the city’s

investigation involved a city official’s stepping onto Plaintiff’s property. Without

more, Plaintiff’s Fourth Amendment claim cannot defeat the City’s motion for

summary judgment. See Florida v. Jardines, 569 U.S. 1, 7 (2013) (“[L]aw

enforcement officers need not ‘shield their eyes’ when passing by the home ‘on

public thoroughfares . . . .’” (quoting California v. Ciraolo, 476 U.S. 207, 213

(1986))); Kyllo v. United States, 533 U.S. 27, 31–33 (2001) (explaining that

“visual[ly] surveill[ing]” a private home from “a public street” with the

“naked[]eye” generally does not violate the Fourth Amendment).

AFFIRMED.

7 24-2423