Friedman v. City of Fairfax

• Court: District Court, N.D. California
• Decided: August 23, 2024
• Docket: 4:24-cv-00371
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JACOB FRIEDMAN, Case No. 24-cv-00371-DMR 8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. Re: Dkt. No. 22 10 CITY OF FAIRFAX, et al., 11 Defendants. 12 Plaintiff Jacob Friedman brings this complaint against Defendants City of Fairfax (“the 13 Town”), the Office of Building Inspector of the Town of Fairfax (“Inspector Office”), the 14 Planning Commission of the Town of Fairfax (“Planning Commission”), Mark Lockaby, and 15 Linda Neal (collectively “Defendants”). The court refers to the Town, Inspector Office, and 16 Planning Commission as “Fairfax Defendants.” Plaintiff alleges that Defendants deprived 17 Plaintiff of his right to construct his home at 79 Wood Lane in Fairfax, CA (the “Property”) by, 18 among other things, unlawfully suspending his building permit (the “Permit”) and denying 19 Plaintiff a right to administrative appeal of the suspension. [Docket No. 19 (First Amended 20 Complaint, “FAC”) ¶ 1.] Defendants move to dismiss the FAC for failure to state a claim. 21 [Docket No. 22 (Motion to Dismiss, “Mot.”).] The court held a hearing on June 27, 2024. 22 For the following reasons, the motion is granted. 23 I. BACKGROUND 24 A. Statement of Facts 25 Plaintiff makes the following allegations in the FAC, which the court takes as true for 26 purposes of this motion.1 Plaintiff owns the real property located at 79 Wood Lane in Fairfax, 27 1 CA. FAC ¶ 13. On July 6, 2021, Plaintiff submitted an application to the Town for the 2 construction of a house and an Accessory Dwelling Unit (“ADU”) at the Property; the 3 construction project will be referred to as the “Project.” Id. at ¶ 14. Over the next six months, 4 Town staff “delayed and otherwise interfered with” the approval of Plaintiff’s application. Id. at ¶ 5 15. For example, Fairfax Principal Planner Linda Neal threatened to recommend denial of 6 Plaintiff’s application unless he agreed to her demands that the house be lower in height and lower 7 to the ground, even though it was already under the height limit of the Fairfax Planning Code. Id. 8 During these six months, Plaintiff attended many Town meetings where he expressed his views 9 that Fairfax employees were being unreasonable, unfair, and directing animus towards him. Id. at 10 ¶ 16. Members of the Town administration would “chastise [Plaintiff] for his comments and 11 demand that he not state his critiques to the Town.” Id. Plaintiff believes that, in retaliation for 12 his comments during Town meetings, Defendants “delayed any approvals for [Plaintiff’s] Project, 13 and required him to complete many additional layers of review that other Town residents, on 14 information and belief, did not have to complete.” Id. 15 On January 20, 2022, the Planning Commission approved Plaintiff’s application for a 16 building permit. Id. at ¶ 17, Ex. 1. However, Mark Lockaby, a Fairfax Building Official, 17 submitted Plaintiff’s approved construction plans to the Town Engineer (an outside contractor) for 18 further review prior to approval of the Permit. The Town finally issued the Permit on August 4, 19 2022. Id. at ¶ 18, Ex. 2. Plaintiff believes this further review and delay were conducted in bad 20 faith with the intention of preventing Plaintiff from proceeding with the Project. Id. at ¶ 18. 21 Plaintiff began work on the Project. Although not clearly stated in the FAC, Plaintiff’s 22 counsel confirmed at oral argument that certain aspects of this work did not conform to the 23 construction plans approved under the Permit. In June 2023, after a substantial portion of the 24 Project had been completed, Lockaby requested and Plaintiff provided documents detailing the 25 changes that Plaintiff made to the construction plans.2 FAC ¶ 24. Specifically, Plaintiff detailed 26 (per curiam) (citation omitted). 27 1 three changes depicted in the revised plans: a) a portion of the basement was now an ADU; b) a 2 portion of the top floor was now a junior accessory dwelling unit (“JADU”), including an enclosed 3 upper deck and a new exterior stairway; and c) the front low pitched roof was eliminated and 4 replaced by a roof deck above a portion of the lower floor and even with the top floor. Id. at ¶ 5 24(a)-(c). Lockaby instructed Plaintiff to obtain approval from the Planning Commission for the 6 last two changes (the JADU and the roof deck) and to stop work on those two items until 7 obtaining approval. Id. at ¶ 25. Lockaby stated that Plaintiff could continue work on the rest of 8 the Project other than those two items. Id. Plaintiff did not agree with Lockaby, asserting that he 9 did not need to request approval for minor changes to construction until conclusion of the Project. 10 Id. at ¶ 26. 11 On June 8, 2023, Lockaby issued an order to stop work (“OSW”).3 Id. at ¶ 27. The cause 12 of the OSW’s issuance was listed as “CONSTRUCTION NOT APPROVED.” Id. Plaintiff 13 understood the OSW to allege that he was constructing the Project in violation of Title 17 of the 14 Fairfax Town Code. Id. On June 9, 2023, Plaintiff attempted to submit an appeal of Lockaby’s 15 decision to the Town under Fairfax Town Code § 17.036.010, et seq. Id. at ¶ 29. The Town 16 refused to consider the appeal and returned Plaintiff’s payment for the appeal in August 2023. Id. 17 at ¶ 30. Plaintiff’s counsel also wrote to Town Counsel Janet Coleson, offering to cease work on 18 the two at-issue changes from the approved plan and agreeing to request a modification from the 19 Planning Commission within 60 days after June 23, 2023. Id. at ¶ 31. The Town’s counsel did 20 not respond to this offer. Id. In the meantime, Plaintiff continued work on the Project, believing 21 that his appeal of the OSW would stay its enforcement pursuant to Fairfax Town Code § 22 17.036.030. Id. 23 On July 20, 2023, Lockaby completed an electrical inspection of the Project, where he 24

25 each complaint as standing on its own and cannot consider Plaintiff’s attachments to the original complaint. See Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (finding that the 26 amended complaint “supercedes the original” and the original complaint is “treated thereafter as non-existent”). 27 1 found that the electrical system was in working order and met all code requirements. Id. at ¶ 32. 2 However, Lockaby refused to issue a “Green Tag,” a type of approval that would allow Plaintiff to 3 connect the electrical system to PG&E. Id. Lockaby stated that Linda Neil had to sign off on the 4 Green Tag before it would be issued. Id. Counsel for the Town later represented to Plaintiff’s 5 counsel that the Town was withholding the Green Tag to coerce Plaintiff to submit new 6 construction plans and secure approval from the Planning Commission, and that the Town often 7 withheld Green Tags to extract concessions from permit holders for reasons unrelated to the 8 electrical system. Id. at ¶ 33. 9 From July 20, 2023 to August 11, 2023, Plaintiff would call Lockaby for various 10 inspections of the Project, but Lockaby would not respond. Id. at ¶ 37. However, when Plaintiff 11 called from an anonymous number, Lockaby did respond. Id. Plaintiff believes Lockaby was 12 ignoring his phone calls in bad faith. Id. 13 On August 11, 2023, Lockaby suspended Plaintiff’s Permit without a hearing. Id. at ¶ 38. 14 He explained he had observed Plaintiff constructing “the rear stairs.” Id. He stated that Plaintiff 15 had agreed to obtain approval from the Planning Commission before continuing to construct the 16 rear stairs; Plaintiff denies he ever agreed to do so. Id. Lockaby said he was suspending the 17 Permit under California Building Code 105.6 because the changes at issue had not been approved, 18 so the work being done was based on “incorrect, inaccurate and incomplete information.” Id. at ¶ 19 39. On August 14, 2023, a second OSW was posted at the Project, with the listed cause being 20 “suspension of building permit.” Id. at ¶ 40. 21 Plaintiff believed that the OSW and the suspension of his Permit were unlawful. He 22 informed the Town of his belief that the Town could not lawfully suspend his Permit without prior 23 notice and hearing. Id. at ¶ 43. The Town responded by stating that Plaintiff could appeal the 24 suspension of the Permit to the Town Council, but Plaintiff alleges that the Fairfax Town Code 25 does not provide for an appeal process. Id. Based on his belief that the permit suspension was 26 unlawful, Plaintiff resumed construction on August 23, 2023. Id. at ¶ 45. On August 25, 2023, 27 Defendants caused a police offer to arrive at the Property, who informed Plaintiff’s employees that 1 lay off his work crew and stop construction. Id. at ¶ 48. 2 On August 28, 2023, Plaintiff filed a writ of mandamus action in state court (Marin County 3 Superior Court Case No. CV0000737).4 Id. at ¶ 50. On October 31, 2023, the court found that 4 “the Town owed a mandatory duty to provide Friedman with a hearing before suspending the 5 Permit,” and ordered that the suspension of the Permit and the second OSW be set aside. Id. The 6 Town failed to set aside the OSW. Id. at ¶¶ 50, 54. 7 On January 11, 2024, the Planning Commission held a hearing on Plaintiff’s Permit and 8 suspended it until May 5, 2024. Id. at ¶¶ 54-57. At the hearing, Plaintiff was not given the 9 opportunity to compel the testimony of witnesses or cross-examine witnesses. Id. at ¶ 55. 10 Additionally, attorneys from the same law firm represented Town staff who were advocating for 11 suspension of the permit as well as the Planning Commission that was deciding on the suspension, 12 which Plaintiff argues created the appearance of bias. Id. at ¶ 56. On January 16, 2024, Plaintiff 13 attempted to appeal the Planning Commission’s decision, but Linda Neal refused to accept the 14 appeal. Id. at ¶ 58. The Town later represented that the temporary suspension of the Permit was 15 an “unappealable” decision. Id. at ¶ 60. Instead, Plaintiff was informed that the Town Council 16 would hold a hearing on the suspension of the Permit as a “directed referral.” Id. at ¶ 61. Plaintiff 17 contends that the Town Council has no jurisdiction to take a directed referral in this instance. Id. 18 On February 29, 2024, the Town Council heard the directed referral. Id. at ¶ 62. At that 19 hearing, Plaintiff was again not given the opportunity to compel the testimony of witnesses or 20 cross-examine witnesses. Id. at ¶ 63. Janet Coleson, an attorney representing the Town staff who 21 advocated for suspension of the permit, also acted as a legal advisor to the Town Council. Id. 22 Although not clearly stated in the FAC, Plaintiff’s counsel confirmed at oral argument that the 23 Permit was revoked at the February 2024 hearing. Plaintiff argues that both the January 11, 2024 24 and February 29, 2024 hearings violated due process. 25 26 4 The Marin County Superior Court’s order is attached to the original complaint as Exhibit 15. As 27 stated above, this court will not consider the order because Plaintiff did not attach it to the FAC B. Procedural History 1 Plaintiff filed the complaint on January 22, 2024. [Docket No. 1.] He filed the FAC on 2 March 19, 2024. The FAC asserts six claims: 1) violation of the Fifth Amendment for a taking of 3 property without due compensation against Fairfax Defendants; 2) violations of the Fifth and the 4 Fourteenth Amendments under 42 U.S.C. section 1983 against all Defendants; 3) inverse 5 condemnation under article I, section 19 of the California Constitution against Fairfax Defendants; 6 4) negligence against all Defendants; 5) writ of mandate against Fairfax Defendants; and 6) 7 violation of California Civil Code section 52.1 against all Defendants. FAC ¶¶ 66-116. 8 Defendants filed this motion to dismiss on April 2, 2024.5 Plaintiff opposes. [Docket No. 9 25 (Opp’n).] Defendants filed a reply. [Docket No. 27 (Reply).] 10 II. LEGAL STANDARDS 11 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 12 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 13 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 14 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 15 (per curiam) (citation omitted), and may dismiss a claim “only where there is no cognizable legal 16 theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to 17 relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 18 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 19 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged 22 must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of 23 a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing 24 Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 25

26 5 Defendant filed a request for judicial notice of sections of the Fairfax Town Code, sections of the California Building Code, resolutions signed by the Town, minutes from a September 13, 2023 27 Town Council meeting, a Planning Commission staff report from the January 11, 2024 hearing, 1 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2 2002). 3 As a general rule, a court may not consider “any material beyond the pleadings” when 4 ruling on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted). 5 However, “a court may take judicial notice of ‘matters of public record,’ ” id. at 689 (citing Mack 6 v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents 7 whose contents are alleged in a complaint and whose authenticity no party questions, but which 8 are not physically attached to the pleading,” without converting a motion to dismiss under Rule 12(b)(6) into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 9 1994), overruled on other grounds by Galbraith, 307 F.3d at 1125-26. The court need not accept 10 as true allegations that contradict facts which may be judicially noticed. See Mullis v. U.S. Bankr. 11 Court, 828 F.2d 1385, 1388 (9th Cir. 1987). 12 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 13 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 14 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 15 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 16 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 17 2003) (quotation omitted). However, leave to amend may be denied where the complaint “could 18 not be saved by any amendment,” i.e., “where the amendment would be futile.” Thinket Ink Info. 19 Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). 20 III. DISCUSSION 21 A. The Fifth Amendment Takings Clause 22 The FAC alleges two types of takings: 1) each time the Town issued an OSW; and 2) each 23 time the Town suspended the Permit.6 FAC ¶¶ 67-68. Defendants argue that Plaintiff has failed to 24 allege a claim under the Fifth Amendment Takings Clause. Mot. 14-18. 25 Plaintiff brings this claim against all three Fairfax Defendants (the Town, Inspector Office, 26

27 6 The FAC also appears to allege that the Town’s refusal to accept Plaintiff’s appeal of the second 1 and Planning Commission). However, the FAC fails to identify the actions taken by each specific 2 Defendant which would make them liable under the Fifth Amendment. The parties’ briefs were 3 also unclear on this point and only discussed actions taken by the Town. For this order, the court 4 construes the FAC as alleging a takings claim against the Town. 5 1. Vested Property Interest 6 The Fifth Amendment Takings Clause provides: “ . . . nor shall private property be taken 7 for public use, without just compensation.” U.S. Const. amend. V. “In order to state a claim 8 under the Takings Clause, a plaintiff must first demonstrate that he possesses a ‘property interest’ 9 that is constitutionally protected. . . . Only if he does indeed possess such an interest will a 10 reviewing court proceed to determine whether the expropriation of that interest constitutes a 11 ‘taking’ within the meaning of the Fifth Amendment.” Schneider v. California Dep't of Corr., 151 12 F.3d 1194, 1198 (9th Cir. 1998). 13 Plaintiff alleges that by issuing the OSWs and suspending the Permit, the Town took his 14 Permit and his Property without just compensation. FAC ¶ 67. Defendants do not dispute that 15 Plaintiff has a property interest in the Property. However, they argue that Plaintiff had no property 16 interest in maintaining his Permit after exceeding its scope. Mot. 14-15. They assert that the 17 Town had the right to stop work and suspend the Permit without compensation because Plaintiff 18 concededly violated its terms. Id. 19 The Supreme Court held that “intangible interests” such as permits can be property for 20 purposes of the Takings Clause. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984). The 21 existence of a property right in an intangible interest is a question of state law. Id.; see also 22 Vandevere v. Lloyd, 644 F.3d 957, 963 (9th Cir. 2011) (“whether a property right exists in the 23 entry permits [] is a question of state law”) (emphasis in original). “When presented with a 24 question of state law, including a question as to the existence or extent of a property right, we 25 must apply a relevant decision by the state’s highest court.” Vandevere, 644 F.3d at 966. The 26 court turns to California law to determine if Plaintiff has a property right in the Permit. 27 The California Supreme Court held that “if a property owner has performed substantial 1 government, he acquires a vested right to complete construction in accordance with the terms of 2 the permit.” Avco Cmty. Devs., Inc. v. S. Coast Reg’l Com., 17 Cal. 3d 785, 791 (1976). The 3 property owner’s interest in building a structure vests after acquiring a permit to build that 4 structure. Id. at 797. In Avco, the petitioner argued it had a vested interest in building a structure 5 even before acquiring a building permit. Id. at 795. It posited that the building permit should not 6 be necessary because it had already obtained all of the “discretionary” government approvals 7 necessary to build the structure, and at that point, the issuance of the building permit was “merely 8 a ministerial act.” Id. at 795. The Court rejected this argument. “A landowner which has not 9 even applied for a permit cannot be in a better position merely because it had previously received 10 permission to subdivide its property and made certain improvements on the land.” Id. The Court 11 found that even though the petitioner reasonably expected it would be able to construct the 12 buildings based on the previously granted approvals and had made substantial investments for this 13 purpose, it failed to secure “a vested right to build structures which the county did not approve and 14 as to which it had no detailed information.” Id. at 797. The Court further determined that work 15 previously undertaken on a structure cannot form the basis of a “vested right to build a structure 16 which does not comply with the laws applicable at the time a building permit is issued.” Id. at 17 793. In a later case, the California Supreme Court cited Avco and noted: “[i]t is well established 18 that the rights which may ‘vest’ through reliance on a government permit are no greater than those 19 specifically granted by the permit itself.” Santa Monica Pines, Ltd. v. Rent Control Bd., 35 Cal. 20 3d 858, 866 (1984). 21 Here, Plaintiff has not pleaded a vested interest in the Permit because as the FAC makes 22 clear, Plaintiff changed the Project in a way that did not comply with the Permit as it was issued. 23 FAC ¶ 24. The terms of the Permit include this provision: “Any changes . . . made to the 24 approved set of plans will require a modification of Application # 21-17. Modifications that do 25 not significantly change the project . . . may be approved by the Planning Director. Any 26 construction based on job plans that have been altered without the benefit of an approved 27 modification of Application 21-17 will result in the job being immediately stopped and red 1 Plaintiff performed substantial work under the Permit, he has no vested right in the Permit because 2 he admittedly exceeded its scope. 3 Plaintiff disputes that his deviations from the approved plan amounted to violations of the 4 terms of the Permit. According to Plaintiff, he was entitled to make changes without prior 5 approval under the California Building Standards Code, because the law “contemplates changes 6 being submitted at the conclusion of the work, not . . . before any minor change is made.” Opp’n 7 6-7 (emphasis in original). Plaintiff cites Building Code § 107.4, which says: “any changes made 8 during construction that are not in compliance with the approved construction documents shall be 9 resubmitted for approval as an amended set of construction documents.”7 This language does not 10 support Plaintiff’s argument. The Building Code does not state that Plaintiff has the right to wait 11 until he completes all construction before submitting any changes for approval. Indeed, such a 12 rule would be absurd—the point of submitting changes for approval is to determine if the changes 13 should be built or not. It makes no sense to require the Town to wait until the structure is already 14 built before it can deny permission to build it. Moreover, California case law precludes Plaintiff’s 15 argument. A property owner has no vested right in a building project which the county “did not 16 approve” and “had no detailed information” about, see Avco, 17 Cal. 3d at 791, and vested rights 17 in a permit are “no greater than those specifically granted by the permit itself,” see Santa Monica 18 Pines, 35 Cal. 3d at 866. 19 Plaintiff next argues that Defendants should be estopped from challenging the unapproved 20 changes because Plaintiff continued to work on the Project in detrimental reliance on Lockaby’s 21 statements and actions. Opp’n 7. “Unlike the vested rights doctrine, estoppel can sometimes be 22 used to force a local agency to allow compliance with an otherwise unlawful permit.” Attard v. 23 Bd. of Supervisors of Contra Costa Cnty., 14 Cal. App. 5th 1066, 1079 (2017). “The doctrine of 24 equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may 25 not deny the existence of a state of facts if he intentionally led another to believe a particular 26

27 7 The 2022 Building Code section 107 can be accessed at: 1 circumstance to be true and to rely upon such belief to his detriment.” City of Goleta v. Superior 2 Ct., 40 Cal. 4th 270, 279 (2006) (quoting Strong v. County of Santa Cruz, 15 Cal. 3d 720, 725 3 (1975)). “Equitable estoppel ‘will not apply against a governmental body except in unusual 4 instances when necessary to avoid grave injustice and when the result will not defeat a strong 5 public policy.’” Id. (quoting Hughes v. Board of Architectural Examiners, 17 Cal. 4th 763, 794 6 (1998)). 7 Plaintiff has not established the elements of estoppel, particularly against a governmental 8 body. “The elements of the doctrine are that (1) the party to be estopped must be apprised of the 9 facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party 10 asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant 11 of the true state of facts; and (4) he must rely upon the conduct to his injury.” Id. Plaintiff alleges 12 that Lockaby found out about the unapproved changes in June 2023, that Lockaby told Plaintiff he 13 could continue to work on the Project, and that Plaintiff did continue to work on the Project. 14 Opp’n 7; FAC ¶¶ 25, 31. However, the FAC makes clear that Lockaby also told Plaintiff to obtain 15 approval for the disputed changes and to not complete any further work on the changes until 16 approved. FAC ¶ 25. Plaintiff never alleges that he stopped working on the changes or that he 17 submitted the changes for approval. In fact, the FAC states that he “asserted his right to continue 18 construction and submit the minor changes to the plan at the conclusion of the Project,” in direct 19 opposition to Lockaby’s request. Id. at ¶ 26. Plaintiff cannot plead equitable estoppel by 20 engaging in selective hearing. Plaintiff has not pleaded detrimental reliance. 21 Finally, Plaintiff argues he retained a vested interest in the Permit because the Town did 22 not follow due process when it suspended the Permit. Opp’n 7. As discussed below, due process 23 rights are distinct from property rights under the Fifth Amendment.8 24 8 Plaintiff’s cited authority does not support his position. In Trans-Oceanic Oil Corp. v. City of 25 Santa Barbara, 85 Cal. App. 2d 776 (1948), the court first found that the plaintiff retained a vested interest in the permit, and then separately found that the revocation of the permit violated due 26 process. Contrary to Plaintiff’s argument, the case does not stand for the proposition that the violation of due process in itself would be enough to state a takings claim. Indeed, the court stated 27 that due process is its own standard which could apply even if there were no vested interest in the 1 In sum, Plaintiff has failed to plausibly allege he has a vested interest in the Permit and 2 amendment is futile. Therefore, Plaintiff’s takings theory based on a vested interest in the Permit 3 is dismissed without leave to amend. 4 At oral argument, Plaintiff appeared to assert a new theory that he has a vested right in 5 constructing just the portions of the Project that were approved in the Permit. Plaintiff failed to 6 coherently allege this in the FAC, brief it in his opposition, or explain it during the hearing. Given 7 Plaintiff’s failure to flesh out this theory, the court cannot currently determine that amendment 8 would be futile. Therefore, Plaintiff is granted leave to amend his complaint to clearly plead this 9 new theory if he wishes to pursue it. 10 2. Regulatory Taking 11 The parties do not dispute that Plaintiff has a property interest in the real property located 12 at 79 Wood Lane in Fairfax, CA. Plaintiff argues this Property was taken from him without just 13 compensation when the Town suspended the Permit, because the Town’s action deprived Plaintiff 14 of all economic value in the Property. Opp’n 5-11. 15 The classic example of a taking is when the “government directly appropriates private 16 property or ousts the owner from his domain.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 17 (2005). This is a “per se” taking. CDK Glob. LLC v. Brnovich, 16 F.4th 1266, 1281 (9th Cir. 18 2021) (citing Cedar Point Nursery v. Hassid, 594 U.S. 139, 149 (2021)). The Supreme Court has 19 also recognized that “if regulation goes too far it will be recognized as a taking.” Bridge Aina 20 Le'a, LLC v. Land Use Comm'n, 950 F.3d 610, 625 (9th Cir. 2020) (quoting Pa. Coal Co. v. 21 Mahon, 260 U.S. 393, 415 (1922)). Plaintiff advances two theories of regulatory taking. The first 22 is based on the Lucas rule, under which a taking exists where “regulation denies all economically 23 beneficial or productive use of land.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). 24 Plaintiff’s second theory is under the Penn Central balancing test, where the court weighs several 25 factors to determine if economic injuries caused by public action should be compensated by the 26 government. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). 27 a. Lucas 1 economically beneficial use of land is permitted.’ . . . Compensation is required in such a case 2 unless the government can show that underlying principles of state property or nuisance law 3 would have led to the same outcome as the challenged regulation.” Bridge Aina Le'a, 950 F.3d at 4 626 (citing Lucas, 505 U.S. 1003, 1017). “Anything less than a ‘complete elimination of value,’ 5 or a ‘total loss’ . . . would require the kind of analysis applied in Penn Central.” Tahoe-Sierra 6 Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 535 U.S. 302, 330 (2002) (citing Lucas, 505 U.S. 7 at 1019–1020). 8 Plaintiff argues that the Property has been rendered valueless because it “has upon it a half- 9 built home,” and Plaintiff has “no ability to build a home there until the Town acts and reinstates 10 his Permit (or otherwise acts to allow him to construct or complete his home).” Opp’n 8-9. This 11 is far from a “complete elimination of value.” Tahoe-Sierra, 535 U.S. at 330. Essentially Plaintiff 12 argues that “the inability to pursue a particular development and to obtain its value [is] a total 13 taking,” a view which the Ninth Circuit has expressly rejected. See Bridge Aina Le'a, 950 F.3d at 14 630. 15 The Lucas rule does not apply. As such, the court does not reach Defendants’ other 16 arguments on this issue. 17 b. Penn Central 18 “There is no set formula for determining when an economic injury occasioned by 19 regulation must be compensated by government.” Am. Sav. & Loan Ass'n v. Marin Cnty., 653 20 F.2d 364, 368 (9th Cir. 1981). The Supreme Court has identified several factors that are 21 “particularly significant in determining whether a regulation effects a taking,” including “the 22 regulation’s economic impact on the claimant, the extent to which it interferes with distinct 23 investment-backed expectations, and the character of the government action.” Lingle, 544 U.S. at 24 528–29. These first two factors are the “primary factors” in applying the Penn Central balancing 25 test. Bridge Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610, 630 (9th Cir. 2020). 26 Plaintiff asserts that all three factors weigh toward finding a regulatory taking. First, 27 Plaintiff argues that he lost “nearly all economic value from the Property for the period of time of 1 expectation to “procure a Permit to achieve the construction of a home,” and an expectation that 2 “the Town would follow its own laws and procedures.” Id. at 10. Third, he asserts that the 3 suspension of his Permit and the order to stop work “affects only [Plaintiff] and precludes him 4 from completing any further work on the Property,” which is the equivalent of a physical 5 appropriation. Id. 6 Plaintiff has failed to plausibly plead a regulatory taking under Penn Central. First, 7 Plaintiff’s allegations regarding economic impact are conclusory. See, e.g., FAC ¶ 48 (OSW 8 “delayed the Project completion date and increased the cost of completing the Project”); ¶ 67 9 (Plaintiff “lost all economic value in that property when he could no longer construct a home on 10 the Property”). “[E]conomic impact is determined by comparing the total value of the affected 11 property before and after the government action.” Colony Cove Properties, LLC v. City of 12 Carson, 888 F.3d 445, 451 (9th Cir. 2018). Plaintiff has not alleged the pre-deprivation value or 13 the post-deprivation value of the Property as a whole. If Plaintiff is trying to base his regulatory 14 taking theory solely on the economic impact on the Project due to loss of the Permit, that is 15 insufficient. Where “an owner possesses a full ‘bundle’ of property rights, the destruction of one 16 ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.” Id. at 17 450 (citing Andrus v. Allard, 444 U.S. 51, 65–66 (1979)). The right to build the Project is only 18 one of the many rights Plaintiff has in his land. Plaintiff has not alleged, for example, that he 19 cannot sell the land, build other structures on it, or use it for any other purpose. Diminution of 20 value is a high standard to meet in the regulatory taking context, and Plaintiff falls far short of the 21 bar. See, e.g., MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1127 (9th Cir. 2013) 22 (finding that an 81% diminution in value was not sufficient economic loss to show a regulatory 23 taking). 24 Even if Plaintiff were able to plead sufficient economic impact, the Supreme Court has 25 “uniformly reject[ed] the proposition that diminution in property value, standing alone, can 26 establish a ‘taking.’” Penn Central, 438 U.S. at 131. The second Penn Central factor examines 27 whether a distinct investment-backed expectation was entirely frustrated by the government 1 must be objectively reasonable.” Colony Cove Properties, LLC v. City of Carson, 888 F.3d 445, 2 452 (9th Cir. 2018). This means the expectation must be “more than a ‘unilateral expectation or 3 an abstract need.’” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005–06 (1984) (quoting Webb’s 4 Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)). In addition, the court 5 considers “the regulatory environment at the time of the acquisition of the property.” Bridge Aina 6 Le’a, 950 F.3d at 634 (quoting Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 7 1345 (Fed. Cir. 2018)). Here, Plaintiff makes a bare-bones assertion that he had an investment- 8 backed expectation to “procure a Permit to achieve the construction of a home.” Opp’n 10. This 9 ignores that the terms of the Permit expressly granted the Town authority to stop construction if 10 the construction deviated from the approved plans. Permit Terms A1.2A § 15. Plaintiff admits he 11 made unauthorized changes to his construction plans. FAC ¶ 24. Plaintiff’s belief that he could 12 continue to benefit from the Permit even if he made unauthorized changes to the plans is a 13 unilateral assumption, not an objectively reasonable expectation. 14 Finally, the suspension and eventual revocation of Plaintiff’s building permit cannot be 15 characterized as a “physical invasion by the government,” because the government was not 16 acquiring resources to “facilitate a uniquely public function.” See Penn Central, 438 U.S. at 128 17 (citing United States v. Causby, 328 U.S. 256 (1946), in which the government destroyed the use 18 of claimant’s land as a private chicken farm so that the airspace above the land could be used for 19 flying government planes). The Town did not attempt to acquire or use any part of Plaintiff’s 20 property for a public function. Rather, the government action in this case more resembles a 21 “public program adjusting the benefits and burdens of economic life to promote the common 22 good.” See Penn Central, 438 U.S. at 124.9 23 9 Plaintiff also argues that the character of the permit suspension was like a physical taking 24 because it affected only Plaintiff. This resembles a substantive due process argument—that the 25 land use regulation arbitrarily singled him out—making it inappropriate for a takings analysis. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540 (2005) (finding that “an inquiry in the nature of a 26 due process” test has “no proper place in our takings jurisprudence”). Besides, “[l]egislation designed to promote the general welfare commonly burdens some more than others.” Penn 27 Central, 438 U.S. at 133. For example, “zoning laws often affect some property owners more 1 Plaintiff cannot plausibly plead a regulatory taking. Plaintiff’s takings claim with regard to 2 the Property is dismissed without leave to amend. 3 B. Section 1983 4 Plaintiff asserts a section 1983 claim under four theories: (1) violation of the Takings 5 Clause of the Fifth Amendment, (2) violation of substantive due process under the Fourteenth 6 Amendment; (2) violation of procedural due process under the Fourteenth Amendment; and (3) 7 violation of equal protection under the Fourteenth Amendment. FAC ¶¶ 73-82. He alleges that 8 Neal, Lockaby, and the Planning Commission were acting under color of law. Id. at ¶ 74. He also 9 alleges that Defendants acted pursuant to “a policy or custom of [the] Town of depriving permit 10 holders of their rights without a hearing through the actions of those with final decision making 11 authority,” and that the Town failed to property train its personnel and the Planning Commission in how and when to how and when to suspend building permits, issue OSWs and green tags, and 12 accept appeals. Id. at ¶¶ 80-82. Defendants move to dismiss for failure to state a constitutional 13 violation. Defendants also argue that Plaintiff fails to meet the Monell pleading standards for 14 municipal liability. Mot. 20-22. 15 As with the takings claim, Plaintiff does not identify how each specific Defendant is liable 16 under section 1983. In addition, Plaintiff does not specify which Defendants are subject to Monell 17 liability or under what theory of Monell they would be liable. The parties’ briefs do not elucidate 18 this point. This alone justifies dismissal of the section 1983 claim with leave to amend. To move 19 the case forward, for purposes of this order, the court construes the FAC as alleging a violation of 20 section 1983 by Lockaby as well as municipal liability against the Town. 21 As previously held, Plaintiff fails to state a Fifth Amendment takings claim. The 22 corresponding section 1983 claim is therefore dismissed with limited leave to amend consistent 23 with the court’s rulings on the Takings Clause, above. 24 The court now turns to Plaintiff’s Fourteenth Amendment claims. The Due Process Clause 25 provides that no state may “deprive any person of life, liberty, or property, without due process of 26 law.” U.S. Const., amend. XIV. Plaintiff asserts both procedural and substantive due process 27 claims, as well as a violation of the equal protection clause. 1. Procedural Due Process 1 “A procedural due process claim has two distinct elements: (1) a deprivation of a 2 constitutionally protected liberty or property interest, and (2) a denial of adequate procedural 3 protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 4 1998). 5 The FAC does not specify the “liberty or property interest” allegedly deprived in violation 6 of due process. FAC ¶ 76. Plaintiff’s opposition only discusses his interest in the Permit. 7 Therefore, the court addresses Plaintiff’s procedural due process claim with respect to the 8 suspension of the Permit. 9 As discussed above, Plaintiff has not demonstrated a vested interest in the Permit under the 10 Fifth Amendment. However, “property for purposes of the Due Process Clause can be different 11 from property for purposes of the Takings Clause.” City of Oakland v. Abend, No. C-07-2142 12 EMC, 2007 U.S. Dist. LEXIS 53186, at *13 (N.D. Cal. July 12, 2007); see also Hignell-Stark v. 13 City of New Orleans, 46 F.4th 317, 323 (5th Cir. 2022) (“there’s a big difference between saying 14 that something is property for purposes of procedural due process and saying that it is property for 15 purposes of the Takings Clause”); Pro-Eco v. Bd. of Comm’rs, 57 F.3d 505, 513 (7th Cir. 1995) 16 (“The Due Process Clause . . . recognizes a wider range of interests as property than does the 17 Takings Clause.”). 18 The Due Process Clause protects interests that are “defined by existing rules or 19 understandings that stem from an independent source such as state law—rules or understandings 20 that secure certain benefits and that support claims of entitlement to those benefits.” The Bd. of 21 Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). “Although the underlying 22 substantive interest is created by an independent source such as state law, federal constitutional 23 law determines whether that interest rises to the level of a legitimate claim of entitlement protected 24 by the Due Process Clause.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 757 (2005) 25 (internal quotation marks and citation omitted). “Resolution of the federal issue begins . . . with a 26 determination of what it is that state law provides.” Id. If the state law “imposes significant 27 limitations on the discretion of the decision maker,” then the plaintiff has a legitimate claim of 1 entitlement that triggers constitutional due process rights. Gerhart v. Lake Cty. Mont., 637 F.3d 2 1013, 1019 (9th Cir. 2010). In contrast, a state law that gives the government broad discretion to 3 grant or revoke a permit does not create an entitlement to the permit that warrant due process 4 protections. Id. at 1020. For example, in Groten, the court found that the state licensing agency 5 was required to issue a license if the applicant met certain requirements; the licensing agency had 6 no discretion because the statute used “the mandatory term ‘shall.’” Groten v. California, 251 7 F.3d 844, 850 (9th Cir. 2001)). The court found that a plaintiff who met those requirements had a 8 legitimate claim of entitlement to the license. Id. By contrast, in Bateson, the court found that the 9 municipal ordinance gave the City Council discretion to approve, conditionally approve, or reject 10 a minor plat, so the plaintiff did not have a legitimate claim of entitlement to approval of his minor 11 plat application. Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988). “A person’s belief of 12 entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a 13 property right if that belief is not mutually held by the government.” Gerhart, 637 F.3d at 1020. 14 Neither party briefs whether Plaintiff has sufficiently alleged a claim of entitlement to the 15 Permit that triggers the protection of the Due Process Clause. Instead, they appear to rely on their 16 arguments discussed above regarding vested interests under the Takings Clause. These are not the 17 same thing. Again, it is not the court’s job to figure out the parties’ unstated arguments. As 18 Plaintiff has not presented argument to support that he has alleged a claim of entitlement 19 triggering due process protection, the court grants the motion to dismiss Plaintiff’s due process 20 claims with leave to amend. 21 To move the case forward, the court continues to analyze the merits of Plaintiff’s due 22 process claims by assuming that Plaintiff will be able to plead an interest protected by the Due 23 Process Clause. Plaintiff’s procedural due process claims can be split into three events: 1) the 24 decision to suspend the Permit in August 2023 (FAC ¶¶ 38-42), 2) the January 2024 suspension of 25 the Permit (FAC ¶ 54), and 3) the February 2024 suspension of the Permit (FAC ¶ 62). 26 a. August 2023 Suspension 27 The Supreme Court “consistently has held that some form of hearing is required before an 1 (1976). Plaintiff alleges he was not afforded a hearing before his Permit was suspended in August 2 2023. FAC ¶ 38-39. Defendants argue this issue is “moot” because Defendants subsequently held 3 two hearings on the suspension of Plaintiff’s Permit. Reply 11. However, these were both post- 4 deprivation hearings (one on January 11, 2024, and one on February 29, 2024). FAC ¶¶ 54, 62. 5 Defendants do not address Plaintiff’s damages claim for the initial violation when his Permit was 6 suspended without a pre-deprivation hearing in August 2023. 7 Defendants next cite Hudson v. Palmer, 468 U.S. 517 (1984) for the proposition that 8 “[e]ven intentional deprivations of property rights do not violate procedural due process as long as 9 adequate state post-deprivation remedies are available.” Mot. 20. Defendants misapply Hudson. 10 The Supreme Court has clarified that Hudson does not apply if: “(1) the deprivation of property 11 was not unpredictable, (2) a pre-deprivation process was not impossible and (3) the improper 12 conduct was not ‘unauthorized.’” Mi Pueblo San Jose, Inc. v. City of Oakland, No. C-06-4094 13 VRW, 2006 WL 2850016, at *5 (N.D. Cal. Oct. 4, 2006) (citing Zinermon v. Burch, 494 U.S. 113, 14 129 (1990)). Plaintiff argues he has sufficiently alleged that the Permit suspension was not an 15 unpredictable, unauthorized act, and that a pre-deprivation process was possible. Opp’n 18-19. 16 Defendants do not address this point on reply and thereby concede it. 17 Assuming that Plaintiff can plead a property interest in the Permit that is protected by due 18 process, he has adequately pleaded a procedural due process claim against Lockaby regarding the 19 August 2023 suspension of the Permit. 20 b. Suspensions After January February 2024 Hearings 21 Plaintiff asserts that the January and February 2024 hearings also violated due process. 22 Specifically, he argues that at each of these hearings, he did not have the right to “confront and 23 cross-examine witnesses,” and there was “an unreasonable risk of appearance of bias” in the 24 tribunal. Opp’n 17-18. 25 “The fundamental requirement of due process is the opportunity to be heard ‘at a 26 meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (citing Armstrong v. 27 Manzo, 380 U.S. 545, 552 (1965)). Due process “is not a technical conception with a fixed 1 procedural protections as the particular situation demands.” Id. at 334 (citing Cafeteria Workers v. 2 McElroy, 367 U.S. 886, 895 (1961); Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The court 3 considers three factors to determine whether procedures were sufficient: “First, the private interest 4 that will be affected by the official action; second, the risk of an erroneous deprivation of such 5 interest through the procedures used, and the probable value, if any, of additional or substitute 6 procedural safeguards; and finally, the Government’s interest, including the function involved and 7 the fiscal and administrative burdens that the additional or substitute procedural requirement 8 would entail.” Id. at 335. 9 Plaintiff asserts that due process required the right to cross-examine witnesses for the 10 January and February 2024 hearings. FAC ¶¶ 55, 62. He cites Goldberg, which states: “In almost 11 every setting where important decisions turn on questions of fact, due process requires an 12 opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 13 269 (1970). Goldberg does not propose a bright-line rule. The fundamental inquiry for due 14 process depends on the three factors identified in Mathews: the private interest affected, the risk of 15 an erroneous deprivation, and the government’s interest. Mathews, 424 U.S. at 335. Here, the 16 FAC does not support a reasonable inference that the January and February 2024 hearings 17 involved important decisions that turned on questions of fact. Therefore, it is not clear that due 18 process required the opportunity for Plaintiff to cross-examine witnesses at either hearing. 19 Plaintiff also contends that he was deprived of a fair hearing in both instances because of 20 an appearance of bias. He alleges that attorneys from the same law firm represented both the party 21 advocating for suspension of the permit and the supposedly neutral arbitrator. Id. at ¶ 56t. FAC 22 ¶¶ 56, 63. “[A] ‘fair trial in a fair tribunal is a basic requirement of due process.’” Withrow v. 23 Larkin, 421 U.S. 35, 46 (1975) (citing In re Murchison, 349 U.S. 133, 136 (1955)). “In pursuit of 24 this end, various situations have been identified in which experience teaches that the probability of 25 actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” 26 Id. at 47. The parties only cite California cases finding that the sharing of an attorney between an 27 advocate and the decisionmaker creates the appearance of bias such that due process is violated. 1 binding on us.” William Jefferson & Co. v. Bd. of Assessment & Appeals No. 3 ex rel. Orange 2 Cnty., 695 F.3d 960, 963 (9th Cir. 2012). Under federal law, the standard governing this type of 3 claim may well be different. See id. (rejecting the plaintiff’s arguments because “even if there 4 were some evidence that [the Board’s legal advisor] was biased . . . that evidence might not be 5 sufficient to conclude that the adjudicating body—the Board itself—was biased”); see also 6 Diamond S.J. Enter., Inc. v. City of San Jose, 395 F. Supp. 3d 1202, 1236 (N.D. Cal. 2019), aff’d, 7 100 F.4th 1059 (9th Cir. 2024). At oral argument, neither party was able to explain why the court 8 should rely on state court cases in deciding this issue of federal law. The court will not expend its 9 resources analyzing issues the parties failed to analyze themselves. 10 The section 1983 claim for violation of procedural due process regarding the January and 11 February 2024 hearings is dismissed with leave to amend. 12 2. Substantive Due Process 13 As discussed above, Plaintiff has not presented argument to support that he has pleaded a 14 property interest triggering due process protection. See Gerhart, 637 F.3d at 1019. Again, to 15 move the case forward, the court analyzes Plaintiff’s substantive due process claim by assuming 16 he can plead a legitimate claim of entitlement. 17 As a threshold matter, Defendants argue that Plaintiff’s substantive due process claim is 18 “subsumed” by his takings claim. Mot. 18. The Fifth Amendment precludes a due process 19 challenge “only if the alleged conduct is actually covered by the Takings Clause. . . . [A] claim of 20 arbitrary action is not such a challenge.” Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 21 851, 855 (9th Cir. 2007). Plaintiff brings a due process challenge against the arbitrariness of 22 Defendants’ conduct; this claim is not subsumed by the takings claim. See FAC ¶ 78 (“[T]he 23 suspension of the Permit, and the refusal to issue the green tag . . . were arbitrary and 24 unreasonable.”). 25 A “regulation that fails to serve any legitimate governmental objective may be so arbitrary 26 or irrational that it runs afoul of the Due Process Clause.” Ballinger v. City of Oakland, 398 F. 27 Supp. 3d 560, 575 (N.D. Cal. 2019), aff’d, 24 F.4th 1287 (9th Cir. 2022) (quoting Lingle v. 1 “extremely high.” Richardson v. City & Cnty. of Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997). 2 “When executive action like a discrete permitting decision is at issue, only ‘egregious official 3 conduct can be said to be arbitrary in the constitutional sense’: it must amount to an ‘abuse of 4 power’ lacking any ‘reasonable justification in the service of a legitimate governmental 5 objective.’” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (quoting Cnty. of Sacramento 6 v. Lewis, 523 U.S. 833, 846 (1998)). 7 Plaintiff argues that the suspension of his Permit and refusal to issue the Green Tag were 8 arbitrary because he had “worked in compliance with the issued Permit, applied to make changes 9 to the Project in compliance with the law and received assurances from Lockaby that he could 10 continue to work on the Project.” Opp’n 19. Nowhere in the FAC does it state that Plaintiff ever 11 applied to make changes to the Project in accordance with Lockaby’s request. FAC ¶¶ 24-26, 31. 12 In addition, it appears that Plaintiff made unapproved changes to the Project, which would violate 13 the issued Permit. On a motion to dismiss, Plaintiff must clearly allege facts from which the court 14 may draw a reasonable inference that Defendants’ actions had no “legitimate governmental 15 objective,” such as bringing Plaintiff into compliance with the terms of the Permit. See Ballinger, 16 398 F. Supp. 3d at 575. Plaintiff’s section 1983 claim for violation of substantive due process is 17 dismissed with leave to amend. 18 3. Equal Protection 19 The FAC alleges an equal protection claim on grounds that “[t]he actions of 20 [Defendants]10, the suspension of the Permit, and the refusal to issue the green tag” were taken “in 21 retaliation” of Plaintiff exercising his rights. FAC ¶ 79. “The Equal Protection Clause of the 22 Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction 23 the equal protection of the laws,’ which is essentially a direction that all persons similarly situated 24 should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) 25 (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Typically, claims under the Equal Protection 26

27 10 Once again, Plaintiff does not explain which Defendants violated his equal protection rights, or 1 Clause challenge “governmental classifications that ‘affect some groups of citizens differently 2 than others.’” Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601 (2008) (quoting McGowan v. 3 Maryland, 366 U.S. 420, 425 (1961)). 4 Plaintiff argues a “class-of-one” theory of equal protection, which does not depend on a 5 suspect classification such as race or gender. Instead, a class-of-one claim arises where the 6 plaintiff alleges that a state or local government “(1) intentionally (2) treated [plaintiff] differently 7 than other similarly situated [individuals or groups], (3) without a rational basis.” Seaplane 8 Adventures, LLC v. Cnty. of Marin, 71 F.4th 724, 729 (9th Cir. 2023) (quoting Gerhart v. Lake 9 Cnty., 637 F.3d 1013, 1022 (9th Cir. 2011)). “[T]he rational basis prong of a ‘class of one’ claim 10 turns on whether there is a rational basis for the distinction, rather than the underlying government 11 action.” Id. at 730 (emphasis in original) (internal quotation marks and citation omitted).11 12 Plaintiff has not alleged a class-of-one claim because the FAC does not identify a 13 “similarly situated” group or individual treated differently by Defendants. Individuals or groups 14 “allegedly treated differently in violation of the Equal Protection Clause are similarly situated only 15 when they are ‘arguably indistinguishable.’” Erickson v. County of Nevada ex rel. Bd. of 16 Supervisors, 607 F. App’x 711, 712 (9th Cir. 2015) (quoting Engquist v. Or. Dep't of Agric., 553 17 U.S. 591, 601 (2008)). Plaintiff asserts that he has been treated differently than “other permit 18 holders in Fairfax.” Opp’n 21; FAC ¶ 46. But the FAC does not plausibly allege that Plaintiff is 19 “arguably indistinguishable” from other Fairfax permit holders. The FAC recognizes that Plaintiff 20 made unapproved changes to his construction plans, and apparently refused to comply with 21 Lockaby’s request to submit his new plans to the Planning Commission. FAC ¶¶ 24-26. Under 22 such circumstances, a rational basis exists for Defendants to treat Plaintiff differently than other 23 Fairfax permit holders who fully comply with the terms of their permits. 24

25 11 Plaintiff cites Duperrault for his argument that an equal protection claim may be stated where the plaintiff has shown “deep-seated animosity,” such as when “a powerful public official pick[s] 26 on a person out of sheer vindictiveness,” or when an official acts “for the sole and exclusive purpose of exacting retaliation and vengeance against” the plaintiff. Bell v. Duperrault, 367 F.3d 27 703, 709 (7th Cir. 2004) (citing Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1995)). Duperrault 1 Plaintiff bears a heavy burden even at the pleading stage to address each rational basis for 2 differential treatment. See Madden v. Commonwealth of Kentucky, 309 U.S. 83, 88 (1940) (“The 3 burden is on the one attacking the legislative arrangement to negative every conceivable basis 4 which might support it”). Plaintiff makes only a conclusory assertion that he, “out of 5 vindictiveness,” was treated “differently than all other permit holders.” This falls far short. 6 Plaintiff’s equal protection claim is dismissed with leave to amend. 7 4. Monell Liability 8 As previously stated, the court construes Plaintiff’s FAC as bringing a Monell claim 9 against the Town, and only reaches arguments pertaining to that claim. A municipality may face 10 section 1983 liability if it “‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be 11 subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 12 436 U.S. at 692). A municipality may be held liable “only for ‘[its] own illegal acts.’” Id. 13 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). It cannot be held vicariously liable 14 for its employees’ actions. Id. (citations omitted). To establish municipal liability, plaintiffs 15 “must prove that ‘action pursuant to official municipal policy’ caused their injury.” Id. (quoting 16 Monell, 436 U.S. at 691). “The ‘official policy’ requirement was intended to distinguish acts of 17 the municipality from acts of employees of the municipality, and thereby make clear that 18 municipal liability is limited to action for which the municipality is actually responsible.” 19 Pembaur, 475 U.S. at 479-80 (emphasis in original). Official municipal policy includes “the 20 decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so 21 persistent and widespread as to practically have the force of law.” Connick, 563 U.S. at 61 22 (citations omitted). Such policy or practice must be a “moving force behind a violation of 23 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 24 Monell, 436 U.S. at 694). An official municipal policy may be either formal or informal. City of 25 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (acknowledging that a plaintiff could show that 26 “a municipality’s actual policies were different from the ones that had been announced.”). 27 In the Ninth Circuit, a municipality may be liable under section 1983 under three possible 1 “execution of a government’s policy or custom, whether made by its lawmakers or by those whose 2 edicts or acts may fairly be said to represent official policy, inflict[ed] the injury.” Id. (quoting 3 Monell, 436 U.S. at 694). Second, “a local government can fail to train employees in a manner 4 that amounts to ‘deliberate indifference’ to a constitutional right, such that ‘the need for more or 5 different training is so obvious, and the inadequacy so likely to result in the violation of 6 constitutional rights, that the policymakers of the city can reasonably be said to have been 7 deliberately indifferent to the need.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 8 (1989)). Finally, a municipality may be liable under section 1983 if “the individual who 9 committed the constitutional tort was an official with final policy-making authority or such an 10 official ratified a subordinate’s unconstitutional decision or action and the basis for it.” Id. at 802- 11 03 (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013) (internal quotation 12 marks and citation omitted)). 13 Plaintiff argues that the Town may be held liable for a section 1983 violation under all 14 three Monell theories. First, he asserts that an official with final policymaking authority either 15 caused the constitutional tort or ratified a subordinate’s constitutional tort. He argues that 16 Lockaby is an official with final policymaking authority, making the Town liable for his actions. 17 Opp’n 14. He also argues that the Planning Commission has final decision-making authority, so 18 the Town is liable for the Planning Commission’s actions as well as any actions it ratified. Id. 19 “Whether a particular official has final policy-making authority is a question of state law.” 20 Jessen v. Cnty. of Fresno, 808 F. App’x 432, 435 (9th Cir. 2020). Lockaby was acting pursuant to 21 California Building Code 105.6, which grants the building official authority to suspend or revoke 22 a permit. FAC ¶ 38. However, “[t]he fact that a particular official—even a policymaking 23 official—has discretion in the exercise of particular functions does not, without more, give rise to 24 municipal liability based on an exercise of that discretion. . . . The official must also be 25 responsible for establishing final government policy respecting such activity before the 26 municipality can be held liable.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82 (1986). 27 The allegation that Lockaby had authority to suspend or revoke a permit does not support an 1 Plaintiff also asserts that the Planning Commission had final policymaking authority, but 2 cites nothing to support this conclusion. Moreover, to the extent Plaintiff contends that the 3 Planning Commission ratified subordinate decisions, Plaintiff has not adequately pleaded the 4 elements of ratification. “To show ratification, a plaintiff must prove that the ‘authorized 5 policymakers approved a subordinate’s decision and the basis for it,’” which accordingly requires, 6 “among other things, knowledge of the alleged constitutional violation.” Christie v. Iopa, 176 7 F.3d 1231, 1239 (9th Cir. 1999) (quoting City of St. Louis v. Paprotnik, 485 U.S. 112, 127 (1988)). 8 To state a Monell claim based on ratification, the complaint must allege that “authorized 9 policymakers” knew of and approved the officials’ actions “before the alleged constitutional 10 violations ceased.” See id. at 1239. Plaintiff has not clearly pleaded what the Planning 11 Commission allegedly ratified, let alone its knowledge of a constitutional violation before the 12 violation had ceased. Opp’n 14 (stating vaguely that the Planning Commission ratified “[a]ny 13 actions taken described in the FAC”). In sum, Plaintiff has not pleaded Monell liability under a 14 final policymaker theory. 15 Plaintiff next asserts that the execution of the government’s policy or custom inflicted the 16 injury. He argues that a “reasonable inference from the FAC is that the Town’s custom is to 17 illegally order the stoppage of work in order to coerce permit holders to submit changes to their 18 plans, even when not required.” Opp’n 14-15. The only supporting fact identified by Plaintiff is 19 the Town’s withholding of the Green Tag, which Town counsel informed Plaintiff’s counsel was a 20 common tactic to “extract concessions from permit holders.” FAC ¶ 33. Plaintiff never alleges 21 that the withholding of the Green Tag caused him to stop work—in fact, he continued to work on 22 the Project for weeks despite not having a Green Tag. Id. at ¶ 34. According to the FAC, Plaintiff 23 stopped work because of the OSW. Plaintiff has not adequately pleaded a “policy or custom” 24 Monell violation. 25 Finally, Plaintiff argues that “the Town failed to adopt clear policies and failed to properly 26 train either its personnel . . . or the Planning Commission in how and when to suspend building 27 permits, issue red and green tags, and/or accept appeals.” Opp’n 15 (citing FAC ¶¶ 32, 73). This 1 on actual or constructive notice that a particular omission in their training program causes city 2 employees to violate citizens’ constitutional rights.” Connick, 563 U.S. at 61. No such allegations 3 are present here. Moreover, Plaintiff has not alleged facts other than his own experience that 4 could have put the Town on notice of a failure in their training program. See Hyde v. City of 5 Willcox, 23 F.4th 863, 875 (9th Cir. 2022) (“an inadequate training policy itself cannot be inferred 6 from a single incident”). 7 Plaintiff has failed to plead Monell liability. The section 1983 claim for municipal liability 8 is dismissed with leave to amend. 9 C. Inverse Condemnation 10 Plaintiff brings a takings claim under the California Constitution article I, section 19. 11 Similar to the Fifth Amendment, the California Constitution states: “Private property may be taken 12 or damaged for a public use and only when just compensation . . . has first been paid to, or into 13 court for, the owner.” Cal. Const. art. I, § 19. 14 “While the Takings Clause of the California Constitution does ‘protect[ ] a somewhat 15 broader range of property values than’ its federal counterpart, the two clauses have generally been 16 interpreted the same by the California Supreme Court.” Wiese v. Becerra, 306 F. Supp. 3d 1190, 17 1198 (E.D. Cal. 2018); see also San Remo Hotel, L.P. v. City & County of San Francisco, 27 Cal. 18 4th 643, 664 (2002) (noting that art. I § 19 of the California Constitution includes damage to 19 property, but that aside from this difference, “we appear to have construed the clauses 20 congruently”). As discussed above, Plaintiff has not pleaded a federal Takings Clause claim. 21 Plaintiff’s inverse condemnation claim under the California Constitution is dismissed with 22 limited leave to amend consistent with the court’s rulings on the federal Takings Clause.12 23 D. Negligence 24 Tort claims against California public employees and entities are governed by statute. Cal. 25 Gov. Code § 815. “The general rule is that an employee of a public entity is liable for his torts to 26

27 12 At oral argument, Plaintiff cited Trans-Oceanic as holding that a violation of due process is 1 the same extent as a private person . . . and the public entity is vicariously liable for any injury 2 which its employee causes . . . to the same extent as a private employer.” Societa Per Azioni De 3 Navigazione Italia v. City of Los Angeles, 31 Cal. 3d 446, 463 (1982); see Cal. Gov. Code § 4 815.2(a). A public entity may be under a “mandatory duty” to protect against particular kinds of 5 injuries, in which case the public entity is liable for injuries of that kind proximately caused by its 6 failure to discharge the mandatory duty. Cal. Gov. Code § 815.6. However, a public employee is 7 immune from liability if the injury resulted from the employee’s “exercise of the discretion vested 8 in [the employee], whether or not such discretion be abused.” Cal. Gov. Code § 820.2. Plaintiff’s negligence claim is based solely on Lockaby’s refusal to issue a Green Tag. 9 FAC ¶ 94. Defendants argue that the Green Tag is a “permit, license, certificate, approval, order, 10 or similar authorization,” and under California statute, public entities and employees are immune 11 from liability for any injury caused by the failure or refusal to issue such authorizations. Cal. Gov. 12 Code §§ 818.4, 821.2. Additionally, Plaintiff fails to plead facts establishing that issuance of a 13 Green Tag is a mandatory duty rather than an exercise of the discretion vested in Lockaby. 14 Plaintiff’s sole response is to cite Cal. Gov. Code § 65589.5(j), which requires written justification 15 before a local agency disapproves a “proposed housing development project” or imposes a 16 condition that the project be developed at a lower density. This statute is clearly inapplicable here. 17 Plaintiff has not alleged that he has proposed a housing development project. 18 Plaintiff’s negligence claim is dismissed without leave to amend. 19 20 E. Writ of Mandate Plaintiff’s fifth claim is under Cal. Civ. Pro. Code § 1085(a), which states: “A writ of 21 mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to 22 compel the performance of an act which the law specially enjoins.” Plaintiff requests that the 23 court compel the Town to issue the Green Tag, reinstate the Permit, and/or accept Plaintiff’s 24 appeal of the January 2024 decision to suspend his Permit. FAC ¶ 108. Defendants argue that the 25 court should decline to exercise supplemental jurisdiction over Plaintiff’s claim for writ of 26 mandate. 27 1 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In this case, the court has 2 original jurisdiction because Plaintiff brings claims under the U.S. Constitution. As such, the 3 court also has supplemental jurisdiction “over all claims that are so related to claims in the action 4 in the action within such original jurisdiction that they form part of the same case or controversy.” 5 28 U.S.C. § 1367(a). A single case or controversy exists for purposes of Section 1367 if the state 6 and federal claims “derive from a common nucleus of operative fact” such that the plaintiff 7 “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. 8 Gibbs, 383 U.S. 715, 725 (1966). 9 However, “federal courts have generally been reluctant to exercise supplemental 10 jurisdiction over claims for writs of mandate under California law.” Fresno Unified Sch. Dist. v. 11 K.U. ex rel. A.D.U., 980 F. Supp. 2d 1160, 1184 (E.D. Cal. 2013). While exercising supplemental 12 jurisdiction is not “prohibited,” mandamus proceedings “are uniquely in the interest and domain of 13 the state courts,” such that “[a] federal court’s exercise of jurisdiction over a state mandamus issue 14 raises serious considerations regarding comity and federalism.” Id. (citing Clemes v. Del Norte 15 County Unified School District, 843 F. Supp. 583, 596 (N.D. Cal. 1994), overruled on other 16 grounds, Maynard v. City of San Jose, 37 F.3d 1396, 1403 (9th Cir. 1994)). “Where a state law 17 claim is inextricably tied to a request for a writ of mandamus, a federal district court appropriately 18 declines supplemental jurisdiction.” Id. at 1184–85. 19 The court declines to exercise supplemental jurisdiction over Plaintiff’s claim for writ of 20 mandamus. As pleaded in the FAC, the legal basis for the writ is unclear, and at oral argument, 21 Plaintiff’s counsel could not cogently explain why the court should retain jurisdiction over it. It is 22 also not clear if adjudicating the writ will raise novel or complex issues of state law. Exercising 23 its discretion under 28 U.S.C. § 1367(c), the court declines to accept supplemental jurisdiction. 24 The claim for writ of mandamus is dismissed without prejudice to Plaintiff seeking relief 25 elsewhere. 26 F. Bane Act 27 Plaintiff’s sixth claim is under California Civil Code Section 52.1, also known as the Bane 1 whether or not acting under color of law, interferes or attempts to interfere, ‘by threat, 2 intimidation, or coercion,’ with the exercise or enjoyment by any individual or individuals of 3 rights secured by state or federal law.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 66 4 (2015), as modified on denial of reh’g (Mar. 6, 2015) (citing Cal. Civ. Code § 52.1(a)). To make a 5 claim under the Bane Act, a plaintiff must show “(1) intentional interference or attempted 6 interference with a state or federal constitutional or legal right, and (2) the interference or 7 attempted interference was by threats, intimidation or coercion.” Id. at 67. 8 Defendants argue that, even if Plaintiff has adequately alleged interference with his 9 protected rights, Plaintiff failed to plead that the interference was by “threats, intimidation or 10 coercion.” Mot. 24-25; Reply 16. Plaintiff responds that he has provided a long list of specific 11 facts which “made [him] fearful that [the Town] would and did deprive him of his rights.” Opp’n 12 23. 13 Plaintiff provides no authority for his assertion that the Bane Act only requires the plaintiff 14 to be “fearful” of a deprivation of rights. The Bane Act makes clear that “[s]peech alone is not 15 sufficient to support an action brought pursuant to [the Act], except upon a showing that the 16 speech itself threatens violence . . . and the person or group of persons against whom the threat is 17 directed reasonably fears that, because of the speech, violence will be committed against them or 18 their property.” Cal. Civ. Code § 52.1(k). None of the examples of Defendants’ speech cited by 19 Plaintiff threaten violence. Nor do they indicate either an intent to interfere with Plaintiff’s rights 20 or coercion beyond the allegedly wrongful conduct itself. See Allen, 234 Cal. App. 4th at 69 21 (dismissing a Bane Act claim where there was “an allegedly unlawful arrest but no alleged 22 coercion beyond the coercion inherent in any arrest”); Cuviello v. City & Cnty. of San Francisco, 23 940 F. Supp. 2d 1071, 1103 (N.D. Cal. 2013) (“a threat of false arrest does not constitute a Bane 24 Act violation of Plaintiffs’ right to be free from false arrest”); Ordonez v. Stanley, 495 F. Supp. 3d 25 855, 866 (C.D. Cal. 2020) (“Plaintiff must allege defendants had a specific intent to violate the 26 rights of plaintiff.”). 27 Plaintiff cannot allege a claim under the Bane Act. This claim is dismissed without leave IV. CONCLUSION 1 As a general matter, Plaintiff’s claims all share a common flaw in that the FAC fails to 2 identify the actions taken by each specific Defendant which would make each of them liable. 3 Plaintiff shall amend the complaint to clearly allege which claims are being brought against each 4 Defendant based on which specific acts. 5 Plaintiff’s Takings Clause, Fifth Amendment, and inverse condemnation claims are 6 dismissed with limited leave to amend to state a claim regarding Plaintiff’s interest in the parts of 7 the construction previously approved by the Permit. These claims are otherwise dismissed 8 without leave to amend. 9 Plaintiff’s section 1983 claim for municipal liability is dismissed with leave to amend. The 10 section 1983 claims for violation of substantive due process, procedural due process, and equal 11 protection are dismissed with leave to amend. 12 Plaintiff’s negligence claim is dismissed without leave to amend. 13 Plaintiff’s request for writ of mandate is dismissed without leave to amend. 14 Plaintiff’s Bane Act claim is dismissed without leave to amend. 15 Plaintiff is granted leave to file a second amended complaint by September 9, 2024. 16 Plaintiff must plead his best case. 17

18 IT IS SO ORDERED. 19 Dated: August 23, 2024 20 ______________________________________ 21 Donna M. Ryu Chief Magistrate Judge 22 23 24 25 26 27