Alweiss v. City of Sacramento

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 DANIEL ALWEISS, individually and No. 2:21-cv-00784-JAM-DB

as a class representative for

12 all similarly situated permit

applicants who are class

13 members, ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

14 Plaintiffs,

15 v.

16 CITY OF SACRAMENTO, et al.,

17 Defendants.

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19 Daniel Alweiss (“Plaintiff” or “Alweiss”) filed a six-count

20 complaint against the City of Sacramento and two members of its

21 Planning Department, Thomas Pace and Teresa Haenggi, collectively

22 (“Defendants”), alleging four constitutional claims under 42

23 U.S.C. § 1983 and two claims under California law for unfair

24 business practices and negligence. See Compl., ECF No. 1.

25 Defendants move to dismiss Plaintiff’s claims for failure to

26 state a claim upon which relief can be granted. See Mot. to

27 Dismiss (“Mot.”), ECF No. 11. Plaintiff opposes the motion. See

28 Opp’n, ECF No. 13. Defendants replied. See Reply, ECF No. 15.

1 For the reasons set forth below, the Court GRANTS Defendants’

2 motion to dismiss.1

3

4 I. BACKGROUND

5 Alweiss applied for a conditional use permit with the City

6 of Sacramento’s Planning Department on March 15, 2019. Compl.

7 ¶ 11. Alweiss also met with a Planning Department agent to

8 review the conditional use permit application and related fees.

9 Id. Alweiss paid $14,111.08 on this occasion in application

10 fees. Id. ¶ 12. Two months later, in May, Alweiss received an

11 invoice from the Planning Department for an additional $2,500.

12 Id. ¶ 15. Alweiss alleges that “there [i]s no statutory or City

13 Code authority for this fee,” and he sent a letter stating as

14 much to Defendant Pace, Planning Director for the City of

15 Sacramento. Id. ¶ 16. In December, Alweiss received another

16 invoice for $125. Id. ¶ 18. Alweiss paid both invoices “under

17 protest” eight months later, on August 19, 2020. Id. ¶ 19.

18 Alweiss filed his Complaint on April 30, 2021. See Compl.

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20 II. OPINION

21 A. Judicial Notice

22 Plaintiff has requested the Court take judicial notice of

23 two documents, submitted as Exhibits A-B. See Pl.’s Req. for

24 Judicial Notice (“RJN”), ECF No. 7-1. Exhibit A is a record of

25 decision from Plaintiff’s appeal of administrative fees. Ex. A

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27 1 This motion was determined to be suitable for decision without

oral argument. E.D. Cal. L.R. 230(g). The hearing was

28 scheduled for September 14, 2021.

1 to RJN. Exhibit B contains Plaintiff’s City of Sacramento Claim

2 form and Notice of Claim rejection. Ex. B to RJN. Both

3 exhibits are suitable for judicial notice as matters of public

4 record. United States v. Black, 482 F.3d, 1041. However,

5 because the parties dispute whether Plaintiff exhausted his

6 administrative remedies, the facts within these exhibits are

7 subject to reasonable dispute and cannot be judicially noticed.

8 Mot. at 10; Opp’n at 10. Thus, the Court grants Plaintiff’s

9 request for judicial notice of Exhibits A-B only for the fact

10 that these documents exist but not for the contents within them.

11 Defendant requests the Court take judicial notice of

12 relevant portions of the Sacramento Municipal Code (SMC),

13 specifically § 17.800.020(b), entitled “Application fee

14 options.” A municipal code section is an appropriate matter for

15 judicial notice. See Long Beach Area Peace Network v. City of

16 Long Beach, 574 F.3d 1011, 1026 (9th Cir. 2009) (taking judicial

17 notice of a local ordinance, a local regulation, and a local

18 municipal code). Accordingly, the Court takes judicial notice

19 of SMC § 17.800.020(b).

20 B. Legal Standard

21 Federal Rule of Civil Procedure 8(a)(2) requires “a short

22 and plain statement of the claim showing that the pleader is

23 entitled to relief.” When a plaintiff fails to “state a claim

24 upon which relief can be granted,” the Court must dismiss the

25 suit. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss,

26 a plaintiff must “plead enough facts to state a claim to relief

27 that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

28 550 U.S. 544, 570 (2007). Plausibility under Twombly requires

1 “factual content that allows the Court to draw a reasonable

2 inference that the defendant is liable for the misconduct

3 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4 “At this stage, the Court ‘must accept as true all of the

5 allegations contained in a complaint.’” Id. But it need not

6 “accept as true a legal conclusion couched as a factual

7 allegation.” Id. Additionally, the Court should grant leave to

8 amend, unless the “pleading could not possibly be cured by the

9 allegation of other facts.” Cooks, Perkiss, & Leiche, Inc. v.

10 N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir.

11 1990).

12 C. Claim One: Unlawful Taking

13 “The Takings Clause of the Fifth Amendment, made applicable

14 to the states through the Fourteenth, provides that private

15 property shall not be taken without just compensation.” Lingle

16 v. Chevron U.S.A Inc., 544 U.S. 528, 536 (2005). “[A]

17 reasonable user fee is not a taking if it is imposed for the

18 reimbursement of the cost of government services.” United

19 States v. Sperry, 493 U.S. 52, 63 (1989). Moreover, the Supreme

20 Court “has never held that the amount of a user fee must be

21 precisely calibrated to the use that a party makes of Government

22 services.” Id. at 60-61. User fees are constitutional so long

23 as they are “not so excessive as to belie their purported

24 character as user fees.” Id. at 62.

25 Plaintiff alleges that certain permit fees imposed by the

26 City of Sacramento pursuant to SMC § 17.800.020 effected an

27 unconstitutional taking. Compl. ¶ 30. Plaintiff alleges he

28 paid an initial application fee when he first submitted his

1 application for a conditional use permit. Id. ¶ 12. Plaintiff

2 then received and paid two more invoices for costs associated

3 with processing his permit. Id. ¶¶ 15, 18. Despite paying

4 multiple fees, Plaintiff disputes only the constitutionality of

5 the latter fees. Id. ¶ 29. As to the initial fee, Plaintiff

6 concedes that the initial fee “was a reasonable fee for the

7 reimbursement of the cost of government services associated with

8 Plaintiffs’ [sic] permit applications.” Id. (internal citations

9 omitted).

10 As to the subsequent fees, Plaintiff contends that they

11 were unconstitutional exactions, because “there is no ordinance

12 or language in the Municipal Code, or any City regulation,

13 specifically authorizing such additional fees or to support the

14 characterization of these additional fees as ‘Application

15 Fees.’” Id. ¶ 32. On the contrary, the Sacramento Municipal

16 Code section entitled “Application Fee” specifically authorizes

17 the city planning director to seek an “additional fee” if “the

18 costs of processing the application exceeds the initial fee

19 paid.” SMC § 17.800.020(b)(1). In reviewing Section

20 17.800.020, the Court finds it contains two main subsections

21 that should be read together. Subsection (a), “Application fee

22 established,” establishes and imposes an application fee upon

23 applicants for a permit. SMC § 17.800.020(a). Subsection (b),

24 “Application fee options,” describes when and how the

25 application should be paid. SMC § 17.800.020(b). In detail,

26 subsection (b) presents two fee options for the planning

27 director to choose from. Id. The first option is a “Fee based

28 on estimate of processing costs,” which includes an “initial

1 fee” based on “an estimate of staff time and resources” followed

2 by an “additional fee” if the actual costs exceed the initial

3 estimate. Id. The second option is a “Fee based on actual

4 processing costs,” which includes a “deposit” followed by

5 “monthly invoices” to cover fees as they accrue. Id. Both

6 options result in an application fee that encompasses multiple

7 payments. Thus, under the Sacramento Municipal Code, what

8 Plaintiff describes as initial and later fees are partial

9 payments of the same application fee. As such, Plaintiff’s

10 concession that the initial fee was a “was a reasonable fee for

11 the reimbursement of the cost of government services” applies

12 also to the later fees. Compl. ¶ 29. All three fees alleged in

13 the complaint are, therefore, user fees and not takings within

14 the meaning of the United States Constitution. See Koontz v.

15 St. Johns River Water Mgmt. Dist., 570 U.S. 595, 597 (2013) (“It

16 is beyond dispute that taxes and user fees are not takings”)

17 (internal citations omitted).

18 Further, Plaintiff does not allege any facts that the fees

19 charged were “clearly excessive as to belie their purported

20 character" as administrative fees. Sperry, 493 U.S. at 62. In

21 the absence of allegations otherwise, the Court concludes these

22 fees were reasonable user fees under the standard set by Sperry.

23 Id.

24 Having only alleged reasonable user fees, Plaintiff has not

25 alleged sufficient facts to support a claim under the Takings

26 Clause. Accordingly, Plaintiff’s Takings Clause claim is

27 dismissed with prejudice. No further amendment of this claim is

28 permitted as such amendment would be futile. Deveraturda v.

1 Globe Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006).

2 D. Claim Two: Procedural Due Process

3 The Fourteenth Amendment to the United States Constitution

4 provides that “[n]o state shall . . . deprive any person of

5 life, liberty or property, without due process of laws.” United

6 States Const. Amend XIV. As a threshold requirement, Plaintiff

7 must show a liberty or property interest that is protected by

8 the Constitution. Board of Regents v. Roth, 408 U.S. 564, 569

9 (1972). Once Plaintiff demonstrates a constitutional interest

10 is at stake, the basic requirements of procedural due process

11 must be met, which is “a right to notice and an opportunity to

12 be heard at a meaningful time and in a meaningful manner.”

13 Mathews v. Eldridge, 424 U.S. 319, 339-43 (1976). Only

14 “extraordinary situations where some valid governmental interest

15 is at stake . . . justifies the postponing of the hearing until

16 after the event.” United States v. James Daniel Good Real

17 Prop., 510 U.S. 43, 53 (1993).

18 Plaintiff has not made a threshold showing of a property

19 interest that is affected by official action. Board of Regents

20 v. Roth, 408 U.S. at 569. When describing his “existing

21 property interests,” Plaintiff states only that he “own[s], or

22 ha[s] owned, real property,” but he does not allege how his real

23 property interests were threatened by government action. Compl.

24 ¶ 42. Even though the Court “must accept as true all of the

25 allegations contained in a complaint” at the motion to dismiss

26 stage, a bare recitation of real property ownership without any

27 threat of deprivation of that interest does not adequately

28 support a claim for procedural due process. Ashcroft v. Iqbal,

1 556 U.S. at 678.

2 Accordingly, Plaintiff’s procedural due process claim is

3 dismissed with prejudice. See Deveraturda v. Globe Aviation

4 Sec. Servs., 454 F.3d. at 1049.

5 E. Claim Three: Substantive Due Process

6 The substantive component of the Fourteenth Amendment Due

7 Process Clause “forbids the government from depriving a person

8 of life, liberty, or property in such a way

9 that . . . interferes with rights implicit in the concept of

10 ordered liberty,” no matter how many procedural safeguards are

11 in place. Engquist v. Oregon Dept. of Agric., 478 F.3d 985, 996

12 (9th Cir 2007). To state a claim for a substantive due process

13 violation, Plaintiff must show that a challenged state action

14 either “shocks the conscience” or arbitrarily deprives him of a

15 fundamental right. United States v. Salerno, 481 U.S. 739, 746

16 (1987).

17 Defendants contend that Plaintiff has failed to state a

18 substantive due process claim. Mot. at 15. Defendants

19 correctly point out that Plaintiff “fails to cite any case or

20 other legal authority that supports any due process claim,

21 whether substantive or procedural.” Reply at 6. Reviewing the

22 complaint, the Court finds that Plaintiff has not identified a

23 single fundamental right implicated by the actions of the City

24 nor any action that “shocks the conscience.” Accordingly, the

25 Court dismisses the Plaintiff’s substantive due process claim

26 with prejudice. Deveraturda v. Globe Aviation Sec. Servs., 454

27 F.3d at 1049.

28 ///

1 F. Claim Four: Ex Post Facto Clause

2 Plaintiff does not oppose Defendant’s motion to dismiss

3 Plaintiff’s Ex Post Facto Law claim. Opp’n at 13. Plaintiff

4 concedes the issue, stating that he is “persuaded by Defendant’s

5 authority.” Id. at footnote 2. Accordingly, this Court finds

6 that any further amendment would be futile and dismisses this

7 claim with prejudice. Deveraturda v. Globe Aviation Sec.

8 Servs., 454 F.3d at 1049.

9 G. Supplemental Jurisdiction

10 A district court may sua sponte decline to exercise

11 supplemental jurisdiction over pendant state law claims if it

12 “has dismissed all claims over which it has original

13 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court had original

14 jurisdiction over Plaintiff's § 1983 claims against the City of

15 Sacramento. Having dismissed them, the Court, therefore,

16 declines to exercise supplemental jurisdiction over the

17 remaining state law claims.

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19 III. SANCTIONS

20 This Court issued its Order re Filing Requirements (“Filing

21 Order”) on May 3, 2021. ECF No. 3-2. The Filing Order limits

22 opposition memoranda to fifteen pages. Filing Order at 1. The

23 Filing Order also states that an attorney who exceeds the page

24 limit must pay monetary sanctions of $50 per page. Id.

25 Plaintiff exceeded the Court’s fifteen-page limit on opposition

26 memoranda by one page. See Opp’n. The Court therefore ORDERS

27 Defendant’s counsel to pay $50.00 to the Clerk for the Eastern

28 District of California no later than seven days from the date of

eee EI OIE OE EE EDS eee

1 this Order.

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3 Iv. ORDER

4 For the reasons set forth above, the Court GRANTS

5 Defendants’ Motion to Dismiss Plaintiff’s First, Second, Third

6 | and Fourth claims under 42 U.S.C. § 1983 WITH PREJUDICE.

7 GRANTS Defendants’ Motion to Dismiss Plaintiff’s unfair business

8 | practices claim under California law without prejudice; and

9 GRANTS Defendants’ Motion to Dismiss Plaintiff’s negligence claim

10 under California law without prejudice.

11 IT IS SO ORDERED.

12 Dated: December 22, 2021

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