# Alweiss v. City of Sacramento

> District Court, E.D. California · December 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10032520

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 DANIEL ALWEISS, individually and No. 2:21-cv-00784-JAM-DB
as a class representative for
12 all similarly situated permit
applicants who are class
13 members, ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
14 Plaintiffs,
15 v.
16 CITY OF SACRAMENTO, et al.,
17 Defendants.
18
19 Daniel Alweiss (“Plaintiff” or “Alweiss”) filed a six-count
20 complaint against the City of Sacramento and two members of its
21 Planning Department, Thomas Pace and Teresa Haenggi, collectively
22 (“Defendants”), alleging four constitutional claims under 42
23 U.S.C. § 1983 and two claims under California law for unfair
24 business practices and negligence. See Compl., ECF No. 1.
25 Defendants move to dismiss Plaintiff’s claims for failure to
26 state a claim upon which relief can be granted. See Mot. to
27 Dismiss (“Mot.”), ECF No. 11. Plaintiff opposes the motion. See
28 Opp’n, ECF No. 13. Defendants replied. See Reply, ECF No. 15.
1 For the reasons set forth below, the Court GRANTS Defendants’
2 motion to dismiss.1
3
4 I. BACKGROUND
5 Alweiss applied for a conditional use permit with the City
6 of Sacramento’s Planning Department on March 15, 2019. Compl.
7 ¶ 11. Alweiss also met with a Planning Department agent to
8 review the conditional use permit application and related fees.
9 Id. Alweiss paid $14,111.08 on this occasion in application
10 fees. Id. ¶ 12. Two months later, in May, Alweiss received an
11 invoice from the Planning Department for an additional $2,500.
12 Id. ¶ 15. Alweiss alleges that “there [i]s no statutory or City
13 Code authority for this fee,” and he sent a letter stating as
14 much to Defendant Pace, Planning Director for the City of
15 Sacramento. Id. ¶ 16. In December, Alweiss received another
16 invoice for $125. Id. ¶ 18. Alweiss paid both invoices “under
17 protest” eight months later, on August 19, 2020. Id. ¶ 19.
18 Alweiss filed his Complaint on April 30, 2021. See Compl.
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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
26

27 1 This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
28 scheduled for September 14, 2021.
1 to RJN. Exhibit B contains Plaintiff’s City of Sacramento Claim
2 form and Notice of Claim rejection. Ex. B to RJN. Both
3 exhibits are suitable for judicial notice as matters of public
4 record. United States v. Black, 482 F.3d, 1041. However,
5 because the parties dispute whether Plaintiff exhausted his
6 administrative remedies, the facts within these exhibits are
7 subject to reasonable dispute and cannot be judicially noticed.
8 Mot. at 10; Opp’n at 10. Thus, the Court grants Plaintiff’s
9 request for judicial notice of Exhibits A-B only for the fact
10 that these documents exist but not for the contents within them.
11 Defendant requests the Court take judicial notice of
12 relevant portions of the Sacramento Municipal Code (SMC),
13 specifically § 17.800.020(b), entitled “Application fee
14 options.” A municipal code section is an appropriate matter for
15 judicial notice. See Long Beach Area Peace Network v. City of
16 Long Beach, 574 F.3d 1011, 1026 (9th Cir. 2009) (taking judicial
17 notice of a local ordinance, a local regulation, and a local
18 municipal code). Accordingly, the Court takes judicial notice
19 of SMC § 17.800.020(b).
20 B. Legal Standard
21 Federal Rule of Civil Procedure 8(a)(2) requires “a short
22 and plain statement of the claim showing that the pleader is
23 entitled to relief.” When a plaintiff fails to “state a claim
24 upon which relief can be granted,” the Court must dismiss the
25 suit. Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss,
26 a plaintiff must “plead enough facts to state a claim to relief
27 that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
28 550 U.S. 544, 570 (2007). Plausibility under Twombly requires
1 “factual content that allows the Court to draw a reasonable
2 inference that the defendant is liable for the misconduct
3 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
4 “At this stage, the Court ‘must accept as true all of the
5 allegations contained in a complaint.’” Id. But it need not
6 “accept as true a legal conclusion couched as a factual
7 allegation.” Id. Additionally, the Court should grant leave to
8 amend, unless the “pleading could not possibly be cured by the
9 allegation of other facts.” Cooks, Perkiss, & Leiche, Inc. v.
10 N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir.
11 1990).
12 C. Claim One: Unlawful Taking
13 “The Takings Clause of the Fifth Amendment, made applicable
14 to the states through the Fourteenth, provides that private
15 property shall not be taken without just compensation.” Lingle
16 v. Chevron U.S.A Inc., 544 U.S. 528, 536 (2005). “[A]
17 reasonable user fee is not a taking if it is imposed for the
18 reimbursement of the cost of government services.” United
19 States v. Sperry, 493 U.S. 52, 63 (1989). Moreover, the Supreme
20 Court “has never held that the amount of a user fee must be
21 precisely calibrated to the use that a party makes of Government
22 services.” Id. at 60-61. User fees are constitutional so long
23 as they are “not so excessive as to belie their purported
24 character as user fees.” Id. at 62.
25 Plaintiff alleges that certain permit fees imposed by the
26 City of Sacramento pursuant to SMC § 17.800.020 effected an
27 unconstitutional taking. Compl. ¶ 30. Plaintiff alleges he
28 paid an initial application fee when he first submitted his
1 application for a conditional use permit. Id. ¶ 12. Plaintiff
2 then received and paid two more invoices for costs associated
3 with processing his permit. Id. ¶¶ 15, 18. Despite paying
4 multiple fees, Plaintiff disputes only the constitutionality of
5 the latter fees. Id. ¶ 29. As to the initial fee, Plaintiff
6 concedes that the initial fee “was a reasonable fee for the
7 reimbursement of the cost of government services associated with
8 Plaintiffs’ [sic] permit applications.” Id. (internal citations
9 omitted).
10 As to the subsequent fees, Plaintiff contends that they
11 were unconstitutional exactions, because “there is no ordinance
12 or language in the Municipal Code, or any City regulation,
13 specifically authorizing such additional fees or to support the
14 characterization of these additional fees as ‘Application
15 Fees.’” Id. ¶ 32. On the contrary, the Sacramento Municipal
16 Code section entitled “Application Fee” specifically authorizes
17 the city planning director to seek an “additional fee” if “the
18 costs of processing the application exceeds the initial fee
19 paid.” SMC § 17.800.020(b)(1). In reviewing Section
20 17.800.020, the Court finds it contains two main subsections
21 that should be read together. Subsection (a), “Application fee
22 established,” establishes and imposes an application fee upon
23 applicants for a permit. SMC § 17.800.020(a). Subsection (b),
24 “Application fee options,” describes when and how the
25 application should be paid. SMC § 17.800.020(b). In detail,
26 subsection (b) presents two fee options for the planning
27 director to choose from. Id. The first option is a “Fee based
28 on estimate of processing costs,” which includes an “initial
1 fee” based on “an estimate of staff time and resources” followed
2 by an “additional fee” if the actual costs exceed the initial
3 estimate. Id. The second option is a “Fee based on actual
4 processing costs,” which includes a “deposit” followed by
5 “monthly invoices” to cover fees as they accrue. Id. Both
6 options result in an application fee that encompasses multiple
7 payments. Thus, under the Sacramento Municipal Code, what
8 Plaintiff describes as initial and later fees are partial
9 payments of the same application fee. As such, Plaintiff’s
10 concession that the initial fee was a “was a reasonable fee for
11 the reimbursement of the cost of government services” applies
12 also to the later fees. Compl. ¶ 29. All three fees alleged in
13 the complaint are, therefore, user fees and not takings within
14 the meaning of the United States Constitution. See Koontz v.
15 St. Johns River Water Mgmt. Dist., 570 U.S. 595, 597 (2013) (“It
16 is beyond dispute that taxes and user fees are not takings”)
17 (internal citations omitted).
18 Further, Plaintiff does not allege any facts that the fees
19 charged were “clearly excessive as to belie their purported
20 character" as administrative fees. Sperry, 493 U.S. at 62. In
21 the absence of allegations otherwise, the Court concludes these
22 fees were reasonable user fees under the standard set by Sperry.
23 Id.
24 Having only alleged reasonable user fees, Plaintiff has not
25 alleged sufficient facts to support a claim under the Takings
26 Clause. Accordingly, Plaintiff’s Takings Clause claim is
27 dismissed with prejudice. No further amendment of this claim is
28 permitted as such amendment would be futile. Deveraturda v.
1 Globe Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006).
2 D. Claim Two: Procedural Due Process
3 The Fourteenth Amendment to the United States Constitution
4 provides that “[n]o state shall . . . deprive any person of
5 life, liberty or property, without due process of laws.” United
6 States Const. Amend XIV. As a threshold requirement, Plaintiff
7 must show a liberty or property interest that is protected by
8 the Constitution. Board of Regents v. Roth, 408 U.S. 564, 569
9 (1972). Once Plaintiff demonstrates a constitutional interest
10 is at stake, the basic requirements of procedural due process
11 must be met, which is “a right to notice and an opportunity to
12 be heard at a meaningful time and in a meaningful manner.”
13 Mathews v. Eldridge, 424 U.S. 319, 339-43 (1976). Only
14 “extraordinary situations where some valid governmental interest
15 is at stake . . . justifies the postponing of the hearing until
16 after the event.” United States v. James Daniel Good Real
17 Prop., 510 U.S. 43, 53 (1993).
18 Plaintiff has not made a threshold showing of a property
19 interest that is affected by official action. Board of Regents
20 v. Roth, 408 U.S. at 569. When describing his “existing
21 property interests,” Plaintiff states only that he “own[s], or
22 ha[s] owned, real property,” but he does not allege how his real
23 property interests were threatened by government action. Compl.
24 ¶ 42. Even though the Court “must accept as true all of the
25 allegations contained in a complaint” at the motion to dismiss
26 stage, a bare recitation of real property ownership without any
27 threat of deprivation of that interest does not adequately
28 support a claim for procedural due process. Ashcroft v. Iqbal,
1 556 U.S. at 678.
2 Accordingly, Plaintiff’s procedural due process claim is
3 dismissed with prejudice. See Deveraturda v. Globe Aviation
4 Sec. Servs., 454 F.3d. at 1049.
5 E. Claim Three: Substantive Due Process
6 The substantive component of the Fourteenth Amendment Due
7 Process Clause “forbids the government from depriving a person
8 of life, liberty, or property in such a way
9 that . . . interferes with rights implicit in the concept of
10 ordered liberty,” no matter how many procedural safeguards are
11 in place. Engquist v. Oregon Dept. of Agric., 478 F.3d 985, 996
12 (9th Cir 2007). To state a claim for a substantive due process
13 violation, Plaintiff must show that a challenged state action
14 either “shocks the conscience” or arbitrarily deprives him of a
15 fundamental right. United States v. Salerno, 481 U.S. 739, 746
16 (1987).
17 Defendants contend that Plaintiff has failed to state a
18 substantive due process claim. Mot. at 15. Defendants
19 correctly point out that Plaintiff “fails to cite any case or
20 other legal authority that supports any due process claim,
21 whether substantive or procedural.” Reply at 6. Reviewing the
22 complaint, the Court finds that Plaintiff has not identified a
23 single fundamental right implicated by the actions of the City
24 nor any action that “shocks the conscience.” Accordingly, the
25 Court dismisses the Plaintiff’s substantive due process claim
26 with prejudice. Deveraturda v. Globe Aviation Sec. Servs., 454
27 F.3d at 1049.
28 ///
1 F. Claim Four: Ex Post Facto Clause
2 Plaintiff does not oppose Defendant’s motion to dismiss
3 Plaintiff’s Ex Post Facto Law claim. Opp’n at 13. Plaintiff
4 concedes the issue, stating that he is “persuaded by Defendant’s
5 authority.” Id. at footnote 2. Accordingly, this Court finds
6 that any further amendment would be futile and dismisses this
7 claim with prejudice. Deveraturda v. Globe Aviation Sec.
8 Servs., 454 F.3d at 1049.
9 G. Supplemental Jurisdiction
10 A district court may sua sponte decline to exercise
11 supplemental jurisdiction over pendant state law claims if it
12 “has dismissed all claims over which it has original
13 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court had original
14 jurisdiction over Plaintiff's § 1983 claims against the City of
15 Sacramento. Having dismissed them, the Court, therefore,
16 declines to exercise supplemental jurisdiction over the
17 remaining state law claims.
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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
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1 this Order.
2
3 Iv. ORDER
4 For the reasons set forth above, the Court GRANTS
5 Defendants’ Motion to Dismiss Plaintiff’s First, Second, Third
6 | and Fourth claims under 42 U.S.C. § 1983 WITH PREJUDICE.
7 GRANTS Defendants’ Motion to Dismiss Plaintiff’s unfair business
8 | practices claim under California law without prejudice; and
9 GRANTS Defendants’ Motion to Dismiss Plaintiff’s negligence claim
10 under California law without prejudice.
11 IT IS SO ORDERED.
12 Dated: December 22, 2021
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10032520. Public record. Not legal advice.