Petition for Writ of Certiorari — Jonna Corporation, dba Premier Recycling Company, Petitioner v. City of Sunnyvale, California

Supreme Court briefMay 23, 2019

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Text

No. ______

In the

Supreme Court of the United States

__________________

JONNA CORPORATION,

dba Premier Recycling Company,

Petitioner,

v.

CITY OF SUNNYVALE,

__________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

JOHN DOUGLAS MOORE

Counsel of Record

1999 Harrison St., 18th Fl.

Oakland, CA 94612

(510) 893-6300

jmoore@recyclelaw.com

Counsel for Petitioner

May 23, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

The questions presented in this Petition are:

1. Did Petitioner Premier Recycling adequately

plead its Declaratory Judgment claim alleging a

violation of 42 U.S.C. Section 1983, pursuant to

FCRP 8; and

2. Did Respondent City of Sunnyvale’s application

of the California Supreme Court’s decision in

Waste Management of the Desert violate

Petitioner’s established property rights in an

unconstitutional manner?

ii

PARTIES TO THE PROCEEDING

Petitioner Jonna Corporation dba Premier Recycling

was the appellant in the court below. Respondent City

of Sunnyvale, California, was the appellee in the court

below. Jonna Corporation has no parents or

subsidiaries and is not publically held.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29, Jonna Corporation has no

parent corporation and is not a publically held

corporation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vi

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE PETITION . . . . 4

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE CIRCUIT SPLIT ABOUT PLEADING A

CLAIM UNDER SECTION 1983 . . . . . . . . . . . . . 9

A. Petitioner’s Operative Pleading . . . . . . . . . . . 9

B. The Court rulings for which review is

sought. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Applicable rules for pleading a Substantive

Due Process violation . . . . . . . . . . . . . . . . . . 11

D. Conflict among the Ninth, Fifth and Seventh

Circuits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv

II. THE COURT SHOULD SETTLE AN

IMPORTANT QUESTION OF LAW

CONCERNING THE APPLICATION OF STOP

THE BEACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Stop the Beach and its Progeny . . . . . . . . . . 18

B. How the California Supreme Court impaired

established property rights . . . . . . . . . . . . . . 22

C. The Established Property Rights Set Forth in

the 1989 Legislation . . . . . . . . . . . . . . . . . . . 22

D. Compare the 1989 Legislation to the 1989

Supreme Court Interpretation . . . . . . . . . . . 27

E. Rules Of Statutory Interpretation . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

APPENDIX

Appendix A Memorandum in the United States

Court of Appeals for the Ninth Circuit

(February 22, 2019) . . . . . . . . . . . App. 1

Appendix B Order Granting Motion to Dismiss the

First Amended Complaint in the

United States District Court Northern

District of California, San Jose Division

(November 9, 2017). . . . . . . . . . . . App. 5

Appendix C Order Granting City of Sunnyvale’s

Motion to Dismiss in the United

States District Court Northern

District of California, San Jose Division

(June 16, 2017) . . . . . . . . . . . . . . App. 36

v

Appendix D Cal. Pub. Res. Code. . . . . . . . . . . App. 79

§ 40000-40004 . . . . . . . . . . . . App. 79

§ 40050-40063 . . . . . . . . . . . . App. 84

§ 40100-40201 . . . . . . . . . . . App. 104

§ 41780-41786 . . . . . . . . . . . App. 126

Appendix E First

Amended

Complaint for

Declaratory Judgment and Injunctive

Relief (28 U.S.C. Section 2201) in the

United States District Court Northern

District of California, San Jose Division

(July 16, 2017). . . . . . . . . . . . . . App. 152

vi

TABLE OF AUTHORITIES

CASES

Asbell v. Kansas,

209 U.S. 251 (1908). . . . . . . . . . . . . . . . . . . . . . . 32

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . 11, 14

Bilsky v. Kappos,

561 U.S. 593 (2010). . . . . . . . . . . . . . . . . . . . . . . 29

Brownlee v. Conine,

957 F.2d 353 (7th Cir. 1992). . . . . . . . . . . . . 13, 14

C & A Carbone v. Town of Clarkstown,

511 U.S. 383 (1994). . . . . . . . . . . . . . . . . . . . . . . . 4

California Reduction Co. v. Sanitary Reduction

Works, 199 U.S. 306 (1905). . . . . . . . . . . . . . . 5, 37

Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) . . . . . . . . . . 29

Evangelatos v. Superior Court,

44 Cal. 3d 1188 (1988) . . . . . . . . . . . . . . . . . . . . 28

Exxon Mobil Corp. v. Alapattah Svcs.,

545 U.S. 546 (2005). . . . . . . . . . . . . . . . . . . . . . . 29

GE Capital Corp. v. Posey,

415 F.3d 391 (5th Cir. 2005). . . . . . . . . . . . . . . . 14

Harris v. Appellate Division of Superior Court,

14 Cal.App. 5th (2017) . . . . . . . . . . . . . . . . . . . . 30

Jackson v. Marion County,

66 F.3d 151 (7th Cir. 1995) . . . . . . . . . . . . . . . . 13

vii

McGary v. City of Portland,

386 F.3d 1259 (9th Cir. 2004). . . . . . . . . . . . . . . 13

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007). . . . . . . . . . . . . . . . . . . . . . . 12

Medrano v. Caliber Homes Loans, Inc.,

2014 U.S. Dist. LEXIS 177576 (CD CA 2014) . . 14

Northern Natural Gas Co. v. ONEOK Field

Servs. Co., L.L.C., 296 Kan. 906 (2013) . . . . . . . 20

PVM Redwood Co. v. United States,

686 F.2d 1327 (9th Cir. 1982). . . . . . . . . . . . . . . 18

Philadelphia v. New Jersey,

437 U.S. 617 (1978). . . . . . . . . . . . . . . . . . . . . 4, 31

Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74 (1980). . . . . . . . . . . . . . . . . . . . . . . . 21

Rossa v. D.L. Falk Construction, Inc.,

53 Cal. 4th 387 (2014). . . . . . . . . . . . . . . . . . . . . 30

Shanks v. Dressel,

540 F.3d 1082 (9th Cir. 2008). . . . . . . . . . . . . . . 11

Shinnecock Indian Nation v. United States,

112 Fed. Cl. 369 (2013) . . . . . . . . . . . . . . . . . . . . 20

Steffel v. Thompson,

415 U.S. 452 (1974). . . . . . . . . . . . . . . . . . . . . . . 11

Stenberg v. Carhart,

530 U.S. 914 (2000). . . . . . . . . . . . . . . . . . . . . . . 29

viii

Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Envtl. Prot.,

560 U.S. 702 (2010). . . . . . . . . . . . . . . . . . . passim

Thunder Props. v. Treadway,

2016 U.S. Dist. LEXIS 43818 (D NV 2016) . . . . 20

United Haulers Ass’n v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330 (2007) . . . . . . . 5

United States v. Millis,

621 F.3d 914 (9th Cir. 2014). . . . . . . . . . . . . . . . 28

Waste Management of the Desert v. Palm Springs

Recycling Center,

7 Cal.4th 478 (1994) . . . . . . . . . . . . . . . . . . passim

Watson v. Lake County,

No. 5:09-cv-399, 2011 U.S. Dist. LEXIS 162352,

2011 WL 13175635 (M.D. Fla. Feb. 23,

2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Webb’s Fabulous Pharms. v. Beckwith,

449 U.S. 155 (1980). . . . . . . . . . . . . . . . . . . . . 4, 21

Weigel v. Maryland,

950 F. Supp. 2d 811 (D MD 2013) . . . . . . . . . . . 20

Yamaguchi v. United States Dep’t of the Air Force,

109 F.3d 1475 (9th Cir. 1997). . . . . . . . . . . . . . . 12

Yates v. United States,

135 S. Ct. 1074 (2015). . . . . . . . . . . . . . . . . . . . . 30

In re Zhizhuzza,

147 Cal. 328 (1905) . . . . . . . . . . . . . . . . . . . . . . . 37

ix

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . 2, 3

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 11

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . 2, 3, 9, 13, 17

Cal. Green Building Standards Code § 5.408.1.1 . . . 8

Cal. Public Resources Code § 40000 et seq.. . . . . 3, 31

Cal. Public Resources Code § 40000 . 6, 24, 31, 32, 33

Cal. Public Resources Code § 40001 . . . . . . 31, 33, 37

Cal. Public Resources Code § 40004 . . . . . . . . . . . . 31

Cal. Public Resources Code § 40051 . . . . . . . . . 23, 25

Cal. Public Resources Code § 40059 . . . . . . . . passim

Cal. Public Resources Code § 40180 . . . 25, 31, 32, 33

Cal. Public Resources Code § 40191 . . . . . . . . . 25, 28

Cal. Public Resources Code § 41780 . . . . . . . . . . . . 23

Sunnyvale Municipal Code § 16.043.20. . . . . . . . . . . 8

RULES

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 38

x

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . 2, 13

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OTHER AUTHORITIES

https://www.merriam-webster.com/dictionary/

discard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Melosi, Garbage in the Streets (University of

Pittsburg Press 2005) . . . . . . . . . . . . . . . . . . . . . . 5

1

PETITION FOR WRIT OF CERTIORARI

Jonna Corporation dba Premier Recycling (“Premier

Recycling”) respectfully petitions this Court for a Writ

of Certiorari to review the Judgment of the United

States Court of Appeal for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported at Jonna Corp. v. City of Sunnyvale (9th Cir.

2018) 754 Fed. Appx. 592, 2019 U.S. App. LEXIS 5221,

86 Env’t Rep. Cas. (BNA) 3924 and is reproduced in the

appendix.

The opinion of the United States District Court

dismissing Petitioner’s First Amended Complaint is

reported at Jonna Corp. v. City of Sunnyvale (ND CA

2017) 2017 U.S. Dist. LEXIS 186348 and is reproduced

in the appendix. The opinion of the United States

District Court dismissing Petitioner’s Complaint with

leave to amend is reported at Jonna Corp. v. City of

Sunnyvale, 2017 U.S. Dist. LEXIS 93353 and is

reproduced in the appendix.

JURISDICTION

The Judgment of the Ninth Circuit was filed on

February 22, 2019. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. Section 1254(1). No

notifications pursuant to Rule 29.4 are required.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Clause One of the Fourteenth Amendment to the

Constitution, which provides that “(no) State (shall)

deprive any person of life, liberty, or property, without

due process of law.”

Federal Rule of Civil Procedure 8(a), which requires

that a pleading contain “…a short and plain statement

of the claim showing that the pleader is entitled to

relief.”

Federal Rule of Civil Procedure 12(b)(6), which

allows a Court to dismiss an action if the Complaint

“(fails) to state a claim upon which relief can be

granted.”

28 U.S.C. Section 2201, which provides that

In a case of actual controversy within its

jurisdiction…any court of the United States,

upon the filing of an appropriate pleading, may

declare the rights and other legal relations of

any interested party seeking such declaration,

whether or not further relief is or could be

sought. Any such declaration shall have the

force and effect of a final judgment or decree and

shall be reviewable as such.

42 U.S.C. Section 1983 which states that:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

3

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress….”

Pertinent provisions of California’s Integrated

Waste Management Act, Public Resources Code Section

40000 et seq., which are reproduced in the appendix.

STATEMENT OF THE CASE

Premier Recycling filed a Complaint in the United

States District Court for the Northern District of

California alleging a claim under the Declaratory

Judgment Act, 28 U.S.C. Sec. 2201. The question

presented was whether Respondent City of Sunnyvale,

California violated the civil rights of Premier Recycling

under 42 U.S.C. Sec. 1983 and specifically violated

Plaintiff’s rights under the Fourteenth Amendment of

the United States Constitution, and California Public

Resources Code (Section 40059). The District Court had

subject matter jurisdiction under 28 U.S.C. Sec. 1331.

The District Court also had supplemental jurisdiction

to consider claims arising under California state law

pursuant to 28 U.S.C. Sec. 1367.

The appeal to the Ninth Circuit was from a final

judgment of the District Court that resolved all claims

of all parties. That Court had jurisdiction under 28

U.S.C. Section 1291.

4

REASONS FOR GRANTING THE PETITION

Rule 10 Application

This Petition seeks to resolve a conflict among the

Circuits about the adequacy of pleading a claim under

the Declaratory Judgment Act and the Civil Rights Act.

This Petition also seeks to resolve an important

question of law about whether, and under what

circumstances a state Supreme Court decision may be

found unconstitutional under Webb’s Fabulous Pharms.

v. Beckwith, 449 U.S. 155 (1980) and Stop the Beach

Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560

U.S. 702 (2010), if it eliminates established property

rights, and what remedies, if any, are available.

INTRODUCTION

This Petition also addresses an issue never before

addressed by this Court. In this Court’s jurisprudence,

“garbage” or, in today’s lingo, “solid waste”, was

addressed as something noxious and a public health

hazard1, as well as an “article of commerce”.2 Today

much of what used to be “garbage” is in fact reclaimed

through reuse, recycling, and composting, a result

endorsed by federal, state, and local legislatively-stated

policy. By removing materials from what used to be

called the “waste stream” before they became garbage

and turning these recovered materials into new, useful,

products, a lot of the public health issues about garbage

1

Philadelphia v. New Jersey, 437 U.S. 617 (1978)

2

C & A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994)

5

collection have been reduced.3 In the context of conflict

between 1989 California legislation and a 1994 state

Supreme Court decision that changed established

property rights, Premier Recycling requests that this

Court revisit its 1905 holding in California Reduction

Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905)

and decide whether police power justifies economic

regulation over the collection of recyclable materials, as

opposed to garbage.

This case addresses the competition for the

materials in the garbage between traditional garbage

collectors that landfill the material, pitted against

modern public policy and recyclers, such as Premier

Recycling that support these public policies; and what

is the constitutional limit of government impairment of

the property rights of businesses that collect what used

to be garbage but today is recycled. In 1994, the

California Supreme Court interpreted a 1989

California statute defining “solid waste” inconsistently

with the legislative intent and in a manner that

impaired existing property rights. Waste Management

of the Desert v. Palm Springs Recycling Center, 7

Cal.4th 478 (1994).

In what was then prompted by concern over

diminishing landfill capacity and the environmental

harm inflicted by landfills, the California legislature

3

For an historical review of the connection between the discovery

that germs cause disease and the local government mandate to

regulate safe garbage collection see Melosi, Garbage in the Streets

(University of Pittsburg Press 2005), cited by this Court in United

Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550

U.S. 330, 334 (2007).

6

passed laws in 1989 establishing strong and clear

policies favoring resource recovery, such as reuse,

recycling, and composting, and against landfilling4;

finding that landfills were harmful to the environment

and promoted overuse of finite virgin resources. This

legislation placed the burden of reducing material

going to landfill (called “diversion”) upon local

government. The legislation permitted local

governments to continue a practice of discharging their

health and safety obligations for garbage (now called

“solid waste”) collection by franchising collection rights

to private parties but required that an “exclusive

franchise” be limited only to those situations where

public health and safety required. 5

In a lawsuit between an exclusive franchisee and a

local recycling business, the state Supreme Court in

Waste Management of the Desert was asked to decide

the outer limit of a permissible exclusive solid waste

franchise under the new legislation. The intermediate

state Court of Appeal reversed a Judgment for

permanent injunction in favor of the exclusive

franchisee and its two city clients on the ground, inter

alia, that the franchisee’s interpretation of “solid

waste” under the new law was an unconstitutional and

excessive exercise of police power.6 The state Supreme

Court reversed the Court of Appeal decision without

analyzing the constitutional issue underlying the Court

of Appeal decision. Instead, the state Supreme Court

re-wrote the legislative definition of “solid waste” in a

4

Public Resources Code Section 40000(b)-(e)

5

PRC Section 40059

6

20 Cal.App.4th 586, 602-604 (1992)

7

manner inconsistent with the stated legislative intent

and the rights established in this legislation.

The state Supreme Court ruled that “solid waste” is

something the owner no longer wants and pays

someone to dispose.7 This definition has nothing to do

with whether the material goes to landfill or not. The

reasoning of the Court is poorly grounded. If someone

wanted to buy garbage, it could escape regulation for

the collection of garbage because the fact of purchase

makes it not garbage. Conversely, no matter what the

intrinsic value of the unwanted material (e.g. an old

faded Andy Warhol print), if someone disposed of it by

mailing it to a family member, say via Fedex (which

charges a fee to transport the material), the franchisee

could sue Fedex for interfering with the franchise.

Premier Recycling collects what is called

construction and demolition debris, or C&D, which is

the mixed wood, metal, drywall, cardboard, carpet,

asphalt, and concrete that is discarded at any

commercial building construction site. In many cities

adjacent to Sunnyvale, Premier Recycling is allowed to

and does charge the construction site owner/generator

a service fee to collect the C&D, which offsets the

vehicle and labor cost of collection. Many local

jurisdictions, including Sunnyvale, require a building

contractor to affirm the recycling of a fixed percentage

7

At p. 478 the Court states its rule: “The proper rule is this: If the

owner of property disposes of it for compensation--in common

parlance, sells it--it is not waste because it has not been discarded.

The owner is not required under the Act to transfer this property

to the exclusive franchisee. But, consistent with the purpose of the

Act, an owner cannot discard property as he sees fit. Discarding

the property renders the property waste and subjects it to the Act.

8

of the nonhazardous C&D generated as a condition to

obtain a building permit.8 LEED certification of

buildings likewise requires recycling of building

materials.9 Premier Recycling transports the C&D it

collects to the state-permitted recycling facility it owns

in San Jose, CA, where it sorts the material into its

constituent parts and, for the most part, sells the

sorted materials to a company that will use them to

make a new product; exactly the stated legislative goal

of recycling.

Sunnyvale, unlike adjacent cities such as San

Jose10, granted an exclusive garbage collection

franchise that bars competitive fee for service collection

of C&D. Sunnyvale itself owns a C&D recycling facility

that competes with Premier Recycling.11 Sunnyvale did

not comply with state law (Public Resources Code

Section 40059) because it never found that public

health and safety required the granting an exclusive

garbage collection franchise. The exclusivity aspect of

the franchise was concealed from the public; the issue

was never raised in a public hearing before Sunnyvale’s

City Council. Instead, City staff made the decision to

make the franchise exclusive behind the scenes and

closed doors.

8

See Sunnyvale Municipal Code Section 16.043.20 which adopts

the California Green Building Standards Code. Section 5.408.1.1

of that code requires the contractor to recycle or salvage 65% of all

nonhazardous waste generated.

9

California Green Building Standards Code. Section 5.408.1.1

10

Sunnyvale is in Santa Clara County. San Jose is the county seat

and the largest city within the county.

11

https://sunnyvale.ca.gov/property/recycling/getrid/center.htm

9

Premier Recycling did not have standing to

challenge the Waste Management of the Desert

precedent until Sunnyvale took formal action to

prevent Premier Recycling from collecting C&D for a

fee within the city. This occurred in 2017 when the

underlying action was filed. This action was filed in

federal court because no state lower court could refuse

to follow the Waste Management of the Desert

precedent.

I. THE CIRCUIT SPLIT ABOUT PLEADING A

CLAIM UNDER SECTION 1983

A. Petitioner’s Operative Pleading

Petitioner’s First Amended Complaint (this

operative pleading is reproduced in the appendix)

asserts a claim under the federal Declaratory

Judgment Act. The Declaratory Judgment claim

asserts a violation of the federal Civil Rights Act, 42

U.S.C. Section 1983. After reciting the background

cited above, Premier Recycling alleges that Sunnyvale

violated the Substantive Due Process Clause of the

Fourteenth Amendment and California Public

Resources Code (“PRC”) Section 40059 at FAC by

arbitrary and capricious application of Waste

Management of the Desert (App. 162-63).

B. The Court rulings for which review is

sought

The District Court first dismissed Petitioner’s

Complaint on the ground that it alleged insufficient

facts, as opposed to conclusory allegations, that

Sunnyvale had committed egregious conduct to support

its Substantive Due Process claim and then granted

10

leave to amend.12 After Premier Recycling amended its

Complaint, the District Court still found the allegations

too conclusory. The District Court stated (at *30-32):

“Despite the instant Court’s previous ruling that

Plaintiff must allege egregious government

action to state a substantive due process claim,

ECF No. 29 at 13-16, Plaintiff pleaded only

conclusory allegations that the California

Supreme Court’s decision was arbitrary. See

FAC ¶ 36. Plaintiff’s Opposition similarly

contains no specific allegations of egregious

government action beyond labeling the Waste

Management [*31] decision “egregious” and

“irrational.” Opp. at 2-4, 13-14, 17.

By failing to set forth any facts in the FAC to

show egregious government action, Plaintiff has

“fail[ed] to cure deficiencies by amendments

previously allowed.” Carvalho, 629 F.3d 876,

892-93. As a result, it is within the Court’s

discretion to find that further amendments

would be futile and to decline to allow further

amendments. Moreover, Plaintiff failed in its

Opposition to identify any facts that it could add

if given leave to amend yet another time. This

failure reinforces the Court’s conclusion that

allowing further amendments would be futile.”

The Ninth Circuit affirmed this viewpoint, stating

that Premier Recycling”…pleaded no facts to support

its allegations that the decision was ‘constitutionally

12

Jonna Corp. v. City of Sunnyvale, 2017 U.S. Dist. LEXIS 186348

at *4-6.

11

arbitrary.’” citing Shanks v. Dressel, 540 F.3d 1082,

1089 (9th Cir. 2008). But the Shanks Court affirmed a

grant of summary judgment, it made no determination

of the adequacy of pleading a Substantive Due Process

violation. The Shanks Court held that “Because

Spokane’s conduct did not deprive Logan Neighborhood

of a constitutionally cognizable property interest, we

affirm the district court’s entry of summary judgment

in favor of the city.” (op. p.1087)

C. Applicable rules for pleading a Substantive

Due Process violation

A complaint is sufficient if it gives the defendant

“fair notice” of what… the claim is and the grounds

upon which it rests.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007).

In determining the sufficiency, allegations of

material fact are deemed true “in the light most

favorable to the pleader.” Scheuer v. Rhodes, 416 U.S.

232, 236 (1974). The Scheuer Court stated: “Indeed it

may appear on the face of the pleadings that a recovery

is very remote and unlikely but that is not the test.”

Twenty-three years later, Bell Atlantic held that the

claim must be “plausible.”

Premier Recycling brought action under the

Declaratory Judgment Act, 28 U.S.C. Section 2201.

Congress intended the declaratory judgment procedure

to act as an alternative to injunctive relief and to be

utilized to test the constitutionality of state statutes.

Steffel v. Thompson, 415 U.S. 452, 466-468 (1974). To

fall within the Act’s ambit, the case of actual

controversy” (must be):

12

“definite and concrete, touching the legal

relations of parties having adverse legal

interests,’ . . . ‘real and substantial’ and ‘admi[t]

of specific relief through a decree of a conclusive

character, as distinguished from an opinion

advising what the law would be upon a

hypothetical state of facts.’” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 127 (2007).

D. Conflict among the Ninth, Fifth and

Seventh Circuits

The Ninth Circuit’s pleading standards are set forth

in Yamaguchi v. United States Dep’t of the Air Force

109 F.3d 1475, 1481 (9th Cir. 1997). Yamaguchi states

that “Our system of notice pleading ‘does not require a

claimant to set out in detail the facts upon which he

bases his claim.’” (citation omitted) Instead, according

to the Court,

“all the Rules require is ‘a short and plain

statement of the claim’ that will give the

defendant fair notice of what the plaintiff’s claim

is and the grounds upon which it rests.” Id.

(footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)).

“[A] complaint should not be dismissed for

failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him

to relief.” Id. at 45-46 (footnote omitted)

(emphasis added). Thus, these liberal pleading

rules only require that the averments of the

complaint sufficiently establish a basis for

judgment against the defendant. Danning v.

Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978).

13

This standard is similar to the one adopted by the

Seventh Circuit in Jackson v. Marion County, 66 F.3d

151, 153 (7th Cir. 1995) that under FRCP 8, as applied

to a claim arising under 42 U.S.C. Section 1983, like

this one, that “…a plaintiff in a suit in federal court

need not plead facts; he can plead conclusions.”

And because this case raises some novel issues, it is

noteworthy that motions to dismiss under FRCP

12(b)(6) are “especially disfavored” when the complaint

sets forth a novel legal theory that “can best be

assessed after factual development.” McGary v. City of

Portland, 386 F.3d 1259, 1270 (9th Cir. 2004).

In reversing a District Court decision to dismiss two

Section 1983 cases because they were “conclusory,

stale, and lacking in a factual basis”, Judge Posner of

the Seventh Circuit applied FRCP 8 in Brownlee v.

Conine, 957 F.2d 353, 354 (7th Cir. 1992) and held

that

The Federal Rules of Civil Procedure

establish a system of notice pleading rather than

of fact pleading, Fed. R. Civ. P. 8; Elliott v.

Thomas, 937 F.2d 338, 345 (7th Cir. 1991), so

the happenstance that a complaint is

“conclusory,” whatever exactly that overused

lawyers’ cliche means, does not automatically

condemn it. All the complaint need do to

withstand a motion to dismiss for failure to state

a claim is “outline or adumbrate” a violation of

the statute or constitutional provision upon

which the plaintiff relies, Sutliff, Inc. v. Donovan

14

Cos., 727 F.2d 648, 654 (7th Cir. 1984), and

connect the violation to the named defendants.

The Fifth Circuit went further in GE Capital Corp.

v. Posey, 415 F.3d 391, fn.6 (5th Cir. 2005) that “…the

mere fact that allegations can be characterized as

‘conclusional’ will not, alone, suffice to make them

insufficient” citing the Seventh Circuit in Brownlee.

This Court cited the Seventh Circuit decision in

Brownlee favorably in Bell Atlantic supra at 550 U.S.

544, 590.

Only one Court within the Ninth Circuit, Medrano

v. Caliber Homes Loans, Inc., 2014 U.S. Dist. LEXIS

177576 at *19-20 (CD CA 2014), has cited Brownlee,

and this Central District Court’s interpretation of

Brownlee is also at odds with both the District Court’s

ruling in this case which the Ninth Circuit affirmed.

The Medrano Court stated:

“What is the relevant difference between a

conclusory allegation on one hand, and a

sufficient allegation on the other? The

distinction can be a hard one to draw in formal

terms. See Brownlee v. Conine, 957 F.2d 353,

354 (7th Cir. 1992) (referring to the term

“conclusory,” in the context of pleading, as an ill

defined, “overused lawyers’ cliché”); see

generally 5 Charles Alan Wright, et al., Federal

Practice & Procedure § 1218 (3d ed.) (noting that

“years of frustrating experience” show that it is

“difficult, if not impossible, to draw meaningful

and consistent distinctions between or among

‘evidence,’ ‘facts,’ and ‘conclusions’” — concepts

that “tend[] to merge to form a continuum [with]

15

no readily apparent dividing markers . . . to

separate them”). Better instead to approach the

distinction in practical terms. To be effective, a

plaintiff’s complaint need only offer a set of facts

that put a defendant on notice of a legal wrong

the plaintiff alleges plausibly that the defendant

committed. See Twombly, 550 U.S. at 556-57

(holding that factual allegations must be enough

to raise a claim above a speculative level, and to

a plausible one); Skaff v. Meridien N. Am.

Beverly Hills, LLC, 506 F.3d 832, 841 (9th Cir.

2007) (noting that “the purpose of a complaint”

is “to give the defendant fair notice of the factual

basis of the claim”). (some record citations

omitted)

In this action, the District Court found that

Petitioner’s initial complaint did not meet FRCP 8’s

requirements because it failed to allege that

Sunnyvale’s action was “arbitrary or capricious” and

granted leave to amend to do so. (op. at * 46)

Petitioner’s FAC cured this asserted pleading defect

by alleging that Sunnyvale’s actions were “arbitrary

and capricious in each of Para. 22, 26, 27, and the

prayer for relief in the FAC (App. 164, 166-67).

Paragraphs 3-24 (App. 153-166) of the FAC allege

factually why the actions were arbitrary and capricious

and bearing no rational relation to any legitimate

government interest.

Premier Recycling submits that alleging an action

is arbitrary and capricious is itself a factual allegation.

Both words are adjectives. Adjectives modify nouns.

Conclusions are judgments, not nouns. In any event,

16

the FAC states the action was arbitrary and capricious

because:

Premier Recycling applied for a permit to haul C&D

for a fee under an Ordinance that allowed the issuance

of multiple permits and Sunnyvale denied a permit

because it had determined to allow only one hauler.

(App. 161)

Sunnyvale failed to perform the statutory condition

precedent (PRC Sec. 40059) to awarding an exclusive

solid waste franchise (App. 163))

Sunnyvale permits self-haul of C&D (App. 159-160)

while banning fee for service hauling of C&D, making

a rational public health and safety argument difficult;

Premier Recycling does not collect material within

the scope of Sunnyvale’s exclusive franchise; (App. 15759)

Premier Recycling alleged:

1. Premier Recycling applied for a license from

Sunnyvale to collect mixed C&D in the city for a

fee, accepting for that purpose that Sunnyvale’s

Ordinance required such a license. FAC Para.

17, App. 161;

2. Sunnyvale denied Petitioner’s license

application on the ground that Sunnyvale had

only one licensed collector of what the city

termed solid waste, even though Sunnyvale’s

Ordinance contemplates multiple licensees. FAC

Para. 18, App. 161-162;

17

3. Sunnyvale’s refusal to issue a license to Premier

Recycling deprived Premier Recycling of a

property interest under color of law in violation

of 42 U.S.C. Section 1983. FAC, Para. 26, App.

166-167);

4. Sunnyvale’s decision to have only one

licensee to collect what it terms “solid waste”

violated PRC Section 40059. FAC Para. 29,

App. 167;

5. Petitioner’s established property interests such

as lost contracts and business relationships were

impaired by the state Supreme Court decision,

Waste Management of the Desert, FAC, Paras, 30

and 33, App. 167-168;

6. The Waste Management of the Desert decision as

applied by Sunnyvale in denying a license to

Premier Recycling violates the 14th Amendment

because it is “so arbitrary that a rational basis

for the action cannot even be conceived post hoc.

FAC Para. 36, App. 169.

The facts alleged, not the conclusions, are that

Premier Recycling applied for, and was refused by,

Sunnyvale, a license as a disposal service operator.

That is the act under color of law that Premier

Recycling alleges. Premier Recycling alleges that this

denial caused it harm. Premier Recycling alleges that

the act of denying issuance of a permit denied Premier

Recycling rights arising both from the Constitution and

from state statute13, PRC Section 40059. Petitioner’s

13

Section 1983 states that relief may be provided to “Every person

who, under color of any statute, ordinance, regulation, custom, or

18

FAC enumerates which civil rights were violated under

color of law.

II. THE COURT SHOULD SETTLE AN

IMPORTANT QUESTION OF LAW

CONCERNING THE APPLICATION OF STOP

THE BEACH

A. Stop the Beach and its Progeny

In Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Envtl. Prot., 560 U.S. 702 (2010), four justices of this

Court, led by Justice Scalia found that an action of a

state Supreme Court that changed established property

rights could violate the Fifth Amendment Takings

Clause. Two of the remaining four14 justices, Justices

Kennedy and Sotomayor, stated that it was

unnecessary to decide the issue but that in theory,

should a state Supreme Court eliminate an established

property right, there would be a constitutional

violation. Justice Kennedy wrote: “If a judicial decision,

as opposed to an act of the executive or legislature

eliminates an established property right, the judgment

could be satisfied as a deprivation of property without

due process of law and that the Due Process Clause, in

both its substantive and procedural aspects is a central

limitation upon the exercise of judicial power.” (op

p. 735)

Premier Recycling withdrew its Takings Clause

claim due to the precedent of PVM Redwood Co. v.

usage, of any State” is deprived of “any rights, privileges, or

immunities secured by the Constitution and laws….”

14

Justice Stevens did not take part in the opinion. See op. p. 733)

19

United States, 686 F.2d 1327 (9th Cir. 1982). Premier

Recycling seeks review of the dismissal of its

Substantive Due Process claim.

The Ninth Circuit did not reference Stop the Beach

in its opinion in this case. The District Court opinion

states that a claim such as in Stop the Beach would

“…appear to raise “difficult procedural concerns” such

as ‘abstention and Rooker-Feldman, notice and

immunity’ that would be inherent in asking a federal

court to review a state court decision.”

But Justice Scalia pointedly stated that RookerFeldman did not preclude Takings Clause

responsibility (op p.727-728)

Justice Scalia rebuts the District Court’s concern by

stating:

There is no textual justification for saying

that the existence or the scope of a State’s power

to expropriate private property without just

compensation varies according to the branch of

government effecting the expropriation. Nor

does common sense recommend such a principle.

It would be absurd to allow a State to do by

judicial decree what the Takings Clause forbids

it to do by legislative fiat.15

15

Justice Scalia’s assessment was that the Takings clause, unlike

the ex post facto clauses, “is not limited to a specific branch of

government.” (op. p. 713-714). Likewise the Fourteenth

Amendment Due Process clause is not limited to a specific branch

of government.

20

The District Court also stated (at *17) that the “The

plurality disagreed with Justice Kennedy’s substantive

due process approach”, This is true.

But the District Court also cites (at *17) Watson v.

Lake County, No. 5:09-cv-399, 2011 U.S. Dist. LEXIS

162352, 2011 WL 13175635, at *6 n.2 (M.D. Fla. Feb.

23, 2011) for the proposition that “Notwithstanding the

fact that [Justice Kennedy’s] opinion has no

precedential value, it was also roundly criticized by a

plurality of the other justices. This Court refused to

apply such an unsettled rule to this case.”

Watson says no such thing. The cited portion of

Watson states that “Plaintiffs do not allege that an

unconstitutional taking has occurred, and therefore the

Supreme Court’s analysis is inapplicable here.”

At least two Courts have declined to follow Stop the

Beach because it was a plurality opinion that has “no

precedential value.” See Shinnecock Indian Nation v.

United States, 112 Fed. Cl. 369, 385 (2013); Northern

Natural Gas Co. v. ONEOK Field Servs. Co., L.L.C.,

296 Kan. 906, 935 (2013).

One District Court within the Ninth Circuit

accepted as true that courts could make a “taking”, but

found that in the particular case the Nevada Supreme

Court had not done so. Thunder Props. v. Treadway,

2016 U.S. Dist. LEXIS 43818 at *9 (D NV 2016).

Likewise, one of the cases cited by the District Court

held that the possibility existed, but not in that

particular case. Weigel v. Maryland, 950 F. Supp. 2d

811, 837-838 (D MD 2013).

21

These Courts all disregarded the two Supreme

Court cases cited by Justice Scalia to support his

opinion in Stop the Beach, Pruneyard Shopping Ctr. v.

Robins, 447 U.S. 74, 76 (1980) and Webb’s Fabulous

Pharms. v. Beckwith, 449 U.S. 155 (1980).

Neither Pruneyard nor Webb’s was a plurality

decision. Webb’s was a unanimous decision. In

Pruneyard this Court considered the issue (op. p.79)

Before this Court, appellants contend that their

constitutionally established rights under the

Fourteenth Amendment to exclude appellees

from adverse use of appellants’ private property

cannot be denied by invocation of a state

constitutional provision or by judicial

reconstruction of a State’s laws of private

property. We postponed consideration of the

question of jurisdiction until the hearing of the

case on the merits.

The Pruneyard Court declined to find that the state

Supreme Court had ruled unconstitutionally. (op. p.88)

While Pruneyard was primarily a First Amendment

case, none of the justices disagreed with the premise

that a state Supreme Court might make an

unconstitutional ruling.

In Webb’s, a unanimous Court held that a Florida

county ordinance affirmed by the state Supreme Court

in fact violated the Takings Clause and reversed the

state Supreme Court decision. (op. p.164-65)

Premier Recycling of course was not a party to the

Waste Management of the Desert case being reviewed,

like the plaintiff was in Webb’s. Premier Recycling had

22

no standing to challenge the efficacy of that decision

until Premier Recycling had been injured by that

decision- here when Sunnyvale applied Waste

Management of the Desert to preclude Premier

Recycling from exercising a property right it enjoyed

before that case was decided. Premier Recycling did

not sue the state Supreme Court, nor did it have to.

According to Justice Scalia in Stop the Beach, “Where

the claimant was not a party to the original suit, he

would be able to challenge in federal court the taking

effected by the state supreme-court opinion to the same

extent that he would be able to challenge in federal

court a legislative or executive taking previously

approved by a state supreme-court opinion.”

B. How the California Supreme Court

impaired established property rights

In Justice Scalia’s formulation (op p.730) one

compares the property rights of a party before and after

the subject state Supreme Court decision. Premier

Recycling thus compares the legislature’s

comprehensive pro-recycling statutory scheme of 1989

against the state Supreme Court’s 1994 pro-garbage

interpretation. The state court did not even follow this

Court’s precedent or its own state law for the

interpretation of a statute.

C. The Established Property Rights Set Forth

in the 1989 Legislation

In 1989, California passed a landmark Integrated

Waste Management Act (“Act’) which completely recast

the relationship between recyclable materials/

commodities, and solid waste. The Legislature also

23

commanded that, upon the threat of $10,000/day fines,

each local government must reduce the amount of

material going to landfill by 50% by year 2000. See

PRC Section 41780. The legislature stated

unequivocally in PRC Section 40051 its policy goals:

In implementing this division, the board and

local agencies shall do both of the following:

(a) Promote the following waste management

practices in order of priority:

(1) Source reduction.

(2) Recycling and composting.

(3) Environmentally safe transformationi and

environmentally safe land disposal, at the

discretion of the city or county.

(b) Maximize the use of all feasible source

reduction, recycling, and composting options in

order to reduce the amount of solid waste that

must be disposed of by transformation and land

disposal…..

In other words, after first reducing the amount of

post-consumer discards, local agencies of the state

must first apply methods of resource recovery to the

post-consumer discards such as reuse, re-processing,

and composting. Unless and until these post-consumer

discards had passed through the available recovery

processes, the discards do not become solid waste,

which is the residue after this “order of priority” is

followed. In the industry parlance, “nothing is waste

until it is wasted.”

The policy behind this legislative direction that

landfills are environmentally harmful and that virgin

24

resources need to be conserved is also made clear in

PRC Section 40000 which states in part:

The Legislature hereby finds and declares all of

the following:

***

(b) Over 90 percent of California’s solid waste

currently is disposed of in landfills, some of

which pose a threat to groundwater, air

quality, and public health.

***

(e) The reduction, recycling, or reuse of solid

waste generated in the state will, in addition to

preserving landfill capacity in California, serve

to conserve water, energy, and other

natural resources within this state, and to

protect the state’s environment.” (emphasis

added)

Specifically as it relates to the activity of Premier

Recycling recovering recyclable commodities at

construction job sites, hauling the mixed C&D to its

permitted facility, then selling the sorted materials and

placing them back in commerce, the Legislature stated

in PRC Section 40001(e):

The Legislature further declares that market

development is the key to successful and

cost-effective implementation of

the…diversion requirements required pursuant

to Section 41780, and that the state must take a

leadership role, …in encouraging the expansion

25

of markets for recycled products by working

cooperatively with the public, private, and

nonprofit sectors. (emphasis added)

The Act defines “Recycle” in PRC Sec. 40180 as

… the process of collecting, sorting, cleansing,

treating, and reconstituting materials that

would otherwise become solid waste, and

returning them to the economic mainstream in

the form of raw material for new, reused, or

reconstituted products which meet the quality

standards necessary to be used in the

marketplace. “Recycling” does not include

transformation16, as defined in Section 40201 or

EMSW conversion.

If the verb “to recycle” means “collecting, sorting…,

and reconstituting materials that would otherwise

become solid waste”, then the results of that process

logically are “recyclable materials.” The key phrase in

Section 40180 is “that otherwise would become

solid waste.” This is consistent with the legislativelycommanded “order of priority” in PRC Section 40051

supra that recycling or composting options must be

used on materials before they become solid waste.

The Act defines “solid waste” in PRC Section

40191(a)17 to mean:

Except as provided in subdivision (b), “solid

waste” means all putrescible and nonputrescible

16

17

i.e. incineration

Section 40191(b) contains exclusions to this definition not

relevant to this case.

26

solid, semisolid, and liquid wastes, including

garbage, trash, refuse, paper, rubbish, ashes,

industrial wastes, demolition and construction

wastes, abandoned vehicles and parts thereof,

discarded home and industrial appliances,

dewatered, treated, or chemically fixed sewage

sludge which is not hazardous waste, manure,

vegetable or animal solid and semisolid wastes,

and other discarded solid and semisolid wastes.

Although the Waste Management of the Desert Court

interpreted this statutory definition, it never stated

that the definition was so ambiguous that it required

interpretation.

An exclusive franchise may be granted for the

collection of solid waste only if “the public health,

safety, and well-being so require.” PRC Section

40059(a)(2). Section 40059 implies that the

governmental agency, here Sunnyvale, awarding the

franchise, make some finding, in open session that the

public health, safety, and well-being to Sunnyvale’s

citizens require the grant of an exclusive franchise.

The Act does not provide for the franchising of

collection of recyclable materials, i.e. what Plaintiff

collects.

The record before the District Court does not reveal

any finding by Sunnyvale that the public health, safety,

and well-being require an exclusive franchise of solid

waste.

27

D. Compare the 1989 Legislation to the 1989

Supreme Court Interpretation

In 1994 the California Supreme Court was

confronted with where the line should be drawn

between recyclable materials and solid waste, having

assumed, without stating so, that the definition of

“solid waste” in PRC Section 40091 was ambiguous.

Waste Management of the Desert v. Palm Springs

Recycling Center, 7 Cal.4th 478 (1994).

The city of Rancho Mirage granted a franchise and

passed a conforming ordinance granting to Waste

Management of the Desert (WMD) the exclusive right

to “collect, receive, transport, segregate, recycle, and

dispose of residential and commercial refuse” of the

type customarily deposited by residents and

businesses in collection containers or areas for pickup

and disposal.

This ordinance is similar to the one challenged in

this case. Palm Springs Recycling Center was a

business that collected recyclable materials from

commercial accounts in Rancho Mirage. WMD and the

city sued to enjoin this activity.

The trial court issued a preliminary injunction and

then a Judgment in favor of WMD and City

permanently enjoining Palm Springs Recycling Center

“from placing bins or other receptacles within the City

for the purpose of collecting recyclable materials and

from collecting or removing recyclable materials from

within the City.” The trial court did not attempt to

distinguish recyclable materials from solid waste.

28

The Court of Appeal reversed at 20 Cal.App.4th

586 (1992), holding that the materials collected by

Palm Springs Recycling Center were not “discarded”

and therefore not within the definition of solid waste in

PRC Section 40191. The Court of Appeal also found

that the City’s actions were an unconstitutional

exercise of its police power- the issue presented in this

case.

In reversing the Court of Appeal, the state Supreme

Court also focused on the term “discarded” because the

definition of solid waste under Section 40191 has a

residual category of “other discarded” solid and

semisolid waste. The Court did not cite any legislative

history of the Act in interpreting the meaning of

“discard”. Nor did it cite any of the policies of the Act,

such as are quoted supra. The Court did not even follow

its own precedent for resolving statutory ambiguities

first by examining “…the language and purposes of the

statutory schemes as a whole.”Evangelatos v. Superior

Court, 44 Cal. 3d 1188, 1202 (1988).

The Court instead focused on its own, selective,

dictionary definition of “discard” and then legislated it

as the definition of solid waste. The more common

dictionary definition of “discard” is “to get rid of as

unwanted or useless.” The Ninth Circuit used this

same definition of “discard” (to get rid of as unwanted

or useless) in United States v. Millis, 621 F.3d 914, 917

(9th Cir. 2014) (purified water in a bottle was not

“garbage”). The Waste Management of the Desert court

used something else of the Court’s own making.

29

E. Rules Of Statutory Interpretation

The starting point for interpretation of a statute “is

the language of the statute itself. Absent a clearly

expressed legislative intention to the contrary, that

language must ordinarily be regarded as conclusive.”

Consumer Product Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102, 108 (1980).

“When a statute includes an explicit definition, (the

Court) must follow that definition, even if it varies from

that term’s ordinary meaning.” Stenberg v. Carhart,

530 U.S. 914, 942 (2000).

“(The) established rule of statutory interpretation

cannot be overcome by judicial speculation as to the

subjective intent of various legislators in enacting the

(legislation).” Bilsky v. Kappos, 561 U.S. 593, 608

(2010).

“In order to determine the scope of (a statute), (the

Court) must examine the statute’s text in light of

context, structure, and related statutory provisions.”

Exxon Mobil Corp. v. Alapattah Svcs., 545 U.S. 546,

558 (2005).

California state law

interpretation is similar.

governing

statutory

“It is well settled that the primary goal when

interpreting a statute or rule is to determine the

drafters’ intent in order to give effect to the rule’s

purpose. “‘The court begins with the language used.

[Citation.] The court attempts to give effect to the

usual, ordinary import of the language and to avoid

making any language mere surplusage. [Citations.]

30

“The words must be construed in context in light of the

nature and obvious purpose of the statute where they

appear. …” Harris v. Appellate Division of Superior

Court, 14 Cal.App. 5th 142, 148 (2017) citing Rossa v.

D.L. Falk Construction, Inc., 53 Cal. 4th 387, 397

(2014).

While California and Federal courts, including the

Harris Court, employ the dictionary at times in

construing ambiguous statutes, this Court cautioned

about dictionary use in Yates v. United States 135

S. Ct. 1074, 1081-1082 (2015)

Whether a statutory term is unambiguous,

however, does not turn solely on dictionary

definitions of its component words. Rather,

“[t]he plainness or ambiguity of statutory

language is determine [not only] by reference to

the language itself, [but as well by] the specific

context in which that language is used, and the

broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117

S. Ct. 843, 136 L. Ed. 2d 808 (1997). See also

Deal v. United States, 508 U.S. 129, 132, 113

S. Ct. 1993, 124 L. Ed. 2d 44 (1993) (it is a

“fundamental principle of statutory construction

(and, indeed, of language itself) that the

meaning of a word cannot be determined in

isolation, but must be drawn from the context in

which it is used”). Ordinarily, a word’s usage

accords with its dictionary definition. In law as

in life, however, the same words, placed in

different contexts, sometimes mean different

things.

31

In this case, the Waste Management of the Desert

Court also added into these definitions an economic

component that results in a changed “policy” that is the

opposite of what the Legislature intended and the

rights that the Legislature created.

The Court in Waste Management of the Desert did

not refer to any of the language in the landmark

statutory scheme that declares its purpose, such as

PRC Sections 40001, 40004, and 40180. The Court did

not mention the mandated hierarchy of materials

handling stated in PRC Section 40180. The Court did

not cite the definition of “recycle” in PRC Section

40051.The Court explicitly did not consider any

constitutional issue in its construction of the terms

“solid waste” and “discard”. (op. at p. 490) Thus, the

Court did not follow, or even observe, the statutory

rules of construction endorsed by either this Court or

itself. The stated policies of the statutes considered by

the Court18 explicitly state a different purpose than the

Court’s own speculative interpretation.

By enacting PRC Section 40000 et seq., the state

Legislature decided and declared that there was too

much garbage, i.e. the garbage that historically has

been regulated by local government.19

18

See Public Resources Code Sections 40000-40001, 40004, and

40180.

19

Although this Court has held that “solid waste” is an article of

commerce for purposes of applying the Commerce Clause, it has

never defined what “solid waste” means for this purpose. See

Philadelphia v. New Jersey (1978) 437 US 617, 622-623. Writing in

dissent, Justice (later Chief Justice) Rehnquist expressed the view

that garbage was the equivalent of “germ-infected rags or diseased

32

To counteract the environmental harm of landfills

and incineration and the wasting of virgin resources

declared by the Legislature, the state Legislature made

clear that recycling was preferred over landfilling (PRC

Sec. 40000(e) and that the act of recycling was defined

to be (PRC Sec. 40180)

… the process of collecting, sorting, cleansing,

treating, and reconstituting materials that

would otherwise become solid waste, and

returning them to the economic mainstream in

the form of raw material for new, reused, or

reconstituted products…. (emphasis added)

Instead of focusing on whether “discarded” material

was in fact recycled, and entitled to statutory

preference, the Court in Waste Management of the

Desert added an economic component to the meaning of

discarding and recycling, that the dividing line of waste

v. recyclable was whether or not someone bought it

from the owner.

The Court revealed its focus on garbage, not

recycling. First, the Court stated, (at p. 485)

The Act’s very title, the California Integrated

Waste Management Act of 1989, and its

repeated references to “solid waste,” “solid waste

handling,” “recycling of solid wastes,” and the

like strongly indicate the Legislature was

concerned with just what it said--waste--and

meat”, citing Asbell v. Kansas, 209 U.S. 251 (1908), which upheld

a Kansas statute banning the import of cattle unless first

inspected at the border.

33

not with materials of economic value to

their owner. (emphasis added)

That is not a rational construction of what the

Legislature said and the Court cites no such language

of intent. The repeated references in the legislation to

“waste” are in the context of declaring it to be a noxious

substance that must be reduced and recycled. PRC

Section 40000(d) and (e). The legislation expressly

does concern “materials of economic value to their

owner.” (PRC Secs. 40001(e), 40180).

The entire point of the 1989 legislation was to

create a hierarchy of materials handling so that,

before they become “waste”, discarded (i.e. unwanted

by the owner/generator) materials are first processed

for reuse, recycling, and composting to encourage

market development of the businesses performing the

reclamation of materials. The Legislature determined

that recycling involved processing materials “that

otherwise would become solid waste” and that the

Legislature intended to put these reconstituted

products back into use “in the market.” PRC Section

40180.

The Court then opined that (at p.485)

The commonly understood meaning of “waste” is

something discarded “as worthless or useless.”

(Amer. Heritage Dict. (1985) p. 1365, col. 1; 19

Oxford English Dict. (2d ed. 1989), p. 958, col. 1.)

The Court continued to explain its definition in

economic terms (p. 485).

34

“If the owner sells his property--that is, receives

value for it--the property cannot be said to be worthless

or useless in an economic sense and is thus not waste

from the owner’s perspective.”

But the American Heritage Dictionary online

edition today offers two relevant definitions of “waste”,

neither of which are what the Court used20. Today’s

definition is either: a) “An unusable or unwanted

substance or material…” or b) “garbage; trash”.

According to this same dictionary, “garbage” is

synonymous with “trash” and “trash” means, “a.

Worthless or discarded material or objects”

But the Legislature never said that waste or value

is judged from the owner’s perspective. The mixed C&D

collected by Premier Recycling is not worthless or

useless or “unwanted”; it is sorted and then sold to

manufacturers of reconstituted products, exactly what

the legislation was designed to promote. The

Legislature did not state where, in the post-consumer

supply chain, the discards must realize “value”. The

legislation commands that post-consumer discards be

put through reclamation processes before the discards

are deemed “waste”. At the end of this process, when

no one wants the discard, and its end destination is

the landfill, only then does the material becomes

“waste”, as the Legislature intended that term to mean.

20

Illustrating a problem of using dictionary definitions; the edition

cited by the Court is no longer in print or readily available.

35

What Premier Recycling collects is not “worthless”,

or “useless”, or “unwanted”. It sells the sorted C&D to

a buyer who values, uses, and wants it. The mixed

C&D has a value to the owner/generator that hires

Premier Recycling to collect it. Creating a test of

whether the owner “sells” the discards is not what the

Legislature intended and does not reflect marketplace

reality. The evidence may show that Premier Recycling

charges a lower collection fee than the franchised

hauler because Petitioner’s collection costs are offset by

the sale of the sorted materials. This gives “value” to

the owner/generator. The mixed C&D has value at the

instant Premier Recycling collects it and never loses

that value.

The Court continued its interpretation of the

legislation by stating, “Discard” means “to throw

away.”. (p.468).

Today’s Merriam-Webster online definition21 of the

term adds the phrase, “…to get rid of something as

worthless or useless” Logically, nothing becomes either

solid waste or recyclable until the owner no longer

wants it. If unwanted material goes to a landfill it is

wasted and waste is disfavored as a matter of policy; if

material is recycled it is favored by policy and must

mean that the material has worth to someone postconsumer.

But the real rationale for the Court’s decision may

be inferred from its criticism of the Court of Appeal and

its reasoning to reverse the court of Appeal:

21

https://www.merriam-webster.com/dictionary/discard

36

“The Court of Appeal also relied heavily on

this statutory definition of “waste” in concluding

that “only discarded waste materials become

solid waste subject to ‘handling’ “ under the Act.

Plaintiffs22 object to this approach, contending it

would eviscerate the Act because owners could

discard all their property--recyclable and

otherwise--as they see fit and thereby render an

exclusive solid waste handling franchise a

nullity as a practical matter. In other words, the

Court of Appeal opinion might be read to mean

that a property owner could decide unilaterally

with whom he will discard his waste. If three

competing waste handlers (the exclusive

franchisee and two others) placed their

respective receptacles at the owner’s

curbside, he could put his waste into

whichever container he chooses. Perhaps

the Court of Appeal did not intend that result,

but its opinion might be read as suggesting as

much and, if so, we believe this result would be

inconsistent with the Act’s apparent intent. If,

however, the concept of being discarded is

properly understood, this perceived problem is

easily avoided.” (emphasis added)

The boldfaced portion of this “parade of horribles”

makes no mention of recyclable materials, it discusses

“waste.” “Waste” is something that results from a

failure to reuse, recycle, or compost the material. A

recycled material is not waste. To be recycled,

22

Plaintiffs in the case were the franchised garbage hauler and the

public entities involved.

37

something must be “recyclable”. When the Court is

concerned about “competing waste collectors” it must

not mean the collection of recyclable materials, unless

the Court actually is equating the two things, itself at

variance with the legislative intent. That might have

been the regulatory intent in 190523 but not how it

unconstitutionally “changed course” in 1989.

The 1989 legislative intent is to reduce waste, not

eliminate competition for the materials that the owner

does not want. And the Legislature provided discretion

to local agencies to grant exclusive “waste” collection

franchises only if the public health and safety so

require; exactly the discretion that Sunnyvale did not

exercise in this case. Sunnyvale has unchallenged

statutory power to have only one “waste” collector and

avoid the Court’s concern that multiple waste collectors

might undermine a city’s power to want exclusivity in

its waste collection system. But Sunnyvale did not

exercise this power for any reason that the Legislature

intended.

The 1989 legislation prefers that materials be

recycled. The legislation does not dictate who must

collect the recyclable material. So if there are “multiple

collectors of recyclable material” within a jurisdiction,

this is market capitalism of the type the legislation

states that it wanted to promote. PRC Section 40001(e).

23

Both this Court’s and the state court’s jurisprudence on the need

for garbage franchising is from 1905, not long after the germ

theory of disease was accepted and the United States still suffered

plague and cholera outbreaks. See California Reduction Co. v.

Sanitary Reduction Works, 126 F. 29 (9th Cir. 1903) cert granted

199 U.S. 306 (1905); In re Zhizhuzza 147 Cal. 328, 329 (1905).

38

What the 1994 Waste Management of the Desert

Court may have intended is a reflection of judicial

history recognizing that if waste is not handled safely

and collected regularly it can become a health hazard,

a view that Premier Recycling shares. The Court may

have thought that allowing multiple “waste” collectors

within a jurisdiction might impair a local government’s

obligations to regulate safe waste collection and

disposal, a view which Premier Recycling does not

contest.

The 1994 “change of course” by the Court from the

1989 legislation is its imposition of an economic

component of value to the owner into a definition of

“waste”, which the legislation views as a residual

category of materials, left over after all reclamation

options are exhausted. The 1989 legislation

contemplates this undeniable truth; if post-consumer

material goes to a landfill or to an incinerator, it is

“waste(d)”; if post-consumer material is reclaimed and

put back into the stream of commerce (no matter who

in the supply chain values it) then it was recycled,

which is the intent of the legislation.

CONCLUSION

Petitioner’s action was designed to test the

constitutional limit of local regulation of the fee for

service collection of nonhazardous recyclable material

like wood, metal, and cardboard. Petitioner alleged its

claim with as much factual detail as possible to comply

with the notice pleading requirements of FRCP 8.

Without intervention by this Court, there is no hope

in California to level the economic playing field for

39

collectors of recyclable materials that are meeting

California’s policy goals.24

Respectfully submitted,

John Douglas Moore

Counsel of Record

1999 Harrison St., 18th Fl.

Oakland, CA 94612

(510) 893-6300

jmoore@recyclelaw.com

Counsel for Petitioner

24

Garbage franchises traditionally have reimbursed the franchisee

for all of its costs plus added profit. The franchisee is paid by

ratepayers. Sometimes the franchisee will lease land and

equipment from an affiliated entity and pass on these “costs” at far

above market rates. A savvy franchisee gifted with this type of

contract will invest some of its profit back into re-election

campaigns of the elected officials who voted to award it. Likewise

the garbage collection lobby effectively blocks change at the state

level. This system would be tested factually in court should this

Petition be granted.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Memorandum in the United States

Court of Appeals for the Ninth Circuit

(February 22, 2019) . . . . . . . . . . . App. 1

Appendix B Order Granting Motion to Dismiss the

First Amended Complaint in the

United States District Court Northern

District of California, San Jose Division

(November 9, 2017). . . . . . . . . . . . App. 5

Appendix C Order Granting City of Sunnyvale’s

Motion to Dismiss in the United

States District Court Northern

District of California, San Jose Division

(June 16, 2017) . . . . . . . . . . . . . . App. 36

Appendix D Cal. Pub. Res. Code. . . . . . . . . . . App. 79

§ 40000-40004 . . . . . . . . . . . . App. 79

§ 40050-40063 . . . . . . . . . . . . App. 84

§ 40100-40201 . . . . . . . . . . . App. 104

§ 41780-41786 . . . . . . . . . . . App. 126

Appendix E First

Amended

Complaint for

Declaratory Judgment and Injunctive

Relief (28 U.S.C. Section 2201) in the

United States District Court Northern

District of California, San Jose Division

(July 16, 2017). . . . . . . . . . . . . . App. 152

App. 1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 17-17459

D.C. No. 17-cv-00956-LHK-HRL

[Filed February 22, 2019]

________________________________

JONNA CORPORATION, DBA

)

Premier Recycling Company

)

)

Plaintiff-Appellant, )

)

v.

)

)

CITY OF SUNNYVALE,

)

)

Defendant-Appellee. )

________________________________ )

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

*

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

App. 2

Submitted February 15, 2019**

San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit

Judges, and LASNIK,*** District Judge.

Jonna Corporation, dba Premier Recycling

Company (“Premier”), appeals the dismissal of its First

Amended Complaint (“FAC”) on November 9, 2017. We

have jurisdiction under 8 U.S.C. § 1291, and we affirm.

We review de novo a dismissal of a complaint, and

we review for abuse of discretion a denial of leave to

amend a complaint. United States ex rel. Anita Silingo

v. WellPoint, Inc., 904 F.3d 667, 676 (9th Cir. 2018);

(citing United States v. Corinthian Colleges, 655 F.3d

984, 991, 995 (9th Cir. 2011)).

The City of Sunnyvale (“the City”) has an exclusive

franchise arrangement for the collection of waste and

recycling materials with Bay Counties Waste Services.

The California Supreme Court held in 1994 that cities

were authorized to grant exclusive franchises of this

sort for “solid waste.” Waste Mgmt. of the Desert, Inc.

v. Palm Springs Recycling Ctr., Inc., 869 P.2d 440, 442

(Cal. 1994) (in bank). In its FAC, Premier challenged

the City’s exclusive franchise, alleging a declaratory

relief action premised on the Takings Clause of the

United States Constitution and the Fourteenth

**

The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable Robert S. Lasnik, United States District Judge

for the Western District of Washington, sitting by designation.

App. 3

Amendment’s guarantee of substantive due process. In

its opposition to the City’s motion to dismiss, it

abandoned its Takings Clause claim, and clarified that

its due process claim was based not on any actions by

the City, but on the California Supreme Court’s

definition of “waste,” which includes within its ambit

the construction and demolition debris that Premier

collects. Waste Mgmt. of the Desert, Inc., 869 P.2d at

445. To the extent that Premier now asserts a

substantive due process violation by the City, those

claims have been waived. Solis v. Matheson, 563 F.3d

425, 437 (9th Cir. 2009).

As Premier concedes, we must apply rational basis

review to its claims. Witt v. Dep’t of Air Force, 527 F.3d

806, 817 (9th Cir. 2008). Under this standard, “only

egregious official conduct can be said to be arbitrary in

the constitutional sense: it must amount to an abuse of

power lacking any reasonable justification in the

service of a legitimate governmental objective.” Shanks

v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (quoting

Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998))

(internal quotation marks omitted). Even assuming, as

the district court did, that Premier’s substantive due

process claim based on a state court’s interpretation of

state law is sustainable in a federal court, Premier does

not satisfy this “exceedingly high burden.” Id. (quoting

Matsuda v. City & County of Honolulu, 512 F.3d 1148,

1156 (9th Cir. 2008)). It expressed disagreement with

the California Supreme Court’s definition of “waste,”

Waste Mgmt. of the Desert, Inc., 869 P.2d at 444, but

it pleaded no facts to support its allegations that the

decision was “constitutionally arbitrary.” Shanks, 540

F.3d at 1089. The district court did not err in

App. 4

dismissing the FAC. Nor did it abuse its discretion in

denying leave to amend. See Carvalho v. Equifax Info.

Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010).

AFFIRMED.

App. 5

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Case No. 17-CV-00956-LHK

[Filed November 9, 2017]

_____________________________

JONNA CORPORATION,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF SUNNYVALE, CA,

)

)

Defendant.

)

_____________________________ )

ORDER GRANTING MOTION TO DISMISS

THE FIRST AMENDED COMPLAINT

Re: Dkt. No. 34

Plaintiff Jonna Corporation (“Plaintiff”), doing

business as Premier Recycling, sues Defendant City of

Sunnyvale (“the City”) because the City refused to

provide Plaintiff a license to collect construction and

demolition debris in the City. Before the Court is the

City’s Motion to Dismiss the First Amended Complaint.

ECF No. 34 (“Mot.”). Having considered the

submissions of the parties, the relevant law, and the

App. 6

record in this case, the Court GRANTS the City’s

Motion to Dismiss the First Amended Complaint.

I. BACKGROUND

A. Factual Background

In 1991, the City entered into an exclusive franchise

agreement for the collection of solid waste in the City

(“Exclusive Franchise Agreement”) with Bay Counties

Waste Services, Inc. (“Bay Counties”), formerly

Specialty Solid Waste & Recycling, Inc., for a term of

ten years. First Amended Complaint (“FAC”), ECF No.

33 at 9; ECF No. 35-1 at 16; Sunnyvale Ordinance No.

2771-04.1 The Exclusive Franchise Agreement has been

amended and extended a number of times, and now

extends through at least June 30, 2021. Sunnyvale

Ordinance No. 2949-11. Under the Exclusive Franchise

Agreement, Bay Counties is the sole collector of solid

waste, including recyclable materials and construction

debris, in the City. FAC at 9. The Sunnyvale Municipal

Code forbids any party from collecting solid waste for

a fee without a franchise or license. Sunnyvale Mun.

Code § 8.16.150 (“It is unlawful for any person to

engage in the business of collecting solid waste within

the city, or to haul the same through any street or

public right-of-way in the city, unless such person has

been granted a franchise or license to do so by the

city.”). Bay Counties is the only entity that has been

awarded such a franchise or license. FAC at 9.

1

In this section, the Court refers to documents of which the City

requests judicial notice. In Section III below, the Court discusses

and grants judicial notice of all of these documents except those to

which Plaintiff objected.

App. 7

Plaintiff is a California corporation based in Santa

Clara County that “is in the business of collecting

discarded wood, metal, asphalt, concrete, and drywall

from commercial construction and demolition sites”

(“construction and demolition debris”). FAC ¶¶ 3, 5. On

October 19, 2016, Plaintiff applied to the City for a

franchise or license to collect construction and

demolition debris under Sunnyvale Municipal Code

§ 8.16.090. Id. ¶ 17; see also Sunnyvale Mun. Code

§ 8.16.090 (“The city council shall provide for the

collection and disposal of solid waste and recyclable

materials generated from residences within the city by

the issuance of a franchise or license, or franchises and

licenses, to disposal service operators.”). On November

7, 2016, the City denied Plaintiff’s application for a

franchise or license. FAC ¶ 18. The City’s denial letter

stated that “[w]hile the Sunnyvale Municipal Code does

allow for the possibility of the City issuing multiple

license holders/franchisees, the City’s current policy is

to issue an exclusive franchise to a single disposal

service operator. This franchise extends to collection of

all solid waste, including [construction and demolition]

material, as described in more detail in Chapter 8.16 of

the Code.” Id.

B. Procedural History

On February 24, 2017, Plaintiff filed the instant

suit. See ECF No. 1. Plaintiff asserted two causes of

action: declaratory relief and mandamus. The

declaratory relief cause of action was based on the

following theories: (1) violation of the Takings Clause

of the U.S. Constitution; (2) violation of the guarantee

of substantive due process of Fifth and Fourteenth

App. 8

Amendments to the U.S. Constitution; (3) violation of

the Equal Protection Clause in the Fourteenth

Amendment of the U.S. Constitution and Article I,

Section 7 of the California Constitution; (4) violation of

the Commerce Clause of the U.S. Constitution; (5) the

City’s use of the wrong definition of “solid waste” under

California law; and (6) violation of California Public

Resources Code § 40059. Id. ¶¶ 26-31. Plaintiff’s

mandamus cause of action stated that the City had a

mandatory duty to issue a franchise or license to

Plaintiff under Sunnyvale Municipal Code § 8.16.090,

and thus the Court should compel the issuance of such

a license. Id. ¶¶ 32-34.

On March 4, 2017, the City filed a motion to dismiss

the complaint. ECF No. 16. On April 18, 2017, Plaintiff

filed an opposition. ECF No. 18. On April 25, 2017, the

City filed a reply. ECF No. 19. On June 16, 2017, the

Court granted the City’s motion to dismiss after finding

that Plaintiff had failed to satisfy the takings

exhaustion requirement and had failed to allege that

the City’s exclusive franchise policy was arbitrary and

capricious, as substantive due process would require.

ECF No. 29 at 12-16. The Court also dismissed

Plaintiff’s equal protection theory based on Plaintiff’s

failure to plead that it was similarly situated to any

other group that had been awarded a franchise or

license and on Plaintiff’s failure to adequately allege

that the City’s exclusive franchise policy was irrational.

Id. at 16-20. The Court dismissed Plaintiff’s dormant

Commerce Clause theory because Plaintiff failed to

adequately plead that the exclusive franchise policy

discriminated against out-of-state interests or that it

burdened interstate commerce. Id. at 25-26. Because

App. 9

the Court had dismissed all of the bases for declaratory

relief over which it had original jurisdiction, the Court

declined to exercise supplemental jurisdiction over

Plaintiff’s remaining state law theories for Plaintiff’s

declaratory relief cause of action and Plaintiff’s

mandamus cause of action, which was based on state

law. Id. at 26-29.

The Court provided Plaintiff leave to amend its

complaint within thirty days. ECF No. 29 at 29. The

Court cautioned that “[f]ailure to file an amended

complaint within 30 days or failure to cure the

deficiencies identified in this Order will result in

dismissal with prejudice of the claims dismissed in this

Order.” Id.

Plaintiff filed its First Amended Complaint on July

16, 2017. In the FAC, Plaintiff alleged a declaratory

relief cause of action premised on the Takings Clause

of the U.S. Constitution and the Fourteenth

Amendment’s guarantee of substantive due process.

Plaintiff abandoned its Equal Protection Clause and

Commerce Clause theories and also abandoned the

mandamus cause of action.

The City filed a motion to dismiss on July 28, 2017.

See Mot. The City also filed a request for judicial

notice. ECF No. 35 (“RJN”). On August 11, 2017,

Plaintiff filed an opposition and objections to the City’s

RJN. ECF No. 37 (“Opp.”). In its opposition, Plaintiff

withdrew its Takings Clause theory. Opp. at 2. The

City replied on August 18, 2017. ECF No. 38 (“Reply”).

App. 10

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Federal Rule of

Civil Procedure 12(b)(6)

Pursuant to Federal Rule of Civil Procedure

12(b)(6), a defendant may move to dismiss an action for

failure to allege “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.

The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

citations omitted). For purposes of ruling on a Rule

12(b)(6) motion, the Court “accept[s] factual allegations

in the complaint as true and construe[s] the pleadings

in the light most favorable to the nonmoving party.”

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

1025, 1031 (9th Cir. 2008).

However, a court need not accept as true allegations

contradicted by judicially noticeable facts, Shwarz v.

United States, 234 F.3d 428, 435 (9th Cir. 2000), and

the “[C]ourt may look beyond the plaintiff’s complaint

to matters of public record” without converting the

Rule 12(b)(6) motion into one for summary judgment,

Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995).

Nor is the Court required to assume the truth of legal

conclusions merely because they are cast in the form of

factual allegations.” Fayer v. Vaughn, 649 F.3d 1061,

1064 (9th Cir. 2011) (per curiam) (quoting W. Mining

App. 11

Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

Mere “conclusory allegations of law and unwarranted

inferences are insufficient to defeat a motion to

dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th

Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore,

“‘a plaintiff may plead [him]self out of court’” if he

“plead[s] facts which establish that he cannot prevail

on his . . . claim.” Weisbuch v. County of Los Angeles,

119 F.3d 778, 783 n.1 (9th Cir. 1997) (quoting Warzon

v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).

B. Leave to Amend

Under Rule 15(a) of the Federal Rules of Civil

Procedure, leave to amend “shall be freely granted

when justice so requires,” bearing in mind “the

underlying purpose of Rule 15 to facilitate decision on

the merits, rather than on the pleadings or

technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127

(9th Cir. 2000) (en banc) (ellipses omitted). However, a

court “may exercise its discretion to deny leave to

amend due to ‘undue delay, bad faith or dilatory motive

on part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue

prejudice to the opposing party . . . , [and] futility of

amendment.’” Carvalho v. Equifax Info. Servs., LLC,

629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in

original) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)).

III. REQUEST FOR JUDICIAL NOTICE

The City has requested judicial notice of a range of

legislative enactments including sections of the

Sunnyvale Municipal Code, public record documents,

App. 12

and correspondence. ECF No. 35. The Court may take

judicial notice of matters that are either “generally

known within the trial court’s territorial jurisdiction”

or “can be accurately and readily determined from

sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). Public records,

including judgments and other publicly filed

documents, are proper subjects of judicial notice. See,

e.g., United States v. Black, 482 F.3d 1035, 1041 (9th

Cir. 2007). However, to the extent any facts in

documents subject to judicial notice are subject to

reasonable dispute, the Court will not take judicial

notice of those facts. See Lee v. City of Los Angeles, 250

F.3d 668, 689 (9th Cir. 2001), overruled on other

grounds by Galbraith v. County of Santa Clara, 307

F.3d 1119 (9th Cir. 2002).

With the exception of the November 7, 2016 letter,

the City previously requested judicial notice of these

documents in connection with its first round motion to

dismiss. ECF No. 17 at 1-3. Plaintiff did not object to

the City’s request for judicial notice at that time. See

ECF No. 18. In its Order on June 16, 2017, the Court

granted the City’s request for judicial notice of these

documents. ECF No. 29 at 6-8. In its June 16, 2017

Order, the Court concluded that these “documents are

legislative enactments, ordinances, or regulations that

are subject to judicial notice,” or “are of public record,

and thus are documents for which judicial notice is

appropriate.” ECF No. 29 at 7 (citing Long Beach Area

Peace Network v. City of Long Beach, 574 F.3d 1011,

1026 (9th Cir. 2009) (taking judicial notice of a local

ordinance, a local regulation, and a local municipal

code); Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952,

App. 13

959 n.10 (9th Cir. 2013) (taking judicial notice of

opinion letters of California Division of Labor

Standards Enforcement); and Law v. City of Berkeley,

No. 15-cv-05343-JSC, 2016 WL 4191645, at *4 (N.D.

Cal. Aug. 9, 2016) (taking judicial notice of city council

minutes)).

The November 7, 2016 letter, in which the City

denied Plaintiff’s application for a license to collect

construction and demolition debris, was referenced on

page 9 of the FAC. See FAC at 9; RJN Exh. J. A court

may consider documents that were referenced but not

attached to the complaint for purposes of deciding a

Rule 12(b)(6) motion. Davis v. HSBC Bank Nev., NS.,

69 1 F.3d 1152, 1159-1160 (9th Cir. 2012); Branch v.

Tunnell, 14 F.3d 449,454 (9th Cir. 1994).

Plaintiff now objects to the City’s request for judicial

notice of two documents: the January 11, 2005

Extended and Second Restated Agreement (“the

Agreement”), and the February 15, 2011 Staff Report

(“the Report”). Opp. at 15. Plaintiff argues that the

Court cannot take judicial notice of the recitals in the

Agreement because the facts in the recitals are

themselves disputed. Opp. at 16. It appears to make a

similar argument as to the Report. Accordingly, the

Court has not considered the Agreement or the Report

in ruling on the instant motion. The City’s request for

judicial notice of the other documents is GRANTED.

IV. DISCUSSION

In its Opposition to the instant motion, Plaintiff

stated, “In light of PVM Redwood Co. v. United States,

686 F.2d 1327 (9th Cir. 1982), which had not been cited

App. 14

previously by the City or the Court, and of which

[Plaintiff] was unaware, [Plaintiff] must withdraw its

Takings Clause claim under [Federal Rule of Civil

Procedure] 11.” Opp. at 1-2. Plaintiff further stated

that “[Plaintiff] has not renewed, and has therefore

withdrawn, its previous claims under the Equal

Protection Clause, the Commerce Clause, and its

supplemental mandamus claim.” Id. at 2. Thus,

Plaintiff stated that its Opposition “tries to clarify

[Plaintiff]’s theory of this case on its substantive due

process claim and related supplemental state law

claim.” Id. Plaintiff’s FAC consists of one declaratory

relief cause of action. The Court addresses Plaintiff’s

substantive due process theory, then Plaintiff’s state

law theories, of Plaintiff’s declaratory relief cause of

action.

A. Substantive Due Process

Because Plaintiff’s theory of its declaratory relief

cause of action has shifted between the original

complaint and the FAC and again between the FAC

and Plaintiff’s Opposition, the Court first describes

Plaintiff’s substantive due process theory of its

declaratory relief cause of action. The Court then

analyzes Plaintiff’s cause of action.

1. Plaintiff’s Theory of the Alleged

Substantive Due Process Violation

Plaintiff’s substantive due process theory hinges on

the California Supreme Court’s interpretation of the

California Integrated Waste Management Act of 1989

(“the Act”). Accordingly, the Court first explains the

statutory and legal background of Plaintiff’s argument.

App. 15

The Act permits cities to grant exclusive franchises for

solid waste handling services. CAL. PUB. RES. CODE

§ 40059(a)(2). “Solid waste handling” means “the

collection, transportation, storage, transfer, or

processing of solid wastes.” Id. § 40195. As relevant

here, the Act defines “solid waste” to include “all

putrescible and nonputrescible solid, semisolid, and

liquid wastes, including garbage, trash, refuse, paper,

rubbish, ashes, industrial wastes, [and] demolition and

construction wastes.” Id. § 40191(a). The Act does not

separately define “waste,” which is used in the broader

definition of “solid waste.”

In 1994, the California Supreme Court interpreted

the term “waste” as used in the Act in Waste

Management of the Desert, Inc. v. Palm Springs

Recycling Center, Inc., 869 P.2d 440 (Cal. 1994). In

Waste Management, the city of Rancho Mirage had

awarded the plaintiff an exclusive franchise for

collecting “waste matter, garbage, and rubbish.” Id. at

441. The plaintiff sought an order enjoining the

defendant from collecting recyclable materials from

commercial customers. Id. The question that the

California Supreme Court addressed was “whether

property with a market value to its owner—for

example, a recyclable material—is ‘waste’ within the

scope of the Act and its exclusive franchise provision.”

Id. at 442. The California Supreme Court held that

such “property is not ‘waste’ until it is discarded.” Id.

“This

construction

encompasses

two

concepts—value and discarding—that in this context

must be considered in relation to one another.” Id. With

regard to value, the California Supreme Court

App. 16

reasoned that “[t]he commonly understood meaning of

‘waste’ is something discarded ‘as worthless or

useless.’” Id. at 443 (quoting Am. Heritage Dict. (1985);

Oxford English Dict. (2d ed. 1989)). The California

Supreme Court went on:

If the owner sells his property—that is, receives

value for it—the property cannot be said to be

worthless or useless in an economic sense and is

thus not waste from the owner’s perspective.

Conversely, if the owner voluntarily disposes of

the property without receiving compensation or

other consideration in exchange—that is, throws

it away—the obvious conclusion is that the

property has no economic value to the owner.

Id. With regard to discarding, the California Supreme

Court distinguished “discarding,” which it defined as

“throw[ing] away,” from “disposing,” which it defined as

“transfer[ring] or part[ing] with, as by giving or

selling.” Id. (quoting Am. Heritage Dict. (2d college ed.

1982)). The California Supreme Court then illustrated

its interpretation of “waste” by way of example:

Assume that, as in this case, there is an

exclusive franchise. A property owner throws his

recyclables into the receptacle provided by the

franchisee and does so without receiving

compensation. He has plainly discarded his

property, and it is thus waste under the Act.

Could he instead throw the property into the bin

of a competing waste hauler without receiving

compensation? No, because by disposing of the

property without receiving compensation, he has

discarded the property and thereby rendered it

App. 17

waste that is subject to the exclusive franchise.

If, however, he is paid for the material by the

franchisee’s competitor, the owner has sold the

property and thus has not discarded it, so it has

not become waste.

Id. at 444.

In the instant case, Plaintiff “charges a service fee

for the collection of mixed [construction and demolition

debris] in debris boxes and roll-offs, to offset its costs of

the labor and transportation to bring the [construction

and demolition debris] from a construction site” to

Plaintiff’s materials recovery facility in San Jose. FAC

¶ 8. Thus, under the California Supreme Court’s

opinion in Waste Management, the construction and

demolition debris that Plaintiff seeks a license to

collect is solid waste, notwithstanding the fact that the

debris is recyclable, because Plaintiff does not buy the

debris from its owners. Accordingly, Plaintiff’s business

falls within the scope of Bay Counties’ exclusive

franchise, and so Sunnyvale denied Plaintiff’s license

application. In Plaintiff’s view, this is the wrong result,

both as a matter of policy and as a matter of statutory

interpretation. See Opp. at 3, 13; FAC ¶¶ 5-16, 19-24.

Plaintiff tries to frame this dispute as a constitutional

issue.

As Plaintiff clearly states in its Opposition, its

substantive due process theory focuses on the action of

the California Supreme Court in deciding Waste

Management. Plaintiff does not “dispute that a

California city may grant an exclusive franchise for the

collection of solid waste. [Plaintiff] does not assert that

Sunnyvale acted unconstitutionally in enacting its solid

App. 18

waste ordinance.” Opp. at 2 (emphasis removed).

Plaintiff “does not contest that Sunnyvale correctly

interprets how the California Supreme Court

interpreted the statutory definition of ‘solid waste’ to

include discarded material that one pays another to

dispose.” Id. at 2-3 (emphasis removed). Rather,

Plaintiff contends that “the California Supreme Court

acted unconstitutionally when it adopted th[e]

interpretation of solid waste [in Waste Management] as

applied to Sunnyvale’s denial of a permit.” Opp. at 3.

Indeed, Plaintiff plainly states that it was the “judicial

branch [that] made the egregious decision”

underpinning its substantive due process theory. Id. at

4; see also id. at 17 (“The [Waste Management] decision

is an irrational misinterpretation of the state statutory

definition of ‘solid waste’ as well as the intent of the

Integrated Waste Management Act.”). The heart of

Plaintiff’s argument appears to be that there is no

rational basis for the California Supreme Court to

adopt a test that turned, at least in part, on whether

the owner of the material pays or is paid for disposal of

the material. See id. at 13.

2. Analysis

a. Bringing a Substantive Due Process

Claim Based on a State Court Decision

Outside the context of habeas corpus proceedings,

there appears to be little precedent for the type of claim

that Plaintiff brings here: a substantive due process

claim brought in the lower federal courts based on a

state supreme court interpretation of state law. The

only case that Plaintiff cites for the viability of such a

claim is Stop the Beach Renourishment, Inc. v. Florida

App. 19

Department of Environmental Protection, 560 U.S. 702

(2010).2 See Opp. at 7-12. In Stop the Beach, a plurality

of the U.S. Supreme Court endorsed the existence of a

judicial takings cause of action. 560 U.S. at 707, 71315. In a partial concurrence, Justice Kennedy, joined by

Justice Sotomayor, declined to endorse a judicial

takings cause of action. Id. at 735-37 (Kennedy, J.,

concurring in part and concurring in the judgment). In

Justice Kennedy’s view, “[i]f a judicial decision, as

opposed to an act of the executive or the legislature,

eliminates an established property right, the judgment

could be set aside as a deprivation of property without

due process of law.” Id. at 735. Justice Kennedy

concluded that “[t]he Court would be on strong footing

in ruling that a judicial decision that eliminates or

substantially changes established property rights . . .

is ‘arbitrary or irrational’ under the Due Process

Clause.” Id. at 737. The plurality disagreed with

Justice Kennedy’s substantive due process approach,

see id. at 721 (Scalia, J.) (plurality opinion), and other

federal courts have declined to rely on Justice

Kennedy’s concurrence, see, e.g., Weigel v. Maryland,

950 F. Supp. 2d 811, 836 n.61 (D. Md. 2013) (“Justice

Kennedy’s concurrence in Stop the Beach is insufficient

to render the Plaintiffs’ claim cognizable.”); Watson v.

Lake County, No. 5:09-cv-399, 2011 WL 13175635, at *6

n.2 (M.D. Fla. Feb. 23, 2011) (“Notwithstanding the

2

The other cases that Plaintiff cites concern the viability of a

judicial takings cause of action—not a substantive due process

cause of action. Because Plaintiff explicitly abandoned its judicial

takings theory, see Opp. at 2 (“[Plaintiff] must withdraw its

Takings Clause claim under FRCP 11”), these cases do not help

Plaintiff.

App. 20

fact that [Justice Kennedy’s] opinion has no

precedential value, it was also roundly criticized by a

plurality of the other justices. This Court refused to

apply such an unsettled rule to this case.”). Plaintiff

cites no case from the Ninth Circuit endorsing the

availability of a substantive due process claim based on

a state court interpretation of state law, and the Court

is aware of none outside the habeas corpus context.

Indeed, such a cause of action would appear to raise

“difficult procedural concerns” such as “abstention and

Rooker-Feldman, notice and immunity” that would be

inherent in asking a federal court to review a state

court decision. Frederic Bloom, et al., Suing Courts, 79

U. CHI. L. REV. 553, 595 (2012); see also Stacey L.

Dogan et al., Judicial Takings and Collateral Attack on

State Court Property Decisions, 6 DUKE J. CONST. L. &

PUB. POL’Y 107, 119-23 (opining that federal courts

should engage in review of state court decisions on

state law “as infrequently as possible”). “[O]nly state

courts may authoritatively construe state statutes.”

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 577 (1996).

Normally, “[f]ederal courts will not review a state

supreme court’s interpretation of its own statute unless

that interpretation is clearly untenable and amounts to

a subterfuge to avoid federal review of a deprivation by

the state of rights guaranteed by the Constitution.”

Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982)

(citing, e.g. Mullaney v. Wilbur, 421 U.S. 684, 691 &

n.11 (1975)); see also Demorest v. City Bank Farmers

Tr. Co., 321 U.S. 36, 42 (1944) (“[I]f there is no evasion

of the constitutional issue, . . . and the nonfederal

ground of decision has fair support, . . . this Court will

not inquire whether the rule applied by the state court

App. 21

is right or wrong, or substitute its own view of what

should be deemed the better rule for that of the state

court.” (quoting Broad River Power Co. v. South

Carolina, 281 U.S. 537, 540 (1930)); Vandevere v.

Lloyd, 644 F.3d 957, 963 n.4 (9th Cir. 2011) (“We also

note that a federal court remains free to conclude that

a state supreme court’s purported definition of a

property right really amounts to a subterfuge for

removing a pre-existing, state-recognized property

right.”). “Something more than a mistaken construction

on a close question is thus required in order to support

federal intervention.” Dogan, supra, at 123.

The Court need not decide whether such a cause of

action is available, however, because even if it were

available, Plaintiff has failed to plead “enough facts to

state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570.

b. Even if Such a Claim is Cognizable,

Plaintiff’s Claim Fails

“Substantive due process protects individuals from

arbitrary deprivation of their liberty by government.”

Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006).

“Substantive due process cases typically apply strict

scrutiny in the case of a fundamental right and rational

basis review in all other cases.” Witt v. Dep’t of Air

Force, 527 F.3d 806, 817 (9th Cir. 2008). “When a

fundamental right is recognized, substantive due

process forbids the infringement of that right ‘at all, no

matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling

state interest.’” Id. (quoting Reno v. Flores, 507 U.S.

292, 301-02 (1993) (emphasis omitted)). Fundamental

App. 22

interests that warrant strict scrutiny include the right

to marry and the right to vote, among others. See, e.g.,

Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621,

627–28 (1969) (recognizing right to vote as

fundamental right); Loving v. Virginia, 388 U.S. 1, 12

(1967) (“Marriage is one of the ‘basic civil rights of

man,’ fundamental to our very existence and

survival.”).

In cases not involving fundamental rights, where

rational basis review applies, “the Court determines

whether governmental action is so arbitrary that a

rational basis for the action cannot even be conceived

post hoc.” Witt, 527 F.3d at 817. Rational basis review

is a “highly deferential” standard. Flynn v. Holder, 684

F.3d 852, 858 (9th Cir. 2012). Indeed, “[w]hen executive

action like a discrete permitting decision is at issue,

only ‘egregious official conduct can be said to be

arbitrary in the constitutional sense’: it must amount

to an ‘abuse of power’ lacking any ‘reasonable

justification in the service of a legitimate governmental

objective.’” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th

Cir. 2008) (quoting County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998)). In other words, substantive due

process is violated by “executive abuse of power . . .

which shocks the conscience.” Brittain, 451 F.3d at 846;

accord Costanich v. Dep’t of Soc. & Health Servs., 627

F.3d 1101, 1111 (9th Cir. 2010). Even “[o]fficial

decisions that rest on an erroneous legal interpretation

are not necessarily constitutionally arbitrary.” Shanks,

540 F.3d at 1089. Plaintiff concedes that rational basis

review applies here because no fundamental right is at

stake. Opp. at 3; see also Samson v. City of Bainbridge

Island, 683 F.3d 1051, 1058 (9th Cir. 2012)

App. 23

(“[G]overnment action that affects only economic

interests does not implicate fundamental rights.”

(internal quotation marks omitted)).

“To state a substantive due process claim,” a

plaintiff must typically “show as a threshold matter

that a state actor deprived it of a constitutionally

protected life, liberty or property interest.” Shanks, 540

F.3d at 1087. However, when the government action

clearly falls short of constitutional arbitrariness, the

Court need not reach whether Plaintiff possessed a

property or liberty interest. See City of Cuyahoga Falls,

Ohio v. Buckeye Comty. Hope Found., 538 U.S. 188, 198

(2003) (“We need not decide whether respondents

possessed a property interest in the building permits,

because the city engineer’s refusal to issue the permits

. . . in no sense constituted egregious or arbitrary

government conduct.”). Such is the case here.

Assuming the availability of a substantive due

process cause of action based on a state court

interpretation of state law, Plaintiff has not alleged

that the California Supreme Court’s action in deciding

Waste Management was sufficiently arbitrary and

egregious to meet Plaintiff’s “exceedingly high burden”

of stating a viable substantive due process claim that

would survive rational basis review. Matsuda v. City &

Cty. of Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008)

(internal quotation marks omitted); see Weigel, 950 F.

Supp. 2d at 835-36 (“Therefore, to the extent that any

standard of review applies to substantive due process

challenges to judicial decisions, it would be the rational

basis standard.”).

App. 24

The Ninth Circuit’s decision in Shanks, 540 F.3d

1082, is instructive. In Shanks, property owners

contended that the city of Spokane erroneously issued

building permits that decreased the value of their

property. Id. at 1088. Specifically, the property owners

alleged that Spokane violated several municipal

ordinances when it issued defendants a permit to build

a “box-like dormitory building” in a historic

neighborhood. Id. at 1084-85. The district court ruled

that the property owners had not stated a substantive

due process claim, and the Ninth Circuit affirmed. Id.

at 1086, 1089.

The Ninth Circuit in Shanks explained that “[t]he

conduct [the plaintiffs] allege[d]—a routine, even if

perhaps unwise or legally erroneous, executive decision

to grant a third-party a building permit—falls short of

being constitutionally arbitrary. There is no suggestion,

for instance, of a sudden change in course, malice, bias,

pretext or, indeed, anything more than a lack of due

care on Spokane’s part.” Id. at 1089. The Ninth Circuit

determined that it was “at least fairly debatable” that

Spokane’s action furthered a legitimate interest in

facilitating residential housing in a residential

neighborhood. Id. The Ninth Circuit then concluded,

“When reviewing a substantive due process challenge,

this suffices; our task is not to balance the public

interest supporting the government action against the

severity of the private deprivation.” Id. (internal

quotation marks omitted).

The reasoning in Shanks makes clear that

Plaintiff’s substantive due process theory here fails.

Even assuming that Plaintiff’s statutory interpretation

App. 25

arguments have some merit as a matter of California

law, “[i]t is clearly established that not every state law

violation gives rise to a substantive due process

violation.” Schmidt v. Hoover, No. C 08-5809 PJH, 2009

WL 1011715, at *5 (N.D. Cal. Apr. 15, 2009) (citing

Lewis, 523 U.S. at 847-48; Shanks, 540 F.3d at 1089).

“[O]nly the most egregious official conduct can be said

to be arbitrary in the constitutional sense.” Lewis, 523

U.S. at 846. Here, Plaintiff has alleged nothing more

than “a routine, even if perhaps unwise or legally

erroneous” statutory interpretation by the California

Supreme Court. Plaintiff calls the California Supreme

Court’s decision “egregious,” “arbitrary,” and

“irrational,” FAC ¶ 36, Opp. at 4, 17, but Plaintiff

pleads no facts to support these labels. Such

“conclusory allegations of law . . . are insufficient to

defeat a motion to dismiss.” Adams, 355 F.3d at 1183.

Moreover, like in Shanks, here there is no suggestion

of “a sudden change in course, malice, bias, [or]

pretext” on the part of the California Supreme Court.

Id.

To the contrary, the California Supreme Court’s

decision appears to be nothing more than a reasoned

decision interpreting a state statute using standard

methods of statutory interpretation. In interpreting the

term “waste,” the majority decision in Waste

Management relied on dictionary definitions of words

not expressly defined by the Act—a standard, widely

used method of statutory interpretation. See, e.g.,

Kasten v. Saint-Gobain Performance Plastics Corp., 563

U.S. 1, 7-8 (2011) (Breyer, J.) (comparing dictionary

definitions of the word “file”); MCI Telecomm. Corp. v.

Am. Tel. & Tel. Co., 512 U.S. 218, 225 (1994) (Scalia,

App. 26

J.) (canvassing dictionary definitions of the word

“modify”).

The California Supreme Court also considered

whether various constructions of the term “waste”

would be consistent with the California legislature’s

intent—another common method of statutory

interpretation. Specifically, the California Supreme

Court concluded that a construction of “waste” that did

not address the value of the material discarded would

be inconsistent with the Act’s intent. The California

Supreme Court explained that an interpretation solely

based on the “discarding” element “might be read to

mean that a property owner could decide unilaterally

with whom he will discard his waste. If three

competing waste handlers (the exclusive franchisee and

two others) placed their respective receptacles at the

owner’s curbside, he could put his waste into whichever

container he chooses.” Waste Management, 869 P.2d at

4443. As the plaintiffs in Waste Management argued,

such an approach relying solely on the “discarding”

element “would eviscerate the Act because owners

could discard all their property—recyclable and

otherwise—as they see fit and thereby render an

exclusive solid waste handling franchise a nullity as a

practical matter.” Id.

As this Court and other courts have explained,

granting an exclusive franchise for solid waste

handling is rationally related to legitimate government

interests. See ECF No. 29 at 14-16 (noting that Bay

Counties is more efficient at recycling construction and

demolition debris than Plaintiff); Waste Mgmt. of

Alameda Cty., Inc. v. Biagini Waste Reduction Sys.,

App. 27

Inc., 74 Cal. Rptr. 2d 676, 683 (Ct. App. 1998)

(exclusive franchise allows municipality to “protect[]

against the hazards of indiscriminate or unsafe waste

disposal”); Waste Res. Techs. v. Dep’t of Pub. Health, 28

Cal. Rptr. 2d 422, 429 (Ct. App. 1994) (exclusive

franchise results in lower costs for residents and

increased efficiency in programs); G. Fruge Junk Co. v.

City of Oakland, 637 F. Supp. 422, 425 (N.D. Cal. 1986)

(exclusive franchise “rationally related to public health

and environmental concerns because it facilitates

efficient regulation of potentially hazardous activities”);

see also Phillip O’Connell & Terri Esparza, The Golden

Dustman in the Golden State: Exclusive Contracts for

Solid Waste Collection and Disposal in California, 32

URB. LAW. 281, 287 (2000) (noting that multiple waste

collectors means more large trucks in a city, which

impacts traffic and residents’ safety). As a result, the

California Supreme Court’s interpretation of the Act to

preserve cities’ ability to grant exclusive franchises was

also rationally related to legitimate government

interests.

Finally, the California Supreme Court’s

interpretation of the term “waste” is consistent with

the decisions of other courts and commissions that have

considered similar questions, which suggests the

California Supreme Court’s decision was not arbitrary,

egregious, or clearly untenable. First, like in Waste

Management, 869 P.2d at 442-44, other courts and

commissions have looked to whether the actor

discarding material paid or was paid to discard it. In

1965, the now-disbanded Interstate Commerce

Commission considered whether the producers of

demolition debris sold the debris or paid to have it

App. 28

removed as part of an inquiry into whether the debris

constituted “property.” Pleasant Hill Bayshore

Disposal, Inc. v. Chip-It Recycling, Inc., 110 Cal. Rptr.

2d 708, 718 (Ct. App. 2001) (citing Joray Trucking

Corp. Common Carrier Application, 99 M.C.C. 109, 110

(1965)).

In 1991, the Virginia Supreme Court held that

whether something is “waste” turned in part on

whether it was “discarded material,” which the

Virginia Supreme Court said should be evaluated from

the perspective of the actor discarding the material, not

the actor collecting it. Ticonderoga Farms, Inc. v.

County of Loudoun, 409 S.E.2d 446, 449 (Va. 1991).

Applying reasoning similar to that of the California

Supreme Court in Waste Management, the Virginia

Supreme Court explained, “The materials are brought

to [Ticonderoga Farms] by developers, builders, and

others who have so strong an incentive to discard them

that they are willing to pay [Ticonderoga Farms] a fee

to receive them. From that perspective, it is difficult to

conceive a clearer example of ‘discarded material.’” Id.

Moreover, other federal courts have interpreted the

federal Resources Conservation and Recovery Act’s

definition of “solid waste” to include some recyclable

materials. See, e.g., Owen Elec. Steel Co. v. Browner, 37

F.3d 146 (4th Cir. 1994) (holding that metal slag was a

solid waste even though it was later recycled); United

States v. Ilco, 996 F.2d 1126 (11th Cir. 1993) (same for

batteries); U.S. Brewers’ Ass’n v. EPA, 600 F.2d 974

(D.C. Cir. 1979) (upholding EPA regulation of beverage

container recycling despite claims that the bottles,

until discarded, were not solid waste). Even though

App. 29

different statutory definitions of “solid waste” were at

play in these cases and Waste Management, these cases

undercut Plaintiff’s argument that the California

Supreme Court’s interpretation of “waste” is plainly

irrational because it includes some recyclable material.

Thus, Plaintiff has failed to plead a plausible

substantive due process claim because Plaintiff has not

put forward any facts that the California Supreme

Court acted irrationally, arbitrarily, or egregiously in

deciding Waste Management. Rather, the most the

Court can conclude from Plaintiff’s FAC is that Waste

Management may be a “mistaken construction on a

close question.” Dogan, supra, at 123. But more than

that is required for a federal court to intervene in a

state court’s construction of a state statute, and more

than that is required to state a substantive due process

claim. See id.; Shanks, 540 F.3d at 1088 (“[O]nly

‘egregious official conduct can be said to be arbitrary in

the constitutional sense’: it must amount to an ‘abuse

of power’ lacking any ‘reasonable justification in the

service of a legitimate governmental objective.’”

(quoting Lewis, 523 U.S. at 846)). The fact that

Plaintiff anticipates resistance to its argument in the

state courts and in the state legislature does not

transform a dispute about the correct interpretation of

a state statute regulating solid waste handling into a

constitutional issue. See FAC ¶ 35; Opp. at 17 (arguing

that national waste haulers have too much influence in

the state legislature and comparing Plaintiff to

“plaintiffs in the 1940s civil rights cases where the

Supreme Court had interpreted the 14th Amendment

to mean ‘separate but equal’ and Congressional

App. 30

democrats from the South blocked all legislation to cure

that evil”).

Accordingly, the Court GRANTS the City’s motion

to dismiss the FAC’s declaratory relief cause of action

to the extent it relies on a substantive due process

theory of relief.

c. Leave to Amend

Plaintiff has abandoned its Equal Protection Clause,

Commerce Clause, and Takings Clause theories of

declaratory relief, Opp. at 2, likely reflecting Plaintiff’s

own recognition that it is unable to state a plausible

claim under these theories.

In addition, Plaintiff has now been afforded two

opportunities to state a viable declaratory relief cause

of action based on substantive due process, but it has

been unable to do so. Plaintiff first alleged in the

original complaint that the City’s permitting decisions

violated its substantive due process rights. See ECF

No. 29 at 14-15; ECF No. 1 at ¶¶ 16, 24, 27. The Court

ruled that Plaintiff had failed to allege that the City’s

permitting decisions were arbitrary and capricious

because the City’s permitting decisions were rationally

related to legitimate government interests. Id. at 15-16.

Plaintiff did not attempt to remedy this deficiency in

the FAC. Plaintiff did not allege additional facts

showing that the City’s permitting decisions were “a

sudden change in course, malice, bias, pretext,” or

otherwise arbitrary or egregious. In fact, Plaintiff

conceded in its Opposition that it did not dispute the

City’s authority to grant an exclusive franchise for the

collection of solid waste, nor did it contest the City’s

App. 31

interpretation of the Waste Management decision. Opp.

at 2.

Instead of pleading facts to show egregious action by

the City, Plaintiff shifted its substantive due process

theory to focus on the California Supreme Court as the

relevant government actor. See FAC ¶ 36; Opp. at 2-3.

Despite the instant Court’s previous ruling that

Plaintiff must allege egregious government action to

state a substantive due process claim, ECF No. 29 at

13-16, Plaintiff pleaded only conclusory allegations that

the California Supreme Court’s decision was arbitrary.

See FAC ¶ 36. Plaintiff’s Opposition similarly contains

no specific allegations of egregious government action

beyond labeling the Waste Management decision

“egregious” and “irrational.” Opp. at 2-4, 13-14, 17.

By failing to set forth any facts in the FAC to show

egregious government action, Plaintiff has “fail[ed] to

cure deficiencies by amendments previously allowed.”

Carvalho, 629 F.3d 876, 892-93. As a result, it is within

the Court’s discretion to find that further amendments

would be futile and to decline to allow further

amendments. Moreover, Plaintiff failed in its

Opposition to identify any facts that it could add if

given leave to amend yet another time. This failure

reinforces the Court’s conclusion that allowing further

amendments would be futile.

Plaintiff may have a viable state law argument, but

its constitutional arguments clearly fail. Accordingly,

the FAC is dismissed with prejudice as to the

constitutional theories of declaratory relief. See

Yagman v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017)

(affirming dismissal with prejudice of substantive due

App. 32

process claim on futility grounds); Kay v. Placer

County, 219 F. App’x 679, 682 (9th Cir. 2007)

(unpublished) (affirming dismissal of constitutional

causes of action with prejudice because amendment

would be futile and commenting that plaintiffs had

“sought to recast what are, at best, state-law claims

into federal causes of action. Amendment will not cure

this fundamental flaw.”).

B. State Law Theories

Plaintiff’s remaining theories of relief are based on

state law. Plaintiff argues two state law theories of

relief, namely: (1) that the City uses the wrong

definition of solid waste under California law, and

(2) that the City violated California Public Resources

Code § 40059. FAC ¶¶ 28-29, 31.

“[T]he Declaratory Judgment Act does not by itself

confer federal subject-matter jurisdiction.” Nationwide

Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th

Cir. 2005). Before declaratory relief may be granted,

federal subject matter jurisdiction requirements must

be satisfied. Skelly Oil Co. v. Phillips Petroleum Co.,

339 U.S. 667, 671 (1950) (requiring independent

subject matter jurisdiction on a declaratory relief cause

of action).

A federal court may exercise supplemental

jurisdiction over state law claims “that are so related to

claims in the action within [the court’s] original

jurisdiction that they form part of the same case or

controversy under Article III of the United States

Constitution.” 28 U.S.C. § 1367(a). Conversely, a court

may decline to exercise supplemental jurisdiction

App. 33

where it “has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also

Albingia Versicherungs A.G. v. Schenker Int’l, Inc., 344

F.3d 931, 937-38 (9th Cir. 2003) (as amended) (holding

that Section 1367(c) grants federal courts the discretion

to dismiss state law claims when all federal claims

have been dismissed). In considering whether to retain

supplemental jurisdiction, a court should consider

factors such as “economy, convenience, fairness, and

comity.” Acri v. Varian Assocs., 114 F.3d 999, 1001 (9th

Cir. 1997) (en banc) (citations and internal quotation

marks omitted). However, “in the usual case in which

all federal-law claims are eliminated before trial, the

balance of factors . . . will point toward declining to

exercise jurisdiction over the remaining state law

claims.” Exec. Software N. Am., Inc. v. U.S. Dist. Court,

24 F.3d 1545, 1553 n.4 (9th Cir. 1994) (emphasis

omitted), overruled on other grounds by Cal. Dep’t of

Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir.

2008).

Here, the factors of economy, convenience, fairness,

and comity support dismissal of Plaintiff’s remaining

state law theories of relief. This case is still at the

pleading stage, and no discovery has taken place.

Federal judicial resources are conserved by dismissing

the state law theories of relief at this stage. The Court

finds that dismissal promotes comity as it enables

California courts to interpret questions of state law.

The fact that this case is brought under the federal

declaratory judgment act does not affect this result. See

Anbar v. Deutsche Bank Nat’l Tr. Co., No. 13cv1318WQH-RBB, 2013 WL 5937274, at *3 (S.D. Cal. Nov. 4,

App. 34

2013) (declining supplemental jurisdiction

declaratory judgment cause of action).

on

Under similar circumstances, in Houlton Citizens’

Coalition v. Town of Houlton, 175 F.3d 178 (1st Cir.

1999), after the First Circuit found that the defendant’s

exclusive franchise agreement was not prohibited

under the Takings Clause or the dormant Commerce

Clause, the First Circuit discussed a claim that the

exclusive franchise agreement was invalid under the

town charter. Id. at 192. The First Circuit noted that

the district court “should not have ventured to

adjudicate the town charter claim,” and that declining

supplemental jurisdiction was the “option of choice.” Id.

The Court finds that similar logic applies to Plaintiff’s

state law theories of relief here. For these reasons, the

Court declines to exercise supplemental jurisdiction

over Plaintiffs’ state law theories of relief. Moreover,

with the dismissal with prejudice of the constitutional

basis for Plaintiff’s declaratory relief cause of action,

this Court no longer has federal question jurisdiction

over this case. See Nationwide Mut. Ins. Co., 408 F.3d

at 1161 (“[T]he Declaratory Judgment Act does not by

itself confer federal subject-matter jurisdiction.”). The

Court also lacks diversity jurisdiction because both

parties are citizens of California. Thus, the Court

doubts whether it even has jurisdiction to continue to

preside over this case.

Accordingly, the Court GRANTS without prejudice

the City’s motion to dismiss the FAC’s declaratory

relief cause of action to the extent it is based on

Plaintiff’s state law theories of relief. Plaintiff may

refile in state court.

App. 35

V. CONCLUSION

For the foregoing reasons, the Court GRANTS the

City’s Motion to Dismiss the First Amended Complaint,

which consists of one declaratory relief cause of action.

This dismissal is with prejudice as to the constitutional

theories, and without prejudice as to the state law

theories, of Plaintiff’s declaratory relief cause of action.

IT IS SO ORDERED.

Dated: November 9, 2017

/s/Lucy H. Koh

LUCY H. KOH

United States District Judge

App. 36

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

Case No. 17-CV-00956-LHK

[Filed June 16, 2017]

_____________________________

JONNA CORPORATION,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF SUNNYVALE, CA,

)

)

Defendant.

)

_____________________________ )

ORDER GRANTING CITY OF SUNNYVALE’S

MOTION TO DISMISS

Re: Dkt. No. 16

Plaintiff Jonna Corporation (“Plaintiff”) sues

Defendant City of Sunnyvale (“Defendant” or “the

City”) because the City refused to provide Plaintiff a

license to collect construction and demolition debris in

the City. Before the Court is the City’s Motion to

Dismiss. ECF No. 16 (“Mot.”). Having considered the

parties’ briefing, the relevant law, and the record in

App. 37

this case, the Court GRANTS the City’s Motion to

Dismiss.

I. BACKGROUND

A. Factual Background

In 1990, the City entered into an exclusive franchise

agreement for the collection of solid waste in the City

(“Exclusive Franchise Agreement”) with Bay Counties

Waste Services, Inc. (“Bay Counties”), formerly

Specialty Solid Waste & Recycling, Inc., for a term of

ten years. ECF No. 1 (“Compl.”) ¶ 21; see also ECF No.

17-1 at 39, Sunnyvale Ordinance No. 2771-04.1 That

Exclusive Franchise Agreement has been amended and

extended a number of times, and now extends through

at least June 30, 2018. ECF No. 17-3 at 13, Sunnyvale

Ordinance No. 2949-11. Under the Exclusive Franchise

Agreement, Bay Counties is the sole collector of solid

waste, including recyclable materials and construction

debris, in the City. ECF No. 17-2 (“Franchise Agmt.”)

at 18 (“City hereby extends its previous grant to

Contractor of the exclusive franchise, right and

privilege to engage in the business of collecting and

transporting Solid Waste generated within the City”),

16 (“‘[S]olid waste’ means . . . Garbage, Rubbish,

Construction Debris, Yardwaste, and Recyclable

Materials.”). The Sunnyvale Municipal Code forbids

any party to collect solid waste for a fee without a

franchise or license. Sunnyvale Mun. Code § 8.16.150

1

The Court refers to documents in this section, such as Sunnyvale

Ordinance No. 2771-04, of which Defendant requests judicial

notice. The Court discusses and grants judicial notice as to all of

these documents below in Section III.A.

App. 38

(“It is unlawful for any person to engage in the

business of collecting solid waste within the city, or to

haul the same through any street or public right-of-way

in the city, unless such person has been granted a

franchise or license to do so by the city.”).2 Bay

Counties is the only entity that has been awarded such

a franchise or license. Franchise Agmt. at 18.

Plaintiff is a California corporation based in Santa

Clara County that “is in the business of collecting

discarded wood, metal, asphalt, concrete, and drywall

from commercial construction and demolition sites”

(“construction and demolition debris”). Compl. ¶ 5. On

October 19, 2016, Plaintiff applied to the City for a

franchise or license to collect construction and

demolition debris under Sunnyvale Municipal Code

§ 8.16.090. Id. ¶ 17; see also Sunnyvale Mun. Code

§ 8.16.090 (“The city council shall provide for the

collection and disposal of solid waste and recyclable

materials generated from residences within the city by

the issuance of a franchise or license, or franchises and

licenses, to disposal service operators.”). On November

7, 2016, the City denied Plaintiff’s application for a

2

The Sunnyvale Municipal Code has exceptions to this solid waste

franchise or license requirement that do not apply here. See

Sunnyvale Mun. Code § 8.16.160. Those exceptions include:

(1) self-hauling by residential househoulders, (2) gardeners

removing materials incidental to their work, (3) hauling of

recyclable materials by recyclers, junk dealers, or businesses that

buy and market recyclable materials, (4) hauling of worn, spent, or

defective equipment by a commercial business, (5) hauling by a

contractor who was hired for construction or demolition work, or

(6) businesses that dispose of secret, confidential or sensitive

documents. Id.

App. 39

franchise or license. Compl. ¶ 18. The City’s denial

letter stated that “[w]hile the Sunnyvale Municipal

Code does allow for the possibility of the City issuing

multiple license holders/franchisees, the City’s current

policy is to issue an exclusive franchise to a single

disposal service operator. This franchise extends to

collection of all solid waste, including [construction and

demolition] material, as described in more detail in

Chapter 8.16 of the Code.” Id.

B. Procedural History

On February 24, 2017, Plaintiff filed the instant

suit. See Compl. Plaintiff asserts two causes of action:

declaratory relief and mandamus. However, the

declaratory relief cause of action is based on the

following theories of relief: (1) violation of the Takings

Clause of the United States Constitution, (2) violation

of the Substantive Due Process clause in the Fifth and

Fourteenth Amendments to the United States

Constitution, (3) violation of the Equal Protection

clause in the Fourteenth Amendment of the United

States Constitution and Article I, Section 7 of the

California Constitution, (4) violation of the Commerce

Clause of the United States Constitution, (5) the City’s

use of the wrong definition of “solid waste” under

California law, and (6) violation of California Public

Resources Code § 40059. Id. ¶¶ 26–31. Plaintiff’s

mandamus cause of action merely states that the City

had a mandatory duty to issue a franchise or license to

Plaintiff under Sunnyvale Municipal Code § 8.16.090,

and thus the Court should compel the issuance of such

a license. Id. ¶¶ 32–34.

App. 40

This case was assigned to Magistrate Judge Howard

Lloyd on February 27, 2017. ECF No. 4. On March 8,

2017, Plaintiff declined Magistrate Judge jurisdiction,

ECF No. 7, and on March 9, 2017, the instant case was

reassigned to the undersigned judge, ECF No. 9. On

March 20, 2017, the City filed a motion to dismiss the

instant suit that was noticed for hearing before

Magistrate Judge Howard Lloyd. ECF No. 13.

On April 4, 2017, the City filed an amended motion

to dismiss that was identical to the original motion to

dismiss except that it was noticed for hearing before

the undersigned judge. ECF No. 16 (“Mot.”).3 On April

18, 2017, Plaintiff filed an opposition to the City’s

amended motion, ECF No. 18 (“Opp’n”), and an

“Appendix” of defined terms, ECF No. 18-1. On April

25, 2017, the City filed a reply, ECF No. 19 (“Reply”),

and an objection to Plaintiff’s Appendix of defined

terms, ECF No. 20.4

3

Accordingly, the City’s first motion to dismiss, ECF No. 13, is

DENIED as moot.

4

Under Civil Local Rule 7-3(c), “[a]ny evidentiary and procedural

objections to the opposition must be contained within the reply

brief or memorandum.” Accordingly, because the City filed its

objections to the Appendix in a separate document, the Court

DENIES the City’s objections. However, the Court notes that

Plaintiff’s Appendix of defined terms contains a number of

references to case law, and is akin to legal argument. Plaintiff’s

opposition to the City’s motion is 25 pages long, the full length

allowed by Civil Local Rule 7-3(a). Accordingly, the Court

STRIKES Plaintiff’s Appendix as argument in excess of the page

limit set forth by the Civil Local Rules.

App. 41

II. LEGAL STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires a complaint to include “a short and plain

statement of the claim showing that the pleader is

entitled to relief.” A complaint that fails to meet this

standard may be dismissed pursuant to Federal Rule

of Civil Procedure 12(b)(6). The U.S. Supreme Court

has held that Rule 8(a) requires a plaintiff to plead

“enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “The plausibility standard is not

akin to a probability requirement, but it asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Id. (internal quotation marks omitted).

For purposes of ruling on a Rule 12(b)(6) motion, a

court “accept[s] factual allegations in the complaint as

true and construe[s] the pleadings in the light most

favorable to the nonmoving party.” Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th

Cir. 2008).

However, a court need not accept as true allegations

contradicted by judicially noticeable facts, Shwarz v.

United States, 234 F.3d 428, 435 (9th Cir. 2000), and

the “[C]ourt may look beyond the plaintiff’s complaint

to matters of public record” without converting the

Rule 12(b)(6) motion into one for summary judgment,

Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995).

App. 42

Nor is the court required to “‘assume the truth of legal

conclusions merely because they are cast in the form of

factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061,

1064 (9th Cir. 2011) (per curiam) (quoting W. Mining

Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

Mere “conclusory allegations of law and unwarranted

inferences are insufficient to defeat a motion to

dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th

Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore,

“a plaintiff may plead herself out of court” if she

“plead[s] facts which establish that [s]he cannot prevail

on h[er] . . . claim.” Weisbuch v. Cty. of L.A., 119 F.3d

778, 783 n.1 (9th Cir. 1997).

B. Leave to Amend

If the Court determines that the complaint should

be dismissed, it must then decide whether to grant

leave to amend. Under Rule 15(a) of the Federal Rules

of Civil Procedure, leave to amend “should be freely

granted when justice so requires,” bearing in mind that

“the underlying purpose of Rule 15 . . . [is] to facilitate

decision on the merits, rather than on the pleadings or

technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127

(9th Cir. 2000) (en banc). When dismissing a complaint

for failure to state a claim, “a district court should

grant leave to amend even if no request to amend the

pleading was made, unless it determines that the

pleading could not possibly be cured by the allegation

of other facts.” Id. at 1130 (quoting Doe v. United

States, 58 F.3d 494, 497 (9th Cir. 1995)). Nonetheless,

a court “may exercise its discretion to deny leave to

amend due to ‘undue delay, bad faith or dilatory motive

on part of the movant, repeated failure to cure

App. 43

deficiencies by amendments previously allowed, undue

prejudice to the opposing party. . . , [and] futility of

amendment.’” Carvalho v. Equifax Info. Servs., LLC,

629 F.3d 876, 892–93 (9th Cir. 2010) (alterations in

original) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)).

III. DISCUSSION

The City argues that Plaintiff has failed to

adequately plead its declaratory relief and mandamus

causes of action. The City also requests judicial notice

of a number of documents. The Court first addresses

the City’s request for judicial notice. The Court then

addresses Plaintiff’s declaratory relief and mandamus

causes of action in turn.

A. Request for Judicial Notice

The Court first addresses the City’s request for

judicial notice. ECF No. 17. The Court may take

judicial notice of matters that are either “generally

known within the trial court’s territorial jurisdiction”

or “can be accurately and readily determined from

sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). Public records,

including judgments and other publicly filed

documents, are proper subjects of judicial notice. See,

e.g., United States v. Black, 482 F.3d 1035, 1041 (9th

Cir. 2007) (“[Courts] may take notice of proceedings in

other courts, both within and without the federal

judicial system, if those proceedings have a direct

relation to matters at issue.”); Rothman v. Gregor, 220

F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of a

filed complaint as a public record).

App. 44

However, to the extent any facts in documents

subject to judicial notice are subject to reasonable

dispute, the Court will not take judicial notice of those

facts. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir.

2001) (“A court may take judicial notice of matters of

public record . . . But a court may not take judicial

notice of a fact that is subject to reasonable dispute.”)

(internal quotation marks omitted), overruled on other

grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d

1119 (9th Cir. 2002).

The City requests judicial notice of the following

legislative enactments:

• Sections 400, 1600, 1601, and 1602 of the City of

Sunnyvale’s Charter;

• Chapter 8.16 of the Sunnyvale Municipal Code;

• City of Sunnyvale Ordinance No. 2771-04, which

is titled “An Ordinance of the City Council of the

City of Sunnyvale Extending the Term of the

Franchise with Bay Counties Waste Services,

Inc. for the Collection of Solid Waste,” as

Adopted and Restated by Ordinance 2572-97;

• The January 11, 2005 Extended and Second

Restated Agreement Between City of Sunnyvale

and Bay Counties Waste Services, Inc. for Solid

Waste Collection and Recycling, which is an

attachment to City of Sunnyvale Ordinance No.

2771-04;

• City of Sunnyvale Ordinance No. 2949-11, which

is titled “An Ordinance of the City Council of the

City of Sunnyvale Adopting the First

App. 45

Amendment to Extended and Second Restated

Agreement Between the City of Sunnyvale and

with Bay Counties Waste Services, Inc. for the

Collection of Solid Waste and Recycling”;

• The September 30, 2010 First Amendment to

Extended and Second Restated Agreement

Between City of Sunnyvale and Bay Counties

Waste Services, Inc. for Solid Waste Collection

and Recycling, which is an attachment to City of

Sunnyvale Ordinance No. 2949-11.

The above documents are legislative enactments,

ordinances, or regulations that are subject to judicial

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

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

(taking judicial notice of a local ordinance, a local

regulation, and a local municipal code). Accordingly,

the Court GRANTS the City’s request for judicial notice

of these documents.

The Court also requests judicial notice of the

following public record documents:

• A December 14, 2004 City of Sunnyvale Staff

Report to the City’s Mayor and City Council

about the extension of the Exclusive Franchise

Agreement with Bay Counties;

• Minutes from the December 14, 2004 Sunnyvale

City Council Public Hearings;

• February 15, 2011 City of Sunnyvale Staff

Report to the City’s Mayor and City Council

about the modification of the Exclusive

Franchise Agreement with Bay Counties;

App. 46

• April 13, 2011 Correction to Approved Minutes

of the February 15, 2011 City Council Meeting;

The above documents are documents that are of

public record, and thus are documents for which

judicial notice is appropriate. See Abdullah v. U.S. Sec.

Assocs., Inc., 731 F.3d 952, 959 n.10 (9th Cir. 2013)

(taking judicial notice of opinion letters of California

Division of Labor Standards Enforcement); Law v. City

of Berkeley, 2016 WL 4191645, at *4 (N.D. Cal. Aug. 9,

2016) (taking judicial notice of city council minutes).

Accordingly, the Court GRANTS the City’s request for

judicial notice of these documents.

B. Declaratory Relief

Plaintiff asserts two causes of action: declaratory

relief and mandamus. However, the declaratory relief

cause of action is based on the following six theories of

relief: (1) violation of the Takings Clause of the United

States Constitution, (2) violation of the Substantive

Due Process clause in the Fifth and Fourteenth

Amendments to the United States Constitution,

(3) violation of the Equal Protection clause in the

Fourteenth Amendment of the United States

Constitution and Article I, Section 7 of the California

Constitution, (4) violation of the Commerce Clause of

the United States Constitution, (5) the City’s use of the

wrong definition of “solid waste” under California law,

and (6) violation of California Public Resources Code

§ 40059. Compl. ¶¶ 26–31.

The Court first addresses Plaintiff’s declaratory

relief cause of action, which is brought under the

Declaratory Judgment Act, 28 U.S.C. § 2201. The

App. 47

Declaratory Judgment Act provides that “[i]n a case of

actual controversy within its jurisdiction . . . any court

of the United States . . . may declare the rights and

other legal relations of any interested party seeking

such declaration, whether or not further relief is or

could be sought.” 28 U.S.C. § 2201(a). To fall within the

Act’s ambit, the “case of actual controversy” must be

“‘definite and concrete, touching the legal relations of

parties having adverse legal interests,’. . . ‘real and

substantial’ and ‘admi[t] of specific relief through a

decree of a conclusive character, as distinguished from

an opinion advising what the law would be upon a

hypothetical state of facts.’” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 127 (2007) (alteration in

original) (quoting Aetna Life Ins. Co. of Hartford, Conn.

v. Haworth, 300 U.S. 227, 240–41 (1937)).

Defendant argues that Plaintiff’s declaratory relief

cause of action fails because the complaint fails to

allege “any cognizable legal theory for declaratory

relief.” Mot. at 2. As noted above, Plaintiff’s complaint

asserts six legal theories in support of its declaratory

relief cause of action. The Court addresses Plaintiff’s

constitutional legal theories first, in the following

order: (1) violation of the Takings Clause of the United

States Constitution, (2) violation of the Substantive

Due Process Clause in the Fifth and Fourteenth

Amendments to the United States Constitution,

(3) violation of the Equal Protection Clause in the

Fourteenth Amendment of the United States

Constitution and Article I, Section 7 of the California

Constitution, and (4) violation of the Commerce Clause

of the United States Constitution. The Court then

addresses together Plaintiff’s state law theories of

App. 48

relief: (1) the City’s use of the wrong definition of “solid

waste” under California law, and (2) violation of Public

Resources Code § 40059.

1. Takings Clause

The Takings Clause of the Fifth Amendment states

that “private property [shall not] be taken for public

use, without just compensation.” U.S. Const. amend. V.

This clause applies to the states and their political

subdivisions through the Fourteenth Amendment. See

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)

(“The Takings Clause of the Fifth Amendment [is]

applicable to the States through the Fourteenth

Amendment.” (citing Chicago, B. & Q. R. Co. v.

Chicago, 166 U.S. 226, 239 (1897))). Although the

prototypical case involves “physical invasions,

occupations, or removals of property,” in some cases,

“overly assiduous government regulation can create an

unconstitutional taking” of property. Houlton Citizens’

Coal. v. Town of Houlton, 175 F.3d 178, 189–90 (1st

Cir. 1999).

The first step in . . . [a] taking analys[i]s is to

determine whether there is a property right that is

protected by the Constitution.” Peterson v. U.S. Dep’t of

Interior, 899 F.2d 799, 807 (9th Cir. 1990) (citation

omitted). The Peterson court cites to Bowen v. Public

Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41

(1986), in which the United States Supreme Court held

that the contractual right at issue in that case “did not

rise to the level of ‘property’” within the meaning of the

Takings Clause because it “[could] not be viewed as

conferring any sort of ‘vested right.’” Id. at 54–5.

“Without a proerty right, there could be no ‘taking

App. 49

within the meaning of the Fifth Amendment.’” Id. at

55–56.

The Court notes that there is a question whether

Plaintiff has adequately alleged that Plaintiff

possessed property that is protected by the Takings

Clause. See Hagan v. United States, 2002 WL 338882,

at *8 n.10 (E.D. Pa. Mar. 2, 2002) (dismissing takings

claim because “right to practice his profession as a

Certified Public Accountant” was not cognizable

property under the Takings Clause). The Court need

not reach this issue here because, as the Court finds

below, Plaintiff has failed to adequately plead

exhaustion of state court remedies. However, if

Plaintiff chooses to file an amended complaint, Plaintiff

must adequately allege that Plaintiff possessed a

property interest protected by the Takings Clause.

Assuming Plaintiff has established that a cognizable

property interest is at issue, the determination

whether a taking has occurred within the meaning of

the Takings Clause depends on the particular

circumstances of a case. See Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302, 326 (2002) (“[W]e have ‘generally eschewed’ any

set formula for determining how far is too far, choosing

instead to engage in ‘essentially ad hoc, factual

inquiries.’” (internal quotation marks omitted)). The

United States Supreme Court has identified a number

of factors courts may consider when determining

whether a state action constitutes a taking of property:

(1) “the character of the governmental action,” i.e.,

whether it “can be characterized as a physical invasion

by government,” rather than arising from “some public

App. 50

program adjusting the benefits and burdens of

economic life to promote the common good”; (2) “the

economic impact of the regulation on the claimant”;

and (3) “the extent to which the regulation has

interfered with distinct investment-backed

expectations.” Penn Cent. Transp. Co. v. N.Y. City, 438

U.S. 104, 124 (1978).

The Court notes that there is a question whether

Plaintiff has adequately alleged that any alleged taking

was not merely incidental to the City’s exercise of its

police powers. See Houlton, 175 F.3d at 190 (“[C]ourts

steadfastly have rejected the proposition that the grant

of an exclusive contract for refuse collection constitutes

a taking vis-à-vis other (competing) trash haulers”).

The Court need not reach this issue here because, as

the Court finds below, Plaintiff has failed to adequately

plead exhaustion of state court remedies. However, if

Plaintiff chooses to file an amended complaint, Plaintiff

must adequately allege that any taking that occurred

was not merely incidental to the City’s exercise of its

police powers.

Plaintiff argues that it has been subject to an

unconstitutional taking because the City does not allow

Plaintiff to collect construction and demolition debris

for a service fee. Plaintiff asserts that this alleged

taking was perpetrated by two state actions. First,

Plaintiff argues that the City’s denial of Plaintiff’s

application for a franchise or license was a taking.

Second, Plaintiff argues that the California Supreme

Court’s decision in Waste Management of the Desert v.

Palm Springs Recycling Center, 7 Cal. 4th 478 (1994),

was a “judicial taking.”

App. 51

A cause of action for a “judicial taking” was

recognized by the plurality in Stop the Beach

Renourishment, Inc. v. Florida Department of

Environmental Protection, 560 U.S. 702 (2010).

However, a majority of the United States Supreme

Court did not hold that such a cause of action was

available. Id. at 733–45. As a district court in this

district has stated: “The contours and viability of the

theory of so-called ‘judicial takings’—where a court

decision may be deemed to have effectively taken

property rights from an individual—are unclear even

in the courts of this country.” Eliahu v. Israel, 2015 WL

981517, at *5 n.5 (N.D. Cal. Mar. 3, 2015), aff’d sub

nom. Eliahu v. State of Israel, 659 F. App’x 451 (9th

Cir. 2016).

In this case, the Court need not reach whether the

Takings Clause protects against “judicial takings”

because Plaintiff has failed to satisfy the prerequisites

for a takings claim regardless of whether that taking

was caused by the City or the California Supreme

Court. To bring a claim based on the Takings Clause in

federal court, “a plaintiff must establish two things:

(1) the governmental entity has reached a final decision

on the applicability of the regulation to the plaintiff’s

property; and (2) the plaintiff is unable to receive just

compensation from the government.” San Remo Hotel

v. City & Cty. of S.F., 145 F.3d 1095, 1102 (9th Cir.

1998).

The Court need not reach the first San Remo

requirement because Plaintiff fails to satisfy the second

San Remo requirement. Under the second San Remo

requirement, if administrative procedures or a state

App. 52

court cause of action is available to obtain just

compensation, a plaintiff must first pursue that avenue

of relief. See San Remo, 145 F.3d at 1102 (requiring the

plaintiff to first pursue state law inverse condemnation

before bringing a federal cause of action). To avoid this

requirement, the plaintiff must show that any state

law avenues of relief are “inadequate.” Id.

Here, the complaint contains no allegation that

Plaintiff pursued compensation through state law

avenues or that such avenues are inadequate. There

may be administrative procedures to appeal the license

denial or a cause of action that can be brought in state

court to obtain just compensation. However, Plaintiff

has failed to adequately allege that such avenues of

relief have been exhausted or are inadequate. Thus,

Plaintiff has failed to satisfy the exhaustion

requirement for a takings claim. See Smith v. Cty. of

Santa Cruz, 2014 WL 1118014, at *5 (N.D. Cal. Mar.

19, 2014) (dismissing takings claim where the plaintiff

failed to adequately allege that it had exhausted state

law remedies).

Accordingly, the Court GRANTS the City’s Motion

to Dismiss Plaintiff’s declaratory relief cause of action

to the extent it relies on a Takings Clause theory of

relief. The Court grants leave to amend because

Plaintiff may be able to allege facts that demonstrate

that state remedies have been exhausted or are

inadequate.

App. 53

2. Substantive Due Process

Plaintiff alleges that the City’s denial of a license to

collect construction and demolition debris was

“arbitrary and capricious,” and thus violates the

requirements of substantive due process. Plaintiff

asserts violations of substantive due process under

both the Fifth Amendment and Fourteenth

Amendment. See Compl. ¶¶ 26–27. However, the Fifth

Amendment’s Due Process Clause only applies to the

federal government. Bingue v. Prunchak, 512 F.3d

1169, 1174 (9th Cir. 2008). Because Defendant is not a

federal actor, the Court GRANTS the City’s Motion to

Dismiss Plaintiff’s Fifth Amendment due process

theory of relief with prejudice. However, the

Fourteenth Amendment has its own guarantee of due

process against state action equivalent to the Fifth

Amendment’s provisions against the federal

government. See Betts v. Brady, 316 U.S. 455, 462

(1942), overruled on other grounds by Gideon v.

Wainwright, 372 U.S. 335 (1963). Thus, the Court

analyzes Fourteenth Amendment substantive due

process theory of relief.

“Substantive due process protects individuals from

arbitrary deprivation of their liberty by government.”

Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006).

Substantive due process is violated by “executive abuse

of power . . . which shocks the conscience.” Id. at 846;

accord Costanich v. Dep’t of Soc. & Health Servs., 627

F.3d 1101, 1111 (9th Cir. 2010). “Substantive due

process cases typically apply strict scrutiny in the case

of a fundamental right and rational basis review in all

other cases.” Witt v. Dep’t of Air Force, 527 F.3d 806,

App. 54

817 (9th Cir. 2008). “When a fundamental right is

recognized, substantive due process forbids the

infringement of that right ‘at all, no matter what

process is provided, unless the infringement is

narrowly tailored to serve a compelling state interest.’”

Id. (quoting Reno v. Flores, 507 U.S. 292, 301–02 (1993)

(emphasis omitted)). Fundamental interests that

warrant strict scrutiny include the right to marry and

the right to vote, among others. See, e.g., Kramer v.

Union Free Sch. Dist. No. 15, 395 U.S. 621, 627–28

(1969) (recognizing right to vote as fundamental right);

Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is

one of the ‘basic civil rights of man,’ fundamental to our

very existence and survival”).

In other cases not involving fundamental rights

where rational basis review applies, “the Court

determines whether governmental action is so

arbitrary that a rational basis for the action cannot

even be conceived post hoc.” Witt, 527 F.3d at 817.

Indeed, “[w]hen executive action like a discrete

permitting decision is at issue, only ‘gregious official

conduct can be said to be arbitrary in the constitutional

sense’: it must amount to an ‘abuse of power’ lacking

any ‘reasonable justification in the service of a

legitimate governmental objective.’” Shanks v. Dressel,

540 F.3d 1082, 1088 (9th Cir. 2008) (quoting Cty. of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Indeed,

even “[o]fficial decisions that rest on an erroneous legal

interpretation are not necessarily constitutionally

arbitrary.” Id.

Plaintiff asserts that its “right to labor” has been

violated here. Opp’n at 15. The United States Supreme

App. 55

Court has held that the “liberty component of the

Fourteenth Amendment’s Due Process Clause includes

some generalized due process right to choose one’s field

of private employment, but a right which is

nevertheless subject to reasonable government

regulation.” Conn v. Gabbert, 526 U.S. 286, 292 (1999).

Cases identifying a violation of such a right “all deal

with a complete prohibition of the right to engage in a

calling[.]” Id. However, even where the “right to labor”

has been violated, the right to choose one’s chosen

profession is not a “fundamental right” within the

meaning of the Due Process Clause, and thus is not

subject to strict scrutiny. Therefore, this Court will

apply rational basis review. See Dittman v. California,

191 F.3d 1020, 1030 (9th Cir. 1999) (applying rational

basis review to claim based on “right to choose one’s

field of private employment”).

Here, Plaintiff was denied a license to transport

construction and demolition debris in the City.

However, Plaintiff was not denied the right to be a

hauler of construction and demolition debris in all

instances. The complaint alleges that Plaintiff is based

in Santa Clara County, not in Sunnyvale in particular.

Indeed, Plaintiff fails to allege what portion of its

business, if any, has been eliminated by the City’s

decision. Moreover, Plaintiff does not allege that it is

precluded from hauling construction and demolition

debris in other locations in Santa Clara County or

elsewhere. See Novin v. Fong, 2014 WL 6956923, at *8

(N.D. Cal. Dec. 8, 2014) (denying substantive due

process claim because the plaintiff “was not denied the

right to be a car dealer in all instances, he was only

denied a permit applicable to Novin’s Property”).

App. 56

Accordingly, Plaintiff has failed to adequately allege

that Plaintiff’s right to engage in the construction and

demolition waste collection profession was entirely

eliminated, or to what extent it was even abridged, by

the Exclusive Franchise Agreement. See Conn, 526

U.S. at 292 (holding that the right to labor only violates

due process where there was a “complete prohibition of

the right to engage in a calling”).

Even if Plaintiff’s “right to labor” was violated to

some extent, under rational basis review, Plaintiff has

failed to allege facts that show that the City’s Exclusive

Franchise Agreement and denial of Plaintiff’s permit

application are “so arbitrary that a rational basis for

the action cannot even be conceived post hoc.” Witt, 527

F.3d at 817. Indeed, as discussed below, the

constitutional and statutory scheme and relevant case

law show that the Exclusive Franchise Agreement and

the permit denial have a rational basis.

The California Constitution provides that “[a]

county or city may make and enforce within its limits

all local, police, sanitary, and other ordinances and

regulations not in conflict with general laws.” Cal.

Const. art. XI, § 7 (emphasis added). The Waste

Management Act provides that the City has discretion

to grant exclusive franchises as “public health, safety,

and well-being so require.” Cal. Pub. Res. Code

§ 40059(a)(2). The City has passed a municipal code

with the purpose of “promot[ing] the public health,

welfare and safety of the community by establishing

reasonable regulations relating to the . . . collection and

disposal of garbage, trash, rubbish, debris and other

discarded matter, goods and material, and recyclable

App. 57

materials.” Sunnyvale Mun. Code § 8.16.010. Pursuant

to that purpose, the Sunnyvale Municipal Code

requires the Sunnyvale City Council to “provide for the

collection and disposal of solid waste and recyclable

materials generated from residences within the city by

the issuance of a franchise or license, or franchises and

licenses, to disposal service operators.” Id. § 8.16.090.

Under these provisions, the Sunnyvale City Council

has entered an Exclusive Franchise Agreement with

Bay Counties for the collection of solid waste, as

codified in multiple ordinances. See, e.g., ECF No. 17-1

at 39, Sunnyvale Ordinance No. 2771-04 (extending

exclusive franchise agreement). The Sunnyvale City

Council has expressly found that the adequate

collection of solid waste is essential for “public health,

safety and well-being” and that the Exclusive

Franchise Agreement with Bay Counties is “in the best

interest of City and its residents.” Franchise Agmt. at

9.

Courts have explicitly described why a

municipality’s use of an exclusive franchise for waste

collection is a rational choice that is neither arbitrary

nor capricious. Exclusive franchise agreements for

waste collection provide “economic advantages accruing

from exclusivity [that] result in lower charges (for

residential as opposed to commercial users) and

increased efficiency in a number of programs (e.g., a

curbside recycling program) that benefit refuse

producers.” Waste Res. Techs. v. Dep’t of Pub. Health,

23 Cal. App. 4th 299, 310 (1994). Moreover, exclusive

franchises are “rationally related to public health and

environmental concerns, as it facilitates efficient

App. 58

regulation of potentially hazardous activities.” G. Fruge

Junk Co. v. City of Oakland, 637 F. Supp. 422, 425

(N.D. Cal. 1986) (denying substantive due process and

equal protection challenges to exclusive franchise

agreement). Indeed, the use of a single waste collector

allows a municipality to “protect[] against the hazards

of indiscriminate or unsafe waste disposal.” Waste

Mgmt. of Alameda Cty., Inc. v. Biagini Waste Reduction

Sys., Inc., 74 Cal. Rptr. 2d 676, 683 (1998). Without an

exclusive franchise, a competitive “race to the bottom”

with respect to waste collection may occur, in which

competing waste collectors cut corners to the detriment

of public health. Id.

Additionally, more than one waste collector would

mean more large trucks in the City, and “routine

operation of large trucks in residential areas and in a

municipality’s central traffic arteries creates

substantial safety and traffic concerns.” Phillip

O’Connell & Terri Esparza, The Golden Dustman in the

Golden State: Exclusive Contracts for Solid Waste

Collection and Disposal in California, 32 URB. LAW.

281, 287 (2000). These concerns are sufficiently

important that at least one court has noted that “most

local governments in California have opted for

exclusive garbage collection arrangements.” Waste Res.

Techs., 23 Cal. App. 4th at 309 (noting “that the

practice is indeed widespread”).

Given these strong local concerns and the discretion

provided to the City, Plaintiff has failed to allege that

the City’s decision to provide an exclusive franchise to

Bay Counties, and thus to deny Plaintiff’s license

application, is arbitrary and capricious. In fact, an

App. 59

exclusive franchise in waste collection is rationally

related to “legitimate governmental objective[s]” such

as efficient garbage collection, public health, and safety

of residents.

Moreover, the City’s letter denying Plaintiff’s

license application provides another rational reason

why the license was denied. In its permit application,

Plaintiff asserted that over “70% of all [construction

and demolition] discards collected by [Plaintiff] are put

back into the stream of commerce.” Compl. at 21. In

response, the City noted that 78% of its construction

and demolition materials are put back into the stream

of commerce. Id. at 24. Thus, the fact that Plaintiff is

not as efficient as the City’s current waste collector is

another rational basis for not allowing Plaintiff to

collect construction and demolition debris within the

City.

Accordingly, the Court GRANTS the City’s Motion

to Dismiss Plaintiff’s declaratory relief cause of action

to the extent it is based on substantive due process.

The Court provides leave to amend because Plaintiff

may be able to plead facts that show arbitrary and

capricious state action.

3. Equal Protection

Plaintiff alleges a violation of equal protection

under the United States Constitution and the

California Constitution. “The Equal Protection Clause

of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the

equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be

App. 60

treated alike.” City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe,

457 U.S. 202, 216 (1982)).5 Consequently, “[t]he equal

protection clause forbids the establishment of laws

which arbitrarily and unreasonably create dissimilar

classifications of individuals when, looking to the

purpose of those laws, such individuals are similarly

situated. It also forbids unequal enforcement of valid

laws, where such unequal enforcement is the product

of improper motive.” Williams v. Field, 416 F.2d 483,

486 (9th Cir. 1969) (citing Yick Wo v. Hopkins, 118 U.S.

356 (1886), and People v. Harris, 5 Cal. Rptr. 852 (Cal.

App. Dep’t Super. Ct. 1960)). However, “government

actions that do not affect fundamental rights or liberty

interests and do not involve suspect classifications will

be upheld if they are rationally related to a legitimate

state interest.” Fields v. Palmdale Sch. Dist., 427 F.3d

1197, 1209 (9th Cir. 2005) (as amended).

Even if a plaintiff does not allege that he or she is

part of a class or group of persons that is suffering

discrimination, the United States Supreme Court has

“recognized successful equal protection claims brought

5

The California Constitution states that “[a] person may not be

deprived of life, liberty, or property without due process of law or

denied equal protection of the laws.” Cal. Const. art. I, §7. The

Court considers Plaintiff’s equal protection theory of relief under

the United States Constitution and the California Constitution

together because “equal protection under the California

Constitution is ‘substantially the equivalent of the equal protection

clause of the Fourteenth Amendment to the United States

Constitution.’” Kimco Staffing Servs., Inc. v. California, 236 Cal.

App. 4th 875, 884 (2015) (quoting Manduley v. Superior Court, 27

Cal. 4th 537, 571 (2002)) (internal quotation marks omitted).

App. 61

by a ‘class of one,’ where the plaintiff alleges that she

has been intentionally treated differently from others

similarly situated and that there is no rational basis for

the difference in treatment.” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam). However,

such claims are “constrained” to avoid “provid[ing] a

federal cause of action or review of almost every

executive or administrative government decision.”

Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 993 (9th

Cir. 2007). Thus, if a “class of one” equal protection

claim is brought, the Plaintiff must plead with

specificity the “similarly situated group” that is treated

differently. Andy’s BP, Inc. v. City of San Jose, 2013

WL 485657, at *5 (N.D. Cal. Feb. 6, 2013), aff’d, 605 F.

App’x 617 (9th Cir. 2015) (citation omitted).

Whether Plaintiff asserts a traditional

classification-based equal protection claim or a “class of

one” equal protection claim, rational basis review

applies here. Plaintiff only asserts a “right to labor,”

which is not a fundamental right or liberty interest, see

Conn, 526 U.S. at 291–92 (holding that the “Due

Process Clause includes some generalized due process

right to choose one’s field of private employment, but a

right which is nevertheless subject to reasonable

government regulation”), and fails to allege t

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Petition for Writ of Certiorari — Jonna Corporation, dba Premier Recycling Company, Petitioner v. City of Sunnyvale, California | Frix