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Floyd L. Morrow and Marlene Morrow, As Taxpayers of the City of San Diego, State of California, and On Behalf v. City of San Diego

October 18, 2011

FLOYD L. MORROW AND MARLENE MORROW, AS TAXPAYERS OF THE CITY OF SAN DIEGO, STATE OF CALIFORNIA, AND ON BEHALF OF THOSE SIMILARLY SITUATED,
PLAINTIFF,
v.
CITY OF SAN DIEGO, A CHARTER CITY; MANDEL E. HIMELSTEIN, AN INDIVIDUAL; AND DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. No. 9]

Presently before the Court is Defendant City of San Diego ("the City")'s motion to dismiss Plaintiff Floyd L. Morrow and Marlene Morrow ("Plaintiffs")'s second amended complaint. [Doc. No. 9.] For the following reasons, the Court GRANTS Defendant City of San Diego's motion to dismiss.

BACKGROUND

Plaintiffs are the owners of a duplex commonly known as 2804 and 2806 46th Street, San Diego, CA 92105, Assessor's Parcel Number 476-392-06 ("APN-06"). [Doc. No. 7, SAC ¶ 11.] Since 2006, Plaintiffs have resided in one of the duplex units and have rented the other unit out to tenants. [Id.] Plaintiffs also own property to the north of APN-06, known as Assessor's Parcel Number 476-392-11 ("APN-11"). [Id. ¶ 12.]

On June 3, 2010, the City issued a Civil Penalty Notice and Order ("the June 3, 2010 Notice") with respect to APN-06, and, on June 4, 2010, the City issued a Civil Penalty Notice and Order ("the June 4, 2010 Notice") with respect to APN-11. [SAC ¶¶ 25-26; Doc. No. 9-2, Request for Judicial Notice ("RJN"), Exs. D, E.]*fn1 The notices stated that APN-06 and APN-11 were in violation of various sections of the San Diego Municipal Code and that Plaintiffs were subject to civil penalties for the violations. [Id.] The notices ordered Plaintiffs to correct the violations by July 5, 2010 and July 6, 2010, respectively, and stated that failure to comply may result in a civil penalty hearing and the assessment of civil penalties against them. [Id.] Plaintiffs allege that due to difficulties with the mail, they did not receive the notices until weeks after they were issued and with only a few days left to comply. [SAC ¶¶ 25-27.]

A civil penalty hearing against Plaintiffs with respect to these violations was commenced on October 14, 2010, and continued on October 21, 2010, November 15, 2010, and November 30, 2010. [SAC ¶ 31; RJN, Ex. A ("Admin. Order").] Plaintiffs were present at all the hearings and presented evidence on their behalf including various documents and witness testimony. [Id.] Plaintiffs allege that after the hearings, on December 23, 2010, the City provided an additional list of violations ("Remaining Violations List"). [SAC ¶ 32.] Plaintiffs allege that they were able to respond to the Remaining Violations List, but that they were not able to cross-examine the City about the demands and violations contained in the list. [Id. ¶ 33.]

On February 15, 2011, the administrative hearing officer, Mandel E. Himelstein, issued an administrative enforcement order ("the Administrative Order"). [Id. ¶ 34; Admin. Order.] The Administrative Order found that Plaintiffs had violated the sections of the San Diego Municipal Code listed in the June 3, 2010 Notice and the June 4, 2010 Notice and Plaintiffs had not complied with the notices. [Admin. Order, Findings of Fact ¶¶ 2-3.] The Administrative Order ordered Plaintiffs to pay (1) $2,250 in civil penalties with a stay of $9,000 pending compliance with the order for the violations related to APN-06; (2) $6,750 in civil penalties with a stay of $15,750 pending compliance with the order for the violations related to APN-11; and (3) $2,303.32 in administrative costs. [Id., Order ¶¶ 1-2.] Plaintiffs allege that the City subsequently invoiced them in the amount of (1) $2,303.32 due March 30, 2011; (2) $2,250 due April 15, 2011; and (3) $6,750 due May 1, 2011. [SAC ¶ 35.]

On March 28, 2011, Plaintiffs filed a complaint in state court against Defendants City of San Diego and Mandel E. Himelstein, the hearing officer. [Doc. No. 1-1, Compl.] On July 1, 2011, the action was removed by Defendants to this Court on the basis of federal question jurisdiction and supplemental jurisdiction. [Doc. No. 1, Notice of Removal.] On July 27, 2011 Plaintiffs filed their second amended complaint ("SAC") against Defendants alleging seven causes of action: (1) waste of public funds in violation of California Code of Civil Procedure § 526a; (2) violations of their constitutional rights pursuant to 42 U.S.C. § 1983; (3) inverse condemnation; (4) invalidation of proceedings pursuant to California Code of Civil Procedure § 860; (5) writ of mandate pursuant to California Code of Civil Procedure § 1085; (6) writ of prohibition pursuant to California Code of Civil Procedure § 1102; and (7) writ of administrative mandamus pursuant California Code of Civil Procedure § 1094.5. [Doc. No. 7, SAC.] On October 7, 2011, the Court dismissed Defendant Mandel E. Himelstein from the action, leaving the City as the only Defendant. [Doc. No. 19.] By the present motion, the City seeks to dismiss Plaintiffs' first through sixth causes of action in the SAC.

DISCUSSION

I. Legal Standards for a Motion to Dismiss

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must 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, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).

II. Plaintiffs' Constitutional Claims under § 1983

"To establish a prima facie case under ยง 1983, [a plaintiff] must establish that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct violated a right secured by the Constitution and laws of the United States." Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009). Plaintiffs allege that the City's conduct violated their due process rights under the Fourteenth Amendment, their equal protection rights under ...


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