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Hmby, Lp; and Nader Agha v. City of Soledad; Fred

May 10, 2012

HMBY, LP; AND NADER AGHA, PLAINTIFFS,
v.
CITY OF SOLEDAD; FRED LEDESMA; AND DOES 1-50,
DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed May 10, 2012 **

NOT FOR CITATION

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS [Re: Docket No. 9]

Plaintiffs HMBY LC and its managing partner, Nader Agha (collectively "HMBY") sue the City of Soledad ("City") and its mayor, Fred Ledesma, alleging that Ledesma and the City 19 improperly and discriminatorily prevented HMBY from bringing to fruition several large-scale 20 development projects on land in the city and on unincorporated land adjacent thereto. HMBY 21 originally brought this action in Monterey County Superior Court. Defendants removed on January 22 6, 2012 on the basis of federal question jurisdiction. Dkt. No. 1 ("Notice of Removal"). 23

HMBY, a property developer, claims that defendants intentionally refused to process 24 applications for two large developments that HMBY planned for land it owns near the City of 25 Soledad. The first of these projects is a large, multi-use development that HMBY designed (the 26 "Miravale II project"). Dkt. No. 1, Exh. A ("Complaint") ¶ 10. HMBY sold portions of the land for 27 the Miravale II Project to other developers, who have successfully had their portions of the project 28 approved and developed. Id. ¶¶ 11-12. HMBY and the City agreed in early 2007 that HMBY would prepay $751,298 in sewage impact fees to allow the City to expand its water treatment facilities to 2 accommodate the Miravale II project. Id. ¶¶ 16-19; see also Exhibit A to Complaint, "SIF 3

Miravale II project) would prepay the fees in return for the City's continued best efforts to annex the 5 project land into the City and approve the necessary building permits for the project. SIF 6

Agreement. The City has not annexed HMBY's portion of the land, nor has it approved HMBY's 7 application for development. 8 9 development, and would contain housing of several types, a hotel, commercial/retail space, schools, 10 police and fire department substations, a recycled water plant, public park spaces, and a golf course (the "Miravale III Project"). Id. ¶ 23. HMBY alleges that the City promised to pay $50,000 for the preparation of an Environmental Impact Report ("EIR") for the project, but never proffered the 13 money. Id. ¶¶ 27-30. The City convened a special panel to consider plaintiffs' requests for approval 14 of its project plans or for reimbursement of the $801,298 it claimed it was owed by the city, but 15 when mayor Fred Ledesma came into office, HMBY alleges he eliminated the committee, leaving 16 plaintiffs' claims unresolved, Id. ¶¶ 21, 34, 40. 17

The City and Ledesma now move to dismiss claims 1 (for writ of mandate), 2 (for 18 declaratory relief); the breach of contract claim (7, 9, 11), the estoppel claims (8, 10, 12), 13 (money 19 had and received), and 14 (conversion). All parties have consented to the undersigned's jurisdiction 20 pursuant to 28 U.S.C. § 636(b). The motion has been fully briefed and is deemed suitable for 21 hearing without oral argument. The March 20, 2012 hearing was vacated pursuant to Civil L. R. 7-22

LEGAL STANDARD

On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6). The federal rules require that a complaint include a "short and plain statement" showing 26 the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must "raise a right to relief 27 above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only 28 plausible claims for relief will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 Agreement." The SIF Agreement provides that HMBY (and the two other developers of the 4 The second project, owned entirely by HMBY, was also intended as a multi-use

United States District Court For the Northern District of California

1(b). Based on the moving papers and applicable legal authority, the court rules as follows.

S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content "allows the 2 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 3

1949. A plaintiff does not have to provide detailed facts, but the pleading must include "more than 4 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1950. 5

Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual 7 allegations pled in the complaint must be taken as true and reasonable inferences drawn from them 8 must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 9 Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the 13 court required to accept as true allegations that are merely conclusory, unwarranted deductions of 14 fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 15 2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)),amended on 16 other grounds by 275 F.3d 1187 (9th Cir. 2001). 17 15(a)(2). "'Four factors are commonly used to determine the propriety of a motion for leave to 19 amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of 20 amendment.'" Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (internal citations omitted). 21

Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment would be "futile" if there is no set of 23 facts can be proved which would constitute a valid claim or defense. See Miller v. Rykoff-Sexton, 24 Inc., 845 F.2d 209, 214 (9th Cir. 1988). A complaint may be dismissed with prejudice when plaintiff 25 has "multiple opportunities to amend and [is] unable to cure the defects that required dismissal of [] 26 previous complaints." Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1060 (9th 27

DISCUSSION

In deciding a motion to dismiss, the court is ordinarily limited to the face of the complaint.

337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of 10 United States District Court For the Northern District of California

"A court should freely give leave [to amend] when justice so requires." FED. R. CIV. P.

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. 22 Cir. 2008). 28 3 which the law specifically enjoins, as a duty resulting from an office, trust, or station." Cal. Code 4 Civ. Proc. § 1085(a). "The petitioner must demonstrate the public official or entity had a ministerial 5 duty to perform, and the petitioner had a clear and beneficial right to performance." AIDS 6

(Cal. App. 2d Dist. 2011). A ministerial act is "an act that a public officer is required to perform in a 8 prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] 9 own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts 10 exists." Id. (citing Rodriguez v. Solis, 1 Cal. App. 4th 495, 501 (1991)). "[T]o authorize the issuance of a writ of mandamus the party sought to be coerced must be bound to act." Plum v. Healdsburg, 237 Cal. App. 2d 308, 317 (Cal. App. 1st Dist. 1965). "Mandamus does not lie to compel a public 13 agency to exercise discretionary powers in a particular manner, only to compel it to exercise its 14 discretion in some manner." Id. at 700-01 (citing Excelsior College v. Board of Registered Nursing, 15 Plaintiff contends that the defendants have a ministerial duty imposed by law "to act on 17 and/or process the Apartment Tracts [of the Miravale II Project] and the Miravale III Project," and 18 that the defendants have failed to act in accordance with that duty. Complaint ¶¶ 62-63. Defendants 19 contend that the plaintiffs have failed to identify a legal duty that would compel defendants to act on 20 plaintiffs' applications. Dkt. No. 9, p. 7. In their opposition to the motion to dismiss, plaintiffs argue 21 at length that defendants' authority is inapposite, but make no effort to identify the legal source of 22 the duty they claim defendants owe them. See Dkt. No. 10, pp. 1-5. The court agrees with 23 defendants that where plaintiff has not identified any actual legal duty that would require them to act 24 on plaintiffs' applications. Additionally, Cal. Code Civ. Proc. § 1086 requires that a petition for writ 25 of mandate be issued upon a verified petition, and plaintiffs' complaint is unverified. 26

27 amend. 28

B. Plaintiffs' Second Claim for Declaratory Relief ...


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