United States District Court, N.D. California
ORDER DISMISSING CASE WITH PREJUDICE RE: DKT. NOS.
A. WESTMORE United States Magistrate Judge
March 12, 2015, Plaintiffs Anna Kihagi, Xelan Prop 1, LLC,
Renka Prop, LLC, and Zoriall LLC (collectively,
“Kihagi”) filed the instant suit, asserting that
Defendants' enforcement of building, property
maintenance, construction, and other ordinances with respect
to Kihagi's properties violated their constitutional
rights. (Compl. ¶1, Dkt. No. 1.) On June 4, 2015,
Defendant City and County of San Francisco
(“City”) filed a lawsuit against Kihagi in the
Superior Court for the County of San Francisco, alleging that
Kihagi had, “[i]n defiance of numerous state and local
laws protecting these tenants and capping rents, [been
waging] a war of harassment, intimidation, and retaliation
using unlawful, unfair and fraudulent practices . . .
.” (Defs.' Req. for Judicial Not.
(“RJN”), Exh. A (“State Compl.”) at
1, Dkt. No. 107.)
before the Court are: (1) Defendants' motion to dismiss
the complaint with prejudice, and (2) Kihagi's motion to
voluntarily dismiss the case without prejudice, pursuant to
Federal Rule of Civil Procedure 41(a)(2). (Defs.' Mot. to
Dismiss, Dkt. No. 106; Pls.' Mot. to Dismiss, Dkt. No.
110.) Having considered the parties' filings, the
relevant legal authority, and the arguments made at the
November 21, 2019 hearing, the Court GRANTS Defendants'
motion to dismiss with prejudice and DENIES Kihagi's
motion to dismiss without prejudice.
is the owner of residential rental units in San Francisco.
(First Amended Compl. (“FAC”) ¶ 1, Dkt. No.
18.) Kihagi alleges that Defendants arbitrarily brought
enforcement actions against Plaintiffs based on race
discrimination and “bureaucratic hostility towards
landlords' right to evict tenants who are breaking their
leasing contracts.” (FAC ¶ 4.)
alleges that in 2014, she noticed tenants were illegally
subletting their rent controlled units at market rates. (FAC
¶¶ 35-37.) Kihagi sought to evict the tenants, who
then complained to the City. (FAC ¶¶ 38-39.) Kihagi
alleges that the City then “initiated a full-fledged
attack on Kihagi vis-à-vis the City's handling of
applications for construction and remodeling permits and
virtually anything else that required City approval . . .
.” (FAC ¶ 40.) This included an April 2014 permit
to demolish an illegal unit, a September 2014 permit at 1135
Guerrero, and a January 2015 permit at 1137 Guerrero Street.
(FAC ¶¶ 41-44, 72-73.)
City then allegedly began to perform illegal and improper
inspections in retribution for Kihagi's actions with
respect to its tenants. (FAC ¶ 45.) This included a
March 4, 2015 inspection, which Kihagi alleges was illegal.
(FAC ¶¶ 50-64.) Kihagi further alleges that
“she is the only person with property i[n] good
condition which has been raided by a Task Force, ” and
that none of the properties have the “uninhabitable
conditions [that would] warrant attention by the Task
Force.” (FAC ¶ 65.) Kihagi also alleges that the
City issued a false Code Enforcement Violation in February
2015 with respect to the Filbert property, despite Kihagi
having valid permits. (FAC ¶¶ 68-70.) Kihagi
further asserts that the Code Enforcement Violation was the
result of a discriminatory enforcement action. (FAC ¶
4, 2015, after Kihagi filed the instant federal action, the
City brought an enforcement action against Kihagi.
(See State Compl. at 1.) The City alleged that
Kihagi had engaged in unlawful “business practices to
systematically displace and recover possession of
rent-controlled units in violation of state and federal law,
” including harassing and intimidating tenants,
reducing services, and refusing to timely and properly
perform repairs. (State Compl. ¶ 8.) Further, once the
tenants have left, Kihagi would “quickly renovate the
units, in many cases without first obtaining the proper City
permits and attendant inspections . . . .” (State
Compl. ¶ 8.)
30, 2015, Defendants filed a motion to stay the federal
action. (Dkt. No. 19.) The Court subsequently granted the
motion, based on Younger abstention, to permit the
state action to proceed. (Dkt. No. 43 at 6-7.)
the federal action was stayed, the state case proceeded. Due
to Kihagi's failure to comply with their discovery
obligations, numerous evidentiary sanctions were issued,
including prohibiting Kihagi from testifying at trial.
(Defs.' RJN, Exh. B (“Statement of Decision”)
¶¶ 62-69.) On May 23, 2017, following a trial, the
state court issued a 151-page Statement of Decision, which
found, amongst other things:
(1) Kihagi illegally evicted tenants. (Statement of Decision
¶¶ 164, 220, 253, 268, 363.)
(2) The City did not arbitrarily deny construction and
building permits, and Kihagi failed to obtain permits.
(Statement of Decision ¶¶ 387-90, 394-95, 399-437.)
(3) The City lawfully inspected or attempted to inspect
Kihagi's properties. (Statement of Decision ¶¶
(4) The City lawfully issued citations for building code
violations. (Statement of Decision ...