Unpublished Disposition, 932 F.2d 972 (9th Cir. 1989)

MEMORANDUM^* 

Tracy and Sharon Baxter appeal the district court's grant of a summary judgment dismissing their action against Preston City and others. They also challenge the denial of their motion to amend their First Amended Complaint. Preston City cross appeals the district court's denial of its motion for attorney's fees. We affirm as to both appeals.

Background

This case arises out of a protracted dispute between two neighbors and Preston City ("City") regarding enforcement of its zoning ordinance. The Baxters and the Corbridges live on adjoining property in the outskirts of the City, but within its limits. This dispute started when the Baxters complained to the city that the Corbridges' expanded use of their property as a livestock feeding lot violated the City's zoning ordinance. The City determined that the Corbridges' use violated the ordinance, but refused to take enforcement action. The Baxters sued the City and the Corbridges in state court to force the City to enforce the ordinance against the Corbridges. The Baxters dropped the City as a defendant in that action, pursuant to an agreement that, should the Corbridges' use be judicially determined to violate the zoning ordinance, then the City would take enforcement action against the Corbridges. The state court ruled that the Corbridges' use violated the ordinance; it enjoined further violations.

The Corbridges then complained to the City that the Baxters were also violating the ordinance. The City reviewed that complaint, determined that the Baxters were violating the ordinance, and filed an action in state court to enforce the ordinance against them. The Baxters allege that, although other similarly situated property owners engaged in the same use, the City sought enforcement only against the Baxters. They also allege that the City engaged in "harassment" of the Baxters for other "innocuous" violations, such as leaving mud on the roadway, and excessive watering of their grass.

The Baxters brought this action under 42 U.S.C. §§ 1983 & 1985, and appended a state law claim for intentional infliction of emotional distress against both the City and the Corbridges. Their complaint alleged that the City selectively enforced the zoning ordinance against them, from a motivation of personal animosity, and thus violated their right to equal protection of the laws.

The City moved for dismissal pursuant to Fed. R. Civ. P. 12(b) (6), but, because it attached materials extraneous to the pleadings, the district court treated the motion as one for summary judgment, which it granted. The Baxters filed a motion to amend their complaint to allege that the same underlying facts constituted a violation of their substantive due process right to hold and use property. The district court denied that motion. The City sought its attorney's fees, which the district court denied. This appeal followed.

Discussion

I. Effect of the state court settlement.

We are faced with the threshold issue of whether the present action is precluded by the earlier settlement between the Baxters and the City. The Baxters and the City settled the Baxters' first action against the City by stipulating that, if the state court found the Corbridges to be committing a zoning violation, then "the City of Preston will use all means available to enforce the ordinances and bring use of the Corbridge property within the uses established in the various city ordinances." In return, the Baxters agreed "to dismiss the action now pending between them as to all issues, with prejudice." Id.

The City now argues that the state court settlement bars the Baxters from bringing this action against the City. This argument is without merit. The Baxters' first action against the City complained of failure to enforce the zoning ordinance against the Corbridges. The present action complains of the City's subsequent enforcement of the same ordinance against the Baxters. It is a completely different case.

The Baxters agreed to dismiss their claim against the City for not prosecuting the Corbridges. They did not agree never to bring another lawsuit against the City based on completely different issues. See Lawlor v. National Screen Service Corp., 349 U.S. 322, 328 (1955) (A prior judgment "cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in a previous case.")

II. Summary judgment on the equal protection claim.

We review a grant of summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). Our review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c): whether, with the evidence viewed in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

The district court properly converted the City's motion to dismiss to a motion for summary judgment, because the City included, in support of its motion, material extrinsic to the Baxters' pleadings. Fed. R. Civ. P. 12(b). The Baxters have not complained of being denied any opportunity to defend against such a motion. In order for the Baxters to survive that motion, and claim that the City's enforcement action against them was actually the result of personal animosity, they had to come forward with evidence of such motivation. Fed. R. Civ. P. 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

The Advisory Committee Comments to this provision of Rule 56(e) point out its purpose. "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."

Thus, the burden on the Baxters was "to present evidence sufficient to support a verdict in its favor on every element of its claim for which it will carry the burden of proof at trial." In Re Apple Computer Securities Litigation, 886 F.2d 1109, 1113 (9th Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The district court found that

although the plaintiffs have alleged conclusory statements that other property owners similarly situated have been treated differently, they have failed to demonstrate to the Court sufficient facts supporting those conclusory statements.

Memorandum Decision, 11/7/89, at 8.

We agree. The Baxters did not provide affidavits or declarations supporting the conclusory allegations in their complaint. There was no evidence regarding specific violations by other parties, or evidence that complaints were made to the City regarding those violations (as they were regarding the Baxters) or that the City even knew of those alleged violations at the time it entered its ordinance against the Baxters. Thus, the Baxters failed to demonstrate that they had the evidence to support the claim that they alleged in their complaint--that the City selectively enforced the zoning ordinance against them because of personal animosity. Accordingly, the district court correctly granted summary judgment against the equal protection component of their complaint.

III. The intentional infliction of emotional distress claim.

The district court also granted summary judgment against the Baxters on their pendent claim for intentional infliction of emotional distress, holding that "as a matter of law plaintiffs do not show extreme or outrageous conduct on the part of the City or its officials. The record is completely void of any evidence showing such conduct on the part of the City." Memorandum Decision, 11/7/89, at 9. We agree.

The City, upon receipt of a citizen complaint, enforced a valid zoning ordinance against the Baxters, in compliance with a state court determination of the scope of that ordinance. That ordinance had previously been enforced against their neighbors, the Corbridges. The Baxters do not allege that their use of their property was permitted by the ordinance. The City's action hardly constitutes such extreme and outrageous conduct as to inflict stress " 'so severe that no reasonable man could be expected to endure it.' " Windsor v. Guarantee Trust Life Insurance Company, 684 F. Supp. 630, 632 (D.C.Idaho, 1988) (quoting Comment j of Restatement (Second) of Torts, Sec. 46 (1965).

IV. Denial of motion to amend complaint.

The addition of a substantive due process component to the Baxters' complaint would not overcome the deficiencies discussed above. The absence of any evidence that the City acted arbitrarily would have defeated a substantive due process claim. Cf. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 864 F.2d 1475, 1483 (9th Cir. 1989), cert. denied, 110 S. Ct. 1317 (1990) (substantive due process claim encompasses arbitrary government action). We therefore affirm the district court's denial of the Baxter's motion to amend their complaint a second time.

V. Denial of Preston City's motion for attorney's fees.

We review the district court's decision on attorney's fees under an abuse of discretion standard. O'Neil v. City of Lake Oswego, 642 F.2d 367, 370 (9th Cir. 1981).

The City argues that the district court should have exercised its discretion to award the City fees under 42 U.S.C. § 1988 because the Baxters' "use of the courts ... borders upon abusive." The City's primary basis for that conclusion is the fact that the Baxters brought an earlier action in state court, dealing with many of the same facts underlying the present action.

The City's argument fails to convince us that the district court abused its discretion. The case filed in State court, though based on similar facts is substantively entirely different from this action. The Baxters won in state court. They then filed a completely separate action, seeking different relief, in federal court. Although we hold that this action was properly dismissed, we do not believe the Baxters' claim was so trivial as to require the district court to award fees to the City, so that failure to do so would constitute an abuse of discretion.

The rulings of the district court are AFFIRMED.