Unpublished Disposition, 843 F.2d 501 (9th Cir. 1986)

No. 86-6322.

United States Court of Appeals, Ninth Circuit.

Before O'SCANNLAIN and LEAVY, Circuit Judges, and SAMUEL P. KING^*** , District Judge.

MEMORANDUM^** 

Apartments and Hotels, Inc. (appellant) brought this action against the City of Maywood, members of the city council, and several city employees (the City) seeking compensatory and punitive damages and mandamus, declaratory, and injunctive relief. The appellant alleges that the City denied it its constitutional rights under the Fifth and Fourteenth Amendments and 42 U.S.C. §§ 1983 and 1985 when the City allegedly took its property without just compensation. The action also includes pendent state law claims.

FACTS AND PROCEEDINGS BELOW

The Fernwood Hotel, located in the City of Maywood, California, was built prior to 1934 and was used as a hotel until 1984. On April 26, 1966, the City adopted a comprehensive zoning ordinance. The area in which the hotel is located was zoned M-1, in which only light manufacturing and industrial uses are allowed. Thus, the Fernwood Hotel was a non-conforming use.

The zoning ordinance provides that the City may revoke a non-conforming use permit if it finds, after a public hearing, that one of the following conditions exists: (1) the non-conforming use is not being exercised; (2) the non-conforming use has ceased for one year or more; or (3) the non-conforming use is being exercised in a way which is detrimental to the public health or safety or is a nuisance. The ordinance also provides that a non-conforming use will terminate by law if the use is discontinued for six or more consecutive months or, in situations such as the Fernwood Hotel, if twenty years has elapsed from the date the use became non-conforming. If a non-conforming use is terminated by law or because the use has been discontinued, the property owner may request from the City an extension of time to remain a non-conforming use.

On May 9, 1984, the Maywood City Council declared the Fernwood Hotel to be a public nuisance. On September 21, 1984, the Superior Court of the County of Los Angeles issued a preliminary injunction ordering the building to be vacated and further ordering that all repairs and renovations necessary to bring the premises into conformity with applicable codes be performed within sixty days.

The repair and renovation work stopped on January 20, 1985. At the request of the then owners of the building, the Maywood City Attorney issued a notice stating that the period of non-use for purposes of the zoning ordinance commenced running on that date.

In October 1984, the City passed an earthquake safety ordinance. The ordinance requires alterations to be made to all buildings, including the Fernwood Hotel, that were built before 1934 and are of a certain type of construction.

The appellant bought the Fernwood Hotel on March 15, 1985. On March 18, 1985, the appellant received from the City an order requiring it to make certain alterations to the hotel to bring it into compliance with the earthquake safety ordinance within two years.

The appellant began repair work on the hotel in April 1985, to bring the hotel into compliance with the earthquake ordinance and the preliminary injunction. The appellant alleges that it did so "in reliance on the implied representation that Defendants would allow resumption of occupancy for hotel purposes if the work was completed."

On January 21, 1986, the Maywood Planning Commission held a public hearing and recommended to the City Council that the non-conforming use status of the Fernwood Hotel be revoked. On February 11, 1986, the Maywood City Council held a public hearing concerning the hotel's status at which evidence was taken and sworn testimony was presented on behalf of the City, the appellant, and the former owners of the hotel. After the hearing, the City Council adopted a resolution revoking the hotel's non-conforming use status. In so doing, the City made the findings required by its zoning ordinance.

According to the Maywood Zoning Ordinance, the non-conforming use status of the hotel expired on April 26, 1986, by operation of law. There is no claim that the appellant requested an extension of its non-conforming use status from the City.

The appellant sought relief from the City's action in the federal district court. Appellant filed its complaint on April 24, 1986, alleging four causes of action. In its first cause of action, the appellant claimed that the City's revocation of the hotel's non-conforming use status amounted to a taking of the appellant's property without just compensation and denied the appellant its rights to procedural and substantive due process and equal protection, in violation of 42 U.S.C. § 1983. The appellant alleged it has no adequate remedy under state law and that it "would be futile" for it "to seek either a variance, conditional use permit or other similar remedy" from the City. The appellant further alleged that the individual appellees acted with malice and fraud and in reckless disregard for its rights. The appellant requested compensatory damages for the money it expended in the purchase and repair of the hotel and punitive damages.

In its second cause of action, the appellant alleged that the appellees conspired among themselves to deprive the appellant of its civil rights in violation of 42 U.S.C. § 1985. The appellant again requested compensatory and punitive damages.

In its third cause of action, the appellant claimed the City's revocation of the hotel's non-conforming use status was "arbitrary and capricious, and in violation of federal law, state law and the laws of the City of Maywood." The appellant did not specify the laws to which it referred. The appellant asked the district court to issue a writ mandating the City to issue it building permits and prohibiting revocation of the non-conforming use status.

In its fourth cause of action, the appellant claimed that the City knew the appellant intended to reopen the building as a hotel and, by issuing permits, lead the appellant to believe the non-conforming use status would continue. Thus, regardless of whether the City's revocation was proper, the appellant argued it has a vested right to use the building as a hotel. The appellant further claimed that the City's zoning code, and its application to appellant, is unconstitutional. The appellant sought a declaration that it has a vested right to use the building as a hotel and that the City's zoning ordinance is unconstitutional in general and as applied to it. The appellant also sought an injunction enjoining the City from enforcing the resolution. Finally, appellant sought attorneys' fees and costs.

The City filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b) (6) and to dismiss the pendent state claims, or in the alternative to stay or dismiss the action on abstention grounds.

The district court granted the City's motion to dismiss the entire action without leave to amend. The Judge stated: "The grounds for said dismissal are that the Complaint fails to state a claim upon which relief can be granted and that dismissal is appropriate pursuant to the doctrine of abstention."

The appellant timely appealed.

STANDARD OF REVIEW

We review de novo a district court's dismissal of an action for failure to state a claim. Cassettari v. County of Nevada, 824 F.2d 735, 737 (9th Cir. 1987). We can dismiss an action only if " '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. (quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 928 (1987)). All allegations of material fact must be taken as true and construed in the light most favorable to the non-moving party. Id.

A dismissal without leave to amend is reviewed de novo. Whittington v. Whittington, 733 F.2d 620, 621 (9th Cir. 1984).

Pendent jurisdiction is a doctrine of discretion. Wren v. Sletten Constr. Co., 654 F.2d 529, 536 (1981). We review dismissal of pendent state claims when the federal claims have been dismissed for abuse of discretion.

DISCUSSION

This action is in a posture identical to a case recently decided by the Ninth Circuit, Cassettari v. County of Nevada, 824 F.2d 735 (9th Cir. 1987), and is governed by it.

In Cassettari, a property owner brought an action against a county for allegedly taking his property without just compensation. He alleged violations of his constitutional rights under the Fifth Amendment and 42 U.S.C. §§ 1983 and 1985. The Ninth Circuit upheld the district court's dismissal of the action for failure to state a federal claim and the dismissal of the pendent state claims for lack of subject matter jurisdiction. The Ninth Circuit held that the landowner could not state a claim for unlawful taking or for conspiracy to deprive the landowner of his constitutional rights until he had availed himself of the state's compensation procedure in an inverse condemnation action. Consequently, the court also held that dismissal of the pendent state claims was proper.

The appellant claims the City took its property without just compensation, in violation of the Fifth Amendment. The Fifth Amendment applies to the states through the Fourteenth Amendment. As the Cassettari court pointed out, 824 F.2d at 737-38, the Supreme Court has ruled that "if a State provides for an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195 (1985).

California law permits a property owner to bring an inverse condemnation action to obtain just compensation for an alleged taking of property. Cassettari, 735 F.2d at 738 (and cases cited therein). See Cal.Code Civ.P. Sec. 1245.260 (West 1982).

Here, the appellant has not alleged that it availed itself of the state procedure for inverse condemnation actions. Therefore, under Williamson and Cassettari, the district court did not err in dismissing the appellant's Fifth Amendment taking claim.

Like the appellant here, Cassettari claimed that he did not receive notice of the County's action prior to the alleged taking. The Cassettari court found that the Constitution does not require pre-taking notice. 824 F.2d at 738-39. The Supreme Court held in Williamson that "the Just Compensation Clause has never been held to require pretaking process or compensation." 473 U.S. at 196-97 n. 14.

Thus, even taking as true the appellant's allegation that it did not receive notice of the City Council hearing to revoke the hotel's non-conforming use status, the appellant has not alleged a violation of a federal right under 42 U.S.C. § 1983.

In addition, the appellant has not stated a section 1983 claim on the taking issue. Again, because the appellant has not sought and been denied just compensation for the alleged taking under the state's available procedures, it has not alleged a violation of a constitutional right. Cassettari, 824 F.2d at 739 (citing Williamson, 473 U.S. at 196-97).

The district court correctly dismissed the appellant's claim for failure to state a claim under 42 U.S.C. § 1983.

As stated by the Cassettari court, " [t]he insufficiency of these allegations to support a section 1983 violation precludes a conspiracy claim predicated upon the same allegations." Id.

Moreover, as in Cassettari, the record in this case shows that the appellant has not alleged a required element of a section 1985 conspiracy claim: that the City was motivated by a class-based discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971).

As in Cassettari, dismissal of the pendent state claims was within the district court's discretion once the federal claims were dismissed. Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984). The district court did not abuse its discretion in dismissing the pendent state claims for lack of subject matter jurisdiction.

It is not necessary to reach this possible ground for dismissal, because the action was properly dismissed for failure to state a claim.

The district court's dismissal without leave to amend was proper. Under Cassettari and Williamson, the appellant can prove no set of facts in support of its claim which would entitle it to relief, because it cannot allege that it has sought and been denied just compensation under the state's available procedures.

Both appellant and appellees state they intend to seek attorneys' fees pursuant to Federal Rule of Appellate Procedure 38 and 42 U.S.C. § 1988. We decline to award attorney's fees to either side.

CONCLUSION

The district court's order dismissing the action for failure to state a federal claim under Federal Rule of Civil Procedure 12(b) (6) and dismissing the pendent state claims is AFFIRMED.