Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1987)

MEMORANDUM^* 

Phillip Ostler appeals the district court's grant of summary judgment in favor of appellees (the City), the district court's denial of Ostler's motion to reconsider the grant of summary judgment, and its subsequent denial of Ostler's motion for leave to amend the complaint. In his complaint, Ostler alleged that the City deprived him of property without due process of law by temporarily closing a business operated by one of his commercial tenants. We agree with the district court that, based on the evidence provided by Ostler, no reasonable jury could conclude that the City's action deprived him of a property interest. We affirm.

On March 6, 1987, the City shut down a business operated by one of Ostler's commercial tenants (Schaefer) after determining that certain unsafe conditions in Ostler's building posed an imminent health and safety hazard. Ostler filed this action against the City on September 24, 1987, contending that the City's action deprived him of a property interest in a lease with his tenant without due process of law. Ostler argues that he was deprived of this property interest because, as a result of the City's action, one of his tenants (Schaefer) abandoned his space in the Ostler building.

This court reviews a grant of summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Ostler does not allege that he was deprived of a liberty interest. He asserts that the City deprived him of a property interest, i.e., the expectation of rents under a commercial lease. Before we reach the issue whether this expectation constitutes a property interest protected under the fourteenth amendment, Ostler must first demonstrate that it was the City's actions that caused tenant Schaefer to break his lease.

The first step in this causation analysis is a factual determination: would the tenant have permanently abandoned the building but for the city's action? Proof of actual causation is a material element of Ostler's claim. A claim cannot survive summary judgement if the non-moving party fails to establish that there is a genuine issue of fact as to any material element of the case. Celotex Copr. v. Catrett, 477 U.S. 317, 322-23 (1986). With respect to proof of actual causation, Ostler fails to show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoted in California Architectural Bldg. Prods. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987)). In his affidavit, Schaefer states only that he temporarily relocated his business while the electricity was shut off. Though there is some evidence that Schaefer did, at some point, leave the building permanently, there is no evidence that this move would not have occurred but for the City's action.

Because Ostler fails to offer evidence that could reasonably sustain this initial finding of causation, we find that this issue presents no triable question of fact. Therefore, the district court was correct in granting summary judgment on the Due Process claim because, "on the record before it and taking all inferences in the light most favorable to [Ostler], a reasonable jury could not find by a preponderance of the evidence that [the City's action] was a substantial factor" in Schaefer's permanent abandonment of the leased premises. Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371 (9th Cir. 1982).¹ 

Because we find that Ostler has not sufficiently demonstrated causation in fact, and therefore failed to establish that the City deprived him of a property interest, we do not reach the issue of whether the existence of state remedies forecloses Ostler's due process claims. Moreover, because we find that the district court did not err in granting summary judgment for the City, we also find that the district court did not abuse its discretion in denying Ostler's motion to reconsider its order granting summary judgment on his due process claim.

This court reviews an exercise of pendent jurisdiction over state claims for an abuse of discretion. Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985). The doctrine of pendent jurisdiction "is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values." Carnegie-Mellon University v. Cohill, 108 S. Ct. 614, 619 (1988). In this case, where the state and federal claims were adjudicated simultaneously, the district judge did not abuse his discretion in disposing of the state claims after disposing of the federal claim.² 

This court reviews a decision granting or denying leave to amend for an abuse of discretion. Parker v. Joe Lujan Enter. Inc., 848 F.2d 118, 120 (9th Cir. 1988). Ostler had over eight months to amend his complaint before the City filed its motion for summary judgment. We find that the district court did not abuse its discretion in denying Ostler leave to amend after it granted the City's motion for summary judgment.

AFFIRMED.