ArchitectureArt, LLC v. City of San Diego et al, No. 3:2015cv01592 - Document 19 (S.D. Cal. 2016)
Court Description: ORDER granting in part and denying in part City of San Diego's 4 Motion to Dismiss for Failure to State a Claim. The Motion to Dismiss Counts Five (5) and Six (6) are granted in part and denied in part. The Motion to Dismiss all other causes of action are denied. Signed by Judge Cynthia Bashant on 3/18/2016. (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ARCHITECTUREART, LLC, 11 Case No. 15-cv-1592-BAS-NLS Plaintiff, 12 13 v. 14 ORDER DENYING IN PART AND GRANTING IN PART CITY’S MOTION TO DISMISS CITY OF SAN DIEGO, 15 Defendant. 16 17 18 I. INTRODUCTION 19 ArchitectureArt, LLC (“AArt”) brings this case against the City of San Diego 20 (“City”) alleging six counts of violations of 42 U.S.C. § 1983 and one count of 21 intentional interference with prospective business advantage. (First Amended 22 Complaint ECF No. 1-3 (“FAC”)). 23 The City takes the somewhat unique and startling position that any lawsuit to 24 attack a City decision to revoke or deny a permit application in violation of any U.S. 25 Constitutional rights or constituting intentional interference with prospective 26 business advantage must be filed within twenty-one days. And, similarly, the City 27 argues that any zoning ordinance that violates an individual’s First Amendment or 28 Due Process rights must be attacked within 90 days of its passage or the right to –1– 15cv1592 1 challenge its constitutionality is lost forever. As explained in more detail below, this 2 Court disagrees. 3 The Court finds this motion suitable for determination on the papers submitted 4 and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons that follow, the 5 City’s Motion to Dismiss is DENIED IN PART AND GRANTED IN PART. 6 II. BACKGROUND 7 On December 11, 2013, AArt filed a Complaint against the City in San Diego 8 Superior Court. The facts alleged were very similar to those listed in the FAC. (ECF 9 No. 1-2.) However, the legal theories were different. AArt alleged violations of 10 California constitutional law as opposed to federal constitutional law, and included 11 a cause of action for inverse condemnation of wall spaces. (Id.) 12 On July 17, 2015, AArt filed the FAC, which was removed to federal court, 13 changing the causes of action from California constitutional violations to federal 14 constitutional violations and dropping the cause of action for inverse condemnation. 15 (ECF No. 1-2.) Otherwise, however, the factual allegations and the parties in the two 16 Complaints are the same. 17 In its FAC, AArt alleges that it is a “small outdoor mural painting company.” 18 (FAC ¶8.) AArt claims, after seeing three large printed murals at Comic-Con, it 19 contacted the City and, at the City’s direction, the Centre City Development 20 Corporation (“CCDC”),1 both of whom told her “no permit was needed in order to 21 paint a wall mural.” (Id. ¶¶10-11.) In 2011, AArt painted two wall murals without 22 objection from the City. (Id. ¶13.) 23 In 2011, during Comic-Con, AArt painted a third mural which was cited by 24 the City for a violation of a City ordinance. (Id. ¶14.) The City told AArt it cited 25 AArt because Comic-Con had complained about the mural, and AArt had not gotten 26 Comic-Con’s approval before painting it. (Id.) 27 28 1 According to the FAC, CCDC has been disbanded and has been succeeded by Civic San Diego. –2– 15cv1592 1 In 2012, AArt painted five wall murals, three of which received no attention 2 from the City, but two of which received citations. The City objected to two words 3 used in one of the murals, and the citation for the second mural referenced City code 4 sections about creation of a hazardous nuisance, failure to obtain an electrical permit 5 and failure to obtain a construction permit. (Id. ¶15.) 6 During 2012 Comic-Con, AArt tried to find out how to get Comic-Con’s 7 approval of murals. When it received no response, it painted three new murals 8 without objection or citation. (Id. ¶17.) 9 After protests from the Coalition to Ban BillBoard Blight and threats of 10 Comic-Con to leave the City, the City stepped up enforcement on new murals 11 painted by AArt. (Id. ¶¶18-19). AArt was told for the first time that it would suffer 12 criminal penalties if it didn’t remove a mural. (Id. ¶18.) 13 In 2013, AArt submitted three permit applications for three new murals, all of 14 which were approved by the City. (Id. ¶20.) However, the approvals were later 15 rescinded. (Id. ¶20.) AArt has been forced to cancel all mural contracts and cease 16 new marketing. (Id. ¶20.) 17 Counts One and Two of AArt’s FAC allege a violation of its free speech rights 18 under the U.S. Constitution, one for damages and one for injunctive relief. AArt 19 claims the City’s sign ordinance is “internally contradictory, vague and very difficult 20 to understand or interpret,” which gives it “unbridled discretion” in enforcing the 21 ordinance. (Id. ¶¶25, 33.) As a result, AArt claims, City officials are allowed to 22 scrutinize the content of the speech when deciding whether to enforce the sign 23 ordinance or not. (Id.) Finally, the sign ordinance distinguishes between different 24 mediums of expression, different speakers and “impermissibly distinguishes 25 between commercial and noncommercial speech.” (Id.) 26 Counts Three and Four of the FAC allege a violation of AArt’s equal 27 protection rights under the U.S. Constitution, one for damages and one for injunctive 28 relief. AArt claims the City discriminates between AArt and a “class of Comic-Con –3– 15cv1592 1 approved artists.” (Id. ¶¶42-43, 52-53.) 2 Counts Five and Six of AArt’s FAC allege a violation of its due process rights 3 under the U.S. Constitution, one for damages and one for injunctive relief. AArt 4 claims the City failed to provide it due process when it: (a) revoked the permits it 5 had issued for the three murals, (b) “changed the written standards for application of 6 the law,” (c) cited AArt for violations “that were clearly inapplicable and 7 threaten[ed] fines and other penalties i[f] the inapplicable condition was not 8 remedied,” (d) sought “to enforce laws that are internally contradictory, vague and 9 extremely difficult to interpret or understand,” and (e) improperly delegated its 10 municipal powers to both Comic-Con and Civic San Diego. (Id. ¶¶ 62, 71.) 11 12 Finally, Count Seven alleges that the City has intentionally interfered with AArt’s prospective business advantage. 13 The City moves to dismiss claiming the entire case is barred by the statute of 14 limitations in either Cal. Govt. C. §65009, Cal. C.C.P. §1094.8 or S.D.M.C. 15 §121.0101.2 (ECF No. 4.) 16 17 AArt filed a Response to the Motion to Dismiss (ECF No 7), and the City filed a Reply to the Response.3 (ECF No. 11.) 18 19 20 21 22 23 24 25 26 27 28 Although the City’s Notice for this Motion to Dismiss claims it is moving to dismiss “the case,” and its Reply Brief claims it is challenging all counts of the FAC, in its Memorandum of Points and Authorities in Support of the original Motion to Dismiss, it repeatedly requests dismissal of only counts 1–6. It does not appear to seek dismissal of the seventh count for intentional interference with prospective business advantage. However, since its final argument makes reference to dismissal of all causes of action based on C.C.P. §1094.8, the Court construes the Motion to Dismiss on this ground as applying to all causes of action. 3 In its Reply, the City raises several arguments not mentioned in its initial Motion to Dismiss, including the argument that the allegations in the FAC, if not time-barred, fail to state a violation of federal or state constitutional rights. Because these arguments were not made in the initial Motion to Dismiss, the arguments are waived. See Somers v. Digital Realty Trust, Inc., 119 F.Supp.3d 1088, 1106 (N.D. Cal. 2015); see also Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (finding district court did not commit clear error in failing to consider arguments raised for the first time on reply because it “need not consider arguments raised for the first time in a reply brief”); United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006) (recognizing the general principle that arguments raised for the first time in a reply brief are waived); Dytch v. Yoon, No. C 10–02915 MEJ, 2011 WL 839421, at *3 (N.D. Cal. Mar. 7, 2011) (explaining that parties “cannot 2 –4– 15cv1592 1 III. STATEMENT OF LAW 2 A. Standard for a Motion to Dismiss 3 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 4 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 5 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 6 must accept all factual allegations pleaded in the complaint as true and must construe 7 them and draw all reasonable inferences from them in favor of the nonmoving party. 8 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). A claim may 9 be dismissed under Rule 12(b)(6) on the grounds that it is barred by the applicable 10 statute of limitations when “the running of the statute is apparent on the face of the 11 complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996 (9th Cir. 2006) 12 (quotations omitted). 13 Courts may not usually consider material outside the complaint when ruling 14 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 15 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the 16 complaint whose authenticity is not questioned by parties may also be considered. 17 Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superseded by statutes 18 on other grounds). Moreover, the court may consider the full text of those documents 19 even when the complaint quotes only selected portions. Id. It may also consider 20 material properly subject to judicial notice without converting the motion into one 21 for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 22 B. Statute of Limitations for a Claim Under Section 1983 23 “It is well established that claims brought under section 1983 borrow the 24 forum state’s statute of limitations for personal injury claims, and, in California, that 25 limitations is two years.” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control 26 Bd., 509 F.3d 1020, 1026 (9th Cir. 2007). This two-year statute of limitations period 27 28 raise a new issue for the first time in their reply briefs”). The Court, therefore, declines to consider any additional grounds raised by the City for the first time in its Reply Brief. –5– 15cv1592 1 “applies to all §1983 claims, regardless of the civil right asserted.” Id. “A substantive 2 due process violation is complete as soon as the government actions occurs.” Id. at 3 1027.4 4 This statute of limitations, however, “does not apply to the facial challenge of 5 a statute that infringes First Amendment freedoms, as such a statute inflicts 6 continuing harm.” Napa Valley Publ’g Co. v. City of Calistoga, 225 F.Supp.2d 1176, 7 1184 (N.D. Cal. 2002); see also 3570 East Foothill Blvd., Inc. v. City of Pasadena, 8 912 F. Supp. 1268, 1278 (C.D. Cal. 1996) (“…a statute that, on its face, violates the 9 First Amendment’s guarantee of free speech inflicts a continuing harm. Either a 10 person is punished for speaking or refrains from speaking for fear of punishment. 11 The harm continues until the statute is either repealed or invalidated.”); Summit 12 Media, LLC v. City of Los Angeles, 530 F.Supp.2d 1084, 1090 (C.D. Cal. 2008) 13 (“The statute of limitations does not apply to the facial challenge of a statute that 14 infringes First Amendment freedoms as such a statute inflicts a continuing harm.”); 15 Santa Fe Springs Realty Corp., v City of Westminster, 906 F.Supp. 1341, 1364-5 16 (C.D. Cal. 1995) (refusing to hold that a one-year statute of limitations prohibits a 17 facial challenge to the City ordinance “[b]ecause strong policy reasons militate in 18 favor of permitting facial challenged to statutes that impinge upon protected First 19 Amendment rights”); Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th 20 Cir. 1991) (“[I]t is doubtful that an ordinance facially offensive to the First 21 Amendment can be insulated from challenge by a statutory limitations period.”). 22 In Levald, Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993), the Ninth 23 Circuit distinguished between a statute that effects a taking without just 24 compensation “and a statute that inflicts some other kind of harm. In other contexts, 25 the harm inflicted by the statute is continuing, or does not occur until the statute is 26 27 28 4 The cause of action for intentional interference with prospective business advantage is likewise subject to a two-year statute of limitations. See Knoell v. Petrovich, 76 Cal.App.4th 164, 168 (1999) (applying two-year statute of limitations in Cal. C.C.P. §339 to this cause of action). –6– 15cv1592 1 enforced—in other words, until it is applied.” Id. at 688. Thus, “different rules [for 2 applying the statute of limitations] adhere in the facial takings context” than they do 3 in other contexts. See id. 4 “Relation back” jurisprudence rests on the “fundamental philosophy that cases 5 should be decided on their merits.” Smeltzley v. Nicholson Mfg. Co., 18 Cal.3d 932, 6 938 (1977) (quotations omitted). Thus, “[a]n amended complaint relates back to the 7 original complaint, and thus avoids the statute of limitations as a bar…if it: (1) rests 8 on the same general facts as the original complaint; and (2) refers to the same 9 accident and same injuries as the original complaint.” Barrington v. A.H. Robins, 10 Co. 39 Cal.3d 146, 151 (1985). This is true even if the amended complaint adds 11 different legal theories or invokes different legal duties. Smeltzley at 938. 12 C. California Government Code § 65009 13 Section 65009 of the California Government Code was passed because of 14 concern about the housing crisis in California and the Legislature’s determination 15 that it was “essential to reduce delays and restraints upon expeditiously completing 16 housing projects.” Cal. Govt. C. §65009 (a)(1). The statute expresses concern that 17 legal action challenging city zoning decisions “has a chilling effect on the confidence 18 with which property owners and local government can proceed with projects.” And, 19 thus, “to provide certainty for property owners and local governments regarding 20 decisions made pursuant to this decision,” the statute of limitations for this 21 subsection requires that an action “to attack, review, set aside, void, or annul the 22 decision of a legislative body to adopt or amend a zoning ordinance” must be brought 23 within 90 days of the legislative body’s decision. Cal. Govt. C. §65009(c)(1)(B). 24 D. California Code of Civil Procedure, Section 1094.8 25 Section 1094.8 of the California Code of Civil Procedure was passed as 26 urgency legislation following the Ninth Circuit decision in Baby Tam & Co., Inc. v. 27 City of Las Vegas, 154 F.3d 1097 (9th Cir. 1998) (“Baby Tam I”), abrogation 28 recognized by Dream Palace County v. Maricopa, 384 F.3d 990 (9th Cir. 2003). See –7– 15cv1592 1 Stearn v. County of San Bernardino, 170 Cal.App.4th 434, 440 (2009). To protect 2 those whose First Amendment rights may be violated, the Legislature wanted 3 “constitutionally required procedural safeguards, i.e. prompt judicial review, for 4 license or permit applications whose application for expressive conduct is denied.” 5 Id. Section 1094.8 lays out a series of rules so that “when a licensing scheme 6 constitutes a prior restraint [on speech], the applicant [can] be afforded prompt 7 judicial review and decision.” Id. 8 Thus, when a cause of action for administrative mandamus is filed seeking 9 review of a public agency’s issuance or denial of a permit involving expressive 10 conduct under the First Amendment of the U.S. Constitution, the writ of mandate 11 must be filed within 21 days of the public agency’s final decision on the permit; the 12 public agency must make the administrative record available within 5 court days 13 after receipt of the written notice of appeal; the trial court must set a hearing on the 14 petition within 25 calendars days after the filing; and the court must render its 15 decision within 20 calendar days after submission. Id. at 439. The rule also provides 16 that assignment should be made to another temporary judge if court business makes 17 the court unable to deal with the matter within the required time limits. Cal. C.C.P. 18 §1094.8(d). 19 E. San Diego Municipal Code section 121.0102 20 The San Diego Municipal Code similarly limits when a writ of mandate can 21 be filed after a decision by the City. A writ challenging the invalidity or 22 unreasonableness of the decision must be done within 90 days. S.D.M.C. §121.0102. 23 However, “[t]he judicial remedy of mandamus is not a civil action but a special 24 proceeding of a civil nature, which is available for specified purposes and for which 25 the code provides a separate procedure.” Wenzler v. Municipal Court of Pasadena 26 Judicial Dist., 235 Cal.App.2d 128, 131-32 (1965). 27 IV. 28 DISCUSSION The City argues first that any facial challenges to the City’s sign ordinance –8– 15cv1592 1 based on First Amendment grounds are subject to a 90-day statute of limitations 2 under California Government Code section 65009. Section 65009 applies 3 specifically to “zoning ordinances,” and a review of the statute makes it clear that 4 this was meant to reduce delays in expeditiously completing housing projects, not to 5 apply to the sign ordinances at issue in this case. More importantly, any statute of 6 limitations is inapplicable to a claim of facial invalidity based on First Amendment 7 violations, as such a violation inflicts continuing harm. 8 The City next argues that the allegations in counts five and six, to the extent 9 they claim the City ordinance violated due process “as applied” to AArt, are barred 10 by the statute of limitations. Contrary to the representations of either party, the Court 11 finds a two-year statute of limitations is applicable to the due process claims filed 12 pursuant to 42 U.S.C. § 1983. See Action Apartment Ass’n, Inc. v. Santa Monica 13 Rent Control Bd., 509 F.3d at 1026. The Court further finds that the FAC “relates 14 back” to the original Complaint, filed on December 11, 2013. The two complaints 15 have virtually identical factual scenarios and injuries. The only difference between 16 the two complaints are the legal theories, which does not bar the relation back 17 doctrine from applying. See Smeltzley v. Nicholson, 18 Cal.3d at 938. Therefore, the 18 statute of limitations bars any due process claim based on government action that 19 occurred before December 11, 2011, two years before the original Complaint was 20 filed. The FAC lists only one such claim based on the “Rayman mural” cited in July 21 2011. (FAC ¶14.) Therefore, the Court grants the Motion to Dismiss to the “as 22 applied” due process violations based on this claim only. 23 The City argues that the two-year statute of limitations applicable to the due 24 process claims was modified by the San Diego Municipal Code section 121.0102, 25 which limits “[a]ny action or proceeding to challenge, review, or void any decision 26 made in accordance with the Land Development Code . . . [to] . . . 90 calendar days 27 after the date on which the decision becomes final.” S.D.M.C. §121.0102. However, 28 the City confuses the time limit for bringing a civil action with the time limit for –9– 15cv1592 1 bringing an administrative mandamus to challenge a final administrative decision. 2 As AArt correctly points out, a municipality is free to legislate when and how its 3 action may be challenged administratively. But it may not set up its own statute of 4 limitations that shortens the time frame in which it may be sued. See Markus v. 5 Justice’s Court of Little Lake TP, 117 Cal.App.2d 391, 396 (1953) (“An ordinance 6 is . . . void insofar as it prohibits what a state law authorizes . . . . An ordinance is 7 invalid if it invades a field already so fully occupied by state legislation that there is 8 no room for local regulation.”) (citation omitted). 9 Finally, the City turns the expeditious review required in CCP section 1094.8 10 on its head and claims that all causes of action in the FAC, including the claims for 11 violations of first amendment, equal protection, due process and intentional 12 interference with prospective business advantage, are barred by this 21-day statute 13 of limitations. The provisions of section 1094.8 are no more applicable to AArt’s 14 claims than are the requirements that the City provide an administrative record 15 within 5 days, the court set a hearing within 25 days or render a decision within 20 16 days. These, again, are rules applying to a writ of mandamus not a civil action. 17 V. CONCLUSION 18 Despite the City’s valiant efforts to shorten the statute of limitations to 21 days 19 or at least 90 days for AArt’s causes of actions, the sections cited by the City are 20 inapplicable to this case. Accordingly, this Court denies the City’s Motion to 21 Dismiss to the extent it argues that shorter statutes of limitations should be applied. 22 However, to the extent it argues that the “as applied” due process claims in Counts 23 Five and Six are barred by the applicable statute of limitations, this Court agrees that 24 any due process claims based on governmental actions applied to AArt before 25 December 11, 2011 are barred. Therefore, the Motion to Dismiss Counts Five and 26 Six are DENIED IN PART and GRANTED IN PART. The Motion to Dismiss all 27 other causes of action are DENIED. (ECF No. 4.) 28 IT IS SO ORDERED. – 10 – 15cv1592 1 2 DATED: March 18, 2016 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 11 – 15cv1592
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