FILED

NOT FOR PUBLICATION

NOV 6 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ASSOCIATION FOR THE No. 23-15975

PRESERVATION OF GAMEFOWL,

D.C. No. Plaintiff-Appellant, 1:20-cv-01294-ADA-SAB

v.

COUNTY OF STANISLAUS, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Judge Ana I. de Alba, Presiding

Argued and Submitted October 23, 2024 San Francisco, California

Before: S.R. THOMAS, WARDLAW, and COLLINS, Circuit Judges.

The California Association for the Preservation of Gamefowl (“CAAPG”)

appeals the district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal of its

42 U.S.C. § 1983 action against the County of Stanislaus (“County”) for enacting a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. county zoning ordinance outlawing the non-commercial ownership of roosters

within certain areas of the County. We affirm.

Because the parties are familiar with the factual and procedural history of the

case, we need not recount it here. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review de novo a dismissal for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). Cervantes v. United States, 330 F.3d 1186, 1187

(9th Cir. 2003). On appeal, CAAPG challenges only the district court’s dismissal

of its facial challenges to the zoning ordinance, including its regulatory takings

claim, substantive due process claim, and forfeiture of a vested right claim.

I

The district court properly dismissed CAAPG’s facial takings claim as time-

barred. A statute of limitations defense may be raised in a Rule 12(b)(6) motion if

the running of the statute is apparent on the face of the complaint. Huynh v. Chase

Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006).

The applicable limitations period for the takings claim runs from accrual of

the claim, which occurs when the plaintiff has a complete and present cause of

action, or in other words, when a plaintiff “knows or has reason to know of the

actual injury.” Flynt v. Shimazu, 940 F.3d 457, 462 (9th Cir. 2019) (citation

omitted). Here, the plaintiff had constructive notice of the enactment of the

2 ordinance, and also had actual notice as evidenced by its public comment on the

proposal during the enactment process.

The federal statute that forms the basis of each of CAAPG’s claims, 42

U.S.C. § 1983, does not have its own statute of limitations. Butler v. Nat’l Cmty.

Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). Rather, actions brought

under § 1983 are generally governed by the forum state’s statute of limitations. Id.

Under California law, the relevant statute is two years. Cal. Civ. Proc. Code

§ 335.1 (West 2003); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).

“A facial challenge involves ‘a claim that the mere enactment of a statute

constitutes a taking,’ while an as-applied challenge involves ‘a claim that the

particular impact of a government action on a specific piece of property requires

the payment of just compensation.’” Ventura Mobilehome Cmtys. Owners Ass’n v.

City of San Buenaventura, 371 F.3d 1046, 1051 (9th Cir. 2004) (quoting Levald,

Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th Cir. 1993)).

A facial takings claim accrues when the statute at issue is enacted. See

Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011)

(“[T]he statute of limitations for facial challenges to an ordinance runs from the

time of adoption.” (citing Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th

Cir. 2010))). Unlike in other contexts, where the harm from a statute may be

3 continuing, or does not occur until the statute is enforced, “[i]n the takings context,

the basis of a facial challenge is that the very enactment of the statute has reduced

the value of the property or has effected a transfer of a property interest.” Levald,

998 F.2d at 688.

Here, the zoning ordinance at issue was enacted on November 16, 2017, so

CAAPG’s facial takings claim accrued on November 16, 2017. See Colony Cove

Props., 640 F.3d at 956.

Thus, given California’s two-year statute of limitations period, CAAPG’s

facial takings claim became time-barred after November 16, 2019. Because

CAAPG did not file its complaint until September 9, 2020, CAAPG’s facial

takings claim is time-barred.

II

The district court also properly determined that CAAPG did not plead

sufficient facts to support a substantive due process claim. “The Supreme Court

has ‘long eschewed . . . heightened [means-ends] scrutiny when addressing

substantive due process challenges to government regulation’ that does not

impinge on fundamental rights.” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir.

2008) (alterations in original) (citations omitted). “Accordingly, the ‘irreducible

minimum’ of a substantive due process claim challenging land use action is failure

4 to advance any legitimate governmental purpose.” Id. (citing N. Pacifica LLC v.

City of Pacifica, 526 F.3d 478, 484 (9th Cir. 2008)). Thus, CAAPG must meet an

“exceedingly high burden” to show the County “behaved in a constitutionally

arbitrary fashion.” Id. (citation omitted).

CAAPG’s first amended complaint does not contain allegations that the

ordinance was constitutionally arbitrary and capricious, nor does it allege that it is

not rationally related to a legitimate state interest. The district court properly

determined that the substantive due process allegations were “nearly wholly

conclusory and . . . insufficient to meet the high standard for a substantive due

process challenge.” The district court granted the plaintiff leave to amend to allege

sufficient facts. However, the plaintiff elected to stand on its pleadings, which are

not sufficient to state a claim.

III

The district court also correctly concluded that CAAPG failed to state a

claim for forfeiture of a vested right. “The doctrine of vested rights . . . states that

a property owner who, [1] in good faith reliance on a government permit, [2] has

performed substantial work and incurred substantial liabilities has a vested right to

. . . use the premises as the permit allows.” Cmtys. for a Better Env’t v. S. Coast

Air Quality Mgmt. Dist., 226 P.3d 985, 994 (Cal. 2010). “In contrast to a taking or

5 deprivation claim, the gravamen of a ‘vested rights’ claim is that the landowner has

a right to a particular use of his land because he has relied to his detriment on a

formal government promise (in the form of a permit) stating that he can develop

that use.” Lakeview Dev. Corp. v. City of S. Lake Tahoe, 915 F.2d 1290, 1295 (9th

Cir. 1990).

The district court correctly concluded that CAAPG’s forfeiture claim fails

because CAAPG did not plead that there was a form of permit or its equivalent

issued or that it performed substantial work in reliance on such a permit.

IV

In sum, the district court correctly dismissed the takings claim as time-

barred and dismissed the substantive due process and vested rights causes of action

for failure to state a claim. Given our resolution of the issues, we need not—and

do not—reach any other issue presented by the parties.

AFFIRMED.

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