NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANJAY PATEL; SANJAY, a California No. 19-55149 General Partnership, D.C. No. Plaintiffs-Appellants, 2:18-cv-04077-GW-SK

v.

MEMORANDUM*

CITY OF SOUTH EL MONTE, a municipal corporation; DOES 1 through 10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted June 19, 2020 Pasadena, California

Before: EBEL,** WARDLAW, and HUNSAKER, Circuit Judges.

Appellants (collectively “Patel”) operate a motel in South El Monte,

California, located near the 60 Freeway. Patel initiated this 42 U.S.C. § 1983

litigation after the City cited him three times for violating a longstanding City

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. ordinance prohibiting most outdoor businesses in a commercial zone, South El

Monte Mun. Code § 17.14.200, and also for violating two interim ordinances,

1222-U and 1224-U, temporarily prohibiting automotive storage businesses within

500 feet of the 60 Freeway.

Accepting Patel’s well-pled factual allegations as true and drawing all

reasonable inferences from those facts in his favor, as we must in the context of a

motion to dismiss, see Parents for Priv. v. Barr, 949 F.3d 1210, 1221 (9th Cir.

2020), petition for cert. filed, (U.S. July 23, 2020) (No. 20-62), the second

amended complaint alleges that the City cited Patel both for vehicles the motel’s

overnight guests parked in the motel parking lot and for vehicles parked by

truckers who were not overnight motel guests but who were storing their vehicles

on the motel property.1

We review de novo the district court’s decision to dismiss Patel’s claims

under Federal Rule of Civil Procedure 12(b)(6). See Parents for Priv., 949 F.3d at

1221. We turn now to the four claims that the district court dismissed that are at

1 It is not clear from the limited record before us that the City was concerned about trucks belonging to overnight guests, but we cannot say, at this motion-to-dismiss stage, that Patel’s allegations contradict the judicially noticed documents, including the “notice of violation” and the citations that the City issued Patel, because those documents are sufficiently vague. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). We expect this can be sorted out in discovery as it may become relevant to the takings claim which we are remanding, but for now we do not need to address that matter further.

2 issue on appeal.

I. Takings claim

The district court dismissed this claim because Patel failed to allege that he

first sought compensation in state court, as had previously been required by the

Supreme Court in Williamson County Regional Planning Commission v. Hamilton

Bank of Johnson City, 473 U.S 172, 194 (1985). That was legal error. The

Supreme Court’s subsequent decision in Knick v. Township of Scott overruled

Williamson’s requirement that a takings claim first be exhausted in state court.

139 S. Ct. 2162, 2167-68 (2019).

However, Williamson had two holdings and Knick did not disturb

Williamson’s second holding, 139 S. Ct. at 2169—that “a takings claim

challenging the application of land-use regulations [i]s ‘not ripe until the

government entity charged with implementing the regulations ha[s] reached a final

decision regarding the application of the regulations to the property at issue,’”

Pakdel v. City & Cty. of San Francisco, 952 F.3d 1157, 1163 (9th Cir. 2020)

(quoting Williamson, 473 U.S. at 186). Invoking Williamson’s still-valid ripeness

requirement, the City now argues that Patel’s takings claim is not ripe because he

never sought a hardship exemption available under the interim ordinances.2

2 The City does not contend that there is any exemption or variance Patel could have sought to avoid application of the other ordinance he was charged with violating, South El Monte Mun. Code § 17.14.200.

3 However, because this ripeness rule is prudential, rather than jurisdictional, see id.

at 1169, the City has waived it by not making this argument in the district court,

see City of Oakland v. Lynch, 798 F.3d 1159, 1163 n.1 (9th Cir. 2015). Therefore,

we do not consider this argument.

The district court erred in dismissing Patel’s takings claim because he failed

first to seek compensation in state court, the only ripeness ground that the City

asserted before the district court. We, therefore, reverse the dismissal and remand

the takings claim for further proceedings.

II. Class-of-one equal protection

To prevail on a class-of-one equal protection claim at the motion-to-dismiss

stage, Patel had to allege that he was “treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.” Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Here, Patel fails to

allege that the City treated any similarly situated entities differently than him. He

alleges only that the City treated his motel differently than nearby service stations.

However, the nature of those businesses is qualitatively different from the nature of

Patel’s business under the express terms of § 17.14.200, and Patel has not alleged

that these businesses, like him, also lacked a hardship exemption under 1222-U or

1224-U. They are thus not comparable.

4 Thus, Patel has failed to allege that he was treated differently than other,

similarly situated businesses. We, therefore, find no error in the dismissal of this

claim, and we affirm that dismissal.3

III. First Amendment retaliation

Patel alleged that the City retaliated against him for the exercise of free

speech—his attorney speaking on Patel’s behalf against the ordinances at a City

Council meeting—by thereafter citing him for violating the municipal code and

interim ordinances and telling him that he had to give up his conditional use permit

to operate his motel in order to obtain a hardship exemption. Those allegations

alone are insufficient to allege a plausible retaliation claim because there are

“‘obvious alternative explanation[s]’ for [the] alleged misconduct.” Capp v. Cty.

of San Diego, 940 F.3d 1046, 1055 (9th Cir. 2019) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 682 (2009)). The City had told Patel prior to his protected speech that it

would cite him for violating the City ordinances if he did not stop violating them.

Thus, an obvious explanation for the citations is that the City followed through on

what it warned Patel it would do before he engaged in constitutionally protected

3 Patel also asserted that the City, in enforcing the ordinances against him, was treating him differently from other motels in the City. But Patel failed to allege any facts to support that assertion in the second amended complaint and similarly failed adequately to argue that claim on appeal. Therefore, that claim is not adequately preserved and will not be considered.

5 speech.

Patel has failed to allege the “[s]omething more” needed here to support his

retaliation claim, In re Century Aluminum Co. Secs. Litig., 729 F.3d 1104, 1108

(9th Cir. 2013), such as that, in taking the challenged action, the City treated Patel

and his motel differently than similarly situated entities, see Capp, 940 F.3d at

1056-57; see also Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019). Accordingly,

we affirm the dismissal of his First Amendment claim.4

IV. Procedural due process violation based on hearing officer’s bias

On this claim, Patel argues that he was deprived of procedural due process

because the City hires and pays the hearing officer on an ad hoc basis.5 The

district court dismissed that claim because Patel could seek de novo review of the

hearing officer’s decision in state court. In this reasoning, the district court erred.

The availability of a subsequent impartial de novo review is not a cure for a biased

hearing examiner in the first instance. See Ward v. Vill. of Monroeville, 409 U.S.

4 To the extent Patel is also asserting a First Amendment claim alleging that he was denied access to courts or administrative bodies, he has also failed to state such a claim adequately. 5 Patel does not challenge on appeal the district court’s rejection of his argument that he was also deprived of procedural due process because he had to deposit the full amount of the fine he faced with the City Clerk before he could pursue his administrative appeal. Nor does Patel reassert on appeal his contention that the hearing officer was actually biased against him because the hearing officer ruled against him. Thus, we do not address those arguments.

6 57, 61-62 (1972).

On the merits, Patel relies on the California Supreme Court’s decision in

Haas v. County of San Bernardino, 45 P.3d 280, (Cal. 2002). Haas held that

“selecting temporary administrative hearing officers on an ad hoc basis and paying

them according to the duration or amount of work performed” deprives litigants of

an impartial decisionmaker. 45 P.3d at 283. Haas, which was a mandamus

proceeding, applied federal law but is not controlling on us.

The United States Supreme Court has held that it “violates the Fourteenth

Amendment and deprives a defendant . . . of due process of law to subject his

liberty or property to the judgment of a court, the judge of which has a direct,

personal, substantial pecuniary interest in reaching a conclusion against him in his

case.” Ward, 409 U.S. at 60 (internal quotation marks omitted); see also Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-22 (1986). In deciding whether the

adjudicator has such an interest, the relevant question is “whether the . . . situation

is one ‘which would offer a possible temptation to the average man as a judge to

forget the burden of proof required . . . or which might lead him not to hold the

balance nice, clear, and true between the [government] and the accused.’” Ward,

409 U.S. at 60 (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).

Patel’s second amended complaint fails to allege that the hearing officer here

had a financial bias in the outcome of his case, as needed to meet this test.

7 Therefore, on this alternate ground, we affirm dismissal of this claim.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.6

6 Each party shall bear their own costs.

8