1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TEMPLE OF 1001 BUDDHAS, et al., Case No. 21-cv-04661-CRB

9 Plaintiffs,

ORDER GRANTING MOTION TO

10 v. DISMISS

11 CITY OF FREMONT, 12 Defendant.

13 Plaintiff Miaolan Lee lives on property owned by the Temple of 1001 Buddhas in 14 Fremont, California. For the past eight years, City of Fremont employees have had 15 numerous interactions with Lee and the property, all pertaining to whether certain 16 structures on the property comply with the City’s land use laws and various California 17 laws and regulations. After numerous searches, inspections, orders, and negotiations, the 18 City issued an amended Notice and Order to Abate Nuisance in March 2021. The 58-page 19 Notice and Order listed violations of the Fremont Municipal Code and California laws 20 (including but not limited to the California Building Code, Electrical Code, and Plumbing 21 Code), and set a deadline for Lee to submit plans to fix the problems, which would require 22 demolishing certain structures. 23 Lee and the Temple sued the City, asserting a dozen claims under federal and 24 California law. The City now moves to dismiss. The Court determines that oral argument 25 is unnecessary and grants the City’s motion to dismiss with leave to amend. 26 I. BACKGROUND AND PROCEDURAL HISTORY 27 A. Factual Background 1 California. 2 Although Lee did not own the property until 2010, the story begins more than thirty 3 years earlier. In 1978, a predecessor in interest to the property signed a “Land 4 Conservation Contract” under California’s Williamson Act with the City. Compl. (dkt. 1) 5 ¶ 15. The Williamson Act provides that any city may “by contract limit the use of 6 agricultural land for the purpose of preserving such land pursuant and subject to the 7 conditions set forth in the contract” and elsewhere in the Act. Cal. Gov. Code § 51240. 8 Such a contract must exclude land “uses other than agricultural, and other than those 9 compatible with agricultural uses, for the duration of the contract.” Id. § 51243. 10 Consistent with that requirement, the predecessor in interest’s contract with the City 11 stated: During the term of this contract, or any renewal thereof, the said property 12 shall not be used for any purpose, other than agricultural uses for producing 13 agricultural commodities for commercial purposes and compatible uses as listed below. 14 Compl. ¶ 15. The contract then listed potential compatible uses, including “living quarters 15 and home occupations,” “public and quasi-public buildings,” and “accessory use to the 16 above.” Id. 17 Lee purchased the property, which remains subject to the Land Conservation 18 Contract, in 2010. Id. ¶¶ 13, 16. In March 2018, Lee deeded ownership of the property to 19 the Temple of 1001 Buddhas, but she has continued to live there. Id. ¶ 14.1 The property 20 is zoned as “open space” under the City’s laws, and it contains various structures that Lee 21 has used for religious purposes. Id. ¶¶ 17, 19. 22 Starting several years after Lee’s purchase, City employees have had numerous 23 interactions with Lee and the property, culminating in the instant lawsuit.2 24

25 1 The complaint does not clearly allege Lee’s connection to the Temple, but indicates that Lee has continued to live on the property. See Compl. ¶ 14; see also Opp. (dkt. 17) at 1 (referring to the 26 property as “Lee’s property”). The City has not argued that Lee’s legal interest in the property is relevant. The Court refers to Lee and the Temple collectively as “Lee.” 27 2 The complaint contains some allegations with no clear relevance to Lee’s claims. For example, 1 As relevant here, in October 2017, City Code Enforcement Manager Leonard 2 Powell sent Lee an email requesting access to the property. Id. 27. The next day, Powell 3 and other City employees “trespassed” on the property and took pictures. Id. ¶¶ 28, 29.3 4 This upset Lee. And in January 2018, Lee met with Gary West, the City’s Building 5 Department Chief, and complained that City employees were discriminating against her 6 and had trespassed on the property. Id. ¶ 34. West told Lee that he urgently needed to 7 inspect the property. Id. ¶ 35. He then sought and obtained an inspection warrant from the 8 Superior Court. Id. ¶ 36. On February 8, 2019, the City hung a notice of inspection on the 9 property’s front gate. Id. The next day, City employees searched the entire property, 10 including Lee’s bedroom and “most closets in the residence.” Id. ¶ 38. They “rummaged 11 through everything,” including food in the kitchen and Lee’s make-up. Id. City 12 employees then placed license plate recording cameras across the street from the property 13 from February 28, 2018 to March 9, 2018. Id. ¶ 39. 14 Soon it became apparent why City employees had entered the property. On March 15 29, 2018, the City issued a “Notice and Order to Abate Nuisance” listing numerous alleged 16 violations of the Fremont Municipal Code (FMC) and stating that no one could occupy 17 three structures on the property (the main Buddha hall, the dwelling unit, and the 18 meditation hall). Id. ¶ 40. In particular, the City noted that the three buildings were (1) 19 “erected and/or altered in violation of [FMC] Title 15,” (2) “located in [a] very high fire 20 place of “prayer for her and her family.” Id. Lee was surprised to learn that “she needed 21 permission to pray.” Id. Although a person needing permission to pray would cause obvious constitutional problems, Lee does not appear to have asserted any claim based on this 22 conversation. Gale also told Lee that Lee would need to obtain a permit if she wished to make any improvements to a barn on the property, which she later did. Id. Again, this allegation has no 23 clear relevance to Lee’s claims. 3 The employees reached the front gate of the property. When the property’s maintenance worker 24 approached the gate to “see what they wanted,” the gate automatically opened. Compl. ¶ 28. The City employees drove inside and ignored the maintenance worker. Id. In December 2017, a 25 California Department of Fish and Game warden accessed the property without permission. Id. ¶ 30. According to Lee, he “roamed the property . . . and then left a business card at the 26 residence.” Id. But Lee is suing only the City here. Lee also alleges that during a City Hall meeting with Powell, Powell told her that she “looked prettier without a hat.” Id. ¶ 32. Lee 27 complained about Powell’s behavior and objected to Powell’s use of the letters “JD” on his City- 1 hazard severity zone without adequate fire-resistance-rated construction and fire protection 2 systems,” (3) “lack[ing] adequate light, ventilation, illumination, insulation, sanitary 3 facilities, and other essential equipment,” (4) “on hillsides in earthquake induced landslide 4 zones without appropriate mitigation measures,” (5) “constructed without adequate 5 structural and foundation systems,” creating a “substantial risk of partial or complete 6 collapse in [the] event of earthquake and earthquake induced landslides,” (6) “constructed 7 without plans or permits and the City [was] unable to determine the electrical connections 8 and service for each,” and (7) lacking in “proper on site waste disposal and waste water 9 treatment” so as to “pose contamination risk to adjoining streams, springs, and 10 groundwater.” RJN Ex. I (dkt. 12-8). After Lee appealed the Notice and Order, the City 11 Attorney told her that the Notice and Order would remain in effect based on the Land 12 Conservation Contract. See Compl. ¶ 42.4 13 In May 2018, Lee met with City staff “to attempt to resolve all concerns stated by 14 the City.” Id. ¶ 43. She agreed to allow City employees to inspect the property several 15 days later. But a City Code Enforcement Officer cancelled the appointment and instead 16 sought and obtained an inspection warrant from the Superior Court. Id. The Officer’s 17 warrant application stated that Lee had not consented to City employees entering the 18 property. Id. City employees executed the warrant and inspected the property again. Id. 19 ¶¶ 44–45. 20 The City took additional action based on this inspection. In June 2018, West sent 21 Lee a Notice and Order to vacate three buildings on the property (a new two-story 22 structure, a three-story building that had been a one-story garage, and a two-story building 23 that was formerly a barn). Id. ¶ 47. This Notice and Order stated that the buildings were 24 “unlawful, unsafe[,] and unfit for human occupancy.” Id. It required Lee to remove “all 25

26 4 The Court may consider the Notice and Order and other relevant documents discussed here because they are incorporated by reference in the complaint. See Khoja v. Orexigen Therapeutics, 27 Inc., 899 F.3d 988, 1002 (9th Cir. 2018). For the same reason, the Court grants the City’s request 1 personal property” from them within two weeks. Id. Lee refused to remove Buddha 2 statues from one structure. Id. ¶ 48. According to Lee, West informed her that she could 3 pray in a dome meditation hall on the property and in the main house, but nowhere else. 4 Id. ¶ 49. Later that month, City employees “requested and obtained entry” to the property, 5 then posted notices barring entry on the “condemned buildings” and at the main entrance. 6 Id. ¶ 50. 7 Lee responded to the June 2018 Notice and Order in various ways. For example, 8 she sent the City notices of appeal, retained various structural engineers and consultants to 9 perform work on the buildings, and updated the City as she attempted to bring the 10 buildings into compliance with the City’s instructions. Id. ¶¶ 52, 55. City employees had 11 several meetings with Lee’s consultants and representatives regarding plans for the 12 property and permit applications. Id. ¶¶ 57–58. 13 But these steps did not lead to a mutually agreeable resolution. In May 2019, the 14 City recorded a Notice of Substandard Building/Structure with the County Recorder’s 15 Office of the County of Alameda. Id. ¶ 59. The next month, Lee sent City 16 Councilmember Raj Salwan a letter “complaining about discriminatory code enforcement” 17 and the “inspection warrants.” Id. ¶ 60. According to Lee, the Chief City Attorney told 18 Salwan that the City was “going to sue Ms. Lee” because of Lee’s opposition to the 19 religious and racial discrimination she was experiencing. Id. ¶ 60.5 Lee alleges that 20 despite her efforts, the City had decided to not engage in a “collaborative process.” Id. 21 ¶ 62. “In fact, it was impossible” for her to “complete the application process” and get the 22 necessary permits because the City “wanted the Temple to be torn down.” Id. Lee 23 nonetheless applied for permits on October 7, 2019. Id. ¶ 63.6 24 5 In September 2019, the City issued citations to Lee and her bookkeeper. Compl. ¶ 61. Lee was 25 unable to determine why she was cited, but in March 2020, the City withdrew the citations. Id. ¶¶ 65, 69. 26 6 Lee paid the City $27,250 in application fees to get conditional use permits. Compl. ¶ 63. Lee alleges that the “regular price is $7,250,” but the City planner insisted that Lee pay an additional 27 $20,000 fee “for design review,” even though the City does not “ordinarily . . . charge such fees at 1 Shortly thereafter, City employees made inartful statements suggesting that Lee was 2 using religious rhetoric to obscure the problems with the property. In December 2019, Lee 3 met with Wayne Morris, the City’s Deputy Community Director, and Powell. Id. Morris 4 and Powell “insisted that Ms. Lee was using religion as a protective shield.” 5 Id. According to Lee, Morris asked whether Lee thought “Buddha is ok with this 6 construction.” Id. Lee alleges that Morris laughed while asking whether she thought that 7 “Buddha is ok with what you are doing?” Id. Morris then told Lee that the permit process 8 was “going to be so expensive” that Lee would “give up and demolish.” Id. Morris 9 expressed that the buildings “need to come out.” Id. 10 In January 2020, Morris, Powell, and James Willis (another city employee) 11 inspected the property again. Id. ¶ 67. Two days later, Lee told Willis that her neighbor 12 had performed unpermitted work on his property. Id. ¶ 68. When Lee first met her 13 neighbor, the neighbor told her that he had completed various construction projects 14 without the City’s approval and used herbicide extensively on his property. See id. ¶¶ 23– 15 24. But according to Lee, “the City has never done anything” about her neighbor’s 16 violations, besides sending the neighbor a letter stating that he could apply for permits “to 17 legalize” his past “unpermitted construction.” Id. ¶¶ 23, 80. In April 2020, Lee witnessed 18 her neighbor looking at her property with binoculars. Id. ¶ 70. 19 Lee continued attempting to work with the City to address the issues on the 20 property. In October 2020, she submitted a modified application for permits. Id. ¶ 71. 21 The application described certain “mitigating measures” that Lee needed the City to 22 address for Lee to “move on with the process.” Id. ¶ 72. Willis told Lee that the 23 application was incomplete. Id. ¶ 72.7 24 On March 11, 2021, the City issued an Amended Notice and Order to Abate 25 7 In December 2020, a City Code Enforcement Officer emailed Lee that the City had not received 26 a progress update and timeline regarding the removal and reconstruction of unlawful structures. See Compl. ¶ 73. Lee alleges that she had provided such updates, and she responded to the email 27 by requesting a response regarding her proposed mitigation measures. Id. She also raised 1 Nuisance. Id. ¶ 75. The 58-page document required the demolition of three buildings on 2 the property based on violations identified in inspections after the City issued its June 2018 3 Notice and Order. Id.8 And the Amended Notice and Order listed numerous violations of 4 the City’s zoning laws, along with violations of the City’s permitting rules and California’s 5 Building Code, Electrical Code, Plumbing Code, Mechanical Code, Fire Code, Fish and 6 Game Code, and Environmental Quality Act. See, e.g., RJN Ex. I at 7, 10–11, 13–14, 17, 7 23–24, 26–27, 32–33, 38, 46–50, 52. 8 B. Procedural History 9 In January 2018, Lee submitted a claim for damages to the City and the California 10 Department of Fish and Game. See RJN Ex. J (dkt. 12-10). The claim stated that on 11 October 27, 2017, City employees entered the property without consent or a warrant. Id. 12 It described that day’s inspection and asserted various causes of action. See id. The same 13 month, the City sent Lee a notice rejecting the claim. See RJN Ex. K (dkt. 12-11). 14 In April 2021, Lee submitted another claim for damages based on events involving 15 her property from October 2017 to April 2021. See RJN Ex. L (dkt. 12-12). As relevant 16 here, the claim form reads: 17 What happened and why do you believe the City is responsible? Race, religion, gender discrim. Fraud, trespass, 4 amend violation of Constitution, whistleblowing 18 to FBI on gov corruption, intentional inflection of emo distress. 19 Description of damage or loss: Civil rights, emotional distress, invasion of privacy, 20 abuse of power, unconstitutional invasions. Fraud, tress. $ amount is up to the jury 21 to decide. 22 Id. The form did not contain additional details but provided Lee’s attorney’s contact 23 information “for any questions.” Id. In May 2021, the City sent Lee a notice of 24 insufficiency indicating that Lee’s claim lacked necessary detail. See RJN Ex. M (dkt. 12- 25 13). The City directed Lee to provisions of the California Government Code regarding the 26

27 8 According to Lee, Salwan told her to give the City employees “some money” to make her 1 presentation of claims against public entities. See id. 2 Later in May 2021, Lee submitted an amended claim. See RJN Ex. N (dkt. 12-14). 3 The amended claim again stated that the relevant injury occurred from “October 2017 to 4 the present.” Id. The amended claim form reads: 5 What happened and why do you believe the City is responsible? The City of Fremont has interfered with and/or prevented the practice of my religion by Code 6 Enforcement, Planning & Building Depts. Precluded my association with others of 7 my faith, Invasion of privacy. Religious & National Origin Discrim.

8 Description of damage or loss: Loss of use of real property and structures on real 9 property. Damage to reputation. Emotional Distress. 10 Id. The City issued another notice stating that Lee’s amended claim was insufficient “even 11 when read together with the initial claim.” RJN Ex. O (dkt. 12-15). The City gave Lee 15 12 days to submit yet another amended claim. Id. After Lee failed to do so, the City rejected 13 Lee’s claim. See RJN Ex. P (dkt. 12-16). 14 In June 2021, the Temple and Lee filed the instant lawsuit, asserting a dozen federal 15 and state causes of action. See Compl. The Temple and Lee asserted two 42 U.S.C. 16 § 1983 claims based on religious discrimination and retaliation, five claims under the 17 Religious Land Use and Institutionalized Persons Act (RLUIPA), and one claim under the 18 California Constitution’s Free Exercise Clause. Id. ¶¶ 82–90, 99–107, 132–188. Lee 19 individually asserted additional § 1983 claims for discrimination based on race, 20 discrimination based on national origin, and unreasonable searches, along with two 21 California claims for invasion of privacy and arbitrary discrimination. Id. ¶¶ 91–98, 108– 22 131.9 23 The City now moves to dismiss. See Mot. to Dismiss (dkt. 11). 24 II. GENERAL LEGAL STANDARD 25 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be 26 dismissed for failure to state a claim for which relief may be granted. Fed. R. Civ. P. 27 1 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either a “cognizable legal theory” 2 or “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 3 F.3d 1201, 1208 (9th Cir. 2019). Whether a complaint contains sufficient factual 4 allegations depends on whether it pleads enough facts to “state a claim to relief that is 5 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 6 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff 7 pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Id. at 678. When evaluating a motion to 9 dismiss, the Court “must presume all factual allegations of the complaint to be true and 10 draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los 11 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 12 The Court “must consider the complaint in its entirety, as well as other sources 13 courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, 14 documents incorporated into the complaint by reference, and matters of which a court may 15 take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 16 (2007). 17 When dismissing a case, courts generally must give leave to amend unless it is 18 “determined that the pleading could not be cured by the allegation of other facts” and 19 therefore amendment would be futile. Cook, Perkiss & Leihe, Inc. v. N. Cal. Collection 20 Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 21 III. DISCUSSION 22 The Court grants the City’s motion to dismiss. Lee’s California causes of action 23 fail because Lee did not comply with California’s statutory claim presentation 24 requirements. Lee’s federal § 1983 claims fail because Lee is suing only the City and has 25 not set forth allegations that establish the elements of municipal liability under § 1983. 26 Lee’s federal RLUIPA claims fail because they either (1) rely on erroneous interpretations 27 of the Fremont Municipal Code and the Land Conservation Contract, or (2) broadly 1 any land use regulation. The Court gives Lee leave to amend her complaint in its entirety. 2 A. California Law Claims (Claims 5, 6, and 12) 3 Lee asserts three California causes of action. None satisfies California’s statutory 4 claim presentation requirements. 5 1. Claim Presentation Requirements 6 In California, “no suit for money damages may be brought against a public entity on 7 a cause of action for which a claim is required to be presented . . . until a written claim 8 . . . has been presented to the public entity and has been acted upon by the board, or has 9 been deemed to have been rejected by the board.” Cal. Govt. Code § 945.4. To satisfy 10 this presentation requirement, a claim “shall show” certain information. Id. § 910. As 11 relevant here, this information includes “[t]he date, place and other circumstances of the 12 occurrence or transaction which gave rise to the claim asserted,” “[a] general description of 13 the . . . injury, damage or loss incurred so far as it may be known at the time of 14 presentation of the claim,” “[t]he name or names of the public employee or employees 15 causing the injury, damage, or loss,” and “[t]he amount claimed,” unless that amount 16 exceeds $10,000, in which case no dollar amount is necessary but the claim “shall indicate 17 whether the claim would be a limited civil case.” Id. §§ 910(c)–(f). 18 Despite the statute’s seemingly mandatory language, California courts apply “the 19 substantial compliance test” to these requirements. Cnty. of Los Angeles v. Superior 20 Court, 159 Cal. App. 4th 353, 360 (2008). Under that test, the requirements “should not be 21 applied to snare the unwary where [their] purpose has been satisfied.” Donohue v. State of 22 California, 178 Cal. App. 3d 795, 804 (1986). Instead, (1) there must be “some 23 compliance with all of the statutory requirements,” and (2) the claim must disclose 24 “sufficient information to enable the public entity adequately to investigate the merits of 25 the claim so as to settle the claim, if appropriate.” Cnty. of Los Angeles, 159 Cal. App. 4th 26 at 360 (quotation omitted) (emphasis in original). When a claim “fails to set forth the 27 factual basis of recovery,” Watson v. State of California, 21 Cal. App. 4th 836, 845 (1993), 1 those first noticed” via a claim, Fall River Joint Unified School Dist. v. Superior Court, 2 206 Cal.App.3d 431, 435 (1988), there is no substantial compliance. 3 California law also establishes limitations periods for causes of action to which the 4 claim presentation requirements apply. If a public entity has provided written notice that a 5 claim has been rejected, the claimant can assert the relevant cause of action in court “not 6 later than six months after the date such notice [was] personally delivered or deposited in 7 the mail.” Cal. Govt. Code § 945.6(a)(1). 8 2. Application 9 Lee’s California causes of action are barred by these presentation requirements, 10 even under the forgiving “substantial compliance test.” See Cnty. of Los Angeles, 159 11 Cal. App. 4th at 360. 12 a. Invasion of Privacy (Claim 5) 13 Lee’s fifth cause of action for “invasion of privacy” and “government snooping” is 14 based on various past actions taken by City employees. Compl. ¶¶ 117–119. In particular, 15 this cause of action arises from Lee’s allegations regarding City employees’ alleged 16 “unauthorized entries” onto the property, falsification of information in inspection warrant 17 applications, and failure to give Lee notice before seeking the inspection warrants, plus 18 City employees exceeding the scope of those warrants while on the property, installing 19 cameras outside the property to monitor visitors, using “neighborhood informants” to 20 monitor activity on the property, and conducting overhead surveillance of the property. Id. 21 ¶ 119. 22 Before asserting this cause of action in the instant lawsuit, Lee did not present a 23 claim that substantially complies with California’s presentation requirements. More 24 specifically, Lee’s claim form did not articulate any “factual basis for recovery” relating to 25 this cause of action. See Watson, 21 Cal. App. 4th at 845. In January 2018, Lee submitted 26 a claim that described (in some detail) City employees’ entries on and inspections of the 27 property in October and December 2017. See RJN Ex. J. Because Lee did not sue within 1 of action based on those details here, see Cal. Govt. Code. § 945.6(a)(1). Thus, the Court 2 must examine only Lee’s more recent claim. See RJN Exs. L, N. In Lee’s first May 2021 3 claim, as relevant to this cause of action, she said only that the city had engaged in 4 “trespass” and a Fourth Amendment “violation” that caused her to suffer “invasion of 5 privacy” and “unconstitutional invasions.” RJN Ex. L. Lee’s amended claim said even 6 less, stating only that Lee had suffered an “invasion of privacy.” RJN Ex. N. The 7 amended claim also failed to name any City employees who invaded Lee’s privacy or 8 engaged in impermissible snooping. See Cal. Govt. Code § 910(e). Because there was no 9 compliance with some of the statutory requirements—namely, the requirements that Lee 10 provide some factual basis for the claim and name the City employees involved—there 11 was not “some compliance with all of the statutory requirements.” Cnty. of Los Angeles, 12 159 Cal. App. 4th at 360 (emphasis in original). 13 Therefore, the Court grants the City’s motion to dismiss this cause of action with 14 leave to amend. Although Lee cannot seek damages, Lee could conceivably amend this 15 cause of action to seek only injunctive and declaratory relief and thereby avoid 16 California’s claim presentation requirements. Of course, to state a viable claim, Lee’s 17 allegations (accepted as true) would have to entitle her to such prospective relief. 18 b. Arbitrary Discrimination (Claim 6) 19 Lee’s sixth cause of action asserts that the City “has a policy and practice of 20 discriminating against Asians and Buddhists” and that City employees’ actions with 21 respect to Lee and the Temple were motivated by “discriminatory animus.” Compl. 22 ¶¶ 125, 127–28. Lee invokes California’s Unruh Civil Rights Act, which prohibits 23 discrimination based on race and religion. See Cal. Civ. Code §§ 51, 52(a). 24 Here again, Lee did not present a claim that substantially complies with California’s 25 presentation requirements because Lee’s claim form provided no “factual basis for 26 recovery.” See Watson, 21 Cal. App. 4th at 845. In Lee’s initial May 2021 claim, she said 27 only that the city had engaged in “race, religion, [and] gender discrim[ination],” without 1 subjected to “religious & national origin discrim[ination].” RJN Ex. N. Such bare 2 conclusions, devoid of any supporting details, could not have enabled the City “to 3 investigate the merits of the claim so as to settle the claim, if appropriate.” Donohue, 178 4 Cal. App. 3d at 804. And again, the May 2021 claim and amended claim named no City 5 employees who had discriminated against Lee. Thus, there was not “some compliance 6 with all of the statutory requirements.” Cnty. of Los Angeles, 159 Cal. App. 4th at 360 7 (emphasis in original). 8 Therefore, the Court grants the City’s motion to dismiss this cause of action with 9 leave to amend. Again, Lee could conceivably amend this cause of action to seek only 10 prospective relief. 11 c. Free Exercise of Religion (Claim 12) 12 Lee’s twelfth cause of action asserts that FMC section 18.55.110 violates the 13 California Constitution’s Free Exercise Clause. Compl. ¶¶ 181–83. Lee requests an order 14 declaring FMC section 18.55.110 “unenforceable and void” and an injunction preventing 15 the City from enforcing it. Id. ¶¶ 185–86. But Lee acknowledges that she also seeks 16 “monetary compensation,” Opp. at 14, based on the “severe emotional distress” and 17 “monetary losses” that the City’s enforcement efforts have caused, Compl. ¶¶ 187–88. 18 i. Presentation 19 California’s claim presentation requirements apply to a cause of action seeking both 20 monetary and non-monetary relief if the monetary relief is not “incidental” to the other 21 relief sought. Lozada v. City and Cnty. of San Francisco, 145 Cal. App. 4th 1138, 1146 22 (2006). Lee argues that California’s claim presentation requirements do not apply to this 23 cause of action because Lee requests monetary compensation only “as an incident” to 24 declaratory and injunctive relief. Opp. at 14. 25 Monetary relief is “incidental” when entitlement to declaratory or injunctive relief 26 necessarily results in an award of monetary damages without further litigation. One thing 27 is “incident” to some other thing when it is “[d]ependent on, subordinate to, arising out of, 1 (10th Ed. 2014). Consistent with that typical usage, the U.S. Supreme Court has explained 2 (in another context) that damages are “incidental” to other relief when they “flow directly 3 from liability.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 365–66 (2011) (quotation 4 omitted). That means monetary relief is “incidental” when it necessarily arises from 5 entitlement to other relief. For example, when an employer must reinstate a former 6 employee, California courts have awarded “back pay and benefits as incidental to the 7 injunctive and declaratory relief of employment reinstatement” because entitlement to back 8 pay and benefits follows logically from entitlement to reinstatement. See Lozada, 145 Cal. 9 App.4th (collecting cases). 10 California’s claim presentation requirements apply to Lee’s California Free 11 Exercise Clause cause of action because the monetary relief that Lee seeks is not incidental 12 to the other relief that she seeks. If Lee were entitled to prospective relief (such as an 13 order enjoining the City from enforcing FMC section 18.55.110), the monetary relief that 14 Lee seeks would not necessarily follow. See Dukes, 564 U.S. at 366. Even if FMC 15 section 18.55.110 or its enforcement violated Lee’s rights under the California 16 Constitution’s Free Exercise Clause, Lee would not necessarily be entitled to damages for 17 Lee’s “emotional pain and suffering” and “monetary losses” without further litigation. See 18 Compl. ¶¶ 187–88. Indeed, Lee characterizes the monetary relief she seeks “as an 19 incident” to other relief without ever explaining why that is so. See Opp. at 14. 20 Applying California’s claim presentation requirements, Lee’s first May 2021 claim 21 said nothing about her religious activities. See RJN Ex. L. Lee’s amended claim said that 22 the City had “interfered with and/or prevented the practice of my religion by Code 23 Enforcement, Planning & Building Depts. Precluded my association with others of my 24 faith.” RJN Ex. N. The amended claim was thus devoid of any factual detail supporting 25 this cause of action and (once again) failed to name any City employees. See Watson v. 26 State of California, 21 Cal. App. 4th at 845. 27 As with Lee’s other California causes of action, the Court grants the City’s motion 1 monetary relief and avoid application of California’s claim presentation requirements. 2 ii. Failure to State a Claim 3 Although Lee’s California Free Exercise Clause cause of action fails based on 4 California’s claim presentation requirements, the Court briefly addresses the merits to 5 avoid the need for repeated amendments. Lee’s complaint asserts that FMC section 6 18.55.110 violates California’s Free Exercise Clause because it “totally excludes religious 7 uses from an open space zoning district,” and thus “precludes the ‘free exercise and 8 enjoyment of religion’ within the boundaries” of such a district. Compl. ¶ 182. But that is 9 not a plausible interpretation of FMC section 18.55.110. 10 * 11 The California Constitution provides (in relevant part) that “[f]ree exercise and 12 enjoyment of religion without discrimination or preference are guaranteed. This liberty of 13 conscience does not excuse acts that are licentious or inconsistent with the peace or safety 14 of the State.” Cal. Const. Art. I, § 4. 15 California’s Free Exercise Clause bears some resemblance to the U.S. 16 Constitution’s Free Exercise Clause, which provides that “Congress shall make no law 17 . . . prohibiting the free exercise” of religion. U.S. Const. amend I. In Sherbert v. Verner, 18 the U.S. Supreme Court held that a law that substantially infringes a person’s religious 19 exercise violates the First Amendment’s Free Exercise Clause absent a compelling 20 government interest. 374 U.S. 398, 406–07 (1963). But later, in Employment Division, 21 Oregon Department of Human Resources v. Smith, the U.S. Supreme Court held that the 22 First Amendment’s Free Exercise Clause “does not relieve an individual of the obligation 23 to comply with a valid and neutral law of general applicability on the ground that the law 24 proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U.S. 25 872, 879 (1990) (quotation omitted). 26 The California Supreme Court has repeatedly held that the U.S. Supreme Court’s 27 application of the First Amendment’s Free Exercise Clause does not control application of 1 Superior Court, 44 Cal. 4th 1145, 1158 (2008); Catholic Charities of Sacramento, Inc. v. 2 Superior Court, 32 Cal.4th 527, 560–62 (2004). 3 But the California Supreme Court has also declined to “determine the appropriate 4 test” for challenges under California’s Free Exercise Clause. N. Coast Women’s Care 5 Med. Grp., 44 Cal.4th at 1158. Indeed, the California Supreme Court has left open 6 whether Sherbert, Smith, “or an as-yet unidentified rule that more precisely reflects the 7 language and history of the California Constitution” applies to challenges under 8 California’s Free Exercise Clause. Id. at 1159 (quoting Catholic Charities of Sacramento, 9 32 Cal.4th at 562) (emphasis omitted). 10 Instead, the California Supreme Court has assumed without deciding that Sherbert’s 11 strict scrutiny test applies to such challenges. See id.; Catholic Charities of Sacramento, 12 32 Cal.4th at 562. “Under that standard, a law could not be applied in a manner that 13 substantially burdened a religious belief or practice unless the state showed that the law 14 represented the least restrictive means of achieving a compelling interest or, in other 15 words, was narrowly tailored.” Catholic Charities of Sacramento, 32 Cal.4th at 562. If a 16 Court determines that a challenged law passes muster under strict scrutiny, the court need 17 not consider whether a less stringent standard should apply. See id. 18 * 19 Here, Lee challenges FMC section 18.55.110 under California’s Free Exercise 20 Clause. Chapter 18.55 of Fremont’s Municipal Code establishes an “open space district” 21 in the City. See FMC Ch. 18.55; RJN Ex. A at 1. The provision’s express purpose is “to 22 permit limited but reasonable use of open lands while protecting the public health, safety 23 and welfare from the dangers of seismic hazards and unstable soils; preserve the 24 topography of the city that shapes it and give it its identity; allow land to be used for 25 agricultural production in its natural or as near natural state as possible; coordinate with 26 and carry out regional, county, and city open space plans; and where permitted, encourage 27 clustering of dwelling units in order to preserve and enhance the remainder of open space 1 effectuate these purposes, the City’s plan “identifies seven different open space land use 2 designations to address a variety of open space opportunities and constraints.” Id. Chapter 3 18.55 also sets forth building height standards, area, lot width, and yard standards, 4 performance standards (which govern construction requirements for dwellings and other 5 structures), land constraints, and other rules. See FMC §§ 18.55.010–18.55.110; RJN Ex. 6 A. 7 Section 18.55.110 contains a table that “establishes allowed uses within an open 8 space zoning district.” FMC § 18.55.110; RJN Ex. A at 11. The table lists numerous 9 categories of land use, including “agricultural,” “commercial and service,” “recreation and 10 open space,” “residential,” “public and quasi-public,” and “other.” FMC § 18.55.110, 11 Table 18.55.110; RJN Ex. A at 12–15. The “public and quasi-public” category lists 12 several specific uses, then includes a catch-all for more general public and quasi-public 13 uses. FMC § 18.55.110, Table 18.55.110; RJN Ex. A at 14.10 The quasi-public use catch- 14 all, in turn, includes “a use operated by a . . . religious . . . institution, with said use having 15 the primary purpose of serving the general public.” See FMC § 18.25.3080; RJN Ex. B 16 ¶ 2. Such a use is permitted, with a conditional use permit, in four of the open space plan’s 17 seven land use designations. Such a use is not permitted in three of the open space plan’s 18 land use designations (land designated as (1) Hill (beyond Ridgeline), (2) Hill Face, and 19 (3) Private). See FMC § 18.55.110, Table 18.55.110; RJN Ex. A at 14. 20 Lee’s complaint asserts that FMC section 18.55.110 violates California’s Free 21 Exercise Clause because it “totally excludes religious uses from an open space zoning 22 district,” and thus “precludes the ‘free exercise and enjoyment of religion’ within the 23 boundaries” of such a district. Compl. ¶ 182. Lee’s complaint does not allege that FMC 24 section 18.55.110 violates California’s Free Exercise Clause on any other basis. 25 This cause of action would fail on the merits because it rests on an erroneous 26 interpretation of the City’s open space plan. Section 18.55.110 allows (with a conditional 27 1 use permit) for the operation of a religious institution in four of the plan’s seven land use 2 designations. See FMC § 18.55.110, RJN Ex. A at 14; FMC § 18.25.3080, RJN Ex. B ¶ 2. 3 Thus, Lee’s assertion that FMC section 18.55.110 precludes all religious uses in the open 4 space zoning district is wrong. 5 Lee’s opposition to the City’s motion to dismiss asserts a different theory. It argues 6 that because Lee’s property is designated as Hill (beyond ridgeline), Lee cannot use the 7 property for quasi-public religious purposes. See Opp. at 24–25. And Lee asserts that 8 because “no provision is made for strictly private religious usages” either, the City’s 9 zoning scheme violates California’s Free Exercise Clause. Id. at 25. Because the 10 complaint neither asserts this theory of liability nor contains allegations supporting it, the 11 Court cannot consider it.11 12 If Lee attempts to assert this cause of action again in an amended complaint, Lee 13 should be mindful of not only California’s claim presentation requirements, but also how 14 FMC section 18.55.110 actually works. 15 B. Section 1983 Claims 16 Lee raises four claims under 42 U.S.C. § 1983. These claims assert that Lee has 17 suffered religious discrimination, national origin discrimination, and retaliation for Lee’s 18 opposition to the City’s allegedly discriminatory actions, and that City employees 19 unlawfully searched Lee’s property. Compl. ¶¶ 82–114. Each claim fails for the same 20 reason: Lee has sued only the city, but Lee’s allegations do not give rise to municipal 21 liability under § 1983. The Court thus grants the City’s motion to dismiss these claims 22 with leave to amend. 23 1. Legal Standard 24 Under 42 U.S.C. § 1983, any person who, “under color of” state law, subjects any 25 person “to the deprivation of any rights, privileges, or immunities secured by the 26 11 Lee argues that section 18.55.110 also implicates her privacy rights, such that her twelfth cause 27 of action is a “hybrid rights” claim. Opp. at 25. But the cause of action (as articulated in the 1 Constitution and laws, shall be liable to the party injured in an action at law.” 2 “[M]unicipalities and other local government units” are “included among those persons to 3 whom § 1983 applies.” Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 4 690 (1978). That said, “Congress did not intend municipalities to be held liable unless 5 action pursuant to official municipal policy of some nature caused a constitutional tort.” 6 Id. at 691. That means “a municipality cannot be held liable solely because it employs a 7 tortfeasor . . . on a respondeat superior theory.” Id. (emphasis in original). 8 Thus, § 1983 embraces a cause of action against a municipality only when “the 9 action that is alleged to be unconstitutional implements or executes a policy statement, 10 ordinance, regulation, or decision officially adopted and promulgated by that body’s 11 officers,” or implements or executes a less formal “governmental custom.” Id. at 690–91 12 (quotation omitted); see also Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 13 2016) (en banc) (“In order to establish municipal liability, a plaintiff must show that a 14 policy or custom led to the plaintiff’s injury.”) (quotation omitted). That does not mean 15 the relevant policy or custom itself must be unconstitutional. See City of Canton, Ohio v. 16 Harris, 489 U.S. 378, 387 (1989). But there must be “a direct causal link between a 17 municipal policy or custom and the alleged constitutional deprivation.” Id. at 385. And 18 the policy or custom must be “the moving force behind the constitutional violation.” Id. at 19 388 (alteration and quotation omitted). In other words, “city policymakers” must make “a 20 deliberate choice to follow a course of action” that “reflects deliberate indifference to the 21 constitutional rights of [the city’s] inhabitants.” Id. at 389, 392 (quotations omitted). 22 2. Application 23 a. Religious Discrimination (Claim 1) 24 Lee’s first § 1983 claim asserts that the City has deprived Lee of her right to use the 25 property for religious purposes based on religious animus. Compl. ¶ 86. According to 26 Lee, the City’s code enforcement actions were motivated by animus because City 27 employees accused Lee of “hiding behind the Buddha” and tolerated “non permitted uses 1 enforcement actions have denied her “equal protection of the laws” under the Fourteenth 2 Amendment and the “free exercise” of her religion under the First Amendment. Id. ¶ 83, 3 88. And Lee alleges that the City “acted unreasonably because it knew and/or should have 4 known that its code enforcement activities would cause [her] emotional pain and 5 suffering.” Id. ¶ 90. 6 These allegations are not enough to establish municipal liability under § 1983. 7 They do not show that “there is a direct casual link between a municipal policy or custom 8 and the alleged constitutional deprivation.” City of Canton, 489 U.S. at 385. Based on the 9 broader complaint, the only policy or custom relevant to this cause of action is FMC 10 section 18.55.110. Elsewhere, Lee asserts that section 18.55.110 precludes “any form of 11 religious use” of land in the City’s open space district. Compl. ¶ 20. As discussed above, 12 that is not true. See part III.2.c.ii.12 And this cause of action does not even mention FMC 13 section 18.55.110. Thus, this cause of action does not challenge the constitutionality of 14 any City policy or custom, or assert that any particular policy or custom “reflects 15 deliberate indifference to the constitutional rights” of the City’s inhabitants. See City of 16 Canton, 489 U.S. at 392. Instead, it appears to rest on City employees’ individual 17 enforcement decisions and actions. Lee did not sue those employees as individuals, and 18 she cannot sue the City for employing constitutional tortfeasors. See Monell, 536 U.S. at 19 691.13 20

21 12 If Lee wishes to assert that section 18.55.110 is a policy that has caused her constitutional deprivation and that reflects deliberate indifference to constitutional rights, she must allege why 22 that is so based on the provision’s actual content. 13 The Ninth Circuit has held that if a municipal employee was acting as a “final policymaker,” the 23 employee’s decision can give rise to Monell liability. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004) (quotation omitted). “For a person to be a final policymaker, he or she must be in a position 24 of authority such that a final decision by that person may appropriately be attributed to the [municipality].” Id. at 983. Lee has not alleged that any City employee was acting as a “final 25 policymaker” here. Although Lee argues in her supplemental brief that Gary West is a city policymaker, see Lee Supp. Br. (dkt. 23) at 1, the allegations in Lee’s complaint fail to establish 26 that West engaged in conduct giving rise to Lee’s § 1983 claims while acting as a final policymaker. Relatedly, the Court denies Lee’s requests for judicial notice as improper attempts 27 to amend her complaint during briefing on the City’s motion to dismiss. See Request for Jud. 1 The Court need go no further. Because Lee is suing only the City and failed to 2 plausibly allege municipal liability under § 1983, the Court grants the City’s motion to 3 dismiss this cause of action with leave to amend. 4 b. National Origin Discrimination (Claim 2) 5 Lee’s § 1983 national origin discrimination claim is almost identical to her § 1983 6 religious discrimination claim. According to Lee, the City’s different treatment of her 7 neighbor shows that animus drove the City’s code enforcement actions. See Compl. ¶ 95. 8 And Lee alleges that the City “acted unreasonably because it knew and/or should have 9 known that its code enforcement activities would cause [her] emotional pain and 10 suffering.” Id. ¶ 98. 11 These allegations are not enough to establish municipal liability for the same 12 reasons discussed above. Because Lee is suing only the City and failed to plausibly allege 13 municipal liability under § 1983, the Court grants the City’s motion to dismiss this cause 14 of action with leave to amend. The Court also notes that the complaint contains no 15 allegations establishing or indicating that City employees discriminated against Lee based 16 on her race or national origin. 17 c. Retaliation (Claim 3) 18 Lee’s § 1983 retaliation claim alleges that “Lee has opposed actions by [the] City 19 that discriminated against her on the basis of her race/national origin and . . . religion.” Id. 20 ¶ 102. Lee alleges that the City “has taken retaliatory action” by obtaining two inspection 21 warrants for the property, exceeding the scope of the inspection warrants, placing cameras 22 outside her property, and issuing notices and citations. Id. ¶ 103. Lee asserts that each of 23 these actions was an “unlawful reprisal for protected activity,” and that they “should be 24 considered collectively as part of a continuing campaign of reprisal designed to punish 25 [Lee] for opposing the discriminatory practices of [the] City.” Id. ¶ 104. 26 Here again, Lee has not alleged that the City’s actions were caused by, or even 27 linked to, any policy or custom. That means Lee’s allegations are not enough to state a 1 cause of action with leave to amend. 2 d. Property Searches (Claim 4) 3 Lee’s § 1983 claim based on property searches asserts that “[f]rom October 26, 4 2017, up to and including the present,” the City “engaged and continues to engage in 5 unreasonable searches and seizures.” Compl. ¶ 111. This cause of action incorporates 6 Lee’s allegations about City employees trespassing onto the property, falsifying 7 information to obtain inspection warrants on two occasions, seeking inspection warrants 8 without prior notice to Lee, exceeding the scope of the warrants, installing cameras outside 9 the property, using “neighborhood informants to monitor” activity on the property, 10 conducting “[u]nnecessary inspections,” and engaging in “overhead surveillance” of the 11 property. Id. 12 Here again, Lee has not alleged that the City’s actions were caused by, or linked to, 13 any policy or custom. 14 The Court also notes that this cause of action appears to have additional defects. 15 Lee has provided no details about any “overhead surveillance,” which (in any event) does 16 not always constitute a Fourth Amendment search. See, e.g., Florida v. Riley, 488 U.S. 17 445, 449–451 (1989). Nor is there anything unlawful about using informants, see United 18 States v. White, 401 U.S. 745, 749 (1971), or placing a camera outside a property to record 19 who comes and goes, see United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991). Lee 20 also fails to cite any authority for the proposition that she was entitled to notice before the 21 City sought a warrant to search her property. And the Court is unable to tell whether City 22 employees exceeded the scope of the relevant inspection warrants without knowing the 23 scope of those warrants. The City has also argued that Lee did not timely assert this cause 24 of action based on the dates of the underlying incidents. See Mot. to Dismiss at 15. Lee 25 failed to respond to any of these points in her opposition to the City’s motion to dismiss. 26 The Court thus grants the City’s motion to dismiss this cause of action. Despite its 27 apparent weakness Lee’s failure to defend it, the Court grants Lee leave to amend.

C. RLUIPA Claims

1 Lee asserts five causes of action under RLUIPA. Several rest on an erroneous 2 reading of FMC section 18.55.110 or the Land Conservation Contract. Another omits 3 necessary detail by broadly challenging the entire March 2021 Amended Notice and Order. 4 The Court thus grants the City’s motion to dismiss these causes of action with leave to 5 amend. 6 1. Legal Standard 7 Three of RLUIPA’s prohibitions are relevant here. 8 First, RLUIPA “prohibits the government from imposing ‘substantial burdens’ on 9 ‘religious exercise’ unless there exists a compelling governmental interest and the burden 10 is the least restrictive means of satisfying the governmental interest.” Guru Nanak Sikh 11 Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 985–86 (9th Cir. 2006) (quotation 12 omitted). This rule applies if “the substantial burden is imposed in the implementation of a 13 land use regulation or system of land use regulations, under which a government makes, or 14 has in place formal or informal procedures or practices that permit the government to 15 make, individualized assessments of the proposed uses for the property involved.” 42 16 U.S.C. § 2000cc(a)(2)(c). That means “RLUIPA applies when the government may take 17 into account the particular details of an applicant’s proposed use of land when deciding to 18 permit or deny that use.” Guru Nanak, 456 F.3d at 986. 19 Second, RLUIPA prohibits the government from imposing or implementing land 20 use regulations “in a manner that treats a religious assembly or institution on less than 21 equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). A city 22 violates this “equal terms provision” only if it treats a religious assembly or institution “on 23 a less than equal basis with a secular comparator, similarly situated with respect to an 24 accepted zoning criteria.” Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 25 F.3d 1163, 1173 (9th Cir. 2011). If a City law “appears” to treat religious assemblies or 26 institutions differently than similarly situated secular assemblies or institutions, the City 27 has the “burden” of showing that the treatment results from “a legitimate regulatory 1 purpose, not the fact that the institution is religious in nature.” Id. at 1171–73. 2 Third, RLUIPA prohibits the government from imposing or implementing a land 3 use regulation that “totally excludes religious assemblies from a jurisdiction” or 4 “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 5 42 U.S.C. § 2000cc(b)(3). 6 2. Application 7 a. Substantial Burden (Claim 7) 8 Lee’s seventh cause of action asserts that FMC section 18.55.110 “on its face” 9 violates RLUIPA because it is a land use regulation that imposes a substantial burden on 10 Lee’s religious exercise. Compl. ¶¶ 134. Lee’s complaint also asserts that the “City has 11 no compelling governmental interest in excluding all religious uses” from open space 12 areas, and that even if it has a compelling interest in forbidding some religious uses, “it has 13 not used the least restrictive means of achieving whatever that compelling interest would 14 be.” Id. ¶ 135. 15 Because this cause of action is based on the faulty premise that FMC section 16 18.55.110 excludes all religious uses from open space areas, it fails. The Court thus grants 17 the City’s motion to dismiss this claim. Lee may attempt to amend this claim, but must 18 allege a substantial burden based on what FMC section 18.55.110 actually does, or how 19 the City has implemented it.14 20 The Court notes that some of Lee’s allegations (taken as true) could state an 21 RLUIPA claim that is different from the one Lee attempted to assert here. Instead of 22 asserting that FMC section 18.55.110 facially violates RLUIPA, Lee might have asserted 23 that the City’s implementation of FMC section 18.55.110 violates RLUIPA. See 42 24 U.S.C. § 2000cc(a)(1). Informing a person that she cannot use dangerous or non- 25 14 Lee appears to assume, without support, that if a city’s zoning scheme does not expressly permit 26 private prayer, then private prayer is not allowed on any property. Lee also assumes, without support, that if a “house of worship” (i.e., a quasi-public religious structure) is not permitted on a 27 particular piece of property under a City’s zoning laws, the zoning scheme violates RLUIPA, 1 compliant buildings for any purpose, including prayer, is one thing; telling a person that 2 she can pray only in specific, limited areas on a property (and not pray anywhere else on 3 the property) is another. Lee’s allegations, while not entirely clear, seem to state that in 4 implementing FMC section 18.55.110, City employees told her that she could pray only in 5 limited, specific places. See Compl. ¶ 49. If true, that could constitute a substantial 6 burden on Lee’s religious exercise, and might not be narrowly tailored to a compelling 7 governmental interest. See 42 U.S.C. § 2000cc(a)(1).15 But that is not the cause of action 8 before the Court. 9 b. Unequal Terms (Claim 8) 10 Lee’s eighth cause of action states that FMC section 18.55.110 “on its face violates 11 RLUIPA because it treats religious institutions . . on less than equal terms than non- 12 religious institutions.” Id. ¶ 145. 13 This cause of action also fails. Again, it rests on the premise that section 18.55.110 14 precludes all religious uses within the City’s “open space” area. Id. ¶ 147. That is not 15 true. FMC section 18.55.110 does not forbid all religious uses or otherwise treat religious 16 uses differently than other quasi-public uses that are permitted (or not) on the same terms. 17 Nor is there any indication that, in practice, the City treats religious assemblies or 18 institutions differently from “similarly situated” secular assemblies or institutions. Centro 19 Familiar, 651 F.3d at 1173. Lee’s allegation that her neighbor also violated various City 20 property laws and was treated differently does not establish that the neighbor was similarly 21 situated in general or with respect to any particular zoning criterion. See id. The Court 22 thus grants the City’s motion to dismiss this claim with leave to amend. 23 c. Unlawful Exclusion (Claim 9) 24 Lee’s ninth cause of action is similar to Lee’s seventh and eighth. It states that 25 FMC section 18.55.110 “violates RLUIPA because it totally excludes religious uses from 26

27 15 City employees may have merely been identifying structures that were not condemned, and 1 an open space zoning district.” Compl. ¶ 153. Because that is not true, this claim fails. 2 Lee may attempt to amend this claim with allegations showing that the City either “totally 3 excludes religious assemblies from a jurisdiction” or “unreasonably limits religious 4 assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3). 5 d. Abatement Proceedings (Claim 10) 6 Lee’s tenth cause of action states that the City’s March 2021 Amended Notice and 7 Order to Abate Nuisance was “imposed in the implementation of a land use regulation or 8 system of land use regulations, under which the City . . . makes, or has in place formal or 9 informal procedures or practices that permit it to make, individualized assessments of the 10 proposed uses” for property. Compl. ¶ 163. Thus, per Lee, the Amended Notice and 11 Order “purports to be an implementation of one or more land use regulations that imposes 12 a substantial burden” on Lee’s religious activities. Id. ¶ 161. That is because if the 13 structures on the property “are demolished,” Lee’s religious activities “will be severely 14 limited in that the private temple and attendant facilities . . . will no longer be available for 15 . . . use.” Id. ¶ 165. Lee also states that the March 2021 Amended Notice and Order “is 16 neither in furtherance of a compelling governmental interest . . . nor . . . the least restrictive 17 means of furthering that governmental interest.” Id. ¶ 161. Lee asserts that although the 18 City “contends that the structures . . . are nuisances or are in some fashion hazardous for 19 human use,” this is not the case, as “the structures[,] which existed before [Lee] purchased 20 the . . . property[,] are in a better and safer condition now than when [Lee] acquired the . . . 21 property. Id. ¶ 164. 22 The City argues that the Court should dismiss this cause of action because the 23 Amended Notice and Order “is not based solely on a ‘zoning or landmarking law, or the 24 application of such a law.’” Mot. to Dismiss at 23 (quoting 42 U.S.C. § 2000cc-5(5)). 25 Although the Amended Notice and Order refers to some FMC Chapter 18.55 violations, it 26 also refers to “violations of other code sections that are not zoning or landmarking laws, 27 such as the California Building Code, California Electrical Code, California Plumbing 1 “failure to undergo environmental review under the California Environmental Quality 2 Act.” Id. (emphasis in original). 3 The Court grants the City’s motion to dismiss because this cause of action 4 challenges the entire Amended Notice and Order. As both parties seem to acknowledge, 5 the Amended Notice and Order lists violations of FMC Chapter 18.55 and requires Lee to 6 remedy those violations in ways that would restrict Lee’s use of the property. See Mot. to 7 Dismiss at 23; Opp. at 21. And nothing in RLUIPA precludes Lee from challenging the 8 Amended Notice and Order merely because it also references violations of other California 9 laws. See 42 U.S.C. § 2000cc-5(5). Lee could thus challenge the Amended Notice and 10 Order to the extent its corrective demands implement the City’s zoning laws. But Lee’s 11 complaint does not do that. Indeed, Lee’s complaint fails to identify which parts of the 12 Notice and Order constitute applications of zoning laws that limit or restrict Lee’s use of 13 the property. See Compl. ¶¶ 160–70. And Lee does not argue that the other relevant 14 California laws constitute land use regulations. See Opp. at 21–22.16 15 Thus, the Court grants the City’s motion to dismiss this cause of action with leave 16 to amend. Lee may add necessary detail explaining which parts of the Amended Notice 17 and Order she is challenging and why they violate RLUIPA. 18 e. Land Conservation Contract (Claim 11) 19 Lee’s eleventh cause of action seeks a declaration that “all structures” at issue “are 20 authorized and permitted under the Land Conversation Contract” signed in 1978. Compl. 21 ¶ 174. But Lee also asserts that “any attempt to enforce a prohibition contained in [that] 22 contract . . . against use of the . . . property for religious purposes violates . . . RLUIPA” by 23 treating “a religious institution on less than equal terms with a non[-]religious institution”. 24 Id. Lee thus seeks a declaration that Lee’s use of the property “as a private religious 25 temple . . . is consistent with” the contract and that “any attempt . . . to compel 26

27 16 The Court also notes that the mere fact that the relevant structures “are in a better and safer 1 || compliance” with the contract via limiting the use of the property for “religious purposes” 2 || would violate RLUIPA. Id. 176. 3 After the City pointed out that the Land Conservation Contract does not treat 4 || religious institutions differently than non-religious institutions and that applying the 5 || contract to limit religious uses of land on the same terms that it limits secular uses of land 6 || would not violate RLUIPA, see Mot. to Dismiss at 24—25, Lee has attempted to 7 || recharacterize this cause of action as merely seeking a declaration that the structures at 8 || issue in this lawsuit do not violate the Land Conservation Contract, see Reply at 22—23. 9 || But that purely contractual question has nothing to do with RLUIPA. Accordingly, the 10 || Court grants the City’s motion to dismiss this RLUIPA cause of action with leave to 11 || amend. 12 | IV. CONCLUSION 13 Lee’s complaint has several structural defects. First, it contains allegations without 14 |} any apparent relevance to the claims that Lee asserts. See supra notes 2-3, 5—8. Second, it 3 15 || does not contain allegations establishing the elements of those claims. Third, it rests a 16 || largely on an erroneous reading of FMC Section 18.55.110. Fourth, it does not assert

= 17 || some of the legal theories that Lee has belatedly asserted in her opposition to the City’s 18 || motion to dismiss and in supplemental briefing. The Court has granted Lee leave to amend 19 || her complaint in its entirety. But the Court advises Lee to prepare an amended complaint 20 || with allegations that more rigorously track the elements of the claims that she asserts. 21 * 22 For the foregoing reasons, the Court grants the City’s motion to dismiss with leave 23 |} toamend. Lee may file an amended complaint within 45 days of the date of this order. 24 IT ISSO ORDERED. iE 25 Dated: September 28, 2021

CHARLES R. BREYER

26 United States District Judge 27 28