Filed 12/7/05 Spooner v. City of Grover Beach CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff Nathan B. Spooner appeals a judgment dismissing his discrimination action against defendant City of Grover Beach (City) after the trial court sustained a demurrer to his third amended complaint. The trial court properly sustained the demurrer. Spooner's complaint relied on conclusory allegations and was uncertain. He did not plead valid causes of action against the City for exempting some homeowners from a recreational vehicle ordinance, for discriminatory enforcement of the ordinance, for violation of the federal Civil Rights Act (42 U.S.C. § 1983) or for denial of equal protection. He also made admissions in court which undermined his pleadings. We affirm.

FACTS

In 1996, the City enacted Grover Beach Municipal Code (GBMC) section 5217, which provides that trailer coaches exceeding 22 feet in length may only be parked on a side or rear yard of a residence. This restriction does not apply to owners who parked trailers on their property prior to the enactment of the ordinance. (GBMC § 5219.)

Spooner, a "Caucasian," and his wife of "American Indian and African descent," moved to the City in 1998. He parked a trailer exceeding 22 feet in length in his driveway. His neighbors complained to the City. Spooner moved the trailer to a storage facility after the City's code enforcement officer warned his wife about the ordinance.

Months later, Spooner complained to the City that his neighbors had committed similar violations but had not been cited. On April 21, 2000, John Bradbury, the City's Chief of Police, wrote to Spooner. He stated: "Your complaint regarding trailers has been received. Our new Code Enforcement Officer[] starts work on April 27 and your list will be one of the first complaints that he will work. [¶] The City has been without an official Code Enforcement Officer for over a year. As a point of information, our Code Enforcement is complaint driven. If no one complains, no actions are taken unless the violation is obvious."

In June of 2001, Spooner moved the trailer to the street in front of his home. He received a 72-hour parking violation. City police officers asked Spooner's wife to move the trailer. She agreed, but complained that another trailer parked one block away should also receive a citation. The officers drove away.

Spooner again complained to the City about other trailers parked in the neighborhood. On July 5, 2001, Gary Youngblood, the City Code Enforcement Officer, wrote to Spooner. He stated: "You should be aware that each and every complaint that I receive is investigated, but in a prioritized manner. While all of our citizen's concerns are important to us, some require immediate attention . . . . (The two locations referenced in your April 13, 2000 complaint, were addressed and were moved as required.) [¶] [P]lease note the requirements [in GBMC section 5217] for parking R.V.'s on private property . . . 'side or rear yard,' and 'size' . . . . These factors, along with the 'Grandfather Clause' – denoting vehicles parked prior to the adoption of the current ordinance – 1996, could serve to mitigate the fact that in some instances R.V.'s are allowed to park, where others are not." (Italics added.)

Spooner's Pleadings

On February 6, 2003, Spooner filed a complaint in propria persona against the City for arbitrary and improper selective code enforcement and denial of equal protection. The City demurred, claiming the complaint did not state a cause of action and was uncertain.

Spooner filed an amended complaint which contained legal arguments. The City demurred and the trial court sustained it with leave to amend. His second amended complaint also contained legal arguments. The court sustained a demurrer again with leave to amend.

On January 12, 2004, Spooner filed his third amended complaint. He attached Bradbury's and Youngblood's letters as exhibits to that complaint. He pled two causes of action: "Arbitrary and Improper Selective Code Enforcement" and "Denial of Equal Protection." He alleged, among other things: "The unknown . . . persons who first complained about [his] trailer obviously noticed [his] interracial marriage." He said that because "police cruise[r]s 'came swooping down' . . . to [his] residence . . . when the trailer was parked on the street in front of his house, this can only be described as an act of discriminatory hostility."

He alleged: "The ill will or invidious discrimination on the part of the city is from plaintiff's interracially mixed marriage." "There is no other apparent reason for plaintiff having to move a trailer from his own property while at the same time neighbors have similar trailers and RVs in their driveways . . . ." He claimed it was arbitrary discrimination for the City "to classify some citizens as exempt from the ordinances in question." He alleged that he complained about the enforcement of the ordinance at a city council meeting. But because the City did not respond to his questions, it thereby "approved and sanctioned this action described above to be an official policy of City government. This policy allows unjustified discretion to code enforcement officials to enforce for some while not to enforce for others."

The Hearing

The City demurred. At the hearing, the court noted that at a prior hearing Spooner said he was "not alleging any racial animus on behalf of the City . . . ." The court noted that this complaint added a new theory that the City discriminated against him because he was "new to the neighborhood."

Spooner replied: "[T]here are still vehicles within sight of my house that the City won't make them move. They . . . made me move ours . . . . So there is something going on that's not evident. It could be discrimination. It could be a good-old-boys' network. I don't know what it is." (Italics added.)

DISCUSSION

I. Defective Pleading

The demurrer was properly sustained. The City claimed Spooner's complaint was uncertain and included "surmises as to the reasons why he has allegedly sustained harm."

Instead of alleging facts, Spooner speculates. For example, his complaint states: "Plaintiff is Caucasian and his spouse is not. Since the police stated that it was a neighbor's complaint that led to the first citation . . . and yet plaintiff's complaints have not resulted in other citizens having to move their vehicles . . . then the city must feel it is justified in treating plaintiff in a manner different than others because of his interracially mixed marriage." (Italics added.) "[T]he unknown person or persons who first complained about [his] trailer obviously noticed [his] interracial marriage." (Italics added.)

"In pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. [Citation.]" (Bernstein v. Piller (1950) 98 Cal.App.2d 441, 443.)

The trial court also found that the allegations of the complaint were inconsistent and contradicted Bradbury's and Youngblood's letters, which Spooner attached as exhibits to that pleading. A complaint is demurrable where its allegations are ambiguous or contradictory. (Miller v. Brown (1951) 107 Cal.App.2d 304, 306; Evarts v. Jones (1951) 104 Cal.App.2d 109, 111.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. [Citation.]" (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Spooner alleged the city offered no explanation for not enforcing the restrictions against others. But he attached Youngblood's letter which explained why some vehicles "are allowed to park" and "others are not," and Bradbury's letter which mentioned the personnel shortage.

Spooner alleged that other than his interracial marriage there is "no other apparent reason" to explain why he is treated differently. (Italics added.) But he also alleged the City's "motives were based on the fact that [he] and [his] family were new to the neighborhood," that the City vests "unjustified discretion" in code enforcement officers or its ordinances exempt classes of owners. At the hearing, he conceded he was unable to state the reason for the alleged discrimination. The court was not required to speculate about which of the conflicting allegations Spooner relied on. (Bernstein v. Piller, supra, 98 Cal.App.2d at p. 443.)

II. Stating a Cause of Action for Arbitrarily

Exempting Some Owners from GBMC Section 5217

Spooner alleged the City arbitrarily discriminates by exempting some owners from GBMC section 5217. But those who purchased their homes prior to its enactment had the expectation that they could park recreational vehicles on their property without restrictions. The retroactive application of GBMC section 5217 would interfere with those expectations. (Haves v. City of Miami (11th Cir. 1995) 52 F.3d 918, 922 ["state may legitimately use grandfather provisions to protect property owners' reliance interests"]; Nordlinger v. Hahn (1992) 505 U.S. 1, 12; City of New Orleans v. Dukes (1976) 427 U.S. 297, 305-306; Des Jardin v. Town of Greenfield (1952) 262 Wis. 43, 47, 49 [53 N.W.2d 784, 786-787].)

By contrast, Spooner and others who bought land after 1996 were on notice of the restrictions before they purchased. Spooner does not allege that the City enacted GBMC section 5217 to racially discriminate. He has not met his burden "to negative every conceivable basis which might support" the ordinance. (Lehnhausen v. Lake Shore Auto Parts Co. (1973) 410 U.S. 356, 364.) The City rationally distinguished between classes of owners who had different expectations when they purchased their homes. (Nordlinger v. Hahn, supra, 505 U.S. at p.12; Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1082.)

III. Stating a Cause of Action for Selective Enforcement

Spooner alleged: The City's "failure to act in enforcing the code for others, demonstrates an intent to punish the exercise of plaintiff's constitutional rights since they decided to enforce the law in a non-uniform manner . . . . This action also evidences the city's malicious or bad faith intent to deny plaintiff's constitutional rights." "The standard of 'laxity of enforcement' presumes there is a reasonable explanation as to why the law is not enforced in an evenhanded manner . . . . Yet in the present case, it is not as if the vehicles are inaccessible." "In Plaintiff's neighborhood, the vehicles are stationary. It is not as if the enforcing officer is unable to find" them.

But these conclusory allegations and arguments do not state facts to support a cause of action. (Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 675.) "'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law or fact. . . .'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Moreover, Spooner did not allege whether the vehicle owners he complained about were exempt from the ordinance.

Spooner claimed the City had a duty to enforce the ordinance against all violators. But he does not allege a statutory basis for this claim. (Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1, 13.) He admits he violated the code. The City properly cited him. Discriminatory enforcement is not established simply because all violators are not pursued. (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 299.)

Moreover, the complaint does not join parties that Spooner claims selectively enforced this ordinance. He alleges police officers ignored his wife's complaint. In conclusory language he alleges they exhibited "discriminatory hostility." He refers to Bradbury, Youngblood and unnamed "city officials." But none of them are named as defendants and his wife is not a plaintiff. The City is the only named defendant.

He alleges the City "refuses to enforce the code for other violators in the city" and claims his complaints "have not resulted in other citizens having to move their vehicles . . . ." But Youngblood's letter undermines those allegations by showing that two vehicles Spooner complained about were cited and moved. (Holland v. Diesel Internat., Inc., supra, 86 Cal.App.4th at p. 1447.)

IV. Pleading Municipal Liability Under

42 United States Code Section 1983

Spooner contends he adequately pled facts to state a cause of action against the City under the federal Civil Rights Act. (42 U.S.C. § 1983.) We disagree.

"Local governments have no liability under 42 United States Code section 1983 simply because their employees may have violated a plaintiff's constitutional rights; the doctrine of respondeat superior does not apply." (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328; Monell v. Dept. of Social Services (1978) 436 U.S. 658, 691.) "Entity liability may arise in one of two forms. The municipality may itself have directed the deprivation of federal rights through an express government policy. . . . Alternatively, [it] may have in place a custom or practice so widespread in usage as to constitute the functional equivalent of an express policy." (Choate, at p. 328.)

Spooner concedes the City had no "written policy" that authorized discrimination. He claims, however, that he adequately alleged a custom or practice sufficient to satisfy Monell standards. We disagree. The practice must be so permanent and well settled as to constitute the equivalent of an express policy authorized by the City's policy makers. (Monell v. Dept. of Social Services, supra, 436 U.S. at p. 691; Choate v. County of Orange, supra, 86 Cal.App.4th at p. 328.) "'Rigorous standards of culpability and causation must be applied' to ensure that the municipality, through culpable misconduct, was the 'moving force' behind the injury alleged. [Citation.]" (Choate, at p. 328, italics added.)

Here Spooner's complaint does not meet this standard. He alleged all the officers who came to his residence and ignored his wife's verbal complaints "acted . . .with intent to discriminate based on policy that was sanctioned by the city council members . . . ." But this vague and conclusory language does not suffice. (Harper ex rel. v. Poway Unified School Dist. (S.D. Cal. 2004) 345 F.Supp.2d 1096, 1108 [conclusory allegations of discrimination are insufficient].) "A plaintiff must allege with particularity facts in the form of specific overt acts. [Citations.]" (Taylor v. Mitzel, supra, 82 Cal.App.3d at 673.)

Spooner does not specifically describe the City's policy or how it trained or supervised enforcement officers. He does not state facts showing it had a history of encouraging or condoning discrimination. Nor does he supply "any underlying factual detail" about how it was the moving force or proximately caused his damages. (Haskins v. San Diego Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 973.) He alleges he incurred storage fees, but does not explain why he could not have parked the trailer in his side or rear yard.

Spooner's complaint states the City's failure to explain why the police did not enforce the code against everyone proved it had a discriminatory enforcement policy. But "a merely unexplained difference in police treatment of similar complaints made by different people" does not establish a denial of equal protection. (Hilton v. City of Wheeling (2000) 209 F.3d 1005, 1008.) Bradbury's and Youngblood's letters show the City enforced the ordinance on a priority basis and gave rational nondiscriminatory explanations for not proceeding against others. Spooner's allegation that the City vests discretion in its enforcement officers undermines the claim that it was the moving force.

Stripped of its speculation and conclusory language, Spooner's complaint "relies on an assumption that different treatment is always irrational or motivated by discrimination. But this assumption is legally unsound and logically absurd: it would not only validate the 'everyone-else-was-driving-75' defense, but create a cause of action for damages on such a claim." (Fishing Co. of Alaska v. U. S. (W.D. Wa. 2002) 195 F.Supp.2d 1239, 1254.) Even "'[t]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.'" (Murgia v. Municipal Court, supra, 15 Cal.3d at p. 299.) Here the fact that the City enforced this ordinance against others at Spooner's request undermines his allegations.

V. Village of Willowbrook v. Olech

Spooner contends that he stated a cause of action for discrimination against the City under Village of Willowbrook v. Olech (2000) 528 U.S. 562. We disagree.

In Olech, the plaintiff asked a village to connect her property to the municipal water supply. The village demanded a 33-foot easement from Olech, while only requiring 15-foot easements from other property owners. Olech alleged the village did this in retaliation for her prior successful lawsuit against it, and was motivated by "ill will." (Id. at p. 563.) The Supreme Court held she could allege an equal protection claim as a "class of one," even though she did not allege membership in a group. (Id. at p. 564.)

In his concurring opinion, Justice Breyer stated: "This case . . . does not directly raise the question whether the simple and common instance of a faulty zoning decision would violate the Equal Protection Clause." (Village of Willowbrook v. Olech, supra, 528 U.S. at p. 565.) "Zoning decisions . . . will often, perhaps almost always, treat one landowner differently from another . . . ." (Ibid.) But requiring proof of "'illegitimate animus'" would be "sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right." (Id. at p. 566.)

Subsequently, in Hilton, the Seventh Circuit stated: "We described the class of equal protection cases illustrated by Olech as 'vindictive action' cases and said they require 'proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant.' [Citation.]" (Hilton v. City of Wheeling, supra, 209 F.3d at p. 1008.) The municipality must have individually targeted the plaintiff "for reasons of a personal nature unrelated to the duties of the defendant's position." (Ibid.)

Here Spooner did not plead such facts and his conclusory allegations of "ill will" do not suffice. Unlike Olech, the City neither enacted the ordinance to target Spooner nor was he the only one cited. He successfully obtained enforcement by the City against two other owners. Moreover, the result would not change for another reason.

VI. The Truthful Pleading Doctrine

The City contends that the trial court properly sustained the demurrer because Spooner made admissions which contradicted the facts he alleged in the third amended complaint. We agree.

"As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true . . . ." (Del E. Webe Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) But "a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless." (Ibid.) Where a party's admissions contradict allegations in a pleading, the court may rely on the admissions and sustain a demurrer. (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.)

Here the court found that at the first demurrer hearing Spooner said he was not claiming any racial animus on behalf of the City. At the last hearing, he said he did not know if the City was motivated by racial animus. That contradicted his pleadings. The court properly sustained a demurrer because these admissions undermined the allegations of his complaint. (Dwan v. Dixon, supra, 216 Cal.App.2d at p. 265.)

We have carefully reviewed Spooner's remaining contentions and conclude that he has not shown reversible error.

The judgment is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

______________________________

Nathan B. Spooner, in pro. per., for Plaintiff and Appellant.

Smith & Tardiff, Neil S. Tardiff and Robert J. Gundert for Defendant and Respondent.

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