Kihagi v. City of San Francisco

Northern District of California, cand-4:2015-cv-01168

ORDER GRANTING {{19}} MOTION TO STAY. Case Management Conference continued to 6/28/2016 at 01:30 PM. Case Management Statement due by 6/21/2016. Signed by Judge Kandis A. Westmore on 01/15/2016. (kawlc2, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANNA KIHAGI, et al., 7 Case No. 15-cv-01168-KAW Plaintiffs, 8 v. ORDER GRANTING MOTION TO 9 STAY CITY OF SAN FRANCISCO, 10 CALIFORNIA, et al., Re: Dkt. No. 19 11 Defendants. 12 Northern District of California United States District Court 13 Defendant City and County of San Francisco moves to stay the above-captioned case. 14 Plaintiffs oppose the motion. The Court deems the matter suitable for disposition without hearing 15 pursuant to Civil Local Rule 7-1(b) and VACATES the hearing currently set for January 21, 2016. 16 Having considered the papers filed by the parties and the relevant legal authority, the Court 17 GRANTS the motion, for the reasons set forth below. 18 I. BACKGROUND 19 A. Factual background 20 Anna Kihagi, an "African-American immigrant," is the managing member of Xelan Prop 21 1, LLC, Renka Prop, LLC, and Zoriall LLC (collectively, "Plaintiffs"),1 three companies that own 22 rental properties in San Francisco. (1st Am. Compl. ("FAC") ¶¶ 7-10, 32, Dkt. No. 18.) Kihagi 23 alleges that only some of the properties are subject to the City's rent control ordinance. (Id. ¶ 33.) 24 In 2014, Kihagi learned that some of her tenants were subletting their rent-controlled units 25 at market rates without her consent and in violation of their lease agreements. (Id. ¶¶ 35-38.) 26 When Kihagi evicted the tenants who were illegally subletting their apartments, they complained 27 1 28 For ease of reference, the Court will refer to all Plaintiffs as "Kihagi." 1 to the City. (Id. ¶¶ 38-39.) This prompted a "full-fledged attack on Kihagi vis-à-vis the City's 2 handling of applications for construction and remodelling [sic] permits and virtually anything else 3 that required City approval even and especially concerning matters having nothing to do with the 4 tenant disputes." (Id. ¶ 40.) She claims the City has discriminated against her based on her race, 5 and that it has selectively enforced the laws in an arbitrary and capricious manner. (Id. ¶¶ 73, 78.) 6 Kihagi offers several examples of the City's purported selective enforcement.2 She alleges 7 that when she applied for a permit to demolish an illegal unit, the City revised its original position 8 that the unit was illegal and worked with the tenant to revoke the valid demolition permit. (Id. ¶ 9 42.) When she "applied for a permit. . . to demolish a termite damaged storage room and replace 10 [sic] with pressure treated wood," the City, upon learning that Kihagi was the applicant, "issued a 11 permit on the condition that it be completed within an unreasonably short period of time." (Id.) 12 When "Kihagi applied for a permit for one of the units at 1137 Guerrero Street to build Northern District of California United States District Court 13 windows in the rear of the building, not visible to the street," the City allegedly denied application 14 based on a letter from the City Attorney's Office, in which it demanded permission to inspect 15 buildings located at 3927 18th Street, 1135-1139 Guerrero Street, 69-85 Hill Street, 195 Eureka 16 Street, and 1000-1022 Filbert Street in San Francisco. (Id. ¶ 45.) Kihagi describes the letter "as a 17 pre-text to unreasonably deny [her] right to seek the issuance of permits for the Guerrero and 18 Eureka properties."3 (Id. ¶ 47.) 19 On March 3, 2015, Kihagi denied the City permission to enter her properties. (Id. ¶ 49.) 20 The next day, "eight City employees and law enforcement personnel entered the common area of 21 Kihagi's buildings." (Id. ¶ 50.) At some point, a deputy city attorney reassured Kihagi that "no 22 other property which she owned or managed would be improperly searched because the City did 23 not have consent and that the City was done with their investigation for the day." (Id. ¶ 53.) 24 Twenty minutes later, the same City employees, accompanied by a different police officer, 25 26 2 The Court does not describe every example here. 27 3 The allegations in the operative complaint do not make clear which permit application concerns 28 the Eureka property. 2 1 illegally searched another one of Kihagi's properties, including common areas and various units. 2 (Id. ¶¶ 54-56.) 3 According to Kihagi: 4 Security were able to locate a document in plain view in the vehicles of a City inspector written and signed by Deputy City Attorney Weatherford which accused 5 Kihagi of having "a practice of evicting long-standing, rent-controlled tenants, illegally housing day laborers in unfinished apartments, performing construction 6 work without permits, or beyond the scope of permits, and re-renting the units to 7 new tenants at market rents." (Id. ¶ 58.) Kihagi asserts that she is the only person whose properties have been raided by a task 8 force, despite their being in good condition. (Id. ¶ 65.) She also alleges that when she applies for 9 a permit, "the various planning department and building divisions see a message on their screen 10 which states, 'DO NOT issue permits per DA Michael Weis and DBI Sr. Inspector Patrick 11 Orieden.'" (Id. ¶ 72.) Kihagi claims that she "is the only person to receive such an automatic 12 Northern District of California block on the issuance of permits." (Id. ¶ 73.) United States District Court 13 B. Procedural background 14 Based on the City's alleged conduct, Kihagi commenced this action on March 12, 2015. 15 (Compl., Dkt. No. 1.) On stipulation of the parties, Kihagi filed a first amended complaint on May 16 18, 2015. (FAC; April 16, 2015 Stip., Dkt. No. 14; April 30, 2015 Stip., Dkt. No. 15.) Kihagi 17 alleges that the City, Deputy City Attorneys Victoria L. Weatherford and Michael Weiss, and 18 Housing Inspectors Marico Hernandez and Tony Pelea denied her equal protection, violated her 19 due process rights, retaliated against her for exercising her First Amendment right to petition 20 government, and conspired to do so. (FAC ¶¶ 11-27, 77-80, 81-83, 84-88, 89-93.) She prays for 21 an award of damages, costs of suit, and attorney's fees. (FAC ¶¶ 1-4.) 22 On June 4, 2015, the City filed a lawsuit against Kihagi in the Superior Court for the 23 County of San Francisco. (Req. for Judicial Notice ("RJN"), Ex. 1, State Court Complaint, Dkt. 24 No. 21.) In the state court action, the City alleges that Kihagi has been "rampantly violating the 25 letter and spirit of the Rent Ordinance, and in particular, Section 37.10B, by harassing, retaliating, 26 and intimidating their tenants into surrendering their rent-controlled units." (Id. ¶ 6.) According 27 to the City, once Kihagi's tactics succeed, she quickly renovates units, often without necessary 28 3 1 permits, inspections, or licensed contractors, and relets them at substantially increased rents. (Id. ¶ 2 8.) 3 The City asserts four claims in its state court complaint. The first cause of action is for 4 violation of San Francisco Administrative Code section 37.10B et seq. (Id. ¶¶ 128-135.) The 5 second cause of action is for violation of California Health and Safety Code sections 17920- 6 17980.9. (Id. ¶¶ 136-147.) The third cause of action is for general public nuisance under 7 California Civil Code sections 3479 and 3480. (Id. ¶¶ 148-154.) The fourth cause of action is for 8 unfair and unlawful business practices in violation of California Business and Professions Code 9 sections 17200-17210. (Id. ¶¶ 155-165.) The City seeks a variety of declaratory and injunctive 10 relief, payment of statutory fines, civil penalties, and restitution, authorization to place a lien on 11 Kihagi's property, reimbursement of costs of enforcement, and payment of reasonable attorney's 12 fees and costs. (Id. ¶¶ 1-16.) Northern District of California United States District Court 13 On June 30, 2015, the City filed a motion to stay this federal case, along with a request for 14 judicial notice.4 (Defs.' Mot., Dkt. No. 19; RJN.) The Court approved the parties' stipulations to 15 modify the briefing schedule on the motion. (Stip. & Order, Dkt. No. 26; Stip. & Order, Dkt. No. 16 28.) In accordance with the revised briefing schedule, Kihagi filed her opposition on August 17, 17 2015, and the City filed its reply on August 24, 2015. (Pls.' Opp'n, Dkt. No. 29; Defs.' Reply, Dkt. 18 No. 30.) Kihagi has not filed an opposition to the City's request for judicial notice. 19 II. LEGAL STANDARD 20 A. Request for judicial notice 21 A district court may take judicial notice of facts not subject to reasonable dispute that are 22 "capable of accurate and ready determination by resort to sources whose accuracy cannot 23 reasonably be questioned." Fed. R. Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 24 333 (9th Cir. 1993). A court may, therefore, take judicial notice of matters of public record. 25 26 4 The motion was originally noticed for hearing on August 6, 2015. Because Plaintiffs had not 27 filed a certificate of service showing that the individual employee defendants had been served, the Court continued the hearing. After the Court issued an order to show cause, Plaintiffs filed 28 certificates of service, though they did not file a written response as ordered by the Court. Dkt. Nos. 38-40. 4 1 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 B. Motion to stay 3 Subject to exceptions not claimed here, Younger abstention is appropriate where (1) there 4 are ongoing state judicial proceedings, (2) those proceedings implicate important state interests, 5 and (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges. 6 Middlesex Cty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Once these 7 three threshold elements are met, a court may properly abstain "if the court's action would enjoin, 8 or have the practical effect of enjoining, ongoing state court proceedings." AmerisourceBergen 9 Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007) (citation and footnote omitted); see 10 Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004) ("Younger principles apply to actions at 11 law as well as for injunctive or declaratory relief because a determination that the federal 12 plaintiff's constitutional rights have been violated would have the same practical effect as a Northern District of California United States District Court 13 declaration or injunction on pending state proceedings."). 14 III. DISCUSSION 15 A. Request for judicial notice 16 The City asks that the Court take judicial notice of the docket and complaint in the parallel 17 state court case. (See RJN, Exs. 1 & 2.) Kihagi does not oppose the request. The Court finds that 18 the documents are true and correct copies of documents filed in state court and grants the City's 19 request for judicial notice. See Fed. R. Evid. 201(b)(2); Wilson, 631 F.2d at 119 ("[A] court may 20 take judicial notice of its own records in other cases, as well as the records of an inferior court in 21 other cases."). 22 B. Motion to stay 23 The City moves for a stay on the grounds that all elements for Younger abstention are met 24 in this case. (Def.'s Br. in Support of Mot. to Stay ("Def.'s Br."), Dkt. No. 20.) It argues that the 25 state action, though it was filed after Kihagi commenced this federal case, constitutes ongoing 26 state judicial proceedings. (Id. at 2.) The City asserts that the state has a strong interest in 27 enforcing the rent ordinance, protecting tenants' rights, and ensuring fair business practices, all of 28 which are at issue in the ongoing state court case. (Id. at 2-3.) The City also argues that Kihagi 5 1 can raise her federal claims in state court, either as counter-claims against the City or as defenses 2 to the City's allegations. (Id. at 4.) The City further contends that a ruling by this Court would 3 effectively enjoin the state court proceedings. (Id.) 4 In opposition, Kihagi argues that Younger abstention is an exception to the general rule 5 that federal courts must exercise jurisdiction and decide cases brought before them. (Pls.' Opp'n 6 3.) She urges the Court to adhere to the general rule in this case, as Younger abstention is not 7 appropriate where "there exists only a prospect that the federal court decision may, through claim 8 or issue preclusion, influence the result in state court." (Id.) Plaintiff argues that this action would 9 not interfere with the state court lawsuit because different issues are presented in each. (Id. at 4.) 10 Plaintiff's position is unavailing. The threshold elements for Younger abstention are met in 11 this case. The first element for Younger abstention—ongoing state judicial proceedings—is 12 satisfied because the city's civil enforcement action is currently pending in state court. (See RJN, Northern District of California United States District Court 13 Exs. 1 & 2.) While the City did not file its state court complaint until June 4, 2015, after Plaintiff 14 filed her action in this Court on March 12, 2015, the state court action was nonetheless 15 commenced before any proceedings of substance took place in the federal case. See M&A Gabaee 16 v. The Cmty. Redev. Agency of the City of Los Angeles, 419 F.3d 1036, 1042 (9th Cir. 2005). In 17 fact, Plaintiff filed the operative complaint just weeks before the City commenced the state court 18 case. The second element is also met because the issues raised in the state court litigation 19 implicate important state interests. See, e.g., Mission Oaks Mobile Home Park v. City of Hollister, 20 989 F.2d 359, 361 (9th Cir. 1993) (proceedings related to rental rate ordinances implicate 21 important state interests) overruled on other grounds by Green v. City of Tucson, 255 F.3d 1086, 22 1093 (9th Cir. 2001). The third element is also met, as Kihagi is free to raise her constitutional 23 claims in state court. 24 Having found that the threshold requirements for Younger abstention are met, the Court 25 also finds that this proceeding would have the practical effect of enjoining the state code 26 enforcement action. Where, as here, "a person is the target of an ongoing state action involving 27 important state interests, the state defendant cannot interfere with the pending state action by 28 maintaining a parallel federal action involving claims that could have been raised in the state 6 1 case." Carroll v. City of Mount Clemens, 139 F.3d 1072, 1074-75 (6th Cir. 1998); see also 2 Gilbertson, 381 F.3d at 980 n. 15 (citing Carroll, 139 F.3d at 1075-76). In the event the state 3 defendant commences such an action, "Younger abstention requires the federal court to defer to 4 the state proceeding." Carroll, 139 F.3d at 1074-75. Kihagi has commenced such an action here. 5 She is the target of an ongoing state code enforcement proceeding, and this federal case interferes 6 with that proceeding to the extent she brings claims that not only may be brought in state court but 7 that generally concern the same subject matter, i.e., the condition of her properties, her compliance 8 with applicable laws, and whether the City's enforcement actions were appropriate. Under these 9 circumstances, the progression of this action must yield to the state court proceedings. See 10 Gilbertson, 381 F.3d at 965 ("We conclude that Younger principles apply to actions at law as well 11 as for injunctive or declaratory relief because a determination that the federal plaintiff's 12 constitutional rights have been violated would have the same practical effect as a declaration or Northern District of California United States District Court 13 injunction on pending state proceedings."). 14 IV. CONCLUSION 15 For the reasons set forth above, the City's motion to stay is GRANTED. The currently 16 scheduled case management conference is CONTINUED to June 28, 2016. The parties shall file a 17 joint case management conference statement seven days before. Depending on the status of the 18 state court proceedings at that time, the parties may stipulate to continuing the case management 19 conference in lieu of filing a joint case management conference statement. If the parties elect to 20 do so, they must update the Court on the status of the state court proceedings and propose a 21 continued case management conference date. 22 IT IS SO ORDERED. 23 Dated: 01/15/16 __________________________________ 24 KANDIS A. WESTMORE 25 United States Magistrate Judge 26 27 28 7