Elizabeth Lopez v. National City ( 2022 )

NOT FOR PUBLICATION FILED
JAN 28 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH LOPEZ; JACQUELINE No. 20-56392
AREVALO,
D.C. No.
Plaintiffs-Appellants, 3:19-cv-00066-L-BGS
v.
MEMORANDUM*
NATIONAL CITY; et al.,
Defendants-Appellees,
and
STATE FARM INSURANCE; DOES, 1-25,
Defendants.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted December 6, 2021**
Pasadena, California
Before: M. SMITH, LEE, and FORREST, Circuit Judges.
Concurrence by Judge LEE
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Elizabeth Lopez and Jacqueline Arevalo appeal from the district court’s
order granting summary judgment in favor of National City and City Inspector
Luis Sainz. We have jurisdiction under 28 U.S.C. §§ 1331, 1367, and 1291. We
review the district court’s order granting summary judgment de novo. Albino v.
Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.
The district court correctly denied Lopez and Arevalo’s federal due process
claim. The government did not deny them their property because Sainz lacked
authority to order demolition of Lopez and Arevalo’s home. Kerley Indus., Inc. v.
Pima Cty., 785 F.2d 1444, 1446 (9th Cir. 1986). Even though Lopez and Arevalo
mistakenly believed Sainz had such authority, they—not the government—
ultimately ordered the demolition. Guatay Christian Fellowship v. Cty. of San
Diego, 670 F.3d 957, 984 (9th Cir. 2011).
The district court also correctly denied Lopez and Arevalo’s “class of one”
federal equal protection claim. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (A “class of one” plaintiff must show “that she has been intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.”). Lopez and Arevalo failed to prove they were
similarly situated to Jerry Cano. Although both properties had building code
violations, Cano’s violations were merely technical, while Lopez and Arevalo’s
structural violations presented a threat to public safety.
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We also affirm the district court’s denial of Lopez and Arevalo’s due
process and equal protection claims under the California Constitution because
these state claims are identical to the federal claims. Owens v. City of Signal Hill,
201 Cal. Rptr. 70, 72 n.2 (Cal. Ct. App. 1984) (explaining that California’s due
process clause is “identical in scope with the federal due process clause.”); Serrano
v. Priest, 557 P.2d 929, 949 (Cal. 1976) (en banc) (analysis of equal protection
claims under the federal and California constitutions is the same).
AFFIRMED.
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FILED
JAN 28 2022
20-56392, Lopez v. National City
Lee, Circuit Judge, concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Our Constitution protects a wide array of rights but it cannot remedy every
injustice. And so it is here: the government unfairly intimidated Elizabeth Lopez
and her daughter, Jacqueline Arevalo, into demolishing their home. But as detailed
in the memorandum disposition, it did not violate their rights to due process or equal
protection. I write separately to emphasize that the government must serve the
people, not bully and browbeat them.
Like thousands of Americans, Ms. Lopez, along with her daughter, decided
to remodel their fixer-upper home. To fund this project, she tapped into her 401K
account and took out a home equity loan. She received building permits and moved
forward with the project, which included a kitchen remodel, an addition to the main
house, and the conversion of the basement into livable space.
Unfortunately, city inspectors on September 13, 2017 discovered that 75% of
the house lacked foundation and that electric/gas meters were hanging precariously.
Luis Sainz, an inspector at National City, ordered construction stopped because of
the unsafe conditions. The day after that inspection, Ms. Lopez talked to him about
how to fix the house’s foundation. He advised her to hire a shoring contractor and
demanded a shoring plan by September 18, i.e., within two business days. He
claimed that once the city mailed a demolition letter, the house would “need to come
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down immediately” or “otherwise the city would take over [the demolition] and it
would cost [Lopez] three times as much” and “a lien would be put on the property.”
Ms. Lopez called several shoring contractors, but the earliest that anyone
could provide a shoring plan was September 20. When Ms. Lopez and her daughter
met with Inspector Sainz on September 18, he refused to give an extension beyond
September 20 and claimed that a demolition letter would be sent the next day if they
did not provide a shoring plan by the end of the day. He also asserted that if they
received the letter, the house must be demolished immediately.
Ms. Lopez never contacted a shoring contractor again because she believed
there was not enough time. And she mistakenly assumed that the city had sent a
demolition letter. The next day, the City’s Director of Emergency Services gave
Ms. Lopez a list of companies to contact if the home had to be demolished
immediately. Ms. Lopez called one of the names on the list, Anabel Montoya, to
discuss saving the house.
On September 20, Montoya met with Inspector Sainz, who told him that the
house needed to be demolished immediately and asked for demolition plans by day’s
end. Montoya submitted the plans to Inspector Sainz, who immediately approved
them. Ms. Lopez and Ms. Arevalo then had the house demolished on September
23.
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But the house did not have to be demolished. Inspector Sainz lacked the
authority to order the demolition. Moreover, no demolition letter was ever sent.
But based on their conversation with Inspector Sainz, Ms. Lopez and Ms. Arevalo
mistakenly believed that their house had to be demolished immediately. They also
did not know that they could appeal any order to demolish a home. No one informed
them of their right to appeal any demolition order.
Despite the injustice they suffered, Ms. Lopez and Ms. Arevalo do not have
a claim under the due process clause or the equal protection clause. They ultimately
acted on their own in moving forward with the demolition, so it does not implicate
any governmental action. But Ms. Lopez and Ms. Arevalo—and the people of
National City—deserve better.
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