Empress LLC v. Cityand County of San Francisco ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMPRESS LLC, a California 
Limited Liability Company; VIJAY
PATEL; RAMILABEN PATEL,
Plaintiffs-Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO No. 03-16706
PLANNING DEPARTMENT; LAWRENCE
BADINER, as San Francisco Zoning  D.C. No.
CV-02-01999-PJH
Administrator; RANDALL SHAW, as
Executive Director of the OPINION
Tenderloin Housing Clinic, Inc.;
SAN FRANCISCO BOARD OF APPEALS;
TENDERLOIN HOUSING CLINIC INC., a
California nonprofit corporation;
SAN FRANCISCO ZONING
ADMINISTRATOR,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
March 15, 2005—San Francisco, California
Filed August 18, 2005
Before: Sidney R. Thomas and Raymond C. Fisher,
Circuit Judges, and James L. Robart,* District Judge.
*The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
10945
10946 EMPRESS LLC v. SAN FRANCISCO
Opinion by Judge Thomas
10948 EMPRESS LLC v. SAN FRANCISCO
COUNSEL
Andrew M. Zacks (Argued) and James B. Kraus (On the
Briefs), San Francisco, California, for the plaintiffs-
appellants.
Stephen L. Collier, Tenderloin Housing Clinic, Inc., San
Francisco, California, for the defendants-appellees.
OPINION
THOMAS, Circuit Judge:
The owners of the Empress Hotel brought this action
against the Executive Director of the Tenderloin Housing
Clinic, claiming that the City of San Francisco unlawfully del-
EMPRESS LLC v. SAN FRANCISCO 10949
egated zoning decisions to him by taking official actions con-
sistent with his requests on all zoning petitions affecting San
Francisco’s Tenderloin area. We conclude that the action is
precluded by the Noerr-Pennington doctrine and affirm the
judgment of the district court.
I
The Empress Hotel is located in San Francisco’s Tender-
loin district, an area which in the past has conjured up images
of salaciousness rather than steak. It has also recently been the
subject of urban renewal efforts. Several decades ago, the
City of San Francisco designated the Empress as a mixed-use
hotel and issued a Certificate of Use that allowed the hotel to
operate with 58 tourist rooms and 30 residential rooms. A
Certificate of Use remains valid until revoked, but requires
annual compliance with the City’s Hotel Conversion Ordi-
nance, which was designed to stop the depletion of housing
for the poor, elderly and disabled after studies conducted by
the City revealed that a substantial number of residential hotel
units in the City had been converted from residential to tourist
use. San Remo Hotel, L.P. v. San Francisco City & County,
364 F.3d 1088, 1091 (9th Cir. 2004), aff’d, 125 S. Ct. 2491(2005).
In the early 1980’s, the Empress Hotel fell into disrepair,
and the City issued a number of abatement orders in an
attempt to remedy the conditions. In response, Vijay Patel’s
parents, who owned the Empress at the time, evicted its resi-
dents and closed the hotel. Some years later, Vijay and
Ramilaben Patel purchased the Empress Hotel from Vijay
Patel’s parents and proceeded to redevelop the hotel, spending
approximately $1.5 million in the process. As part of the rede-
velopment, the Patels applied for and received permits from
the City authorizing the use of the Empress as a tourist hotel.
The Tenderloin Housing Clinic, Inc. is a California non-
profit corporation that seeks to preserve low-income housing
10950 EMPRESS LLC v. SAN FRANCISCO
in the Tenderloin district. Upon learning of the Patels’ efforts
to redevelop the Empress Hotel, Tenderloin Housing Clinic
Executive Director Randall Shaw wrote a letter to San Fran-
cisco Zoning Administrator Lawrence Badiner requesting that
he make a zoning determination regarding the Empress. Shaw
contended in his letter that the Empress had been vacated and
the authorized tourist use abandoned. As a result, Shaw
argued, the entire hotel had reverted to purely residential use
under restrictions of the North of Market Residential Special
Use District, which had been created the year the Empress
was shuttered. After receiving Shaw’s letter, Badiner initiated
an investigation and eventually concluded that the tourist use
of the Empress Hotel had been discontinued for a continuous
period of at least three years and therefore could not be rees-
tablished except in compliance with the present applicable
City codes. The Patels unsuccessfully appealed Badiner’s
zoning determination to the San Francisco Board of Appeals.
After rehearing was denied by the Board of Appeals, the
Patels filed this 42 U.S.C. § 1983 action on behalf of them-
selves and Empress LLC (collectively “the Patels”), alleging
that the government and individual governmental officials had
unlawfully delegated zoning decisions to Shaw. The district
court dismissed the claims against all defendants except
Shaw. Initially, the district court, relying on Branch v. Tunnel,
937 F.2d 1382 (9th Cir. 1991), applied a heightened pleading
standard to the Patels’ constitutional tort claim and dismissed
the complaint with leave to amend. After the Patels filed their
second amended complaint, the district court granted Shaw’s
motion to dismiss with prejudice on the grounds that Shaw’s
activities were protected under the Noerr-Pennington doctrine
and that the Patels had failed to allege sufficient facts demon-
strating that Shaw’s activities were exempt from this protec-
tion. Although noting that in the time since the dismissal of
the Patels’ first complaint, we had decided in Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir.
2002), to overrule Branch and eliminate the heightened plead-
ing requirement for constitutional tort claims, the district
EMPRESS LLC v. SAN FRANCISCO 10951
court proceeded to apply a heightened pleading standard
because the Patels’ claim involved the right to petition gov-
ernmental bodies immune from liability under the Noerr-
Pennington doctrine. The district court also granted in part
Shaw’s motion for attorneys’ fees under 42 U.S.C. § 1988,
awarding Shaw $13,109. This timely appeal followed.
II
[1] The district court erred in applying a heightened plead-
ing standard to the Patels’ claims. In Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507
U.S. 163 (1993), the Supreme Court rejected the application
of a heightened pleading standard in § 1983 actions alleging
municipal liability. Id. at 168. The Supreme Court stated that
the common-law-developed heightened pleading standard,
which required a plaintiff’s complaint to state with factual
detail and particularity the basis for the claim, could not be
reconciled with the Federal Rules’ liberal system of notice
pleading.1 Id. The Court stated that heightened pleading stan-
dards should only be applied when required by the Federal
Rules. Id. at 168-69.
[2] Likewise, in Crawford-El v. Britton, 523 U.S. 574(1998), the Court concluded that a heightened pleading stan-
dard was inapplicable to constitutional claims brought against
1
The notice pleading standard is articulated in Fed. R. Civ. P. 8(a),
which provides as follows:
Claims for Relief. A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross-claim, or third-
party claim, shall contain (1) a short and plain statement of the
grounds upon which the court’s jurisdiction depends, unless the
court already has jurisdiction and the claim needs no new
grounds of jurisdiction to support it, (2) a short and plain state-
ment of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader seeks.
Relief in the alternative or of several different types may be
demanded.
10952 EMPRESS LLC v. SAN FRANCISCO
individual defendants in which improper motive is a neces-
sary element. Id. at 595-96. The Court disapproved of the
heightened pleading standard adopted and imposed by the
Fifth Circuit, stressing that the Court’s cases “demonstrate
that questions regarding pleading, discovery, and summary
judgment are most frequently and effectively resolved either
by the rulemaking process or the legislative process.” Id. at
595 (citing Leatherman, 507 U.S. at 168-69). As we noted in
Galbraith, “[i]n light of Crawford-El, nearly all of the circuits
have now disapproved any heightened pleading standard in
cases other than those governed by Rule 9(b).”2 307 F.3d at
1125.
[3] Most recently, in Swierkiewicz v. Sorema, N.A., 534
U.S. 506 (2002), the Supreme Court reversed the dismissal of
a complaint that had been based on a heightened pleading
standard applied by the Second Circuit in employment dis-
crimination cases, id. at 514-15, and, in doing so, reiterated its
position as set forth in Leatherman, id. at 512-15. The Court
stated that “[a] requirement of greater specificity for particular
claims is a result that ‘must be obtained by the process of
amending the Federal Rules, and not by judicial interpreta-
tion.’ ” Id. at 515 (quoting Leatherman, 507 U.S. at 168).
[4] Although in Galbraith we held that a heightened plead-
ing standard should not apply to constitutional tort claims in
which improper motive is an element, we suggested that
common-law-developed heightened pleading standards do not
survive Leatherman, Crawford-El, and Swierkiewicz. 307
F.3d at 1124-26; see also Thomas v. Fry’s Electronics, Inc.,
400 F.3d 1206, 1207 (9th Cir. 2005) (“Swierkiewicz merely
stands for the proposition that federal courts may not impose
a heightened pleading requirement in derogation of federal
2
Fed. R. Civ. P. 9(b) provides: “In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particular-
ity. Malice, intent, knowledge, and other condition of mind of a person
may be averred generally.”
EMPRESS LLC v. SAN FRANCISCO 10953
notice pleading rules.”). Although we did not reach the ques-
tion of whether a heightened pleading standard should be
applied in other contexts in Galbraith, the logical conclusion
of Leatherman, Crawford-El, and Swierkiewicz dictates that a
heightened pleading standard should only be applied when the
Federal Rules of Civil Procedure so require. Because the
Rules do not require a heightened pleading standard for the
claims advanced by the Patels, the district court erred in
applying such a standard in considering the Rule 12(b)(6)
motion to dismiss their complaint.
III
Even though the district court should have applied a notice
pleading standard to the complaint pursuant to Fed. R. Civ. P.
8(a), the district court correctly granted the motion to dismiss
because the Patels’ complaint cannot survive application of
the Noerr-Pennington doctrine even under notice pleading stan-
dards.3
[5] “The Supreme Court has described the right to petition
as ‘among the most precious of the liberties safeguarded by
the Bill of Rights’ and ‘intimately connected, both in origin
and in purpose, with other First Amendment rights of free
speech and free press.’ ” White v. Lee, 227 F.3d 1214, 1231
(9th Cir. 2000) (quoting United Mine Workers of America,
Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967)).
Under the Noerr-Pennington doctrine, those who petition all
departments of the government for redress are generally
immune from liability. Manistee Town Ctr. v. City of Glen-
dale, 227 F.3d 1090, 1092 (9th Cir. 2000). Although the
Noerr-Pennington doctrine originally immunized individuals
3
We review a dismissal for failure to state a claim under Fed. R. Civ.
P. 12(b)(6) de novo. McGary v. City of Portland, 386 F.3d 1259, 1261
(9th Cir. 2004). “Dismissal of the complaint is appropriate only if it
appears beyond doubt that the plaintiff[s] can prove no set of facts in sup-
port of the claim which would entitle [them] to relief.” Id.10954 EMPRESS LLC v. SAN FRANCISCO
and entities from antitrust liability, Noerr-Pennington immu-
nity now applies to claims under § 1983 that are based on the
petitioning of public authorities. Id. “Noerr-Pennington is a
label for a form of First Amendment protection; to say that
one does not have Noerr-Pennington immunity is to conclude
that one’s petitioning activity is unprotected by the First
Amendment.” White, 227 F.3d at 1231 (footnote omitted).
Shaw contends that his letter to Badiner requesting a zon-
ing determination and the enforcement of zoning laws in
regards to the Empress Hotel, as well as his alleged conversa-
tions with Badiner, are petitioning activities protected under
the Noerr-Pennington doctrine. The Patels assert that Shaw’s
conduct was, in actuality, “a wink” telling Badiner to make a
certain zoning determination and enforce the zoning laws
against the Patels. The Patels claim that because Shaw’s activ-
ities constitute a part of a conspiracy to exercise an unlawful
delegation of power, they are not immunized under the sham
exception to the Noerr-Pennington doctrine. See Kottle v.
Northwest Kidney Ctrs., 146 F.3d 1056, 1060-62 (9th Cir.
1998) (discussing the sham exception to the Noerr-
Pennington doctrine).
[6] The Patels’ complaint does not allege that Shaw used
government processes, as opposed to the outcome of those
processes, as a mechanism to injure the Patels, and that there-
fore his petitioning activity falls under the sham exception to
the Noerr-Pennington doctrine. See Manistee, 227 F.3d at
1094-95. As such, no matter what Shaw’s motives were, his
petitioning activity as alleged in the Patels’ complaint is
immunized under the Noerr-Pennington doctrine. Id. at 1095
n.4; Boone v. Redevelopment Agency of the City of San Jose,
841 F.2d 886, 894-95 (9th Cir. 1988) (stating that private
meetings between government officials and individuals seek-
ing to lobby the government is a form of advocacy protected
under Noerr-Pennington); United Mine Workers of America v.
Pennington, 381 U.S. 657, 669 (1965) (stating that illegal pur-
EMPRESS LLC v. SAN FRANCISCO 10955
poses and motivations behind petitioning do not illegalize the
petitioning conduct).
[7] Furthermore, there is no “conspiracy” exception to the
Noerr-Pennington doctrine that applies when government
officials conspire with a private party to employ government
action as a means of depriving other parties of their federal
constitutional or statutory rights. See City of Columbia v.
Omni Outdoor Adver. Inc., 499 U.S. 365, 382-83 (1991). In
such circumstances, a remedy lies only against the conspiring
government officials, not against the private citizens. There-
fore, the Patels’ allegation that Shaw conspired with the City
to have the City unlawfully delegate its authority to him does
not remove Shaw’s petitioning activity from protection under
the Noerr-Pennington doctrine.
[8] Thus, based on the Patels’ pleadings, it appears beyond
a doubt that they can prove no facts demonstrating that
Shaw’s activities fall under the sham exception to the Noerr-
Pennington doctrine and are therefore not immunized from
liability. Although the district court should not have applied
a heightened pleading standard, even under the pleading stan-
dard articulated in Fed. R. Civ. P. 8(a), the Patels have failed
to state a claim upon which relief can be granted.
IV
[9] The district court’s determination that it may, under 42
U.S.C. § 1988, award attorneys’ fees to Shaw, the prevailing
defendant in a civil rights case, was necessarily based on its
erroneous application of the heightened pleading standard,
rendering the district court’s determination an abuse of discre-
tion.4 Under the notice pleading standard, the Patels’ claims
were not “unreasonable, frivolous, meritless, or vexatious,”
4
We review the district court’s award of attorneys’ fees for an abuse of
discretion. Horphag Research Ltd. v Pellegrini, 337 F.3d 1036, 1042 (9th
Cir. 2003).
10956 EMPRESS LLC v. SAN FRANCISCO
Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998) (quoting
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978)) (internal quotation marks omitted). Therefore, we
reverse the district court’s award of attorneys’ fees to Shaw.
V
In sum, we affirm the judgment of the district court dis-
missing the claims against Shaw, but reverse the award of
attorney fees.
AFFIRMED IN PART; REVERSED IN PART