Nihar Desai v. City of Los Angeles

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIHAR DESAI, DBA The Alameda Hotel, No. 13-55725
Trustee of the Hemangini Revocable Living
Trust dated 1/21/05, D.C. No. 2:10-cv-08495-DSF-
AJW
Plaintiff - Appellant,
v. MEMORANDUM*
CITY OF LOS ANGELES, a municipal
corporation, and LOS ANGELES
HOUSING DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 7, 2015**
Pasadena, California
Before: BEA and FRIEDLAND, Circuit Judges and RICE,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
1
Plaintiff Nihar Desai appeals the district court’s judgment and denial of
administrative mandamus in an action related to the classification of his hotel
under Los Angeles’s Residential Hotel Unit Conversion and Demolition Ordinance
(“Ordinance”). L.A. Mun. Code §§ 47.70-47.89. We affirm.
The district court correctly concluded that Plaintiff’s challenge to the
designation of the hotel itself as a residential hotel was time-barred. A petition for
writ of mandate challenging a local agency decision must be filed within ninety
days of the date the decision becomes final. Cal. Code Civ. Proc. § 1094.6(b).
The Los Angeles Housing Department (“LAHD”) notified Plaintiff of the
residential-hotel determination in September 2008, and the determination became
final two months later when Plaintiff failed to appeal. See id. Plaintiff thus had
until February 2009 to seek a writ of mandate, but he did not do so until November
2010. His challenge was therefore time-barred. Plaintiff’s counter-arguments are
without merit.1
Plaintiff’s procedural due process claim fails because LAHD was not
required to hold a hearing prior to its initial determinations or to bear the burden of
1
In passing, Plaintiff’s opening brief asserts that the determination of the number
of residential units in his hotel was not supported by substantial evidence. Plaintiff
fails to provide sufficient information to enable this court to evaluate this
argument, however, and it is therefore waived. See Maldonado v. Morales, 556
F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and
inadequately briefed are waived.”).
2
proof in any hearing. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 612 (1974)
(“[W]e have repeatedly held that no hearing at the preliminary stage is required by
due process so long as the requisite hearing is held before the final administrative
order becomes effective.” (internal quotation marks omitted)); Fairchild
Semiconductor Corp. v. EPA, 984 F.2d 283, 289 (9th Cir. 1993) (“It is sufficient
[under the Due Process Clause], where only property rights are concerned, that
there is at some stage an opportunity for a hearing and a judicial determination.”
(alteration in original and internal quotation marks omitted)); Wilcox v. Comm’r,
848 F.2d 1007, 1008 (9th Cir. 1988) (holding that placing the burden of proof on a
taxpayer to demonstrate a tax deficiency assessment was incorrect did not violate
due process).
Plaintiff’s substantive due process claim also fails. First, even if the
Ordinance could fairly be described as retroactive, evaluating occupancy by
reference to a date prior to the Ordinance was a rational method of preventing hotel
owners from manipulating the determination. See Gadda v. State Bar of Cal., 511
F.3d 933, 938 (9th Cir. 2007) (“Retrospective economic legislation need only
survive rational basis review in order to pass constitutional muster.”). Second,
Plaintiff fails to explain how violations of California law—namely, the Ellis Act
and the requirement of a reasonable amortization period—could constitute federal
due process violations. And, even if they could, the Ordinance need only have a
3
rational basis to survive a substantive due process challenge because only
economic interests, as opposed to a fundamental right, are at stake. See Kim v.
United States, 121 F.3d 1269, 1273 (9th Cir. 1997). The Ordinance was certainly
rational in that it attempted to preserve low-income housing in Los Angeles by
limiting residential-hotel owners’ ability to convert their properties to other uses.
Plaintiff’s vagueness challenge to the Ordinance’s use of the term “primary
residence” fails because persons of common intelligence do not have to guess at
the meaning of “primary residence.” See Tucson Woman’s Clinic v. Eden, 379
F.3d 531, 554 (9th Cir. 2004); United States v. Shetler, 665 F.3d 1150, 1164-65
(9th Cir. 2011).2
Finally, Plaintiff is mistaken that the district court did not rule on his takings
claim. The district court resolved the takings claim when it rejected Plaintiff’s
argument that he was entitled to compensation for the changed use of his hotel.3
AFFIRMED.
2
Plaintiff waived any additional vagueness arguments in the opening brief by
failing to raise them below. See In re Mortg. Elec. Registration Sys., Inc., 754 F.3d
772, 780 (9th Cir. 2014) (“Generally, arguments not raised in the district court will
not be considered for the first time on appeal.”).
3
To the extent Plaintiff understands himself to be making additional arguments on
appeal, such arguments were insufficiently explained to be preserved. See
Maldonado, 556 F.3d at 1048 n.4.
4