Richards v. Department of Building Inspection of The City and County of San…

Background

Dennis Richards, Rachel Swann, and Six Dogs LLC sued the City and County of San Francisco, the San Francisco Department of Building Inspection, and Department employees Edward Sweeney and Mauricio Hernandez. The complaint alleged that the defendants retaliated against Richards’s speech as a member of the San Francisco Planning Commission, where he criticized what he perceived as corruption and favoritism at the Department of Building Inspection.

The complaint alleged that the Department inspected and issued violation notices concerning property owned by Six Dogs LLC, revoked nine permits for that property, and allegedly made statements that harmed interest in the property. The plaintiffs also alleged that an inspector from the San Francisco Fire Department entered property where Swann lived after falsely telling a tenant that Swann had authorized the entry. The complaint asserted claims under the First and Fourteenth Amendments, a trespass claim under California law, a claim under the Fourth and Fourteenth Amendments, and a claim for intentional infliction of emotional distress.

Six Dogs and its engineer separately appealed the permit revocations to the San Francisco Board of Appeals. On May 22, 2020, the Board granted the appeals and overturned the revocation requests, on the condition that the permit holder cancel the permits within 30 days under the parties’ agreement.

Motion to dismiss and request to pause the case

The defendants moved under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim, and asked the court to stay, or temporarily pause, the case under the Younger abstention doctrine. They argued that the federal case should wait until the administrative proceedings concerning the permit revocations were fully completed.

The court denied the request for a stay. It reasoned that the administrative proceedings were no longer ongoing when the federal case was filed or, at the latest, by the time of the court’s ruling. The Board of Appeals had issued final decisions, the period for seeking rehearing had passed, the 30-day compliance period had expired, and the defendants’ counsel agreed at the hearing that the proceedings had concluded. The plaintiffs could therefore proceed with their federal claims, which the defendants did not challenge on any other ground.

Trespass claim

The court denied the motion to dismiss Swann’s trespass claim against the City. Under California law, trespass generally involves an unauthorized entry onto another person’s land; physical damage is not required. The defendants relied on California statutes providing immunity for certain injuries caused by misrepresentations by public entities or employees.

The court concluded that those immunity statutes did not apply to Swann’s claim. Although the alleged entry involved a misrepresentation, the trespass claim concerned an alleged unauthorized entry and at least partly implicated Swann’s noncommercial interest in the privacy and dignity associated with her property. The court also noted that Swann asserted the claim only against the City, not against the employee who allegedly made the misrepresentation, so the employee-immunity exception for fraud did not resolve the claim against the City.

Intentional-infliction-of-emotional-distress claim

The court granted the motion to dismiss the intentional-infliction-of-emotional-distress claim and dismissed that claim with leave to amend by July 24, 2020. The court considered the allegations under the standard applicable to a Rule 12(b)(6) motion, accepting factual allegations as true for purposes of the motion without deciding disputed facts.

The court rejected the defendants’ argument that discretionary-act immunity barred the claim at the pleading stage because the complaint described operational conduct rather than basic policy decisions. The court also concluded that immunity for instituting or prosecuting judicial or administrative proceedings did not apply because the plaintiffs had not alleged the lack of probable cause needed for a malicious-prosecution theory, and the alleged conduct was not otherwise shown to fall within that immunity.

The court did conclude that California permit-related immunity applied to at least some allegations concerning the revocation of Six Dogs’s permits. The complaint did not allege that Sweeney, Hernandez, or another relevant actor lacked authority to revoke the permits, and the statute made the officials’ subjective motivation irrelevant if they had that authority. After setting aside the permit revocations, the remaining allegations—including violation notices, statements about violations, the alleged deceptive entry, and a fire-code notice—did not, taken together, allege conduct extreme enough to support intentional infliction of emotional distress.

Disposition

The court granted the motion to dismiss the intentional-infliction-of-emotional-distress claim, dismissed that claim with leave to amend, and permitted an amended complaint by July 24, 2020. The motion was otherwise denied. Judge Joseph C. Spero did not decide the ultimate truth of the plaintiffs’ allegations or the ultimate merits of the claims that remained.