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 plaintiffs alleged that the defendants retaliated against them, including by revoking permits for renovations at property owned by Six Dogs, because Richards had criticized perceived corruption and enforcement practices at the Department of Building Inspection while serving on the San Francisco Planning Commission.

The defendants moved for summary judgment, which asks whether the evidence requires judgment before trial, and moved to exclude the opinions of the plaintiffs’ damages expert, David Parry. The court considered the evidence in the light most favorable to the plaintiffs for purposes of summary judgment and emphasized that it was not resolving disputed facts.

The record included conflicting accounts of a September 30, 2019 meeting at which the permits were revoked. The defendants said the revocation was based on the project engineer’s alleged unwillingness to cooperate in correcting violations. The engineer and another witness disputed that account and said the officials would not let the engineer explain the violations. There was also evidence that permit revocation was an unusual and extreme enforcement measure and that the violations might ordinarily have been corrected through a revision permit.

Summary-judgment analysis

The plaintiffs’ remaining federal claim arose under 42 U.S.C. § 1983, a statute allowing claims against government officials who violate federal rights, and alleged retaliation for speech protected by the First Amendment. The court explained that the plaintiffs had to show protected speech, an adverse action that could discourage an ordinary person from continuing to speak, and a substantial causal connection between the speech and the action.

The defendants argued that the permit violations supplied sufficient cause for the revocations and therefore defeated the retaliation claim. Applying the parties’ agreed framework from Nieves v. Bartlett, the court held that the evidence could support an inference that officials typically did not revoke permits in similar circumstances, even if they had legal grounds to act. The court also concluded that a jury could find the stated reason for the revocations—alleged noncooperation—was false.

The court found evidence from which a jury could infer that Sweeney participated in the decision. Hernandez testified that he recommended revocation and that Sweeney approved it; other evidence also linked Sweeney to the decision. The court declined to apply the “sham affidavit” rule to exclude the engineer’s declaration because the failure to mention Sweeney’s alleged comments earlier was not a clear and unambiguous contradiction.

The court also found circumstantial evidence that Sweeney and Hernandez may have known about Richards’s criticism and may have acted because of it. The evidence included their positions at the Department of Building Inspection, their contacts with people connected to Richards’s critics, inconsistencies in testimony about the complaint and permit-revocation meeting, and the engineer’s account of Sweeney’s alleged retaliatory comments. The court held that a reasonable jury could infer retaliation, although it recognized that the evidence was incomplete and contradictory.

The defendants also asserted qualified immunity, which can protect government officials from damages when their conduct did not violate a clearly established right. The court rejected that defense at summary judgment, holding that the general rule barring government retaliation for protected speech was clearly established and that the defendants had not identified a reason why a reasonable official would believe the alleged conduct was lawful under the circumstances described by the plaintiffs’ evidence.

The court granted summary judgment on Swann’s Fourth and Fourteenth Amendment claims because the plaintiffs did not pursue them and the record did not show that Sweeney or Hernandez played a role in the conduct underlying those claims. It also granted summary judgment to the extent the First Amendment claim was based on retaliatory conduct separate from the permit revocations and related conduct, including alleged conduct involving Swann’s office and a fire inspector’s entry into a building. The court concluded that the plaintiffs had not submitted evidence supporting an inference of retaliation for that separate conduct.

The court declined to exercise supplemental jurisdiction—the federal court’s authority to hear a related state-law claim—over Swann’s trespass claim because it was not meaningfully related to the surviving federal claim. The court dismissed that claim without prejudice to Swann pursuing it in a court with authority to hear it. The order also noted that the plaintiffs’ intentional-infliction-of-emotional-distress claim had previously been dismissed with leave to amend and was not pursued, but that earlier ruling was not the principal disposition of the motions decided here.

Expert testimony

Parry, a real estate broker, offered opinions about the likely sale value of the Six Dogs property, whether the units would have sold in fall 2019 absent the permit revocations, the effect of taking the property off the market, rental value, and damages. The defendants argued that Parry lacked appraisal qualifications and that his methods and comparisons were unreliable.

The court held that Rule 702 of the Federal Rules of Evidence permits expert testimony when a witness’s specialized knowledge will help the jury, the testimony rests on sufficient facts or data, reliable methods, and reliable application of those methods. The court concluded that Parry’s experience and market research were sufficient to allow his opinions about likely sale value and the decision to remove the property from the market. Concerns about the properties and neighborhoods used for comparison, differences in size and ownership, and the amount of information Parry reviewed went to the weight of his testimony rather than whether it could be admitted.

The court granted the motion to exclude as to Parry’s opinions about the customary way of closing out existing permits because he had not shown experience supporting those opinions. It also granted the motion as to his estimates of potential rental income because he provided no basis for them. The court denied the motion as to his remaining opinions.

Disposition

Judge Joseph C. Spero denied the defendants’ motion for summary judgment as to the First Amendment retaliation claim based on the permit revocations and related conduct. He granted summary judgment as to Swann’s Fourth and Fourteenth Amendment claims and as to separate retaliation theories lacking supporting evidence. He dismissed Swann’s trespass claim without prejudice after declining supplemental jurisdiction. He granted in part and denied in part the motion to exclude expert testimony.