Emberton v. San Francisco City Government

Background

Emberton alleged that San Francisco departments improperly required permits, variances, and enforcement proceedings concerning a four-foot fence, an arbor, a gas fire table, and related property issues. The opinion states that she purchased her San Francisco residence in 2012, installed the arbor and gas fire table in 2015, repaired or replaced the fence in 2017, and became involved in permitting and code-enforcement proceedings afterward.

The Department of Building Inspection issued a notice of violation concerning the fence. The Planning Department later issued a notice of enforcement concerning the arbor, and the Department of Public Works became involved with a minor sidewalk-encroachment permit. In 2023, the Department of Building Inspection held a director’s hearing and issued an order requiring abatement related to the fence. The opinion states that Emberton indicated she appealed that decision and that the violation and enforcement cases remained open.

Claims and Motions

Emberton originally asserted numerous claims in state court. After amendments, the court treated her April 11, 2023 filing as a Second Amended Complaint. The court understood that complaint to assert: (1) Fourth and Fourteenth Amendment claims under 42 U.S.C. § 1983; (2) an Equal Protection Clause claim under § 1983; and (3) a civil claim under the Racketeer Influenced and Corrupt Organizations Act, or RICO.

The City moved to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legally sufficient claim. Emberton also moved to disqualify the City Attorney’s Office from representing the City, arguing that the office had a conflict of interest because of its relationship to the code-enforcement program and her prior claims against the City.

Judicial Notice

The court granted the City’s requests for judicial notice. For the motion to disqualify, it took notice that Emberton had filed complaints against the City and of allegations contained in those complaints, but not of the truth of those allegations. It also took notice of portions of the San Francisco Charter.

For the motion to dismiss, the court considered five City documents under the incorporation-by-reference doctrine because Emberton referred to them in, or relied on them as a basis for, her complaint. The documents included notices of violation and enforcement, a minor sidewalk-encroachment permit application, a notice of a director’s hearing, and an order of abatement.

Motion to Disqualify the City Attorney’s Office

The court denied Emberton’s motion to disqualify counsel. It explained that a party seeking disqualification generally must show an attorney-client relationship or another confidential or fiduciary relationship with the targeted attorney. Emberton did not provide evidence that she had such a relationship with the City Attorney’s Office, either through her prior complaints or through her status as a San Francisco citizen.

The court also concluded that Emberton had not shown a sufficient conflict of interest or ethical violation even under a minority approach that can allow a nonclient to seek disqualification when the alleged ethical breach directly affects the litigation. The court reasoned that the City Attorney’s Office was acting in its official role as the City’s advocate, not as a judicial decision-maker. It further considered the City’s stated prejudice from having to hire outside counsel and concluded that Emberton had not met her heavy burden.

Constitutional Claims and Younger Abstention

The court revisited its earlier refusal to dismiss Emberton’s federal claims under the Younger abstention doctrine. That doctrine generally requires a federal court to refrain from interfering with certain ongoing state or local proceedings when those proceedings are quasi-criminal enforcement actions, involve important government interests, and provide an opportunity to raise federal challenges.

The court found that the circumstances had changed since its earlier order. The City had held a director’s hearing and issued an abatement order concerning the fence. The court determined that the code-enforcement matter was a sufficiently formal, ongoing quasi-criminal enforcement proceeding. It also found that the proceeding involved important interests in enforcing land-use rules and allowed Emberton to raise federal issues through available review procedures.

The court further concluded that Emberton’s requested injunctive and declaratory relief would effectively interfere with the ongoing enforcement matter. Her complaint sought to declare the City’s investigation and enforcement actions unlawful and to prevent further enforcement. The court found no applicable exception based on bad faith, harassment, or a flagrant constitutional violation.

Accordingly, the court granted dismissal of Emberton’s constitutional claims without prejudice based on Younger abstention. The opinion states that those claims could be refiled after the code-enforcement proceedings concluded.

RICO Claim

The court separately granted the City’s motion to dismiss Emberton’s RICO claim. It understood the claim to be based on an alleged pattern of unconstitutional conduct by the City. The court held that RICO does not provide a cause of action based on constitutional violations and that civil-rights violations are not among the statutory acts that can serve as RICO predicate acts.

The court denied Emberton leave to amend the RICO claim. It cited her third pleading attempt and found amendment futile, relying on Ninth Circuit authority stating that government entities cannot form the malicious intent required to support a RICO action.

Other Claims and Final Disposition

The court did not address Emberton’s references to additional federal claims under Title II of the Civil Rights Act and 31 U.S.C. § 6711(a), because those claims were not included in the Second Amended Complaint and Emberton had not identified a basis for renewed claims. The court also determined that her state-law claims were not presently before it because she had not included them in the Second Amended Complaint.

The court declined to exercise supplemental jurisdiction over the state-law claims. It granted Emberton leave to amend solely to assert those claims. The order states that, if she amended, the Third Amended Complaint was due within 30 days and the court would remand the action for further proceedings on the state claims.

The final rulings were: the motion to disqualify counsel was denied; dismissal of the § 1983 constitutional claims was granted without prejudice based on Younger abstention; dismissal of the RICO claim was granted under Rule 12(b)(6), with leave to amend denied; and leave to amend solely regarding state-law claims was granted.