FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIET ERICKSON, an individual; No. 13-15624
PETER LOCKYER, an individual,
D.C. No. 2:12-cv-02880-JAM-
Plaintiffs - Appellants, CKD
v.
MEMORANDUM*
COUNTY OF NEVADA, by and through
its Board of Supervisors,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted May 13, 2015**
San Francisco, California
Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.
Juliet Erickson and Peter Lockyer appeal from the district court’s grant of
the County of Nevada’s motion to dismiss. Erickson and Lockyer claim that the
*
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).
County of Nevada violated their rights under the Equal Protection Clause by
failing to apply the County’s “Visually Important Ridgelines and Viewsheds”
(“VIR”) land use code to both their project and a cell tower project proposed by
Complete Wireless Consulting, Inc. (“CWC”) on adjacent property.
Assuming without deciding that the County should have applied the VIR
code to CWC’s cell tower project, the homeowners have nevertheless failed to
raise a valid equal protection claim. Parties allegedly treated differently in
violation of the Equal Protection Clause are similarly situated only when they are
“arguably indistinguishable.” See Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
601 (2008) (quotation marks and citation omitted); see also Squaw Valley Dev. Co.
v. Goldberg, 375 F.3d 936, 942, 945 (9th Cir. 2004) (holding that stream polluters
were not similarly situated despite at least one shared characteristic), overruled on
other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). Here,
Erickson and Lockyer are not arguably indistinguishable from CWC for many
reasons: one is a private homeowner, the other a commercial business; one would
build for private use, the other would provide a service for public use; one seeks to
build a large, solid garage and office structure, the other seeks to build a
communications tower.
2
We may affirm the district court on any basis supported by the record. See
Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). Because the plaintiffs and
CWC are not “arguably indistinguishable,” see Enquist, 553 U.S. at 601 (quotation
marks and citation omitted), the district court was correct in concluding that the
parties were not similarly situated for purposes of the Equal Protection Clause.
Nor did the district court err in denying Erickson and Lockyer the
opportunity to amend their complaint. In light of our conclusion that the parties
are not similarly situated, amendment would have been futile. See Saul v. United
States, 928 F.2d 829, 843 (9th Cir. 1991).
AFFIRMED.1
1
Appellants’ request for judicial notice, filed with this court on February 14,
2014, is GRANTED.
Appellee’s requests for judicial notice, filed with this court on August 29,
2013 and October 1, 2014, are GRANTED.
In light of the California Court of Appeal’s decision in Lockyer v. County of
Nevada, No. CO75249, 2014 WL 4805118 (Cal. Ct. App. Sept. 29, 2014),
Appellants’ Motion to Apply Collateral Estoppel Against Respondent, filed with
this court on February 14, 2014, is DENIED as moot.
3