NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILLIP KILLGORE, DBA Lavender No. 20-55666
Massage,
D.C. No.
Plaintiff-Appellant, 2:19-cv-00442-SVW-JEM
v.
MEMORANDUM*
CITY OF SOUTH EL MONTE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 11, 2021
Pasadena, California
Before: OWENS, R. NELSON, and BADE, Circuit Judges.
Phillip Killgore appeals from the district court’s dismissal for failure to state
a 42 U.S.C. § 1983 claim arising from the City of South El Monte’s revocation of
Killgore’s conditional use permit (“CUP”) to operate a massage center known as
Lavender Massage. Killgore alleges that the City and several individual
defendants violated his First, Fourth, Fifth, and Fourteenth Amendment rights. As
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the parties are familiar with the facts, we do not recount them here. We affirm.1
1. This court has jurisdiction over both the December 19, 2019 and the April
24, 2020 dismissal orders. Although Killgore did not mention the December 19,
2019 order in his notice of appeal, see Fed. R. App. P. 3(c)(1)(B), we “construe
Rule 3 liberally when determining whether it has been complied with.” West v.
United States, 853 F.3d 520, 523 (9th Cir. 2017) (citation omitted). And we have
“considered appeals from orders that weren’t named in the [notice of appeal] and
were discussed only in appellate briefs.” Id. at 524. Killgore’s opening brief
clearly communicated his intent to appeal both orders dismissing his claims, and
the City suffered no prejudice because it had an opportunity to respond in its
answering brief. See id.; Disabled Rts. Action Comm. v. Las Vegas Events, Inc.,
375 F.3d 861, 872 n.7 (9th Cir. 2004).
2. The district court properly dismissed Killgore’s First Amendment
retaliation claim.2
To establish a First Amendment retaliation claim . . . , a plaintiff must
show that (1) he was engaged in a constitutionally protected activity,
(2) the defendant’s actions would chill a person of ordinary firmness
from continuing to engage in the protected activity and (3) the
protected activity was a substantial or motivating factor in the
defendant’s conduct.
1
We resolve the Fourth Amendment claim in a concurrently filed opinion.
2
Despite raising the argument below, Killgore does not contend on appeal that
Municipal Code § 5.22.150(1) violates the First Amendment as vague and
overbroad.
2
Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). Killgore
failed to sufficiently allege the last element, i.e., he failed to show that his lawsuit
was a “substantial or motivating factor” in the individual defendants’ threats to
enforce the local ordinance regulating massage therapy establishments by
inspecting and issuing administrative citations following the revocation of
Killgore’s CUP.
3. The district court properly dismissed Killgore’s Fourteenth Amendment
procedural due process claim. Killgore’s allegation that the City Council hearing
about revoking his CUP was biased based on a City councilmember’s remarks did
not sufficiently show actual bias or the appearance of bias. See Stivers v. Pierce,
71 F.3d 732, 741 (9th Cir. 1995). Not only were there substantial grounds to
revoke Killgore’s CUP, but a list of felony and misdemeanor convictions is often
required in an application for a massage establishment permit. See South El Monte
Mun. Code § 5.22.050(a)(6)(ix), (d)(2)-(3).
4. The district court properly dismissed Killgore’s Fourteenth Amendment
equal protection claim.
Where, as here, state action does not implicate a fundamental right or
a suspect classification, the plaintiff can establish a “class of one”
equal protection claim by demonstrating that [he] “has been
intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.”
Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (citation
3
omitted), overruled on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S.
528 (2005); see also N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th
Cir. 2008). Killgore did not allege any intentional discriminatory intent or
impermissible motive against him. The City granted Killgore the CUP in
compliance with state and local laws, and Killgore failed to allege any facts to
rebut a presumption that the City had a rational and legitimate basis to issue and
subsequently revoke his CUP for multiple violations.
5. The district court properly dismissed Killgore’s Fifth Amendment takings
clause claim. When evaluating a regulatory takings claim, we review several
factors, including: (1) “[t]he economic impact of the regulation on the claimant”;
(2) “the extent to which the regulation has interfered with distinct investment-
backed expectations”; and (3) “the character of the governmental action.” Penn
Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The first and
third factors defeat Killgore’s regulatory takings claim. He failed to allege that the
City’s revocation of his CUP prevented any other economically viable use of his
property, see Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th
Cir. 2018), and the City had a strong interest in regulating the massage industry
and revoking Killgore’s CUP after multiple violations.
On appeal, Killgore argues his Fifth Amendment takings claim involves
factual issues that cannot be resolved on a motion to dismiss. But “[r]egulatory
4
takings claims . . . do not easily fit into a pre-ordained construct or little box;
individualized scrutiny of such claims does not foreclose resolution on a motion to
dismiss or a motion for summary judgment.” Hotel & Motel Ass’n of Oakland v.
City of Oakland, 344 F.3d 959, 966 (9th Cir. 2003).
6. Killgore’s mandamus claim under California Code of Civil Procedure
section 1094.5 is barred by the statute of limitations because he did not serve the
City in time. California Government Code section 65009 applies to conditional
use permits and requires filing and serving the petition within 90 days. Cal. Gov’t
Code § 65009(c)(1)(E) (2014); Weiss v. City of Del Mar, 252 Cal. Rptr. 3d 424,
434 (Ct. App. 2019). The district court thus properly held Killgore’s mandamus
claim was time-barred, that notice to Killgore of the revocation was not defective,
and that the statute of limitations was not tolled. See Cal. Gov’t Code § 65009
(containing no requirement that the City provide notice of the limitations period or
a specific form for such notice).
Killgore argues that this issue is governed by Federal Rule of Civil
Procedure 4(m) which allows a district court to extend the time for service for
“good cause.” Fed. R. Civ. P. 4(m). But because state substantive law controls,
Mason & Dixon Intermodal, Inc. v. Lapmaster Int’l LLC, 632 F.3d 1056, 1060 (9th
Cir. 2011), and because state substantive law “includ[es] the state’s statute of
limitations,” Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011),
5
Rule 4(m) is inapplicable.
Finally, Killgore argues that a motion for any alleged insufficiency of
process must be made under Federal Rule of Civil Procedure 12(b)(5), not Rule
12(b)(6), and thus, the City waived this argument. But the issue is not
insufficiency of process. Rather, it is whether the statute of limitations has passed,
and that is properly addressed through a Rule 12(b)(6) motion. See Von Saher v.
Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).3
AFFIRMED.
3
We do not reach Killgore’s argument that the individual defendants are not
entitled to qualified immunity or the City’s argument that Killgore failed to
exhaust his state remedies before bringing this suit thus barring his First, Fourth,
and Fourteenth Amendment claims. Neither issue was addressed in the first
instance by the district court. See Friedman v. AARP, Inc., 855 F.3d 1047, 1057
(9th Cir. 2017).
6