Tobias Partners, L.p. v. City of Los Angeles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOBIAS PARTNERS, L.P.,
Plaintiff-Appellant,
v.
CITY OF LOS ANGELES, et al.
Defendant-Appellees.
No. 16-56174
D.C. No.
2:14-cv-09176-GW-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted December 4, 2017
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,** District
Judge.
Tobias Partners (Tobias), a limited liability company, appeals from the
district court’s summary judgment in its 42 U.S.C. § 1983 action alleging due
process violations and a wrongful taking arising from the City of Los Angeles’s
FILED
FEB 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.

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(the City) application of its Rent Escrow Account Program (REAP). Tobias
brought this action for damages allegedly sustained as the result of the Los Angeles
Housing Department’s (LAHD’s)1 failure to provide an impartial hearing officer in
the administrative appeal that challenged the City’s placement of one of Tobias’s
properties in REAP and the corresponding rent reduction imposed on the rental
units on that property. For the reasons set forth herein, we affirm the district
court’s summary judgment order in favor of the City.
Tobias argues that the City is liable under § 1983 because a city
policymaker, the Rent Adjustment Commission (RAC) Appeals Board, ratified the
unconstitutional hearing. The district court did not answer the question of who the
final policymaker is under the Los Angeles Municipal Code (LAMC). However,
the result would be the same no matter whether RAC or the RAC Appeals Board
had final policymaking authority.
Even examining the facts in the light most favorable to Tobias, it has, at
most, provided evidence that the RAC Appeals Board did not overrule a decision
by the hearing officer to put the property in REAP. Although Tobias has offered
evidence that the RAC Appeals Board knew of Tobias’s objections to the hearing
1 The LAHD has since been renamed the Housing and Community
Investment Department.
2

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officer, Tobias fails to offer evidence that the RAC Appeals Board did not consider
all of the facts and circumstances of the hearing, as well as the state of the
property, or that the Board clearly erred in concluding that the hearing officer’s
decision should be upheld. The district court did not err in finding insufficient
evidence for a reasonable jury to find that the City’s policymaking body made a
deliberate choice to approve the assignment of a biased administrative appeal
hearing officer such that the City may be held liable under 42 U.S.C. § 1983.
Tobias separately argues that the City is liable because it acted with
deliberate indifference by not adopting a policy to remove biased hearing officers.
“To impose liability against a municipality for its failure to act, a plaintiff must
show: (1) that a [municipal] employee violated the plaintiff’s constitutional rights;
(2) that the [municipality] has customs or policies that amount to deliberate
indifference; and (3) that these customs or policies were the moving force behind
the employee’s violation of constitutional rights.” Long v. Cty. of L.A., 442 F.3d
1178, 1186 (9th Cir. 2006). A “lack of affirmative policies or procedures to guide
employees can amount to deliberate indifference, even when the [municipality] has
other general policies in place.” Id. at 1189. However, Tobias’s only evidence of
deliberate indifference is Tobias’s objection to the hearing on due process grounds
both before it took place and before the RAC appeal. That, without more, does not
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establish a pattern of violations which might put the City on notice of an
inadequate policy that was substantially certain to result in deprivations of
constitutional rights. See Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per
curium); Oviatt v. Pearce, 954 F.2d 1470, 1477–78 (9th Cir. 1992).
Accordingly, the district court did not err in finding insufficient evidence of
deliberate indifference and granting summary judgment in favor of the City.
AFFIRMED.
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