Golden Gate Hotel Ass'n v. City and County of San Francisco

• Decision Date: 18 March 1994
• Docket Number: Nos. 93-16713,93-16714,93-16784,s. 93-16713
• Parties: GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants-Appellants. GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants, and Tenderloin Housing Clinic, Inc., Defendant-Appellant. GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants, and North of Market Planning Coalition, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1482

18 F.3d 1482

GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul,

Defendants-Appellants.

GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants, and Tenderloin Housing Clinic, Inc., Defendant-Appellant.

GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants, and North of Market Planning Coalition, Defendant-Appellant.

Nos. 93-16713, 93-16714, 93-16784.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 10, 1994.

Decided March 18, 1994.

Andrew W. Schwartz and George K.H. Schell, Deputy City Attys., San Francisco, CA, for defendant-appellant.

Timothy J. Lee, Tenderloin Housing Clinic, San Francisco, CA, for defendant-appellant.

Douglas R. Young, Tamar Pachter, Farella, Braun & Martel, San Francisco, CA, for defendant-appellant.

Violet Elizabeth Grayson, Grayson & Topsfield, San Francisco, CA, for plaintiff-appellee.

John Blankenship, Montgomery, Purdue Blankenship & Austin, Seattle, WA; Paul D. Kamernar, Washington Legal Foundation, Washington, DC, for amicus.

R.S. Radford, Pacific Legal Foundation, Sacramento, CA, for amicus.

Andrew M. Zacks, San Francisco, CA, for amicus.

Paul F. Utrecht, Oakland, CA, for amicus.

Appeal from the United States District Court for the Northern District of California.

Before: ALDISERT ^*, WIGGINS, and BRUNETTI, Circuit Judges.

ALDISERT, Senior Circuit Judge:

The City and County of San Francisco, the Tenderloin Housing Clinic, Inc. and the North of Market Planning Coalition (collectively "Appellants") appeal the district court's declaration that the City's residential hotel conversion ordinance violates the Fifth Amendment's proscription against taking private property without just compensation. After granting partial summary judgment in favor of the Golden Gate Hotel Association, an organization of residential hotel owners and operators, the court permanently enjoined the City from enforcing the regulation.

Before we may meet the merits of the constitutional law issues, we must decide whether the court abused its discretion in refusing to consider the statute of limitations issue presented to it by Appellants in the summary judgment proceedings.

The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1334. The action became appealable on September 9, 1993, when the district court granted partial judgment in favor of Golden Gate and ordered a permanent injunction against Appellants, effectuating a previous order entered June 21, 1993, 836 F.Supp. 707. An order granting a permanent injunction is a final order. See Mayor & Aldermen of Vicksburg v. Henson, 231 U.S. 259, 267, 34 S.Ct. 95, 98, 58 L.Ed. 209 (1913). Accordingly, we have jurisdiction under 28 U.S.C. Sec. 1291. The appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

I.

In 1979, the City and County of San Francisco enacted ordinances designed to combat the growing shortage of affordable residential housing. One such ordinance was the Residential Hotel Unit Conversion and Demolition Ordinance. San Francisco Admin. Code Secs. 41.1-41.22. By its terms, owners of so-called residential hotels, hotels with guests who regularly stay in excess of 30 days, may discontinue long-term rentals and convert to "tourist hotels" only by providing relocation assistance to its residents and by replacing the residential hotel units being converted. Hotel owners may accomplish this by (1) constructing replacement units, (2) rehabilitating other residential hotel units, (3) constructing or rehabilitating transitional emergency housing or (4) contributing an "in lieu" fee to the City's preservation fund or a nonprofit housing group in the amount of 80 percent of the construction cost of the number of units converted, plus site acquisition costs. E.R., ex. 64, at 12; San Francisco Admin. Code Sec. 41.13. The Ordinance was reenacted in substantially the same form in January 1981 and again, in a slightly modified form, in May 1990.

Since the Ordinance was first enacted in 1979, local residential hotel owners have raised at least two Fifth Amendment challenges in California state courts. In both instances, the California Court of Appeal held that the Ordinance did not effect a taking of property without just compensation in violation of the Fifth Amendment. See Terminal Plaza Corp. v. City & County of San Francisco, 177 Cal.App.3d 892, 223 Cal.Rptr. 379 (1986); Bullock v. City & County of San Francisco, 221 Cal.App.3d 1072, 271 Cal.Rptr. 44 (1990).

In June 1991, local residential hotel owner Adam Sparks, who had been enjoined in state court from violating the Ordinance, filed a petition for writ of habeas corpus in the Northern District of California, seeking relief from the injunction and contempt citations previously issued against him. Brief for Appellants at 5-6. Although it denied the petition, the district court voiced its firm conviction that the Ordinance was unconstitutional and its hope that the Ordinance soon would be invalidated. Id. Shortly thereafter, Sparks' attorney filed the instant lawsuit on behalf of Golden Gate to declare the Ordinance unconstitutional. Id. Appellants timely filed separate answers, each of which raised the statute of limitations as an affirmative defense.

On November 20, 1991 Golden Gate filed a motion for summary judgment asking the court to declare the Ordinance unconstitutional on its face. The court set the motion hearing for April 23, 1992. On March 24, Appellants filed a cross-motion for summary judgment asserting that Golden Gate's claims were not ripe for federal review because it did not first seek relief in state court. The district court heard oral argument on both motions on April 23, 1992 and took them under submission.

On September 16, 1992, Appellants jointly filed a second motion for summary judgment, claiming that the applicable statute of limitations barred Golden Gate's claims. They had not asserted this defense in their first motion and contend that they raised the issue in the subsequent summary judgment motion because the law in this judicial circuit had recently changed. Appellants state in their brief that they brought to the court's attention the vacating of our decision in Azul Pacifico, Inc. v. City of Los Angeles, 948 F.2d 575 (9th Cir.1991) (Azul I ) and its replacement by Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993) (Azul II ). On October 29, 1992, the district court took Appellants' second motion under submission without oral argument.

On June 21, 1993, eight months after taking the second motion under submission, the court declared the case ripe for adjudication and granted Golden Gate's motion to strike Appellants' second motion for summary judgment on the ground that to entertain the statute of limitations defense would not be "fair" because Golden Gate had submitted its motion on the merits on April 23, 1992. E.R., Ex. 64, at 8. The court then granted Golden Gate's motion for summary judgment and denied Appellants' cross-motion.

The court held that the Ordinance was unconstitutional on its face both as a physical occupation and as a regulatory taking. In the words of the district court, the Ordinance "illogically place[d] the blame for the social ill of homelessness on the shoulders of residential hotel owners; it singles out a few to bear the costs which should be borne by the many--a constitutionally impermissible governmental act." Id. at 23.

A recapitulation of the summary judgment timetable is important when considering the Appellants' timeliness in presenting the limitations issue:

November 20, 1991 Golden Gate moves for summary judgment. Court sets motion hearing for April 23, 1992.

March 14, 1992 Appellants file cross-motion for summary judgment.

April 23, 1992 Court hears oral argument on both motions and takes them under submission.

July 23, 1992 This court decides Azul II, holding that for causes of action brought directly under the Takings Clause, the limitations period for Section 1983 actions applies.

September 16, 1992 Appellants file a second pretrial motion for summary judgment, raising the limitations issue addressed in Azul II.

October 29, 1992 Court takes Appellants' second motion under submission without oral argument.

June 21, 1993 Court decides summary judgment motions and grants Golden Gate's motion to strike Appellants' statute of limitations defense which had been presented eight months before it ruled on the motions.

We review a district court's decision to grant a motion to strike unscheduled supplementary material for abuse of discretion. Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1314 (9th Cir.1982); see also Carpenter v. Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 413, 121 L.Ed.2d 337 (1992) (court's refusal to entertain untimely material in support of a motion for summary judgment reviewed for abuse of discretion). Discretion is abused when the judicial action is "arbitrary, fanciful or unreasonable" or "where no reasonable man [or woman] would take the view adopted by the trial court." Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942).

In granting Golden Gate's motion to strike, the district court stated:

It would be inappropriate for the court to consider further, unrequested briefing on a motion already briefed, argued, and submitted. In the same vein, then, it would be improper for the court, having taken one motion under submission, to consider a new motion that went to the merits of the submitted motion. At bottom here is a sense of fairness; a party should not be given a chance to rebrief one motion by filing a second motion. Defendants' second motion for summary judgment is nakedly an...