Richards v. Dep't of Bldg. Inspection of S.F.
| Decision Date | 10 July 2020 |
| Docket Number | Case No. 20-cv-01242-JCS |
| Parties | DENNIS RICHARDS, et al., Plaintiffs, v. DEPARTMENT OF BUILDING INSPECTION OF THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs Dennis Richards, Rachel Swann, and Six Dogs LLC assert that Defendants the City and County of San Francisco ("San Francisco" or the "City"), the San Francisco Department of Building Inspection ("DBI"), and DBI employees Edward Sweeney and Mauricio Hernandez retaliated against Plaintiffs based on Richards's protected speech as a member of the San Francisco Planning Commission criticizing perceived corruption at DBI. Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or to stay the case pending resolution of administrative appeals challenging DBI's revocation of certain permits issued to Six Dogs. The Court held a hearing by public videoconference on July 10, 2020. For the reasons discussed below, Defendants' motion is GRANTED as to Plaintiffs' claim for intentional infliction of emotional distress, which is DISMISSED with leave to amend. If Plaintiffs wish to pursue that claim, they may file a second amended complaint no later than July 24, 2020. The motion is otherwise DENIED.1
Because a plaintiff's allegations are generally taken as true in resolving a motion to dismiss under Rule 12(b)(6), this section summarizes the allegations of Plaintiffs' complaint as if true. Nothing in this order should be construed as resolving any issue of fact that might be disputed at a later stage of the case.
Plaintiff Richards was at relevant times a member of the San Francisco Planning Commission. 1st Am. Compl. ("FAC," dkt. 9) ¶ 4. On May 9, 2019, the Planning Commission held a hearing regarding an addition being built on a property located on 18th Street in San Francisco (the "18th Street Project"). Id. ¶ 15. The Planning Commission determined that DBI had failed to stop unpermitted work on the project, despite frequent DBI inspections. Id. ¶¶ 15, 17. Two individuals associated with the 18th Street Project had criminal histories and close relationships with DBI employees. Id. ¶ 16. At a July 18, 2019 meeting of the Planning Commission, Richards spoke out against DBI's failure to identify issues with the 18th Street Project, and more generally condemned what he saw as a "pay-to-play" problem in San Francisco. Id. ¶¶ 18-19. At an August 29, 2019 meeting, Richards "raised questions about DBI's testimony" and "stated that he had 'lost faith' in DBI." Id. ¶ 20. Several members of the Planning Commission called for an investigation by the City Attorney, and the matter was continued to a later hearing. Id.
On September 2, 2019, Plaintiff Six Dogs, which is a real estate development company owned by Plaintiffs Richards and Swann, listed a property that it owned on 22nd Street in San Francisco (the "Six Dogs Property") for sale. Id. ¶¶ 12-14. Six Dogs had obtained several permits since 2018 to remodel the building, and had largely completed work by the time the property was listed for sale. Id. ¶ 13.
On September 25, 2019, DBI purportedly received an anonymous complaint regarding the work that Six Dogs had performed on its property, even though the work had been completed and inspected months earlier. Id. ¶ 22. That complaint "followed the inspection of the Property's records by . . . the wife of a disgraced contractor currently being sued by the City for egregiousconduct relating building permits and who has close relationships with employees of DBI." Id. The next day, "[e]ven though there was no indication of public safety or other urgent issues," Defendant Hernandez, a Chief Building Inspector at DBI, conducted a site inspection at the Six Dogs Property and sent Six Dogs an inspection request letter. Id. ¶ 23. Hernandez and his supervisor Defendant Sweeney, a Deputy Director of DBI, told the engineer overseeing Six Dogs' work on the property "that they were going to find a way to come down hard on the Property." Id. ¶ 24.
The next day, Darryl Honda, a member of the Board of Appeals, told Richards that he had heard Richards "was in deep trouble with DBI" and should resolve the issue with DBI. Id. ¶¶ 25-26. Richards told Honda "that he would not give in to extortion," and "to tell Deputy Director Sweeney 'to go to hell.'" Id. ¶ 27.
The following business day, September 30, 2019, DBI issued a notice of violation for the Six Dogs Property. Id. ¶ 28. Although the notice included standard language allowing Six Dogs thirty days to correct the issue, Hernandez signed a letter the same day revoking nine permits for the Six Dogs Property, including permits for work that had already been completed and approved by DBI. Id. ¶¶ 28-29. According to Plaintiffs, such action is unprecedented, id. ¶ 30, and a typical response by DBI would have been to contact the property owner about potential violations discovered during an inspection and work with the owner to resolve any issues rather than revoking permits, id. ¶ 32. When Six Dogs told DBI that it intended to appeal the revocations to the San Francisco Board of Appeals, Hernandez said that DBI would not work with Six Dogs to resolve any issues unless Six Dogs agreed not to appeal. Id. ¶ 32. Six Dogs appealed to the Board of Appeals, and at a hearing in December of 2019, members of the Board of Appeals expressed surprise that DBI revoked permits based on the violations that it identified. Id. ¶¶ 33-34.
At some point during this process, DBI purportedly received a letter criticizing the decision to grant one of Six Dogs' permits. Id. ¶ 31. The letter included copies of portions of the plans for the project, which could have been accessed only by a small number of people at DBI, including Sweeney. Id. ¶ 31.
During two open houses for real estate brokers at the Six Dogs Property in December of2019, "DBI Inspector William Walsh arrived and loudly complained about violations on the Property," intentionally and effectively causing real estate brokers to lose interest in the property. Id. ¶ 36.
On December 18, 2019, DBI sent an inspector from the San Francisco Fire Department, non-party Bettrieta Kime, to a different property owned and inhabited by Swann in order to "find anything for which she could cite Ms. Swann." Id. ¶ 37. Kime falsely represented to a tenant that Swann had consented to her entering the property for a scheduled appointment, and the tenant let Kime into the property based on that representation. Id. ¶¶ 37, 66-71. Kime posted a notice of violation on that property. Id. ¶ 37.
In early March of 2020, someone broke into Swann's real estate office and ransacked her personal office there. Id. ¶ 38. According to Plaintiffs, the fact that many valuable items were left behind suggests that the incident was not "a common, random burglary," but Plaintiffs do not allege that Defendants caused the break-in. See id.
Plaintiffs assert the following claims: (1) a claim by all plaintiffs against Sweeney and Hernandez under 42 U.S.C. § 1983 for violation of the First and Fourteenth Amendments to the U.S. Constitution, on the basis that Defendants retaliated against Richards's protected speech by issuing notices of violation as to both the Six Dogs Property and the property where Swann lives, revoking permits, and denigrating the Six Dogs Property at open houses, id. ¶¶ 41-47; (2) a claim by Swann against the City for trespass, based on Kime's use of a false statement to gain entry to Swann's property, id. ¶¶ 48-60; (3) a claim by Swann against the Sweeney and Hernandez under § 1983 for violating her rights under the Fourth and Fourteenth Amendments based on Kime's trespass on her property, id. ¶¶ 61-76; and (4) a claim by all plaintiffs against all defendants for intentional infliction of emotional distress ("IIED"), id. ¶¶ 77-82.
Defendants request judicial notice of a number of documents related to Six Dogs' appeal of the revocation of its permits. Plaintiffs do not object to the Court taking notice of these documents. The Court takes judicial notice of the administrative appeal documents as matters of public record whose authenticity is not subject to dispute.
Six Dogs and its engineer Pat Buscovich each filed an appeal to the San Francisco Board of Appeals on October 15, 2019, asserting that DBI had no lawful basis for revoking any of the permits, that DBI had never revoked permits for similar minor alleged violations in the past, and that DBI revoked Six Dogs' permits in order to retaliate against Six Dogs' owners' speech regarding perceived corruption and favoritism at DBI. Request for Judicial Notice in Support of Mot. ("1st RJN," dkt. 14) Ex. A. Six Dogs asked the Board of Appeals to rescind the revocations and all stop work orders, reinstate the permits, and "rescind any penalties, reassessments or fines arising out of the revocation letter or associated Notices of Violations." Id.
At a meeting on December 4, 2019, the Board of Appeals voted to continue the matter to March 18, 2020 "so that the project sponsor can: (1) meet with the appropriate departments to resolve the issues that were identified at the hearing, and (2) provide a complete and full set of plans." Id. Ex. B. The hearing was further continued to May 6, 2020—after Defendants filed their motion in this case, but before Plaintiffs filed their opposition brief—based on the COVID-19 public health emergency. See id. ¶¶ 3-4 & Ex. C.
On May 22, 2020—the same day that Defendants filed their reply brief here—the Board of Appeals issued the following identical decision in each appeal:
PURSUANT TO § 4.106 of the Charter of the City & County of San Francisco and Article 1, §14 of the Business & Tax Regulations Code of the said City & County, and the action above stated, the Board of Appeals her...
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