                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 20 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TOBIAS PARTNERS, L.P.,                           No.   16-56174

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-09176-GW-PLA
 v.
                                                 MEMORANDUM*
CITY OF LOS ANGELES, et al.

              Defendant-Appellees.


                    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

      *
             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.
(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
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


                                            3
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.




                                           4
