                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 19 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SAAD EL WARDANY,                                 No. 11-55879

              Plaintiff - Appellant,             D.C. No. 5:09-cv-00299-RRP-
                                                 MAN
  v.

CITY OF SAN JACINTO, a municipal                 MEMORANDUM*
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Rebecca R. Pallmeyer, District Judge, Presiding

                          Submitted February 14, 2013**
                              Pasadena, California

Before: GOODWIN, KLEINFELD, and SILVERMAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Saad El Wardany appeals from the district court’s grant of summary

judgment in favor of the City of San Jacinto on each of his claims. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and now affirm.

       There can be no procedural due process violation without a protected

property or liberty interest and, under state law, Wardany has no legally protected

interest in any particular level of accessibility to the street in front of his store, let

alone continuous, unrestricted and unmodified access. Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577-78 (1972); People v. Ayon, 54 Cal. 2d 217, 222-

24 (1960). Wardany’s store remains accessible in a variety of ways; the only

change effected by the median’s construction is that a direct lefthand turn into his

property is no longer possible. Even if such an interest were cognizable, Wardany

was not entitled to individualized notice and a hearing, because he was just one of

many affected property owners along the stretch of road subject to the new median,

and he was not “exceptionally affected.” Harris v. Cnty. of Riverside, 904 F.2d

497, 502 (9th Cir. 1990). Finally, the City claims that it did in fact mail notice of

the planned construction to all affected landowners including Wardany, but

Wardany denies receiving it. Public hearings were held on the road improvement

project, including the planned median construction. Any factual dispute over the




                                             2
sufficiency of the notice is immaterial though, because Wardany has not identified

any entitlement or interest to make out a procedural due process claim.

      With respect to Wardany’s equal protection claim, there is no record

evidence to create a genuine issue for trial on Wardany’s claims of discriminatory

treatment on the basis of race or national origin, and the differential treatment of

his business. There is no direct or circumstantial evidence of discriminatory intent,

just his own speculation, which does not create a triable issue. Darensburg v.

Metro. Transp. Comm’n, 636 F.3d 511, 522 (9th Cir. 2011) (citing Village of

Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977));

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The signage

enforcement episode that Wardany relates at most establishes that a city official

may have too brusquely asked to speak with someone who speaks fluent English.

That is insufficient to create a triable issue on Wardany’s intentional racial

discrimination claim. Additionally, the evidence does not support the conclusion

that Wardany’s store has been singled out by the City. Other stores have been

affected by the lack of openings in the new median, and have been issued notices

of signage rule violations. Indeed, some businesses have received citations and

fines, while Wardany has not. Moreover, there is no evidence that the City




                                           3
discriminated against Wardany when it denied his cell tower application. The

denial was a proper application of the City’s zoning regulations.

      Wardany’s First Amendment retaliation claim fares no better. While

Wardany’s September 2008 petition surely constitutes protected First Amendment

activity, he has failed to adduce any evidence of a causally-linked, adverse action.

Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). The median’s

construction was already in the works prior to his petition and it proceeded

according to plan. The denial of the cell tower application was mandated by

zoning laws and, in any event, no revised application seeking a variance or zone

change was ever submitted. Finally, the measures taken against Wardany’s

signage violations do not betray any retaliatory motive. He was only issued

notices of violation, never citations or fines. Moreover, Wardany fails to show a

connection between his September 2008 petition and an isolated episode in which a

city official took down signs in his store and asked to speak to someone fluent in

English. Judgment as a matter of law was properly entered.

      As to the Establishment Clause claim, “[t]o be constitutional, the

government conduct at issue must: (1) have a secular purpose, (2) have a primary

effect that neither advances nor inhibits religion, and (3) not foster an excessive

government entanglement with religion.” Barnes-Wallace v. City of San Diego,


                                          4
Nos. 04–55732, 04–56167, 2012 WL 6621341, at *11 (9th Cir. Dec. 20, 2012)

(citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). This claim goes

unsupported by any evidence in the record. Wardany relies on speculation alone to

suggest there is a connection between his issues with the City and his perception

that an adjacent church wishes to buy his property.

      There is also no evidence to create a genuine issue of material fact sufficient

to defeat summary judgment on Wardany’s Takings Clause claim. Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 537-39 (2005).

      Wardany’s claim for inverse condemnation under Article I, Section 19 of the

California Constitution fails for the same reason. Ayon, 54 Cal. 2d at 221-24. This

constitutional test largely tracks the federal standard. Oliver v. AT&T Wireless

Servs., 76 Cal. App. 4th 521, 530 (1999). On similar facts, the California Supreme

Court has expressly rejected an inverse condemnation claim, stating: “The property

owner has no constitutional right to compensation simply because the streets upon

which his property abuts are improved so as to affect the traffic flow on such

streets.” Ayon, 54 Cal. 2d at 223-24 (quotation marks and citations omitted).

      Finally, since Wardany has failed to identify a genuine issue of material fact

on any of his alleged violations of the U.S. Constitution, the claim of liability




                                           5
under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978), is moot and

judgment as a matter of law was appropriate.

      Accordingly, the district court’s order granting summary judgment on all

claims is AFFIRMED.




                                        6
