                                                                            FILED
                            NOT FOR PUBLICATION                             APR 06 2015

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



                             FOR THE NINTH CIRCUIT

CLARK FRATUS; KARLA FRATUS,                      No. 13-15155

               Plaintiffs - Appellants,          D.C. No. 3:11-cv-03659-JSC

  v.
                                                 MEMORANDUM*
CONTRA COSTA COUNTY BOARD OF
SUPERVISORS, in its Official Capacity;
DIRECTOR OF THE CONTRA COSTA
DEPARTMENT OF CONSERVATION &
DEVELOPMENT; CATHERINE
KUTSURIS; BUILDING OFFICIAL
JASON CRAPO, in His Official Capacity
& Individual Capacity,

               Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Northern District of California
                 Jacqueline Scott Corley, Magistrate Judge, Presiding

                           Submitted February 11, 2015**
                             San Francisco, California

Before:        THOMAS, Chief Judge, and McKEOWN and W. FLETCHER,
               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).
      Plaintiffs brought claims under 42 U.S.C. § 1983, alleging violations of their

procedural and substantive due process rights. Plaintiffs argue that the Contra

Costa County Department of Conservation and Development (“DCD”) violated

their rights when it concluded that a 1951 county ordinance prohibited Plaintiffs

from maintaining second units on the lower levels of their properties. We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment on Plaintiffs’ claims de novo, and we affirm.

      Plaintiffs make two procedural due process arguments, but our precedents

preclude the first and Plaintiffs waived the second. Plaintiffs argue that DCD’s

Deputy Director Jason Crapo, who heard Plaintiffs’ administrative appeals, was a

biased hearing officer because of DCD’s financial stake in the case and Crapo’s

prior involvement in the matter. First, this court previously denied an analogous

claim based on an adjudicator’s financial bias because that adjudicator derived no

more than five percent of its budget from the fees at issue. Alpha Epsilon Phi Tau

Chapter Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 847 (9th Cir. 1997). Here,

DCD derives no more than 0.004 percent of its budget from such fines.1 Thus,



      1
         On the eve of the summary judgment hearing, Plaintiffs filed declarations
purporting to show that DCD derives more than 0.004 percent of its budget from
fines. Judge Corley did not abuse her discretion when she held that “the
declarations violate the Local Rules.”

                                         -2-
Alpha Epsilon requires us to hold that DCD’s interest was too insubstantial to

“reasonably warrant[] fear of partisan influence on [the] judgment.” Id. at 846

(quoting N. Mariana Islands v. Kaipat, 94 F.3d 574, 575 (9th Cir. 1996)).

      Second, Plaintiffs waived their argument that Crapo was a biased adjudicator

due to his prior involvement in the matter when Plaintiffs failed to raise this issue

in their opposition to summary judgment. United States v. Kitsap Physicians Serv.,

314 F.3d 995, 999 (9th Cir. 2002) (parties that rely on evidence “for the first time

on appeal cannot create a triable issue of fact because [they] failed to articulate this

evidence to the district court in opposition to the summary judgment motion.”).

      Summary judgment is also appropriate on Plaintiffs’ substantive due process

claim. The County’s conclusion that a 1951 county ordinance prohibited attached

second living units in Plaintiffs’ homes was not “egregious.” Brittain v. Hansen,

451 F.3d 982, 996 (9th Cir. 2006). DCD employees did not act in ways that

“shock[] the conscience” and they did not “intend[] to injure in some way

unjustifiable by any government interest.” Id. at 991.

      Plaintiffs’ request for judicial notice and Defendants’ motion to strike

improper exhibits, portions of Plaintiffs’ opening brief, and portions of Plaintiffs’

excerpts of record are denied as moot.

      AFFIRMED.


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