                                                                             FILED
                            NOT FOR PUBLICATION                              MAR 18 2014

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


                             FOR THE NINTH CIRCUIT


 J. H. McQUISTON,

               Plaintiff - Appellant,             No. 12-56454
          v.                                      D.C. No. 2:11-cv-05149-DSF
 CITY OF LOS ANGELES; ANTONIO                     MEMORANDUM *
 VILLARAIGOSA, Mayor; MARGARET C.
 FIELDS, Property Owner; SHAUN BUTLER,
 Property Lessee; RENEE WEITZER, City
 Employee; LINN K. WYATT, City
 Employee; ED P. REYES, City Council
 Member; PAUL KREKORIAN, City Council
 Member; OCCIDENTAL ENTERTAINMENT
 GROUP HOLDINGS, a California
 Corporation, Property Sublessor;
 COMMUNITY INVESTMENT HOLDINGS,
 INC., a California Corporation, Property
 Sublessee, DBA The Zone,

               Defendants - Appellees.


                    Appeal from the United States District Court
                           Central District of California
                     Dale S. Fischer, District Judge, Presiding

                            Submitted February 7, 2014 **
                               Pasadena, California

      *
             This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as may be provided by Ninth Circuit
Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Before:     PREGERSON, MURPHY, *** and BERZON, Circuit Judges.


      J. H. McQuiston brought suit in federal court to challenge the City of Los

Angeles’s grant of a variance allowing The Zone to operate a “sexual encounter

establishment” at 1037 North Sycamore Avenue (the “North Sycamore

property”). 1 The Individual Defendants moved to dismiss; the City Defendants

moved for judgment on the pleadings. The district court granted the motions and

McQuiston appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this

court affirms.

      1. McQuiston asserts the district court erred in considering the City

Defendants’ motion for judgment on the pleadings. McQuiston argues the district

court should have dismissed that pleading, which was directed at the second

amended complaint, as moot and directed the City Defendants to file a new

motion directed at the third amended complaint. This argument is frivolous. As



      ***
            The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
      1
             McQuiston’s suit raises claims against two groups of defendants.
The “Individual Defendants” encompass: Shaun Butler and Community
Investment Holdings, Inc., the owners and operators of The Zone; Margaret
Fields, the owner of the North Sycamore property; and Occidental Entertainment
Group Holdings, the commercial tenant who leases the North Sycamore property
from Fields and subleases the property to the operators of The Zone. The “City
Defendants” encompass: the City of Los Angeles; Mayor Antonio Villaraigosa;
City Councilmembers Ed. P. Reyes and Paul Krekorian; Associate Zoning
Administrator Linn K. Wyatt; and Renee Weitzer, Planning Director to
Councilmember Tom LaBonge.

                                        2
regards to the City Defendants, McQuiston’s claims, factual allegations, and legal

arguments did not change in any material way from the second to the third

amended complaints. Furthermore, McQuiston filed an extensive memorandum of

points and authorities responsive to the City Defendants’ motion for judgment on

the pleadings. Finally, McQuiston has not identified any prejudice flowing to him

from the district court’s decision to treat the City Defendants’ motion as applying

to the third amended complaint and considering that motion, along with his

response, in resolving this case. Cf. Fed. R. Civ. P. 1 (stating the rules of civil

procedure “should be construed and administered to secure the just, speedy, and

inexpensive determination of every action and proceeding”).

      2. McQuiston’s 42 U.S.C. § 1985(3) conspiracy claim fails because he

never alleged any defendant’s actions were “motivated by some racial, or . . .

otherwise class-based, invidiously discriminatory animus.” Sever v. Alaska Pulp

Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quotation omitted).

      3. The facts set out in McQuiston’s third amended complaint fail to allege

a viable conspiracy claim under 42 U.S.C. § 1983. To properly allege a § 1983

conspiracy between private individuals and state actors, a plaintiff must set out

facts, which if true, demonstrate at least one private individual reached a specific

agreement with at least one state actor to violate the plaintiff’s constitutional

rights. Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir. 2001);

United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th

                                           3
Cir. 1989) (en banc). McQuiston merely alleged the Individual Defendants: (1)

sought a variance to which they knew they were not entitled and (2) could not

have obtained the variance without the cooperation of city officials. It is simply

not plausible to draw from these factual assertions the inference that at least one

Individual Defendant and one City Defendant acted jointly with the specific

common purpose of depriving McQuiston of his civil rights. Woodrum v.

Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989); see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–57 (2007).

      4. McQuiston’s state-law claim, premised on California Civil Procedure

Code § 1094.5, was untimely. 2 McQuiston suggests it was improper to consider

the California Government Code § 65009(c)(1)(E) limitations period because his

complaint sought relief pursuant to § 1983. As to state-law claims, however, this

court must apply California’s limitation rules. Ragan v. Merch. Transfer &

Warehouse Co., 337 U.S. 530, 533–34 (1949).

      McQuiston argues his § 1094.5 claim was timely filed because the City

Defendants did not demonstrate a final decision on the variance was ever mailed

to him. This argument misconstrues the Los Angeles Municipal Code. Section

12.27(M) provides as follows:

      2
             Because McQuiston’s state-law claim is untimely, and because
neither party raises the issue, this court need not decide whether § 1094.5 sets out
a state-law cause of action over which a federal court can assume supplemental
jurisdiction or, instead, merely establishes a mechanism for state judicial review
of administrative tribunals.

                                          4
      [A] decision by the Area Planning Commission granting or
      confirming the grant of a variance shall become final after 15 days
      from the date it was mailed to the applicant, unless an appeal is filed
      with the Council within that period. The filing of an appeal stays
      proceedings in the matter until the Council makes a decision on the
      matter.

It is uncontested McQuiston filed such an appeal. Thus, the finality question is

properly resolved by reference to Los Angeles Municipal Code § 12.27(P). That

provision indicates that if the Council affirms the grant of a variance, the matter

is transmitted to the Mayor. If the Mayor approves the variance, as he did here,

the matter is final, thus triggering the ninety-day period set out in the California

Government Code § 65009(c)(1)(E). Accordingly, the ninety-day limitation

period set out in § 65009(c)(1)(E) began to run upon the Mayor’s approval of the

variance, and McQuiston’s state-law claim was untimely because it was neither

filed nor served in that ninety-day window. 3

      Relying on Lesher Communications, Inc. v. City of Walnut Creek, 802 P.2d

317 (Cal. 1990), McQuiston argues that because the variance is inconsistent with

law, it is void ab initio and this court can so declare without regard to any

limitations period. Lesher did not involve a variance or the potential applicability

of a limitations period. Instead, it involved the validity of a voter-passed

municipal initiative. Section 65009(c)(1)(E), on the other hand, sets out a

specific limitations period applicable to zoning variances. That limitations period

      3
            McQuiston does not contend he was delayed in filing or serving his
complaint because he did not receive notice the mayor approved the variance.

                                           5
is supported by legislative findings on the need to quickly and finally settle land-

use issues to help resolve California’s housing crisis. Cal. Gov’t Code

§ 65009(a). There is no support in California law for the notion a variance can be

challenged in court at any point in the future as long as the plaintiff asserts the

grant of the variance was legally improper.

      5. Under the facts in this case, the unreviewed administrative approval of

The Zone’s variance request forecloses McQuiston’s § 1983 claims. Federal law

provides that the “[a]cts, records and judicial proceedings” of “any State” “shall

have the same full faith and credit in every court within the United States . . . as

they have by law or usage in the courts of such State . . . from which they are

taken.” 28 U.S.C. § 1738. Pursuant to § 1738, “a federal court must give to a

state-court judgment the same preclusive effect as would be given that judgment

under the law of the State in which the judgment was rendered.” Migra v. Warren

City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). The same rule applies to

administrative proceedings that are adjudicative in nature. Clements v. Airport

Auth. of Washoe Cnty., 69 F.3d 321, 326–27 (9th Cir. 1995). In determining the

preclusive effect of a California administrative decision, this court follows

California’s rules of preclusion. See Kremer v. Chem. Const. Corp., 456 U.S.

461, 482 (1982). “Under California law, a prior administrative proceeding, if

upheld on review (or not reviewed at all), will be binding in later civil actions to

the same extent as a state court decision if the administrative proceeding

                                           6
possessed the requisite judicial character.” White v. City of Pasadena, 671 F.3d

918, 927 (9th Cir. 2012) (quotation omitted); see also Briggs v. City of Rolling

Hills Estates, 47 Cal. Rptr. 2d 29, 32–36 (Cal. App. 1995) (concluding plaintiffs’

§ 1983 challenge to legality of variance conditions was precluded by

administrative resolution from which plaintiffs did not seek mandamus pursuant

to § 1094.5).

      The administrative proceedings through which The Zone obtained its

variance are clearly adjudicatory in nature. See Briggs, 47 Cal. Rptr. 2d at 35–36

(concluding variance decisions like the one at issue here are adjudicatory, rather

than legislative). At every step in the administrative proceedings, the legal

standard set out in Los Angeles Municipal Code § 12.27 was applied to facts

developed via the taking of testimony and admission of evidence. The allegations

in McQuiston’s own complaint demonstrate he litigated in the administrative

proceedings the very issues he now seeks to advance in this federal litigation.

The California state courts would conclude McQuiston’s § 1983 claims are

subject to preclusion.

      McQuiston points to four scattered pages in the record as support for the

proposition the administrative proceedings were not adjudicatory because of

various procedural irregularities. The cited portions of the record do not support

McQuiston’s assertion of procedural irregularity. In any event, even assuming the

truth of McQuiston’s allegations, they do not come close to demonstrating

                                          7
McQuiston did not have an adequate opportunity to litigate the legal and factual

propriety of The Zone’s variance request. That being the case, the district court

correctly concluded the resolution of those legal and factual issues preclude

McQuiston’s instant claims under § 1983.

      The order of the district court granting the Individual Defendants’ motion

to dismiss and the City Defendants’ motion for judgment on the pleadings is

hereby AFFIRMED.




                                         8
