JONNA CORPORATION, DBA Premier Recycling Company v. City of Sunnyvale

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONNA CORPORATION, DBA Premier
Recycling Company
Plaintiff-Appellant,
v.
CITY OF SUNNYVALE,
Defendant-Appellee.
No. 17-17459
D.C. No.
17-cv-00956-LHK-HRL
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted February 15, 2019**
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and LASNIK,***
District Judge.
Jonna Corporation, dba Premier Recycling Company (“Premier”), appeals
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the dismissal of its First Amended Complaint (“FAC”) on November 9, 2017. We
have jurisdiction under 8 U.S.C. § 1291, and we affirm.
We review de novo a dismissal of a complaint, and we review for abuse of
discretion a denial of leave to amend a complaint. United States ex rel. Anita
Silingo v. WellPoint, Inc., 904 F.3d 667, 676 (9th Cir. 2018); (citing United States
v. Corinthian Colleges, 655 F.3d 984, 991, 995 (9th Cir. 2011)).
The City of Sunnyvale (“the City”) has an exclusive franchise arrangement
for the collection of waste and recycling materials with Bay Counties Waste
Services. The California Supreme Court held in 1994 that cities were authorized to
grant exclusive franchises of this sort for “solid waste.” Waste Mgmt. of the
Desert, Inc. v. Palm Springs Recycling Ctr., Inc., 869 P.2d 440, 442 (Cal. 1994) (in
bank). In its FAC, Premier challenged the City’s exclusive franchise, alleging a
declaratory relief action premised on the Takings Clause of the United States
Constitution and the Fourteenth Amendment’s guarantee of substantive due
process. In its opposition to the City’s motion to dismiss, it abandoned its Takings
Clause claim, and clarified that its due process claim was based not on any actions
by the City, but on the California Supreme Court’s definition of “waste,” which
includes within its ambit the construction and demolition debris that Premier
collects. Waste Mgmt. of the Desert, Inc., 869 P.2d at 445. To the extent that
Premier now asserts a substantive due process violation by the City, those claims

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have been waived. Solis v. Matheson, 563 F.3d 425, 437 (9th Cir. 2009).
As Premier concedes, we must apply rational basis review to its claims. Witt
v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 2008). Under this standard,
“only egregious official conduct can be said to be arbitrary in the constitutional
sense: it must amount to an abuse of power lacking any reasonable justification in
the service of a legitimate governmental objective.” Shanks v. Dressel, 540 F.3d
1082, 1088 (9th Cir. 2008) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998)) (internal quotation marks omitted). Even assuming, as the district
court did, that Premier’s substantive due process claim based on a state court’s
interpretation of state law is sustainable in a federal court, Premier does not satisfy
this “exceedingly high burden.” Id. (quoting Matsuda v. City & County of
Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008)). It expressed disagreement with
the California Supreme Court’s definition of “waste,” Waste Mgmt. of the Desert,
Inc., 869 P.2d at 444, but it pleaded no facts to support its allegations that the
decision was “constitutionally arbitrary.” Shanks, 540 F.3d at 1089. The district
court did not err in dismissing the FAC. Nor did it abuse its discretion in denying
leave to amend. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93
(9th Cir. 2010).
AFFIRMED.

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