NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEMPLE OF 1001 BUDDHAS; MIAOLAN LEE,
Plaintiffs

- Appellants,

v. CITY OF FREMONT,

Defendant

- Appellee. No. 22

- 15863
D.C. No. 3:21

- cv - 04661

- CRB

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Submitted June 9, 2023 * * San Francisco, California Before: MILLER and KOH, Circuit Judges, and LYNN, ** * District Judge. Miaolan Lee and the Temple of 1001 Buddhas (collectively, Lee ) appeal
from the district court’s dismissal of their claims against the City of Fremont

. We

* 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 Barbara M. G. Lynn, United States District Judge for the Northern District of Texas, sitting by designation. 

# FILED

JUL 7 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

have jurisdiction under 28 U. S.C. § 1291, and we review de novo a grant of a
motion to dismiss , “draw [ing] all reasonable inferences in favor of the plaintiff.” Doe v. Regents of Univ. of Cal

. , 23 F.4th 930, 935 (9th Cir. 2022). W e affirm.
1. The district court correctly dismissed Lee’s state

- law damages claims
because Lee failed to provide the City with written notice describing “the date, place and other circumstances of the occurrence or transaction which gave rise to
the claim assert ed .” Ca l. Gov ’t Code § § 910(c), 945.4

. Under California law , Lee needed to offer “facts sufficient to give the [City] notice to investigate and evaluate [the] claim.” Castaneda v. Department of Corr. & Rehab. , 151 Cal. Rptr. 3d 648, 656 (Ct. App. 2013). But Lee ’s written notice offered no facts at all about her
claims.
2. The district court did not abuse its discretion in striking Lee’s due process claims. When the district court dismissed Lee’s original complaint, it gave leave to
amend without limitation. After Lee filed a n amended complaint, the district court
dismissed with leave to amend only certain claims. Lee then filed a nother amended

c omplaint containing due process claims that had appeared in neither previous

com plaint. The district court did not abuse its discretion in barring Lee from adding th o se new claims

. See Foman v. Davis , 371 U.S. 178, 182 (1962).
3. Lee ’s operative complaint fails to state a claim under 42 U.S.C. § 1983. Because Lee sues a municipality, she must allege unconstitutional acts flowing3

from a “ municipal policy .” Monell v. Department of Soc. Servs. , 436 U.S. 658 , 69 1 (1978)

. Lee alleges that Gary West, Fremont’s chief building official , made municipal policy a bout building and zoning code enforcement. See Cal. Health & Safety Code § 18949.27; Fremont Mun

. Code § 18.15.030. But she does not plausibly allege that West’s decisions violated the Constitution

. According to public records of which the district court appropriately took judicial notice, the City accuse d Lee of building nine unpermitted structures totaling thousands of square feet. The City maintain ed that the structures pose a fire hazard and lack appropriate wastewater treatment, a mong other alleged
nuisances

. To show religious discrimination , Lee must plausibly allege that West took enforcement actions against her “‘because of,’ not merely ‘in spite of , ’” the
adverse effect on her religious practice. Personnel Adm ’ r of Mass

. v. F eeney , 442 U.S. 256, 279 (1979) ; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 540 (1993)

. Lee ’s allegations do not make it plausible to infer that
code violations were not the driving force behind West’s decisions

. Significantly,
Lee nowhere squarely disputes that she built numerous structures without permits , in violation of the municipal code. See Fremont Mun

. Code § 18.55.040(a).
A lthough Lee alleges that City officials made comments disparaging the sincerity
of h er religious practice, she does not demonstrate that West himself shared or4

approved of this animus. West allegedly told her that she could not pray on certain parts of her property, but the only plausible inference from these comments is that
West was enf

orcing the City’s orders about which structures were safe to use.
L ee also alleges that West ignored the construction of a handful of unpermitted structures on neighbors’ propertie s, preferring instead to target her. But considering the size and scale of Lee’s concededly unpermitted construction,
Lee has not pleaded that these neighbors violated policy “ to the same degree ” she
did , as would be necessary to raise an inference of selective enforcement. Waln v. Dysart Sch. Dist. , 54 F.4th 1152, 1159 (9th Cir. 2022) (emphasis omitted ).
Lee also has not established that West retaliated against her in violation of
the First Amendment . West himself never expressed “opposition to [her] protected speech.” Boquist v. Courtney , 32 F.4th 764, 777 (9th Cir. 2022). Lee does not plausibly allege that West “proffered false or pretextual explanations” for the
enforcement actions. Id. Lee does describe instances in which the City took action shortly after her protected speech, but in the absence of other reasons to suspect
retaliation , that is not enough to sustain her claim. See Pratt v. Rowland , 65 F.3d 802, 808 (9th Cir. 1995) ( concluding that timing alone was insufficient to justify a
district court ’ s grant of a preliminary injunction when th ere was “little else to support the inference” of a retaliatory motive)

. Lee thus cannot hold the City liable

on a theory that West discriminated or retaliated against her.5

Lee also cannot prevail on a theory that the City has a custom of disfavoring religious practi ce
. As noted, Lee alleges that she was subjected to discriminatory
enforcement , and she also contends that a deputy city attorney said that houses of worship were prohibited on some lands

. S he does not describe practices “so ‘pe rsistent and widespread’ that [they] constitute[] a ‘permanent and well settled city policy , ’” as would be necessary to establish a custom under Monell

. Trevino v.
Gates , 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell , 436 U.S. at 691)). Lee’s
section 1983 claims therefore fail.
4. Lee lacks standing to bring her claim under the Religious Land Use and Institutionalized Persons Act ( RLUIPA )

. She argues that Fremont Municipal Code § 18.55.110 unlawfully bars her from holding public religious gathe rings on her
property

. B ut th at ordinance does not injure her because , according to the operative complaint , she uses her property only for private purposes. Similarly, Lee lacks standing to seek a declaratory judgment about the applicability of the Willia mson Act, Cal. Gov ’t Code § § 51200 to 51297.4 , to her
property. To have standing, Lee would need to show an “imminent” threat of harm

. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 ( 1992)

. B ut despite the City’s
wide

- ranging actions against Lee, the City has never enforced the Williamson Act against her

. AFFIRMED

.