NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP KILLGORE, DBA Lavender 

Massage, 

Plaintiff-Appellant, 

 v. 

CITY OF SOUTH EL MONTE; et al., 

Defendants-Appellees.

No. 20-55666 

D.C. No. 

2:19-cv-00442-SVW-JEM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 11, 2021

Pasadena, California

Before: OWENS, R. NELSON, and BADE, Circuit Judges.

Phillip Killgore appeals from the district court’s dismissal for failure to state 

a 42 U.S.C. § 1983 claim arising from the City of South El Monte’s revocation of 

Killgore’s conditional use permit (“CUP”) to operate a massage center known as 

Lavender Massage. Killgore alleges that the City and several individual 

defendants violated his First, Fourth, Fifth, and Fourteenth Amendment rights. As 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUL 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

the parties are familiar with the facts, we do not recount them here. We affirm.1 

1. This court has jurisdiction over both the December 19, 2019 and the April 

24, 2020 dismissal orders. Although Killgore did not mention the December 19, 

2019 order in his notice of appeal, see Fed. R. App. P. 3(c)(1)(B), we “construe 

Rule 3 liberally when determining whether it has been complied with.” West v. 

United States, 853 F.3d 520, 523 (9th Cir. 2017) (citation omitted). And we have 

“considered appeals from orders that weren’t named in the [notice of appeal] and 

were discussed only in appellate briefs.” Id. at 524. Killgore’s opening brief 

clearly communicated his intent to appeal both orders dismissing his claims, and 

the City suffered no prejudice because it had an opportunity to respond in its 

answering brief. See id.; Disabled Rts. Action Comm. v. Las Vegas Events, Inc., 

375 F.3d 861, 872 n.7 (9th Cir. 2004). 

2. The district court properly dismissed Killgore’s First Amendment 

retaliation claim.2 

To establish a First Amendment retaliation claim . . . , a plaintiff must 

show that (1) he was engaged in a constitutionally protected activity, 

(2) the defendant’s actions would chill a person of ordinary firmness 

from continuing to engage in the protected activity and (3) the 

protected activity was a substantial or motivating factor in the 

defendant’s conduct. 

1 We resolve the Fourth Amendment claim in a concurrently filed opinion. 

2 Despite raising the argument below, Killgore does not contend on appeal that 

Municipal Code § 5.22.150(1) violates the First Amendment as vague and 

overbroad. 
3 

Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). Killgore 

failed to sufficiently allege the last element, i.e., he failed to show that his lawsuit 

was a “substantial or motivating factor” in the individual defendants’ threats to 

enforce the local ordinance regulating massage therapy establishments by 

inspecting and issuing administrative citations following the revocation of 

Killgore’s CUP.

3. The district court properly dismissed Killgore’s Fourteenth Amendment 

procedural due process claim. Killgore’s allegation that the City Council hearing 

about revoking his CUP was biased based on a City councilmember’s remarks did 

not sufficiently show actual bias or the appearance of bias. See Stivers v. Pierce, 

71 F.3d 732, 741 (9th Cir. 1995). Not only were there substantial grounds to 

revoke Killgore’s CUP, but a list of felony and misdemeanor convictions is often 

required in an application for a massage establishment permit. See South El Monte 

Mun. Code § 5.22.050(a)(6)(ix), (d)(2)-(3). 

4. The district court properly dismissed Killgore’s Fourteenth Amendment 

equal protection claim. 

Where, as here, state action does not implicate a fundamental right or 

a suspect classification, the plaintiff can establish a “class of one”

equal protection claim by demonstrating that [he] “has been 

intentionally treated differently from others similarly situated and that 

there is no rational basis for the difference in treatment.” 

Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (citation 
4 

omitted), overruled on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 

528 (2005); see also N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th 

Cir. 2008). Killgore did not allege any intentional discriminatory intent or 

impermissible motive against him. The City granted Killgore the CUP in 

compliance with state and local laws, and Killgore failed to allege any facts to 

rebut a presumption that the City had a rational and legitimate basis to issue and 

subsequently revoke his CUP for multiple violations.

5. The district court properly dismissed Killgore’s Fifth Amendment takings 

clause claim. When evaluating a regulatory takings claim, we review several 

factors, including: (1) “[t]he economic impact of the regulation on the claimant”;

(2) “the extent to which the regulation has interfered with distinct investmentbacked expectations”; and (3) “the character of the governmental action.” Penn 

Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The first and 

third factors defeat Killgore’s regulatory takings claim. He failed to allege that the 

City’s revocation of his CUP prevented any other economically viable use of his 

property, see Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th 

Cir. 2018), and the City had a strong interest in regulating the massage industry 

and revoking Killgore’s CUP after multiple violations. 

On appeal, Killgore argues his Fifth Amendment takings claim involves 

factual issues that cannot be resolved on a motion to dismiss. But “[r]egulatory 
5 

takings claims . . . do not easily fit into a pre-ordained construct or little box; 

individualized scrutiny of such claims does not foreclose resolution on a motion to 

dismiss or a motion for summary judgment.” Hotel & Motel Ass’n of Oakland v. 

City of Oakland, 344 F.3d 959, 966 (9th Cir. 2003). 

6. Killgore’s mandamus claim under California Code of Civil Procedure 

section 1094.5 is barred by the statute of limitations because he did not serve the 

City in time. California Government Code section 65009 applies to conditional 

use permits and requires filing and serving the petition within 90 days. Cal. Gov’t 

Code § 65009(c)(1)(E) (2014); Weiss v. City of Del Mar, 252 Cal. Rptr. 3d 424, 

434 (Ct. App. 2019). The district court thus properly held Killgore’s mandamus 

claim was time-barred, that notice to Killgore of the revocation was not defective, 

and that the statute of limitations was not tolled. See Cal. Gov’t Code § 65009 

(containing no requirement that the City provide notice of the limitations period or 

a specific form for such notice).

Killgore argues that this issue is governed by Federal Rule of Civil 

Procedure 4(m) which allows a district court to extend the time for service for 

“good cause.” Fed. R. Civ. P. 4(m). But because state substantive law controls, 

Mason & Dixon Intermodal, Inc. v. Lapmaster Int’l LLC, 632 F.3d 1056, 1060 (9th 

Cir. 2011), and because state substantive law “includ[es] the state’s statute of 

limitations,” Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011), 
6 

Rule 4(m) is inapplicable. 

Finally, Killgore argues that a motion for any alleged insufficiency of 

process must be made under Federal Rule of Civil Procedure 12(b)(5), not Rule 

12(b)(6), and thus, the City waived this argument. But the issue is not 

insufficiency of process. Rather, it is whether the statute of limitations has passed, 

and that is properly addressed through a Rule 12(b)(6) motion. See Von Saher v. 

Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).3 

AFFIRMED. 

3 We do not reach Killgore’s argument that the individual defendants are not 

entitled to qualified immunity or the City’s argument that Killgore failed to 

exhaust his state remedies before bringing this suit thus barring his First, Fourth, 

and Fourteenth Amendment claims. Neither issue was addressed in the first 

instance by the district court. See Friedman v. AARP, Inc., 855 F.3d 1047, 1057 

(9th Cir. 2017).