NOT FOR PUBLICATION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 ma ssage 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 APPEALS2

the parties are familiar with the facts, we do not recount them here. We affi rm. 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 lib erally 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 fr o m orders that weren’t named in the [notice of appeal] and were discussed only in a ppellate 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 i d. ; 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 substan tial or motivating factor in the defendant’s conduct.

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

2 Despite rais ing 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 motivat ing factor” in the individual defendants’ threats to
enforce the local ordinance regulating massage therapy establishments by inspecting an d issuing administrative citations following the revocation of Killgore’s CUP.
3. The district court properly dismi ssed 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 c ouncilmember’s remarks did not sufficiently show actual bias or the appearance of bia s. 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 So uth El Monte

M un
. 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 other s similarl y 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) (citation4

omitted) , overruled on other grounds by Lingle v. Chevron U.S.A. Inc. , 544 U.S. 528 (2005) ; s ee also N. Pacifica LLC v. City of Pacifica , 526 F.3d 478, 486 (9th Cir. 2008). Killgo re 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 investment

backed expectati ons” ; 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 mult iple violations

. On appeal, Killgore argues his Fifth Amendment takings claim involves
factual issues that cannot be resolved on a motion to dismiss. But “[r]egulatory5

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 Cali fornia Code of Civil Procedure
section 1094.5 is barred by the statute of limitations because he did not serve the City in time . Cal ifornia Gov ernment 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 r evocation 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 th is 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 Fed eral R ule of Civ il P rocedure 12(b)(5), not Rule 12(b)(6), and thus, the City waived this argument. But the issue is not insufficiency of process

. R ather , 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 exha ust 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).