Opinion
Case No. EDCV 13-01439-VAP (KKx)
09-10-2015
PET CHALET, INC., A CALIFORNIA CORPORATION, AND WASSIM A. MASSOUD, Plaintiffs, v. COUNTY OF RIVERSIDE, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
[Motion filed on May 1, 2015 (Doc. No. 161)]
In this case, Plaintiffs Wassim A. Massoud, a man of "Lebanese Arab ethnicity," and the dog grooming and kenneling business he owns, Pet Chalet, Inc. (collectively, "Massoud"), bring claims of discrimination, contending that Defendant County of Riverside ("Riverside County" or just "County"), and various County employees had a policy of favoring Caucasian business owners, to the detriment of people of "Arabic" descent. He alleges that the County discriminated against him when it allowed a Caucasian- owned business to operate a competing dog kennel without the required permits, while at the same time requiring him to obtain a permit to operate a similar business in the same area.
On May 1, 2015, Defendant Riverside County and individual defendants Frank L. Coyle, Carolyn Syms Luna, Gregory A. Neal, Juan Perez, and Larry Ross (sometimes referred to as the "individual defendants") filed a Motion for Summary Judgment ("MSJ" or "Motion"). (Doc. No. 161.) For the reasons stated below, the Court GRANTS the Motion.
I. PROCEDURAL HISTORY
Massoud filed this action on August 14, 2013. (Doc. No. 1.) After motion practice, Massoud filed a Second Amended Complaint ("SAC") on October 30, 2014. (Doc. No. 116.) The SAC contains the following claims: (1) denial of equal protection, in violation of 42 U.S.C. § 1983 (against all defendants) and (2) a Monell claim against Riverside County.
Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 690-91 (1978).
After further motion practice and withdrawal of Massoud's original counsel of record, Defendants filed the MSJ on May 1, 2015, seeking summary judgment as to both claims in the SAC. Along with the MSJ, Defendants filed:
• The Declaration of Juan Perez ("Perez Decl.") (Doc. No. 161-1);
• The Declaration of Frank L. Coyle ("Coyle Decl.") (Doc. No. 161-2);
• The Declaration of Robert Magee ("Magee Decl.") (Doc. No. 161-3);
• The Declaration of Tamara Harrison ("Harrison Decl.") (Doc. No. 161-4);
• The Declaration of Gregory A. Neal ("Neal Decl.") (Doc. No. 161-5)
• The Declaration of Carolyn Syms Luna ("Luna Decl.") (Doc. No. 161-6), which attaches Exhibits 1-3 (Doc. Nos. 161-7 to 161-9);
• The Declaration of Larry Ross ("Ross Decl.") (Doc. No. 161-10), which attaches Exhibits 4-5 (Doc. Nos. 161-11 to 161-12);
• The Declaration of Douglas C. Smith (Doc. No. 161-13), which attaches Exhibits 6-7 (Doc. No. 161-14 to 161-15);
• The Declaration of Aaron Clark (Doc. No. 161-16), which contains its own Exhibit A (Doc. No. 161-17);
• The Declaration of Douglas Sparr (Doc. No. 161-18), which contains its own Exhibit A (Doc. No. 161-19);
• The Declaration of Dale Goldsmith (Doc. No. 161-20), which attaches its own Exhibit A (Doc. No. (Doc. No. 161-21);
• The Declaration of Christopher A. McIntire (Doc. No. 175-1), which attaches Exhibit 8 (Doc. No. 175-2); and
• A Statement of Uncontroverted Facts and Conclusions of Law ("Defs' UMF") (Doc. No. 162).
When Perez's declaration was filed initially, it lacked his signature. Defendants filed a Notice of Errata on May 4, 2015 bringing this to the Court's attention, and submitting a signed declaration. (Doc. No. 164.) Defendants also submitted Perez's signed declaration along with their Reply. (Doc. No. 184-1.) The Court finds that Perez's declaration was filed timely, and accordingly, OVERRULES any objections to Perez's declaration on this basis.
Defendants initially requested leave to file Exhibit 8 under seal. (Doc. No. 163.) The Court denied that request. (Doc. No. 174) Defendants then filed Exhibit 8 in the public record on May 14, 2015. (Doc. No. 175.)
When Perez's declaration was filed initially, it lacked his signature. Defendants filed a Notice of Errata on May 4, 2015 bringing this to the Court's attention, and submitting a signed declaration. (Doc. No. 164.) Defendants also submitted Perez's signed declaration along with their Reply. (Doc. No. 184-1.) The Court finds that Perez's declaration was filed timely, and accordingly, OVERRULES any objections to Perez's declaration on this basis.
Defendants initially requested leave to file Exhibit 8 under seal. (Doc. No. 163.) The Court denied that request. (Doc. No. 174) Defendants then filed Exhibit 8 in the public record on May 14, 2015. (Doc. No. 175.)
After the Court granted an extension for Massoud's new counsel of record to respond to the MSJ, Massoud filed an Opposition to the MSJ on June 22, 2015 ("Opp'n"). (Doc. No. 179.) Along with the Opposition, Massoud filed:
• The Declaration of Steven M. Hoslett ("Hoslett Decl.") (Doc. No. 179-5), which attaches Exhibits 1-4;
• The Declaration of Imad Y. Elias ("Elias Decl."), which is attached to the body of the Opposition, and attaches Exhibits 5-8 (Doc. Nos. 179-1 to 179-3 and 179-6 to 179-8);
• The Declaration of Wassim A. Massoud ("Massoud Decl."), which is attached to the body of the Opposition, and attaches Exhibit A (Doc. No. 179-9); and
• The Declaration of Richard M. Kos ("Kos Decl.") (Doc. No. 179-4), and attaches its own Exhibit A;
• A Statement Opposing Genuine Issues in Dispute on Motion of Defendants for Summary Judgment ("Plfs' UMF") (Doc. No. 178); and
• Plaintiffs' Evidentiary Objections ("Plfs' Objs.") (Doc. No. 180).
On June 29, 2015, Defendants filed their Reply. (Doc. No. 182.) Along with their Reply, Defendants filed:
• A Reply to Plaintiffs' Evidentiary Objections (Doc. No. 183);
• A second Declaration of Christopher A. McIntire (Doc. No. 184), attaching Exhibits 1-3 (Doc. Nos. 184-1 to 184-3);
• Objections to Plaintiffs' Evidence Submitted in Opposition to the Motion for Summary Judgment ("Defs' Objs.") (Doc. No. 185); and
• A Reply to Plaintiffs' Opposition to Statement of Uncontroverted Facts and Conclusions of Law (Doc. No. 186).
II. EVIDENTIARY RULINGS
Before setting forth the uncontroverted facts in this action, the Court examines the admissibility of the evidence offered by both sides in support of, and opposition to, the MSJ. "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). At the summary judgment stage, district courts consider evidence with content that would be admissible at trial, even if the form of the evidence would not be admissible at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). Moreover, "objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself" and thus need not be considered on a motion for summary judgment. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006).
Massoud has submitted seventy-one evidentiary objections and Defendants submitted twenty-two. As it is "often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised," and because many of the objections are "boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence," to the extent the Court has relied on objected to evidence, it has only relied on admissible evidence and those objections are overruled. Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013). The Court addresses some objections below.
A. Massoud's Objections
Massoud objects broadly to statements made in declarations submitted in support of the MSJ, on the ground that the declarant lacked personal knowledge of the subject at issue. (See, e.g., Plfs' Objs. 2-6; 9-15.) A declarant must show personal knowledge and competency to testify by the facts stated. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995); Fed. R. Evid. 602.
Massoud argues that every time a declarant said "I understand that . . ." or something similar, the declarant lacked personal knowledge, citing a "Practice Pointer" in Federal Civil Procedure Before Trial. Moreover, Massoud objects on the basis of lack of personal knowledge when a declarant spoke about County policy generally, for example, Luna Decl. ¶ 7, 13, Harrison Decl. ¶¶ 26, 32, and Neal Decl. ¶ 42.
As the County correctly points out, however, when a declarant has first-hand knowledge of facts, including employer policies, practices, and activities, personal knowledge may be inferred. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (personal knowledge can be shown by "the nature of the declarant's position and nature of participation in matter."). Those objections are OVERRULLED.
B. Defendants' Objections
Defendants object on numerous grounds to the declaration Richard Kos, Plaintiffs' expert regarding municipal planning, in its entirety. (See Defs' Objs. #1.) Additionally, Defendants object to entire paragraphs of Kos's declaration, individual sentences within those paragraphs, and phrases within those sentences. (Id. at #2-18.)
The Court has read and considered Kos's declaration, and finds it is inadmissible for two reasons. First, the declaration is conclusory, and does not have sufficient factual underpinnings. Though Kos's opinion is based exclusively on his experience as a city planner, his expert opinion does not explain if, and to what extent, the Defendants' actions deviated from acceptable planning norms or procedures. An expert who relies solely or primarily on his experience "must explain how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Fed. R. Evid. 702 advisory committee's note (2000) (emphases added); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (explaining that expert opinions cannot be "connected to existing data only by the ipse dixit of the expert").
Second, to the extent that Kos's declaration is supported, it is inadmissible because it is rife with legal opinion regarding whether the County's actions were discriminatory. See G. v. Hawaii, Dep't of Human Servs., 703 F. Supp. 2d 1112, 1128 (D. Haw. 2010) ("Expert's [sic] may not offer opinions on a purely legal issue or the application of legal standards to the evidence" (citing Aguilar v. Int'l Longshoremen's Union Local # 10, 966 F.2d 443, 447 (9th Cir. 1992))).
Defendants also object to the declaration of Steven Hoslett in its entirety, on the basis that his opinion is not based on admissible evidence, and his opinions are speculative and lack a factual basis. (See Defs' Objs. 20.) The Court OVERRULES this objection. Defendants have pointed to no specific evidence that is inadmissible, nor given any reason why Hoslett's opinions are speculative.
III. FACTS
To the extent certain facts, or conclusions, are not mentioned in this Order, the Court has not relied on them in reaching its decision. In addition to considering the evidentiary objections raised by the parties, the Court has independently considered the admissibility of the evidence underlying Defendants' UMF and Plaintiffs' UMF and has not considered facts that are irrelevant or based upon inadmissible evidence. The following material facts are supported adequately by admissible evidence and are uncontroverted. They are "admitted to exist without controversy" for the purposes of this Motion. See L.R. 56-3.
A. Massoud's Initial Attempt to Obtain a CUP
Riverside County requires business owners to obtain a "conditional use permit" ("CUP") in order to operate certain types of business within the county limits. In Fall 2007, Massoud met with representatives of the County's Planning Department to inquire about opening a "Class IV pet kennel" in the Dos Lagos area of unincorporated Riverside County. (Plfs' UMF 65.) Massoud was told that County zoning for that area required a CUP to operate a kennel; he was also told that it would take approximately one year for the CUP process to be completed and would cost approximately $30,000. (Plfs' UMF 66-67.) Further, Massoud was told that there was no guarantee that a CUP would be granted; rather, he was told that a CUP probably would not be granted. (Plfs' UMF 68.) Based on these representations by County employees, Massoud decided against opening a kennel in the Dos Lagos area. (Plfs' UMF 121, 124.) He opened a kennel in Corona, California, instead. (Plfs' UMF 124.)
The relevant County zoning rules are contained in County Ordinance 348.
B. Amber's Opens a Kennel in Dos Lagos
Unbeknownst to Massoud, in 2010, the County allowed Amber and Jeff Lewin, who are both Caucasian, to open a pet kennel on Pulsar Court in the Dos Lagos area without a CUP. (See Plfs' UMF 69-82.)
The Lewins are the owners of the following businesses: Amber's Mobile Pet Salons, Inc., Amber's Mobile Pet Grooming, LLC, and Amber's Luxury Pet Hotel (collectively, "Amber's"). This action initially named these businesses as defendants, but later dismissed them.
Principal Planner Scott O. Arnold ("Arnold") was responsible for allowing Amber's to operate at the Pulsar Court location without a CUP. (Plfs' UMF 83; Defs' UMF 7.) In fact, Arnold provided Amber's with a letter on County letterhead, which stated that the Amber's Pulsar Court location did not need a CUP to operate. (Plfs' UMF 83; Defs' UMF 36.) Massoud views Amber's as a competitor. (Plfs' UMF 69.) It is undisputed that Ordinance 348 requires a business to obtain a CUP in order to operate a kennel in the Dos Lagos area.
Ross states that he was unaware that Arnold did this. (Defs' UMF 11.) Arnold is now deceased and was not deposed or named as a defendant in this case.
Though the letter does not explicitly state that Amber's may operate its business without a CUP, the parties appear to agree this is the import of the letter.
C. Massoud Inquires about a CUP a Second Time
Massoud returned to the County's Building and Planning Department on October 1, 2012, in order to determine if the Dos Lagos area had been re-zoned since he last inquired about opening a kennel. (Defs' UMF 17; Plfs' UMF 85.) While there, Massoud was told by the desk clerk that Amber's was operating in the Dos Lagos area without a CUP. (Defs' UMF 17; Plfs' UMF 86.) When Massoud asked for additional information, he was directed to speak with County Planner Larry Ross ("Ross"). (Plfs' UMF 87-88.)
By this time, Massoud had opened a kennel in Corona, California. (Plfs' UMF 124.)
Ross told Massoud that he was unsure why Amber's was operating without a CUP, and said he would research the matter further. (Plfs' UMF 90.) Before Massoud left, Ross gave him an Application Fee Schedule and Application for Land Use, which stated that the minimum cost for a CUP for a kennel in the Dos Lagos area was $15,000 to $30,000. (Plfs' UMF 90-91.)
The Court has not considered Massoud's statement that, before he spoke with Ross, an unnamed County employee told him that the Building and Safety Department "had received a direct order from Mr. Ross to put the building plans for [his] competitor . . . through and get them approved without a CUP" in 2010. (Plfs' UMF 89; Massoud Decl. ¶ 9.) This is double hearsay, not falling within an exception to the rule barring such evidence.
Ross's research revealed that Amber's had been operating without a CUP, contrary to County Ordinance 348. (Defs' UMF 20.) Upon learning this, Ross spoke with his supervisor, Frank L. Coyle ("Coyle"), to determine the correct course of action. (Defs' UMF 21.) Ross's position was that Arnold's decision to allow Amber's to operate without a CUP was in error, and could not be allowed in the future. (Id.) Coyle agreed. (Id.)
Later that day, Ross telephoned Massoud and told him that Amber's had been allowed to operate without a CUP, but when Massoud asked to be given the same treatment, Ross declined to do so. (Defs' UMF 24-26; Plfs' UMF 92- 94.) Ross did not tell Massoud that if he applied for a CUP his application would be denied automatically. (Defs' UMF 27.) After this conversation, Ross and Massoud never spoke again. (Defs' UMF 28.) Massoud did not submit the CUP application he inquired about in October 2012. (Defs' UMF 29.)
D. County Planning Policies
The County's Planning Department takes the lead in assessing most land development proposals. (Defs' UMF 48.) According to Ross, when a person inquires about a CUP, the general practice is to tell him or her about the range of fees and that the application process can take six months to one year. (Defs' UMF 30-32.) County Planning Department employees do not have the authority to deny a CUP, only the Planning Commission or the Board of Supervisors has that power. (Defs' UMF 34.)
When CUP applications are submitted, they are transmitted to numerous County Departments and outside agencies for review. (Defs' UMF 47.) Re-designs may be required before a CUP is approved; thereafter, the application is submitted for public hearing. (Defs' UMF 47.) Given that numerous agencies and departments may be involved in the approval of a CUP, the time for processing can vary, though the Planning Department may choose to expedite certain applications. (Defs' UMF 49.) There is no state law, County policy or County ordinance that prohibits expediting a CUP application. (Defs' UMF 46.)
Neither before or since the one instance when Arnold issued a letter stating that Amber's could operate without a CUP has the County's planning department allowed a business to forego the CUP process. (Defs' UMF 12.) According to the Defendants, the County Planning Department has never had a policy of discriminating against a person or application based on any protected class; rather, the County has a zero tolerance policy regarding discrimination. (Defs' UMF 60, 62.)
E. Massoud's Code Enforcement Complaint Against Amber's and the County's Decision Not to Take Action
In October 2012, Massoud filed a complaint with the County regarding its decision to allow Amber's to operate without a CUP, alleging that the County discriminated against him because he was of Lebanese descent. (Defs' UMF 35; Plfs' UMF 96.) When County Code Enforcement officers went to Amber's to investigate the complaint, representatives from Amber's produced Arnold's letter. (Defs' UMF 36; Plfs' UMF 96-99.) In response, the officers left the scene, noting in their report that they would follow-up with the owners in a few days. (Plfs' UMF 100.) No follow-up was undertaken, however; the enforcement complaint was terminated without resolution. (Plfs' UMF 103-04.) This is consistent with Ross's and the County's position that Amber's could not be required to obtain a CUP without exposing itself to litigation because Amber's had Arnold's letter. (Defs' UMF 36-39.)
F. Amber's Seeks and Is Granted a CUP on an Expedited Basis
In 2013, Amber's decided to relocate its business to an adjacent location on Pulsar Court; this new location was zoned for the same use as its previous location and required a CUP to operate. (Defs' UMF 40.) Amber's submitted an application for a CUP on an expedited basis, and was required to pay only $6,000. (Defs' UMF 42-46; Plfs' UMF 105.) The application was given to Urban and Regional Planner IV Tamara Harrison ("Harrison") for consideration because other planners had a high workload and because she was highly experienced. (Defs' UMF 41-42.) Ross had no involvement with this application. (Defs' UMF 43.)
According to Ross, the County does allow CUP applicants to negotiate an initial deposit on the application. (Defs' UMF 33.)
Amber's CUP application was expedited because the holidays were fast-approaching, and because there were limited opportunities for the Planning Commission hearings to take place. (Defs' UMF 44-45.) According to Harrison, Robert Magee from the First District Supervisor's Office made an inquiry into Amber's CUP application and thereafter acted as a liaison between Amber's and the County. (Defs' UMF 50-51.) Magee never encouraged Harrison to process the application inappropriately or unlawfully. (Defs' UMF 52.)
On November 5, 2013, Harrison prepared a staff report regarding Amber's CUP application and requested a hearing before the Planning Commission, which took place on November 20, 2013. (Defs' UMF 55-56.) The public was notified in advance of the Planning Commission hearing. (Defs' UMF 56.) At the November 20, 2013 hearing, the Planning Commission voted to approve Amber's CUP; there were no public objections. (Defs' UMF 57.)
Amber's CUP was approved as of December 10, 2013. (Defs' UMF 58.) That same day, Harrison sent an electronic mail message ("e-mail") to Magee, informing him that the CUP had been approved, and that the time period for appeal had begun that day. (Plfs' UMF 115.) Magee thanked Harrison for "making this happen both quickly and economically." (Plfs' UMF 115.)
Massoud contends that he would have sought a CUP had he known that he could receive one on an expedited basis at a reduced rate. (Plfs' UMF 123.)
IV. LEGAL STANDARD
A motion for summary judgment or summary adjudication shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252).
A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
V. DISCUSSION
A. Massoud Has Standing
Defendants first argue that Massoud lacks standing to bring this action because: (1) his alleged damages are speculative and (2) he failed to submit a request for a CUP, and thus was not personally denied equal treatment giving rise to a cognizable injury. (MSJ at 5-7.)
"Article III, § 2 of the Constitution states that the federal courts may only adjudicate 'cases' and 'controversies,' and thus imposes what the Supreme Court has called 'the irreducible constitutional minimum of standing.'" Cent. Delta Water Agency v. United States, 306 F.3d 938, 946 (9th Cir. 2002) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). "The requirement of standing 'tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.'" Id. (quoting Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472 (1982).
It is the plaintiff's burden to establish the three elements of standing to assert federal jurisdiction. Id. at 947. In order to have standing, a plaintiff must show "(1) an 'injury in fact' that is 'concrete and particularized' and 'actual or imminent,' not 'conjectural or hypothetical'; (2) a 'causal connection between the injury' and the challenged action of the defendant; and (3) that it is 'likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."" Multistar Indus., Inc. v. U.S. Dep't of Transp., 707 F.3d 1045, 1054 (9th Cir. 2013) (quoting Lujan, 504 U.S. at 560-61).
1. Massoud's Damages Are Not Speculative
Defendants argue that, to the extent Massoud claims he was damaged by the County's failure to allow him to open a business without a CUP, but then allowed a competing business to open in the same location without a CUP, his damages are too speculative to be recoverable. (MSJ at 6.)
Here, Massoud contends that he initially sought to open his business in the Dos Lagos area, but was dissuaded because of the expensive and time-consuming CUP application process. He then opened his business in what he considered to be a commercially inferior location in Corona. Given that Amber's was allowed to open and operate for a number of years without a CUP in the same location that Massoud wished to open his business, his damages are not speculative.
Section 1983 "was intended to create 'a species of tort liability' in favor of persons deprived of federally secured rights." Smith v. Wade, 461 U.S. 30, 34 (1983). "The purpose of awarding damages in a section 1983 action is to compensate the aggrieved party." Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir. 1985) (citing Carey v. Piphus, 435 U.S. 247, 254-55 (1978)). "Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U.S.C. § 1988 . . . . [A]s we read § 1988 . . . both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969); see also Chalmers, 762 F.2d at 760-61 (affirming award of damages for lost profits in connection with a § 1983 action alleging due process violation).
When an established business is "prevented or interrupted" by a tort, damages for the loss of future profits is recoverable. Grupe v. Glick, 26 Cal. 2d 680, 692 (1945). Future profits are recoverable for an established business because they "may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales." Id. On the other hand, where an unestablished business is "prevented or interrupted," those prospective profits are not recoverable because "their occurrence is uncertain, contingent, and speculative," unless "there has been operating experience sufficient to permit a reasonable estimate of probable income and expense." Id. at 693; Kids' Universe v. In2Labs, 95 Cal. App. 4th 870, 883 (2002). "Lost anticipated profits cannot be recovered if it is uncertain whether any profit would have been derived at all from the proposed undertaking." Kids' Universe, 95 Cal. App. 4th at 883.
A plaintiff may recover damages if he can "demonstrate a reasonable probability that profits would have been earned except for the defendant's conduct." Id. (citation omitted). Damages may be proven through "expert testimony, economic and financial data, market surveys and analyses, business records of similar enterprises, and the like." Id. at 884 (citation omitted). Lost profits need not be established with mathematical certainty or precision. Lewis Jorge Const. Management, Inc., Pomona Unified Sch. Dist., 34 Cal. 4th 960, 975 (2004). Overall, "the loss of prospective profits are recoverable where the evidence makes reasonably certain their occurrence and extent." Grupe, 26 Cal. 2d at 693; Kids' Universe, 95 Cal. App. 4th at 883.
Here, while Massoud did not establish a business in the Dos Lagos area, it is undisputed that he did establish a business in the nearby area of Corona. Moreover, because Amber's did establish a business in Dos Lagos, Massoud could compare the profits of the business that he did establish with the business that he wished to establish. Massoud has submitted expert testimony in this regard. (See generally, Hoslett Decl.) The Court finds this is sufficient to show he has an injury in fact that is not speculative.
2. Massoud's Failure to Apply for a CUP Does Not Deprive Him of Standing
Defendants also argue that because Massoud did not apply for a CUP once Ross told him that he would be required to do so in order to operate a kennel in the Dos Lagos area, he cannot show causation in order to establish standing. (MSJ at 7-8.)
Defendants cite Perfino v. California Dep't of Alcoholic Beverage Control, 458 F. App'x 699 (9th Cir. 2011). There, the appellants received advice from a field official from the Department of Alcoholic Beverage Control ("ABC"). Id. at 699-700. Based on that advice, appellants' business partner scuttled their partnership. Id. Appellants later determined that the advice was incorrect, and brought suit against the ABC on equal protection grounds. Id. at 700. The Ninth Circuit affirmed the district court's entry of summary judgment in favor of ABC, because appellants' damages were caused by their business partner dissolving their partnership, not any definitive action by the ABC. Id.
Here, however, Massoud's alleged damages could, if proven, be characterized fairly as being caused by the County. He was told initially he would need to apply for a CUP, and then a competing business opened without a CUP. Massoud's lost profits, as discussed above, therefore would be proximately caused by the County's actions, if his allegations were proven.
Accordingly, the Court DENIES the MSJ to the extent it is brought on lack of standing. B. Massoud's Monell Claim Fails
Massoud's second claim alleges that the County "maintained policies and practices of discriminating against persons of Arabic ethnicity and/or Plaintiffs as a class of one" by: (1) the knowing and intentional disclosure of false and misleading information to persons of Arabic ethnicity; (2) selective enforcement of County zoning laws discriminating against persons of Arabic ethnicity and in favor of persons of Caucasian ethnicity; (3) conspiring with persons of Caucasian ethnicity in order to advantage their businesses at the expense of persons of Arabic ethnicity; and (4) providing no rational basis for this discrimination or disparate treatment. (See SAC ¶ 113.) This claim is alleged against the County only.
In Monell, the Supreme Court held that "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 690-91 (municipality cannot be held liable under § 1983 "solely because it employs a tortfeasor"). Stated differently, a municipal government entity may only be liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of. Monell, 436 U.S. at 694.
A section 1983 plaintiff may establish municipal liability in one of three ways. First, theGillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal citations omitted).
plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a "longstanding practice or custom which constitutes the 'standard operating procedure' of the local governmental entity." Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with "final policy-making authority" and that the challenged action itself thus constituted an act of official governmental policy. . . . Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.
In order to succeed on a Monell claim against a municipality, a plaintiff must "demonstrate that the defendant's conduct was the actionable cause of the claimed injury," by establishing "both causation-in-fact and proximate causation." Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (internal citations and citations omitted). In other words, a plaintiff must establish that "the entity's policies evince a 'deliberate indifference' to the constitutional right and are the 'moving force behind the constitutional violation.'" Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010).
Massoud's Opposition argues that the County is liable on either the first or the third Monell theory explained above. (Opp'n at 15.)
1. Massoud's Evidence of a Persistent and Widespread Policy of Discrimination Is Insufficient
Monell liability can attach to a municipality where "the municipality itself causes the constitutional violation through 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.'" Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (citation omitted).
"A municipal 'policy' exists when 'a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.'" Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Such a policy may be "explicitly adopted" or "tacitly authorized." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986) (citing Monell, 436 U.S. at 690-91).
Only a "longstanding practice or custom which constitutes the 'standard operating procedure' of the local government entity," is sufficient to impose liability for an unconstitutional custom. Menotti, 409 F.3d at 1151. Such a practice "must be so 'persistent and widespread' that it constitutes a permanent and well settled city policy.'" Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). "[A] custom or practice can be 'inferred from widespread practices or "evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded."'" Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (citations omitted).
"Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id. (citations omitted); Avalos v. Baca, 596 F.3d 583, 588 (9th Cir. 2010)("[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policy maker." (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (alteration in original)).
Massoud offers very little in the way of substantive argument on his Monell claim. He points to the following evidence: (1) Arnold allowed Amber's to operate without a CUP in 2010; (2) when Massoud brought this to Ross's attention, both Ross and Coyle (a) decided nothing could be done because Amber's had Arnold's letter and (b) declined to allow two wrongs to make a right by allowing Massoud to operate a business without a CUP; (3) Ross terminated Massoud's code enforcement complaint without resolution; and (4) the County allowed Amber's to apply for and receive a CUP on a low-cost and expedited basis. (Opp'n at 15-16.)
As Defendants argue, even assuming that there was some modicum of discriminatory intent behind Arnold's decision to allow Amber's to operate without a CUP and give it a letter saying as much — which is now almost impossible to know as Arnold is deceased — none of the remaining evidence shows a practice of "sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." (MSJ at 12-14.) Moreover, Ross's and Coyle's decision not to enforce the CUP requirements against Amber's for fear of litigation (and terminating Code Enforcement proceedings for that reason) does not demonstrate a policy of discrimination.
Nor has Massoud shown any genuine dispute with respect to a theory that the County failed to discipline or punish Arnold. It is unclear when Arnold died, but it appears he was no longer working for the County at the time Ross told Massoud that Amber's was operating without a CUP; at that point, there was no one to discipline or reprimand.
Instead, the evidence shows that, although Amber's should not have been allowed to operate without a CUP, it was required to obtain one when it moved. Though Massoud contends allowing Amber's to apply for and receive a CUP on an expedited basis and at a lower cost was a "sham," the undisputed facts show that allowing applicants to have their CUP application expedited did not violate County policy or law.
2. Massoud Has Not Shown that Any of the Individual Defendants Had "Final Policy-Making Authority"
Massoud's Opposition argues that the "evidence also creates a triable issue of material fact . . . that 'the tortfeasor was an official whose acts fairly represent official policy such that the challenged act constituted an official policy[.]'" (Opp'n at 15.) The Opposition cites cases dealing with individual supervisory liability to support this argument, however, not liability based on official policy. (See id. at 16.) For example, Massoud cites Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) for the proposition that a "supervisor may be individually liable under § 1983 'if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" (Opp'n at 16.) But Jeffers dealt with a supervisor's vicarious liability under § 1983, not with the quantum of evidence required to sustain a theory that a municipal entity could be liable on a Monell theory for a supervisor's actions. (See Jeffers, 267 F.3d at 915-16 (not mentioning Monell liability).) Similarly, Massoud's citations to Menotti, 409 F.3d at 1149 ("supervisory liability is imposed against a supervisory official in his individual capacity . . ."), and Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) ("The district court correctly instructed the jury that it could find Chief Gates liable in his individual capacity if he 'set[ ] in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or reasonably should [have] know[n], would cause others to inflict the constitutional injury.'"), all concern individual capacity liability, not municipal liability under Monell. As Massoud has not pointed to any official with final policy-making authority who committed any constitutional tort against him, there is no genuine dispute as to this claim.
In sum, Massoud has failed to raise a genuine issue of material fact as to his Monell claim. He has not shown that there is a longstanding County policy or custom of favoring Caucasian business owners or of disfavoring Lebanese or Arab business owners. Moreover, he has not pointed to any official with official policy-making authority who committed a constitutional tort against him that can give rise to Monell liability. Accordingly, the Court GRANTS the MSJ as to this claim.
C. Massoud's § 1983 Claim Against the Individual Defendants
Massoud's first claim alleges that the County and the individual defendants "intentionally discriminated against Plaintiffs in or about October, 2012, by conveying false and erroneous information concerning [the County's] actual policies and procedures concerning the required CUP permitting procedures . . . and refusing to apply and administer the same flexible and relaxed policies and procedures for Caucasian CUP applicants . . . whereas Plaintiffs and other applicants of Arab- American ethnicity . . . were required to demonstrate full and rigid compliance with all formal, published CUP permitting process[es] . . . ." (SAC ¶ 99.) Thus, Massoud avers that "[i]n engaging in the foregoing intentional acts of discrimination as against Plaintiffs . . . solely on the basis of Plaintiffs' Arabic ethnicity, [the individual defendants] . . . have denied Plaintiffs 'the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens' guaranteed under 42 U.S.C.A. 1981(a), and the 14th Amendment of the Constitution of the United States." (Id. ¶ 101.)
As noted above, the County may only be liable under § 1983 on a Monell theory of liability; thus, to the extent Massoud alleges the County of Riverside violated his equal protection rights, the Court enters judgment in favor of the County as to this claim. See Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2011) (hereinafter "Gerhart")(granting a county's motion for summary judgment on equal protection and due process claims arising from alleged zoning discrimination where the plaintiff failed to allege a Monell claim successfully).
1. Summary Judgment Must Be Entered in Favor of Gregory A. Neal, Carolyn Syms Luna, and Juan Perez
Before the Court discusses the merits of the MSJ as to Massoud's equal protection claim, it first must address the state of the evidence as to the individual defendants. As noted above, the individual defendants named in this suit are Ross, Coyle, Gregory A. Neal, Carolyn Syms Luna, and Juan Perez; all of these defendants, with the exception of Ross, were named for the first time in the SAC. The SAC alleges one claim against each of them: violation of Massoud's equal protection rights in violation of 42 U.S.C. § 1983.
In the recitation of undisputed facts above, Neal, Perez, and Luna are not mentioned, and Coyle is only mentioned once. Below are summaries of Massoud's factual allegations against each, drawn from his own "Statement Opposing Genuine Issues in Dispute on Motion of Defendants for Summary Judgment" and the Opposition.
a. Gregory A. Neal
Neal never made available to Massoud the "quick[] and economic[]" CUP that Amber's received in 2013. (Plfs' UMF 116.) There is no allegation that Massoud had any contact with Neal, or that Neal had any role in Arnold's decision that Amber's did not require a CUP in 2010, or Amber's subsequent CUP application and approval in 2013.
b. Juan Perez
Perez was a participant in the e-mail chain in which Magee thanked Harrison for helping Amber's obtain the "quick[] and economic[]" CUP in 2013. (Opp'n at 11; Plfs' UMF 115.) Magee CC'ed Perez on this e-mail, to which Perez replied: "Thank you Tamara [Harrison] for your good work, and Bob [Magee] for the acknowledgment." (Elias Decl. Ex. 5 (attaching Ex. 39, Bates No. C-011280-81).) Perez never made available to Massoud the "quick[] and economic[]" CUP that Amber's received in 2013. (Plfs' UMF 116.) The Opposition also asserts that Perez was "involved in the review and sham, pre-approved 'expedited' CUP process afforded to Amber[']s," though it cites no evidence for this assertion. There is no allegation that Massoud had any contact Perez or that Perez even knew of Massoud.
c. Carolyn Syms Luna
Luna never made available to Massoud the "quick[] and economic[]" CUP that Amber's received in 2013. (Plfs' UMF 116.) The Opposition also asserts that Luna was "involved in the review and sham, pre-approved 'expedited' CUP process afforded to Amber[']s," though it cites no evidence for this assertion. (See Opp'n at 2.) The Opposition also states that "Luna and Ross both admit they did not enforce the CUP requirement as to Ambers." (Id. at 16 (citing Plfs' UMF 102-14).) Those portions of the Statement of Genuine Issues do not mention Luna, however. And, in any case, neither the Statement of Genuine Issues nor the Opposition mention any specific actions Luna took with respect to Amber's. Moreover, there is no allegation that Massoud had any contact Luna or that Luna even knew of Massoud.
d. Frank L. Coyle
Coyle never made available to Massoud the "quick[] and economic[]" CUP that Amber's received in 2013. (Plfs' UMF 116.) Coyle was "involved in the review and sham, pre-approved 'expedited' CUP process afforded to Ambers," though the Opposition cites no evidence for this assertion. (See Opp'n at 2.) As Ross's supervisor, Coyle conferred with him and agreed with his determination that the County would not allow Massoud to operate a kennel in the Dos Lagos area without a CUP, despite the fact that Arnold had erroneously allowed Amber's to operate in that area without a CUP. (Id. at 9.) There is no evidence that Coyle contacted Massoud personally, or that he knew Massoud was of Lebanese descent.
e. Larry Ross
Ross briefly spoke in person with Massoud about Amber's being allowed to operate without a CUP on October 1, 2012. (Plfs' UMF 87-88, 90, 92.) In a telephone call later that day, Ross stated that although Arnold allowed Amber's to operate without a CUP, a CUP was still required to operate in the Dos Lagos area, and Massoud would not be exempted. (Plfs' UMF 93-94.) Ross told Massoud that a CUP would cost somewhere between $15,000 to $30,000 and it could take up to one year before it was approved. (Plfs' UMF 94-95.) Though Massoud initiated a Code Enforcement complaint against Amber's, Ross, as the liaison between the Code Enforcement Officers and the Planning Department, terminated the complaint without resolution; Ross's rationale was that the County could not revoke Arnold's letter without exposing itself to liability. (Plfs' UMF 100-101.) Ross never spoke to Massoud again after the telephone call. (Defs' UMF 28.)
Defendants contend "[a]t no time has [sic] Plaintiffs ever outlined in their SAC exactly what [Neal, Perez, Luna, and Coyle] did or did not do that violated Plaintiffs' constitutional rights," and that the "absence of any specific allegations against them should entitle them to summary judgment." (MSJ at 15.) Massoud does not address this argument in his Opposition.
Defendants are correct, to an extent. "Liability under section 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (internal citation omitted); see also James v. Rowlands, 606 F.3d 646, 653 n.3 (9th Cir. 2010) ("Of course, § 1983 imposes liability on a defendant only if he or she personally participated in or directed a violation.").
Alternatively, even where personal participation is absent, liability under § 1983 can be established "not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Dahlia v. Rodriguez, 735 F.3d 1060, 1078 n.22 (9th Cir. 2013) cert. denied sub nom. City of Burbank, Cal. v. Dahlia, 134 S. Ct. 1283 (2014) (quoting Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999)); Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
In either case, culpability "is limited not only by the causal connection of the official to the complained-of violation, but also by his intent (depending on the underlying constitutional violation at issue) to deprive another of that person's rights . . . ." Lacey, 693 F.3d at 916.
At least with respect to Neal, Perez, and Luna, Massoud has failed to adduce any evidence that these defendants personally participated in any violation of his rights, nor has he shown that these defendants set in motion a series of events they knew or should have known would violate his rights. Massoud also has not shown that any of these defendants intended to deprive Massoud of his rights.
Massoud acknowledges this standard in his Opposition, arguing that "direct and circumstantial evidence proves triable issues exist as to whether Coyle, Luna, and Perez set into motion a series of acts by Harrison, Magee, Ross and others which led to the violation of Plaintiff's equal protection rights." (Opp'n at 17.) First, this statement is contained in Massoud's discussion of Monell liability, as discussed above, not his discussion of the equal protection claim against the individual defendants. Second, Neal is not mentioned as being involved in any series of acts to deprive Massoud of his rights. Third, even if the Opposition included Neal in the list of persons who set in motion a series of acts by others allegedly to deprive Massoud of his rights, there is no evidence to support such a proposition, as discussed above.
Although the burden on a party moving for summary judgment is substantial, the burden on a party opposing a motion for summary judgment must not be underestimated. . . . [S]ummary judgment is the "put up or shut up" moment in a lawsuit, when the nonmoving party must show what evidence it has that would convince a trier of fact to accept its version of events.Rush v. Denco Enterprises, Inc., 857 F. Supp. 2d 969, 974 (C.D. Cal. 2012) rev'd and remanded on other grounds, 593 F. App'x 727 (9th Cir. 2015). As Massoud has not provided any evidence that Neal, Perez, or Luna was involved, personally or otherwise, in any violation of his rights, summary judgment must be entered in their favor. With respect to Ross, there is evidence that he had contact with Massoud concerning Amber's operation without a CUP. Ross made the final decision that Massoud would be required to apply for a CUP before being allowed to operate a kennel in the Dos Lagos area; Coyle, Ross's supervisor, agreed with this decision. As there is evidence that Ross had contact with Massoud, and that Coyle approved of one of Ross's decisions affecting Massoud, this is sufficient to proceed to the next level of analysis with respect to Ross and Coyle.
2. "Class of One" Claims
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Sioux City Bridge Co. v. Dakota Cnty., Neb., 260 U.S. 441, 445 (1923) (internal citations and quotations omitted) ("The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination.").
Equal protection claims come in two types: a plaintiff may allege he was intentionally discriminated against based on his membership in a protected class, or he may allege he was intentionally treated differently from others similarly situated and there was no rational basis for the difference in treatment, also known as a "class of one" theory. Johannes v. Cnty. of Los Angeles, 563 F. App'x 567, 568 (9th Cir. 2014) (citing Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (requirements for claims based on membership in protected class); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (hereinafter ("Olech") (per curiam) (class of one discrimination).
Defendants contend that Massoud does not allege he is a member of a suspect class, and thus he can only proceed on a "class of one" theory. (MSJ at 8.) Massoud does not address this contention directly in his Opposition, though he does argue that his principal theory of liability is that defendants deprived him of his equal protection rights "both by suspect classification based on Massoud's Arabic ethnicity, as well as a 'class of one.'" (Opp'n at 1.) The Opposition provides scant, if any, argument on the issue of discrimination on the basis of a suspect class. Indeed, the only other mention of the Defendants denying Massoud's rights as a member of a suspect class is a passing reference later in the Opposition, stating that Defendants should have known their actions would "inflict a violation of equal protection on either the suspect class of ethnicity, or a 'class of one' for arbitrary enforcement." (Opp'n at 17 (discussing Monell liability).) As Massoud presents no argument that he was intentionally discriminated against based on his membership in a suspect class, the Court only addresses his claim that he was discriminated against as a "class of one."
"The Supreme Court has recognized that 'an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called "class of one."'" Gerhart, 637 F.3d at 1021 (citing Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008) ("Engquist")). In order to succeed on such a claim here, Massoud must demonstrate that the Defendants (1) intentionally, (2) treated him differently than other similarly situated persons, (3) without a rational basis. Gerhart, 637 F.3d at 1022 (citing Olech, 528 U.S. at 564).
With respect to the intent prong of the test, Massoud need not show that the Defendants were motivated by subjective ill will, only that they intended to treat him differently from other applicants. Id. ("Gerhart does not need to demonstrate that the Commissioners harbored ill will towards him in order to meet the 'intent' requirement of his 'class of one' claim. Instead, Gerhart must show that the Commissioners intended to treat him differently from other applicants." (internal citation omitted)).
Disparate government treatment will survive rational basis scrutiny "as long as it bears a rational relation to a legitimate state interest." Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) overruled on other grounds as recognized by Erickson v. Cnty. of Nevada ex rel. Bd. of Supervisors, 2015 WL 3541865, at *1 (9th Cir. June 8, 2015); see also SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (in a "class of one" claim, the defendant's conduct "comports with equal protection if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." (internal quotation marks and citations omitted)).
Moreover, "[w]here an equal protection claim is based on 'selective enforcement of valid laws,' a plaintiff can show that the defendants' rational basis for selectively enforcing the law is a pretext for 'an impermissible motive.'" Squaw Valley, 375 F.3d at 944; see also Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) ("Selective enforcement of valid laws, without more, does not make the defendants' action irrational.").
The Ninth Circuit has stated that "the rational basis prong of a 'class of one' claim turns on whether there is a rational basis for the distinction, rather than the underlying government action." Gerhart, 637 F.3d at 1023 (citation omitted).
3. The Applicability of Olech , Gerhart , and City of Walnut Creek
Defendants argue that Massoud cannot prevail on his "class of one" claim because, to the extent it treated him differently than Amber's, the decision had a rational basis. Some background concerning "class of one claims" in zoning contexts is helpful to understand Massoud's claim.
In Olech, the plaintiffs requested that the village connect her property to the municipal water supply. 528 U.S. at 563. The village agreed to do so, but on the condition that the plaintiffs provide the city a thirty-three foot easement over their property. Id. Plaintiffs protested, claiming that the village only required a fifteen foot easement from other property owners seeking access to the water supply. Id. Though the village ultimately provided water service to plaintiffs on condition of providing a fifteen foot easement, plaintiffs brought suit against the village, alleging that the village's request for a thirty-three foot easement was "irrational and wholly arbitrary" and was actually motivated by ill will stemming from plaintiffs' successful lawsuit against the village in the past. Id.
The Supreme Court held that plaintiffs could state a claim against the village for violation of their equal protection rights, because the village demanded a larger easement than other similarly situated property owners, and because the request for a larger easement was "irrational and wholly arbitrary," in light of the fact that the village ultimately only needed a fifteen foot easement to connect the water supply. Id.
Gerhart addressed similar allegations. There, a landowner sought permission from the county and its commissioners to build an approach (essentially, a driveway connecting his property to the public road). 637 F.3d at 1014-15. The county denied his request for a permit, despite the undisputed testimony of the plaintiff that at least ten of his neighbors built un-permitted approaches, without consequence. Id. at 1015, 1022. Sometime before the dispute about the landowner's approach, he also had "a difficult history with the County" and had "complaints lodged against him by neighbors . . . ." Id. at 1022.
The Ninth Circuit reversed a grant of summary judgment in favor of the county commissioners on the landowner's "class of one" equal protection claim, finding that the landowner's evidence that he was treated differently than at least ten similarly situated property owners, coupled with disputed evidence that the commissioners had an illegitimate reason to single him out based on his checkered past with his neighbors, was sufficient to defeat summary judgment. Id. at 1022-23. The Ninth Circuit also rejected the commissioners' contention that they had a rational basis to treat the landowner differently, finding that their stated reasons for denial were not rational. Id. at 1023-24.
Here, Ross's decision not to require Amber's to apply for a CUP, in light of the letter Arnold had issued, was rational. So too was Coyle's agreement with that decision. When faced with Massoud's inquiry regarding Amber's operation without a CUP, Ross faced a dilemma: he could require Amber's to obtain a CUP and face the prospect of litigation based on Amber's good-faith belief that no CUP was required, or he could extend Massoud the same privilege, thereby compounding Arnold's error. Deciding to uphold County zoning rules prospectively, instead of making an unauthorized and unilateral decision to allow Massoud to operate without a CUP, was a rational decision under the circumstances.
Massoud cites Prof'l Care Mgmt., Inc. v. City of Walnut Creek, 2005 WL 2318965 (N.D. Cal. Sept. 21, 2005) to support his position that his allegations are sufficient to support a "class of one" equal protection claim. In Walnut Creek, the plaintiff was a retail store operator who used outdoor displays to sell merchandise. Id. at *1. The plaintiff alleged that the city selectively enforced an ordinance restricting outdoor signage against her while allowing large chain-store merchants to violate the ordinance with impunity. Id. Moreover, the plaintiff alleged that after she complained about the uneven enforcement, the city enforced the ordinance even more rigidly against her and refused to investigate its discriminatory enforcement tactics. Id. The district court denied the city's motion to dismiss, finding that the plaintiff's allegations concerning enforcement of the sign ordnance were sufficient to state an equal protection claim on a "class of one" theory. Id. at *2.
The circumstances of the instant case do not fit neatly into what seems to be the traditional "class of one" land-use claim as in Olech, Gerhart, and Walnut Creek, in which a landowner, who has an uneasy relationship with a municipality, asks for some kind of accommodation because the landowner's neighbors have received the same treatment. When the municipality refuses to grant that accommodation, for reasons that appear to be unconnected to the merits of the accommodation request, the plaintiff files a "class of one" equal protection claim.
In the Court's view, Massoud's claim for discrimination is even more attenuated than those in Olech, Gerhart, and Walnut Creek. This is not a situation in which Massoud applied for a CUP, or requested a lower-cost or expedited CUP application process, but was denied by the County despite the fact that a similarly situated competitor was given the same privileges. Moreover, it is undisputed that Amber's was required to apply for and receive a CUP when it sought to move locations. Again, there is no evidence that the County expedited this process to intentionally discriminate against Massoud alone.
It is for this reason that Defendants' arguments concerning Engquist's disapproval of "class of one" claims in instances of discretionary decisionmaking is inapplicable. (See MSJ at 11; Reply at 5.) Here, there was no discretionary decision — like the approval of a CUP — under consideration, only Ross's refusal to allow Massoud to operate without a CUP. --------
As the Ninth Circuit has stated, "[a] class of one plaintiff must show that the discriminatory treatment 'was intentionally directed just at him, as opposed . . . to being an accident or a random act.'" N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (quoting Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001)). On these facts, it is fair to say that any discrimination Massoud experienced was accidental and unintentional. There is no evidence that Arnold knew Massoud had inquired about a CUP application for the Dos Lagos area in 2007, or that Ross or Coyle continued to allow Amber's to operate without a CUP in order to discriminate against Massoud, on account of his ethnicity or otherwise.
Accordingly, as Massoud has presented no genuine issue of material fact as to his "class of one" equal protection claim against Ross or Coyle, the Court GRANTS the Motion as to this claim.
VI. CONCLUSION
For the reasons stated above, the Court GRANTS the MSJ, in its entirety. Dated: September 10, 2015
/s/_________
VIRGINIA A. PHILLIPS
United States District Judge