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Daniel and Francine Scinto Foundation v. City of Orange

United States District Court, C.D. California, Southern Division

August 3, 2016

CITY OF ORANGE, Defendant.



         Before the Court is Plaintiff The Daniel and Francine Scinto Foundation’s (“Scinto Foundation” or “Plaintiff”) Motion for Summary Judgment (“Motion”) (Dkt. 17).

         I. Facts[1]

         Generally, this case arises out of Plaintiff’s allegations that Defendant City of Orange (“City” or “Defendant”) deprived Plaintiff of and interfered with Plaintiff’s use of its building, primarily by failing to keep required permits and plans for Plaintiff’s building and creating the mistaken belief Plaintiff was in violation of various regulations. See Mot. at 1.

         As a preliminary matter, the Court notes it has struggled to discern the facts surrounding this case. Neither Plaintiff’s Motion nor the Statement of Undisputed Material Facts (“SUF”) (Dkt. 14-4)[2] describes the facts or the timeline of events in any coherent fashion. Indeed, the Motion - which does not include any citations to the SUF - does not include a statement of facts.

         Plaintiff is the owner of a building located at 1624 West Katella Avenue in Orange, California. Second Amended Complaint (“SAC”) (Dkt. 1-1); see also Declaration of Daniel J. Scinto (“D. Scinto Decl.”) (Dkt. 14-5) ¶¶ 1-2. Daniel and Francine Scinto, who founded Plaintiff Scinto Foundation, donated the building to Plaintiff. See Declaration of Francine Scinto (“F. Scinto Decl.”) (Dkt. 14-8) ¶¶ 1-3.[3]

         In 2012, after a routine fire inspection, “Fire personnel” from the City of Orange Fire Department (“Fire Department”) reported potential Fire Code violations could exist at Plaintiff’s building. Declaration of Rosalva Flores (“Flores Decl.”) (Dkt. 19-2) ¶ 2. After these potential violations were identified, the matter was referred to Rosalva Flores (“Flores”), a Hazardous Material Specialist for the Fire Department, for “follow up.” Id. ¶ 3. Flores states she “visited the property” and “found evidence the tenant [The Breath of Spirit Ministries] may have committed an unpermitted occupancy change to assembly use, there was an incomplete fire detection system and an individual was living in the attic space of the building.” Id. Flores further states that, after she “engaged in months of failed negotiations with the tenant to correct the alleged violations, ” the tenant vacated the premises. Id. ¶ 4.[4]

         Once the tenant moved out, Flores contacted the owner of the building, the Scinto Foundation, “to correct the remaining issues.” Id. Defendant asserts it had “voluminous records on file concerning the building but the records were difficult to read and/or did not explain the square footage of the building that was being used by the tenant” Id. ¶ 5.[5]Therefore, Flores requested additional information from the Scinto Foundation. Id. Defendant states Plaintiff’s representative, Gabrielle Yacoob (“Yacoob”) did not respond to its requests for information, but rather demanded Defendant “prove its position” regarding fire detection requirements. Id. ¶ 6.

         Daniel Scinto states Yacoob informed him “a red flag was placed on the building . . . due to alleged building violations, ” and therefore Plaintiff “could not occupy the building until the Foundation met certain conditions.” D. Scinto Decl. ¶ 7. According to Plaintiff, Defendant knew Plaintiff was under the impression it could not lease the building. SUF No. 1; id. Nos. 4-6. Defendant disputes this account.

         In December 2015, “the property had an extensive fire, ” and the Building Division of the City of Orange Community Development Department “determined it was unsafe to occupy due to the damage.” Id. ¶ 8. Since then, “no permits have been pulled for re-construction of the property.” Id.

         II. Procedural History

         Plaintiff filed suit on February 17, 2015 in Orange County Superior Court. See Notice of Removal (Dkt. 1). Defendant removed the action to this Court on September 23, 2015. See id.

         In the SAC - the operative complaint - Plaintiff alleges the following claims against Defendant: 1) inverse condemnation, 2) nuisance, 3) interference with a contractual relationship, and 4) “discriminatory zoning laws against churches.” See generally SAC.

         On July 1, 2016, Plaintiff filed its Motion for Summary Judgment (Dkt. 14). The Court struck the Motion for failure to comply with Local Rule 11-6 (Dkt. 16).

         On July 6, 2016, Plaintiff refiled its Motion. Defendant opposed on July 11, 2016 (Dkt. 19), and Plaintiff replied on July 18, 2016 (Dkt. 22).

         III. Legal Standard

         Summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is to be granted cautiously, with due respect for a party’s right to have its factually grounded claims and defenses tried to a jury. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party’s case. Celotex, 477 U.S. at 323. When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact as to an essential element of its case. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).

         Once the moving party meets its burden, the burden shifts to the opposing party to set out specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49. A “material fact” is one which “might affect the outcome of the suit under the governing law . . . .” Id. at 248. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. Id. The court need not “comb the record” looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. Fed.R.Civ.P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that “[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party].” Liberty Lobby, 477 U.S. at 252.

         IV. Discussion

         Plaintiff moves for summary judgment on all four of its claims. See Mot. at 1. As a threshold matter, the Court finds it prudent to reiterate the summary judgment standard. Plaintiff asserts “Defendant has the burden to raise material issues of fact to defeat summary judgment.” Id. at 4-5. However, as set forth above, the moving party - here Plaintiff - bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex, 477 U.S. at 323; see Id. (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, and answers to interrogatories, and admissions on file, together with the affidavits, if any, ’ which it believes demonstrate the absence of a genuine issue of material fact.”) (citation omitted). If the moving party meets its burden, then the burden shifts to the opposing party - here Defendant - to set out specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49.

         The Court will address Plaintiff’s arguments concerning each claim below. First, however, the Court must determine whether it should decline to reach the merits of Plaintiff’s Motion on the grounds that Plaintiff failed to meet and confer prior to filing its Motion.

         A. Failure to Meet and Confer

         Defendant asks the Court to deny the instant Motion on the grounds that neither Plaintiff’s original nor refiled Notice of Motion references any attempt to engage in a meeting of counsel prior to the filing of the Motion as required by Local Rule 7-3. Opp’n at 4. Defendant also states Plaintiff never made any attempt to meet and confer. Id.

         Pursuant to Local Rule 7-3, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution. The conference shall take place at least seven (7) days prior to the filing of the motion.” The Court may, in its discretion, refuse to consider a motion for failure to comply with Local Rule 7-3. See, e.g., Manning v. Dimech, No. CV1505762RSWLPJWX, 2015 WL 9581795, at *3 (C.D. Cal. Dec. 30, 2015); Reed v. Sandstone Properties, L.P., No. CV 12-05021 MMM VBKX, 2013 WL 1344912, at *6 (C.D. Cal. Apr. 2, 2013). “Failure to comply with the Local Rules does not automatically require the denial of a motion, however, particularly where the non-moving party has suffered no apparent prejudice as a result of the failure to comply.” CarMax Auto Superstores California LLC v. Hernandez, 94 F.Supp.3d 1078, 1088 (C.D. Cal. 2015). The Court therefore elects to consider the merits of Plaintiff’s Motion. However, the Court strongly admonishes Plaintiff of the seriousness of failure to comply with the Local Rules and cautions all parties to fully comply with all local rules when filing future motions.[6]

         B. The Alleged Failure to Keep Records

         At the outset of its Motion, Plaintiff broadly argues the Court should grant summary judgment as to Plaintiff’s first three claims - inverse condemnation, nuisance, and interference with contractual relationships - based on the “uncontested fact that the Defendant[] failed to keep adequate records” as required by California Health & Safety Code § 19850 and California Building Code § 104.7.[7] Mot. at 2; see SUF No. 8 (“The Defendant[] failed [its] mandatory duty of keeping official records of applications received, permits and certificates issue[d], fees collected, reports of inspections, and notices and orders issued.”). Plaintiff fails to coherently explain how a finding that Defendant did not comply with record retention requirements relates to each specific claim and the elements of each of each claim. Nonetheless, before turning to the specific claims, the Court will address the assertion that there is no genuine dispute as to whether Defendant failed to keep required records.

         The Court finds there is a dispute of material fact as to whether Defendant failed to keep certain records. First, Plaintiff fails to adequately set forth what specific records Defendant failed to keep. Moreover, in support of its broad assertion concerning Defendant’s recordkeeping, Plaintiff cites only to the Deposition of Rosalva Flores (“Flores Depo.”) (Dkt. 24). In particular, Flores testified as follows:

Q: “The City does not have any records of plans or permits for the second floor construction on the south side of this building.” Was that true as of January 23rd, 2014?
A: Yes, to my knowledge, yes.
Q: Well, you had microfiche, did you not?
A: Yes.
Q: And did that - did the microfiche reflect any form of construction as described in this e-mail on the south side of the building?
A: It showed the mezzanine construction, not a second floor.
Q: And the reason you are distinguishing second floor construction from the mezzanine area is that it’s your interpretation or the position of the City that second floor construction would be an improvement of that area beyond the mezzanine area, correct?
A: Correct.
. . .
Q: But the walls and other improvements that in the earlier e-mail indicated had been done subsequent to 1998, in fact, were the improvements that you ...

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