United States District Court, C.D. California, Southern Division
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
O. CARTER UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff The Daniel and Francine Scinto
Foundation’s (“Scinto Foundation” or
“Plaintiff”) Motion for Summary Judgment
(“Motion”) (Dkt. 17).
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.
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) 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.
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) ¶¶
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.
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.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.
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.
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.
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.
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.
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).
6, 2016, Plaintiff refiled its Motion. Defendant opposed on
July 11, 2016 (Dkt. 19), and Plaintiff replied on July 18,
2016 (Dkt. 22).
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).
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
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.
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.
Failure to Meet and Confer
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.
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
The Alleged Failure to Keep Records
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. 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
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
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,
A: Yes, to my knowledge, yes.
Q: Well, you had microfiche, did you not?
Q: And did that - did the microfiche reflect any form of
construction as described in this e-mail on the south side of
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?
. . .
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 ...