United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT WITHOUT PREJUDICE [DOC. NO. 56]
MARILYN L. HUFF, District Judge
August 10, 2016, Defendant the City of Escondido
(“Defendant”) filed a motion for summary
judgment. (Doc. No. 56.) On October 3, 2015, Plaintiff
Southwest Key Programs, Inc. (“Plaintiff Southwest
Key”) filed a response in opposition to the motion.
(Doc. No. 72.) On October 24, 2016, Defendant filed a reply.
(Doc. No. 74.) On October 28, 2016, the Court granted the
parties' joint motion for leave to allow Plaintiff
Southwest Key to file a surreply. (Doc. Nos. 77, 78.) On
November 3, 2016, Defendant filed a response to Plaintiff
Southwest Key's surreply. (Doc. No. 79.) On February 1,
2017, Plaintiff Southwest Key filed a Notice of Supplemental
Authority. (Doc. No. 86.) On February 3, 2017, the Court held
a hearing on the Defendant's motion for summary judgment.
John David Loy, Craig Edward TenBroeck, and Michelle S. Rhyu
appear on behalf of Plaintiff Southwest Key. Michael R.
McGuinness, Alan Brian Fenstermacher, and John A. Ramirez
appeared on behalf of the Defendant. For the reasons
discussed below, the Court denies Defendant's motion for
lawsuit arises from Plaintiff Southwest Key's
unsuccessful application for a conditional use permit in the
City of Escondido. (See Doc. No. 1, Compl. at 6-32.)
Plaintiff Southwest Key, a corporate entity, sought to
convert a former skilled nursing facility located in a
residential zone into a custodial facility for up to 96
unaccompanied alien children (“UAC”). The UAC
were taken into custody at the border by Immigration and
Customs Enforcement (“ICE”) and subsequently
transferred to custodial facilities by the Office of Refugee
Resettlement (“ORR”) while awaiting resolution of
their immigration proceedings. (Id. at 13-15.) In
May 2014, under local zoning law, Plaintiff Southwest Key
applied for a conditional use permit from Defendant for its
proposed use of the facility. (Id. at 14-15.) After
a hearing, Defendant's Planning Commission denied
Plaintiff Southwest Key's application for the conditional
use permit on June 24, 2016. (Id. at 20.) Plaintiff
Southwest Key appealed the decision to the City Council. On
October 15, 2014, the City Council held a hearing and
affirmed the denial of the conditional use permit.
(Id. at 29.)
18, 2015, Plaintiff Southwest Key filed a complaint against
Defendant, alleging a violation of (1) the Federal Fair
Housing Act; (2) the California Fair Employment and Housing
Act; (3) the Equal Protection Clause of the Fourteenth
Amendment; and (4) the Supremacy Clause of the United States
Constitution. (Doc. No. 1.) On November 9, 2015, Plaintiff
Southwest Key filed a first amended complaint
(“FAC”). (Doc. No. 29.) On November 30, 2015,
Defendant filed an answer to the FAC. (Doc. No. 30.) By the
present motion, Defendant moves for summary judgment of all
claims. (Doc. No. 56.)
Legal Standards for Summary Judgment
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure if the moving party demonstrates that there
is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when, under the governing substantive law,
it could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Fortune Dynamic, Inc. v. Victoria's Secret Stores
Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010).
“A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Fortune
Dynamic, 618 F.3d at 1031; accord Anderson, 477
U.S. at 248. “Disputes over irrelevant or unnecessary
facts will not preclude a grant of summary judgment.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this burden in two ways: (1) by presenting evidence
that negates an essential element of the nonmoving
party's case; or (2) by demonstrating that the nonmoving
party failed to establish an essential element of the
nonmoving party's case that the nonmoving party bears the
burden of proving at trial. Id. at 322-23; Jones
v. Williams, 791 F.3d 1023, 1030 (9th Cir. 2015). Once
the moving party establishes the absence of a genuine issue
of material fact, the burden shifts to the nonmoving party to
“set forth, by affidavit or as otherwise provided in
Rule 56, ‘specific facts showing that there is a
genuine issue for trial.'” T.W. Elec.
Serv., 809 F.2d at 630 (quoting former Fed.R.Civ.P.
56(e)); accord Horphag Research Ltd. v.
475 F.3d 1029, 1035 (9th Cir. 2007). To carry this burden,
the non-moving party “may not rest upon mere allegation
or denials of his pleadings.” Anderson, 477
U.S. at 256; see also Behrens v. Pelletier, 516 U.S.
299, 309 (1996) (“On summary judgment, . . . the
plaintiff can no longer rest on the pleadings.”).
Rather, the non-moving party “must present affirmative
evidence . . . from which a jury might return a verdict in
his favor.” Anderson, 477 U.S. at 256.
ruling on a summary judgment motion, the court must view the
facts and draw all reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The court should not weigh the
evidence or make credibility determinations. See
Anderson, 477 U.S. at 255.
Plaintiff Southwest Key's Federal and State Fair Housing
moves for summary judgment, arguing that the Federal Fair
Housing Act (“FHA”) and California Fair
Employment and Housing Act (“FEHA”) do not apply
to Plaintiff Southwest Key's custodial facilities because
such facilities are not “dwellings” for FHA and
FEHA purposes and the UAC are not willing participants. (Doc.
No. 56 at 9-10.) Plaintiff Southwest Key's federal and
state fair housing claims allege that Defendant made
unavailable or denied a dwelling on the basis of race, color,
or national origin, in violation of the FHA and the FEHA.
See 42 U.S.C. §§ 3601 et seq; Cal.
Gov't Code §§ 12927, 12955 et seq. (Doc. No. 29
Whether Southwest Key's Facility Is a
“Dwelling” under the FHA
provides that “it shall be unlawful . . . to . . . make
unavailable or deny, a dwelling to any person because of
race, color, religion, . . . or national origin.” 42
U.S.C. § 3604(a). “‘Dwelling' means any
building, structure, or portion thereof which is occupied as,
or designed or intended for occupancy as, a residence by one
or more families . . . .” 42 U.S.C. § 3602(b).
threshold matter, Defendant maintains that Plaintiff
Southwest Key's proposed facility is not within the
FHA's definition of “dwelling.” Under the
FHA, the definition of “dwelling” turns on the
meaning of “residence, ” which is undefined in
the statute. See 42 U.S.C. § 3602(b). In
deciding the statutory meaning of dwelling, some courts have
looked to the purpose of the FHA and the purpose of the
structure in question, particularly focusing on freedom of
choice. Garcia v. Condarco, 114 F.Supp.2d 1158 (N.M.
2000) (Detention center not within the purpose of the FHA as
freedom of choice is absent.) Other courts have applied two
factors in determining whether a facility is a residence for
purposes of the FHA: (1) the facility is intended for
occupants who remain there for a significant period of time,
rather than a transient stay; and (2) the occupants view the
facility as a place to return to during this period.
Intermountain Fair Housing Council v. Boise Rescue
Mission Ministries, 717 F.Supp.2d 1101, 1109-11 (D.
Idaho 2010), aff'd on other grounds, 657 F.3d
988 (9th Cir. 2011) (Homeless shelter not covered by the
the statutory language and these tests, numerous courts have
classified a variety of structures as covered or not under
the FHA. For example, homeless shelters were not covered by
the FHA, but a variety of structures were within
the FHA such as drug and alcohol rehabilitation
centers, a residential school for emotionally
disturbed adolescents, a residential child care
facility, a group home for needy and dependent
children, and student housing.
several courts have not extended the application of the FHA
to custodial facilities where the individuals are
involuntarily confined. Some courts have expressly held that
detention or custodial facilities are not
“dwellings” within the meaning of the FHA because
such facilities are the antithesis of freedom of choice in
housing. Garcia v. Condarco, 114 F.Supp.2d 1158,
1162-63 (N.M. 2000) (holding that the FHA did not cover a
city jail because “the primary purpose of a jail is to
provide just punishment, adequate deterrence, protection of
the public, and correctional treatment.”); Gold v.
Griego, No. CIV 99-1137 DJS/WWD (D.N.M. Feb. 22, 2000)
(Court detention center is not within the FHA.) But where an
individual could seek voluntary employment in a residential
reentry center, a court concluded that the facility was
within the FHA. Abdus-Sabur v. Hope Vill., Inc., No.
CV 16-156 (RBW), 2016 WL 7408833, at *9 (D.D.C. Dec. 22,
2016). In these cases, the courts focus on freedom of choice
as a dispostive factor in the meaning of dwelling.
present case, the parties differ on the applicability of the
FHA. The Defendant maintains that custodial cases finding a
structure not within the FHA as most applicable since the UAC
are not willing participants. The UAC are placed in Plaintiff
Southwest Key's facilities by government order while
awaiting a court's determination whether they should be
deported. See 6 U.S.C. § 279(b); 8 U.S.C.
§ 1232(b), (c); see also the Flores
Settlement Agreement, (Doc. No. 57-7, Ex. 5) (requiring UAC
be treated “with dignity, respect and with special
concern for their particular vulnerability as minors”
and be placed “in the lease restrictive setting
appropriate to the minor's age and special needs”).
The fact that the UAC are placed in the least restrictive
setting does not mean that they are not under the custody of
the federal government. See Waldingv. United
States, 955 F.Supp.2d 759, 762 (W.D. Tex. 2013) (finding
that unaccompanied Central American-born minors were detained
in shelter care facilities provided by contractors like
Plaintiff Southwest Key pertaining to the Flores