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Southwest Key Programs, Inc. v. City of Escondido

United States District Court, S.D. California

March 24, 2017



          MARILYN L. HUFF, District Judge

         On 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.[1] (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 summary judgment.


         The 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.)

         On May 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.)


         I. Legal Standards for Summary Judgment

         Summary 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).

         A party 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.

         Garcia, 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.

         When 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.

         II. Plaintiff Southwest Key's Federal and State Fair Housing Claims

         Defendant 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 at 33.)[2]

         A. Whether Southwest Key's Facility Is a “Dwelling” under the FHA

         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).

         As a 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 FHA.)

         Applying 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[3], but a variety of structures were within the FHA such as drug and alcohol rehabilitation centers[4], a residential school for emotionally disturbed adolescents[5], a residential child care facility[6], a group home for needy and dependent children[7], and student housing[8].

         Significantly, 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.

         In the 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 Agreement). ...

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