Lakhi Sakhrani et al v. City of San Gabriel et al

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Disparate Treatment

C.D. Cal.January 30, 2017

LA 14148535v9 - 1 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA (Bar No. 268339) LAUREN BABST (Bar No. 313156) 1900 Avenue of the Stars, Seventh Floor Los Angeles, California 90067-4308 Telephone: (310) 203-8080 Facsimile: (310) 203-0567 Email: nvora@jmbm.com lbabst@jmbm.com HOOPER, LUNDY & BOOKMAN, P.C. DARON L. TOOCH (State Bar No. 137269) VINAY KOHLI (State Bar No. 268430) 1875 Century Park East, Suite 1600 Los Angeles, California 90067-2517 Telephone: (310) 551-8111 Facsimile: (310) 551-8181 E-Mail: dtooch@health-law.com vkohli@health-law.com Attorneys for Plaintiffs DR. LAKHI SAKHRANI, PRIYA SAKHRANI, and QUALITY DIALYSIS CENTER LAS TUNAS, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DR. LAKHI SAKHRANI, PRIYA SAKHRANI, QUALITY DIALYSIS CENTER LAS TUNAS, LLC, Plaintiffs, v. CITY OF SAN GABRIEL, JASON PU, JULI COSTANZO, JOHN HARRINGTON, KEVIN SAWKINS Defendants, CASE NO.: 2:16-cv-01756-CAS PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT FOR DISPARATE TREATMENT [Filed concurrently with Separate Statement of Uncontroverted Facts and Conclusions of Law, Declaration of Nilay U. Vora, Declaration of Dr. Lakhi Sakhrani, Declaration of Cherry Wu, Declarations of Dr. Lakhi Sakhrani's Patients [filed under seal], Request for Judicial Notice, [Proposed] Order Granting Request for Judicial Notice, [Proposed] Order Granting Summary Judgment] Date: February 27, 2017 Time: 10:00 a.m. Ctrm: 8D Judge: Hon. Christina A. Snyder Complaint Filed: March 14, 2016 Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 1 of 33 Page ID #:13773 LA 14148535v9 - 2 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that, on Monday, February 27, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 8D of the above-entitled Court, located at 350 W. 1st Street, 8th floor, Los Angeles, California 90012, the Honorable Christina A. Snyder presiding, Plaintiffs Dr. Lakhi Sakhrani, Priya Sakhrani, and Quality Dialysis Center Las Tunas, LLC (together, "Plaintiffs") will and hereby do move for an Order granting partial summary judgment to Plaintiffs on the Twelfth and Thirteenth Causes of Action for disparate treatment in violation of disability discrimination laws against Defendants City of San Gabriel (the "City"), Jason Pu, Juli Costanzo, John Harrington, and Kevin Sawkins (collectively, "Defendants"). The grounds of this motion are that the Twelfth cause of action for disparate treatment seeks equitable relief in the form of an injunction setting aside the City's and Defendants' disparate treatment suffered by Plaintiffs in the form of a decision to reverse previously granted permits for Plaintiffs' new dialysis center, which therefore presents a question of law that can appropriately be determined by a federal court on a motion for partial summary judgment, and that there is no genuine issue as to any material fact on this claim, and that Plaintiffs are entitled to judgment as a matter of law for the reasons that: the uncontroverted facts in this case establish that the City and Defendants unlawfully discriminated against Plaintiffs in violation of the Americans with Disabilities Act. This motion is based upon this Notice, the accompanying Memorandum of Points and Authorities (the "Memorandum"); the Separate Statement of Uncontroverted Facts and Conclusions of Law filed herewith (the "Separate Statement"); the Request for Judicial Notice and accompanying exhibits thereto filed herewith; the accompanying Declaration of Dr. Lakhi Sakhrani and exhibits thereto filed herewith; the accompanying Declaration of Nilay U. Vora and exhibits thereto filed herewith; the accompanying Declaration of Cherry Wu filed herewith; the accompanying Declaration of Dr. Lakhi Sakhrani's patients, filed under seal herewith; the court file; any matters of which this Court may properly take judicial notice or may otherwise consider; any reply Plaintiffs may make; and any further Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 2 of 33 Page ID #:13774 LA 14148535v9 - 3 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER evidence and argument that may be presented to the Court prior to or at the hearing on this motion or as otherwise permitted.1 This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on January 23, 2017. In the Memorandum, Plaintiffs cite the uncontroverted facts from the Separate Statement as "UF" (e.g., UF __). DATED: January 30, 2017 JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA LAUREN BABST By: s/Nilay U. Vora NILAY U. VORA Attorneys for Plaintiffs DR. LAKHI SAKHRANI, PRIYA SAKHRANI, and QUALITY DIALYSIS CENTER LAS TUNAS, LLC 1 Plaintiffs note that for conservation of resources and to avoid unnecessary burdening of the Court with duplicative materials, Plaintiffs will file only once the Separate Statement and all evidence in support of this Motion as well as a separate motion for partial summary judgment. Because the evidence to be considered and the undisputed facts to be considered are identical, Plaintiffs have filed such documents a single time in support of both motions. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 3 of 33 Page ID #:13775 LA 14148535v9 TABLE OF CONTENTS Page - i - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER I. INTRODUCTION AND FACTUAL BACKGROUND .........................................1 II. LEGAL STANDARD .....................................................................................................2 III. ARGUMENT....................................................................................................................3 A. The evidence establishes a prima facie case that the City's decision to reverse permits for the dialysis center were discriminatory. ........................3 1. Plaintiffs and individuals with kidney failure suffered a discriminatory impact from the City's reversal of the permits. ........................................................................................................3 2. Legislative history, including statements by Councilmembers and City officials, demonstrates discriminatory animus................................................................................3 3. There were significant irregularities at the hearing and in the City's substantive evaluation of the criteria for the permits. ........................................................................................................7 a. Notice of the procedure was provided to only one side. ...................................................................................................7 b. Public comments supporting the dialysis center were counted toward time allotted for Plaintiffs' presentation. ....................................................................................7 c. The City applied the incorrect standard of review. ....................7 d. The Deputy City Attorney prepared a detailed resolution. ........................................................................................8 e. City officials had conflicts of interest requiring recusal...............................................................................................9 f. The City conducted extrajudicial investigations........................10 g. The City lost or destroyed evidence despite acknowledgement that future litigation was likely and made false statements under oath...............................................10 4. The historical background shows the City's willingness to yield to discriminatory political pressures..............................................11 a. The Country Club Drive residents are politically powerful and have the ability to influence the City. .................11 Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 4 of 33 Page ID #:13776 LA 14148535v9 TABLE OF CONTENTS (Cont'd.) Page - ii - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER b. 3,100 San Gabriel residents signed petitions in support of the proposed dialysis center while 96 residents appealed. ........................................................................13 c. Plaintiffs' 36 station dialysis facility operates in the City without issue..........................................................................13 d. Scarcity of dialysis has been a perennial problem in the United States. ..........................................................................14 5. Preceding reversal of the permits, Planning Staff and the Planning Commission found that Dr. Sakhrani addressed virtually all concerns of the Country Club Drive residents.................15 B. The City's reasons for reversal of the permits are pretextual. ........................16 1. The City routinely grants reductions in required parking....................16 a. In 2014, the City adopted reduced parking requirements. .................................................................................16 b. A liquor store had a more favorable hearing procedure and was granted a permit despite insufficient parking. ......................................................................17 c. A medical center received a permit for a greater parking reduction and reduced buffering of adjacent residences. ......................................................................................19 d. A 125,000 square foot medical center was granted a parking reduction without any parking study............................19 e. A mixed-use medical building received a parking reduction based on a less rigorous parking study. ....................21 2. Reasons relating to parking were pretextual. ........................................22 3. Reasons relating to the facility's size were pretextual. .........................23 a. The City granted a permit for a DaVita dialysis center even though its parking lot was directly adjacent to neighboring residences. ............................................23 b. Operational noise was pretext to deny the permits. .................24 IV. CONCLUSION ..............................................................................................................25 Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 5 of 33 Page ID #:13777 LA 14148535v9 TABLE OF AUTHORITIES Page(s) - iii - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Cases Behavioral Health Servs., Inc. v. City of Gardena, No. CV 01-07183 (RZ), 2003 WL 21750852 (C.D. Cal. Feb. 26, 2003) ................. 24, 25 City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985)...............................................................................................................13 Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996) ...................................................................................................9 The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) ..................................................................................................3 Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) .............................................................................................passim LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) ............................................................................................ 22, 25 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004)......................................................................................... 4, 12 Nick v. Dep't of Alcoholic Beverage Control, 233 Cal. App. 4th 194, 182 Cal. Rptr. 3d 182 (2014)..........................................................8 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).................................................................................................................6 Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013)........................................................................................passim Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) .....................................................................................................2 San Benito Foods v. Veneman, 50 Cal.App.4th 1889 (1996) ...................................................................................................7 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ..................................................................................................6 Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003) ............................................................................................ 5, 12 Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 6 of 33 Page ID #:13778 LA 14148535v9 TABLE OF AUTHORITIES (Cont'd.) Page(s) - iv - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Turning Point, Inc. v. City of Caldwell, 74 F.3d 941 (9th Cir.1996) ...................................................................................................25 Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359 (D. Conn. 2011)...........................................................................passim Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).............................................................................................................3, 4 Statutes ADA .................................................................................................................................... 2, 6, 18 ADA Title II ..................................................................................................................................4 Cal. Evid. Code § 115...................................................................................................................7 San Gabriel Municipal Code §153.004..................................................................................................................................10 §153.220(H)............................................................................................................................22 Other Authorities 28 C.F.R. § 35.130(b)(8) ...........................................................................................................2, 5 28 C.F.R. § 35.130(d) ....................................................................................................................6 28 C.F.R. § 35.130(g) ....................................................................................................................2 Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 7 of 33 Page ID #:13779 LA 14148535v9 - 1 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER I. INTRODUCTION AND FACTUAL BACKGROUND Dr. Sakhrani is a leader in the field of dialysis treatment for individuals who suffer from kidney failure. Together with his spouse, Priya Sakhrani, and his staff, Dr. Sakhrani operates a dialysis center in San Gabriel that, according to Medicare data has some of the best health outcomes—even after controlling for demographics and health conditions—of any other dialysis center in the country. Because of his superior health outcomes and high quality of treatment, Dr. Sakhrani's existing dialysis center is 94% full. Dr. Sakhrani sought to expand his ability to provide these high quality dialysis treatments to individuals with kidney failure by opening a new dialysis center in San Gabriel. The proposed dialysis center would operate in a virtually identical manner to Dr. Sakhrani's existing dialysis center. The site of the proposed dialysis center was a commercially zoned property that had been vacant for more than a decade. Dr. Sakhrani worked diligently over the course of nearly a year with City Planning Staff to ensure his proposal would minimize impacts on neighboring residential properties. At every juncture, City Planning Staff recommended approval of conditional use permits ("CUPs") for the proposed dialysis center. These recommendations came after City Planning Staff conducted numerous investigations and reviewed and validated expert engineering studies. The City Planning Commission ultimately granted the permits. Neighboring residents who lived on Country Club Drive successfully appealed the grant of the permits to the five elected City Councilmembers—who reversed the Planning Commission's decision. Every aspect of the appellate proceedings was engineered by the City Council and City officials to ensure reversal of the CUPs. Procedurally, the City imposed an improper higher standard of review on Plaintiffs and gave ex parte notice to appellants, but not Plaintiffs, about time limits for presentations. The Council even conducted unlawful extrajudicial investigations against the new dialysis center. Substantively, the City's evaluation of the evidence was obviously biased. Unlike other CUP appeals, the City's Deputy City Attorney prepared a resolution outlining findings and conclusions after the hearing—presumably to include post-hoc rationalizations. Many of Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 8 of 33 Page ID #:13780 LA 14148535v9 - 2 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER the "findings" about the new dialysis center were indisputably false, such as the number of workers per shift, the schedule of shifts, and the number of patients transported in each Medi-Cal shuttle. The City gave no weight to several expert reports that, using methods approved by City Planning and Engineering staff, found the dialysis center would have no negative impacts on traffic, parking, or noise. The City even rejected, without any stated reason, their own Planning Staff's reported findings and testimony. The City's evaluation of the proposed dialysis center was drastically different than the evaluation of at least five similar permit applicants. The City granted permits to similar applicants who (a) were not required to submit similar expert studies, (b) submitted less rigorous expert studies, or (c) submitted virtually identically conducted expert studies. The undisputed facts, therefore, show that Plaintiffs were subjected to discriminatory disparate treatment in violation of federal disability discrimination law. II. LEGAL STANDARD Federal disability discrimination law bars disparate treatment in the zoning programs on the basis of a proposed land use's treatment of individuals with disabilities. 28 C.F.R. § 35.130(g) (cities barred from treating providers of treatments to persons with disabilities differently than other applicants in zoning programs); 28 C.F.R. § 35.130(b)(8) (cities barred from establishing "eligibility criteria that screen out … any class of individuals with disabilities from fully and equally enjoying any … program … unless such criteria can be shown to be necessary for the provision of the … program"); Pac. Shores Props. v. City of Newport Beach, 730 F.3d 1142, 1157 (9th Cir. 2013) (ADA "prohibits [cities] from discriminating … through zoning" and unreasonable restrictions on treatment facilities). Proof of disparate treatment is made through a burden shifting framework. A prima facie case is shown through evidence that "animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive." Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (emphasis added); Pac. Shores Props., 730 F.3d at 1158. This proof may be made through "direct or Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 9 of 33 Page ID #:13781 LA 14148535v9 - 3 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER circumstantial evidence that the [City] has acted with a discriminatory purpose and has caused harm" to Plaintiffs' ability to treat individuals with disabilities. Pac. Shores Props., 730 F.3d at 1158–59. If a prima facie case is established, the City must "present a legitimate reason for the allegedly discriminatory action," which Plaintiffs must show is "pretextual." Id. at 1158 n. 20. See also McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973). III. ARGUMENT A. The Evidence Establishes a Prima Facie Case that the City's Decision to Reverse Permits for the Dialysis Center were Discriminatory. To prove a prima facie case, the Supreme Court's Arlington Heights decision outlines five non-exhaustive types of evidence that Plaintiffs may introduce: (1) evidence and statistics demonstrating a discriminatory impact on Plaintiffs, (2) the historical background of the City's decision, (3) the specific sequence of events leading up to the challenged decision, (4) the City's departures from its normal procedures or substantive evaluations, and (5) relevant legislative or administrative history. Pac. Shores Props., 730 F.3d at 1158–59 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977), and Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009)). The evidence presented herein meets Plaintiffs' prima facie burden. 1. Plaintiffs and Individuals with Kidney Failure Suffered a Discriminatory Impact from the City's Reversal of the Conditional Use Permits. Plaintiffs suffered an adverse impact as a result of the City's decision to reverse the permits for the proposed dialysis center. The City's decision blocked Plaintiffs from building a new facility that could provide better access to treatment for existing patients and ensure treatment for new patients. Arlington Heights, 429 U.S. at 266; Pac. Shores Props., 730 F.3d at 1165 (municipal ordinance had effect of barring establishment of new group homes); Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 386–88 (D. Conn. 2011) (city's actions designed "to prevent plaintiffs' project of providing supportive housing from going forward"). 2. Legislative History, including Statements by Councilmembers and City Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 10 of 33 Page ID #:13782 LA 14148535v9 - 4 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Officials, Demonstrates Discriminatory Animus. The Supreme Court has stated that legislative history, including "contemporary statements by members of the decisionmaking body" and official reports, is highly relevant evidence of discrimination. Vill. of Arlington Heights, 429 U.S. at 268. “Title II of the ADA guards against … simple exclusion from services resulting … from inaction, thoughtlessness, or equal treatment when particular accommodations are necessary.” McGary v. City of Portland, 386 F.3d 1259, 1267 (9th Cir. 2004). Here, statements by City officials reveal such thoughtless discrimination and bias. The City Planning Staff consistently reported that most dialysis centers open at 4 a.m. in order to permit individuals with kidney failure to receive treatments in a manner that permits them to work "9 to 5" jobs or otherwise minimize disruption to their daily life activities. UF 11-13. Despite these reports to the City Council, then-Mayor Jason Pu sought to restrict the hours of operation for the proposed dialysis center from 8:30 a.m. to 10:00 p.m. UF 106. This is precisely the type of "thoughtlessness" resulting in discrimination that Title II of the ADA bars. Limiting operation hours in turn limits patients from receiving necessary, life-saving treatments at times that minimize disruption to their lives caused by kidney failure. Indeed, Dr. Sakhrani sought to build the new dialysis center to provide less burdensome treatment schedules to his current patients. While many of Dr. Sakhrani's patients are happy with their treatment schedule, many others are on a waitlist to change their schedule. UF 11-13. For example, TV is a patient of Dr. Sakhrani's who receives treatment from 4 p.m. to 8 p.m. on Tuesdays, Thursdays, and Saturdays. As a result, TV cannot spend time with grandchildren, earn money through babysitting, attend family reunions, or prepare dinner on the days he receives treatments. UF 211. Mayor Pu's desire to limit operation hours reveals discriminatory animus barred by the ADA. See Innovative Health Sys. v. City of White Plains, 931 F. Supp. 222, 241 (S.D.N.Y. 1996), aff'd in part, 117 F.3d 37 (2d Cir. 1997) (injunction upheld where "inconvenience and lack of space at IHS' current location has interfered [with and] disrupted…treatment of current clients). Similarly, Councilmember John Harrington stated that Plaintiffs could operate a dialysis Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 11 of 33 Page ID #:13783 LA 14148535v9 - 5 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER center—but only if it was smaller and served less people. UF 146-147, 200. Imposing such restrictions on a provider of treatments to people with disabilities is discriminatory, as it significantly diminishes the provider's ability to serve disabled individuals. Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 571 (2d Cir. 2003) (requiring reduction to half of presently housed tenant capacity at residential addiction rehabilitation facility was discriminatory). Councilmember Harrington went on to suggest that dialysis centers should be located in other cities because San Gabriel should not have to serve individuals with kidney failure from nearby cities; instead, those cities "need to open their [own] facilities." UF 145. This was discriminatory. Valley Hous., 802 F. Supp. 2d at 374 (denial of permit for was result of prevalent view that city "already has done more than its fair share in the [area] for persons with [disabilities]" and "additional programs …should not be located in [city]."). In its resolution, the City adopted Planning Commissioner Vera's assertion that Plaintiffs' proposed dialysis center should be located in the Medical Facility zone, not on the commercially zoned property proposed. Commissioner Vera called this purported phenomenon "medical facility zone creep" where medical facilities were "creeping into an area that was designated for sales tax revenue businesses." UF 135, 254. This was per se discriminatory. Providers of medical treatment generally do not generate sales tax revenue, and there was no justification for requiring sales tax generation. 28 C.F.R. §35.130(b)(8) (barring "eligibility criteria that screen out or tend to screen out …any class of individuals with disabilities from fully and equally enjoying any … program"). Commissioner Vera stated that the site was envisioned for a "retail dining area" that "residents could walk to" or for businesses that serve "the local population," UF 255: The [General Plan] target is … [to] “Amend the zoning ordinance by 2005 to allow sidewalk dining along Las Tunas, subject to performance standards.” This medical facility is not what was envisioned for this corner. A retail dining area is what was envisioned, which would allow the residents to make use of the business … that residents could walk to, to patronize what was envisioned. … The emphasis is on local population. In the October meeting, [Dr. Sakhrani] stated that, "This business is only for indigent patients." … And the local residents would not qualify to use the facility. … This goes totally against the general plan of having a business impact a residential neighborhood—that the neighborhood can't even use. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 12 of 33 Page ID #:13784 LA 14148535v9 - 6 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Indeed, the Country Club Drive residents appealed by asking "what is the value to our community?" and pointing out that Las Tunas Drive should have "retail stores, markets, cleaners, restaurants." UF 120-121, 256. Of course, a restaurant would be authorized by right under the zoning code to open at 6 a.m. and close at 2 a.m.—making clear that the cited issues with the dialysis center's hours of operation were mere pretext for discrimination. UF Similarly, Country Club Drive resident Ann Gifford Ewing, an attorney, stated, UF 121: There is an obligation to provide reasonable accommodation…but not an absolute right to have a particular facility on a particular location….There's no way they can fully control and suppress all of that noise and traffic. …[W]e hope that you [the City Council] will uphold your duty to do what's right for the city and its residents. This statement was pretext. Country Club Drive resident Mark Ewing quoted Genghis Khan in celebration following reversal of the permits for the dialysis center, UF 292: The greatest happiness is to vanquish your enemies, to chase them before you, to rob them of their wealth, to see those dear to them bathed in tears, to clasp to your bosom their wives and daughters. The above statements exemplify the appellants' discriminatory animus and show the City's cited reasons for reversal were mere pretext. Barring Plaintiffs from opening their dialysis center at its proposed location—or attempting to move the dialysis center out of a particular neighborhood or even the City—would defeat a fundamental goal of federal law. "In adopting the ADA, Congress recognized that historically, society has tended to isolate and segregate individuals with disabilities." Townsend v. Quasim, 328 F.3d 511, 515 (9th Cir. 2003) (citation omitted). The ADA and its implementing regulations, therefore, require the City to provide individuals with disabilities the opportunity to receive treatments for their disabilities in the most integrated setting possible. 28 C.F.R. § 35.130(d) (requiring cities to "administer…programs…in the most integrated setting appropriate to the needs of qualified individuals with disabilities"); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (individuals with disabilities should be provided treatment opportunities in the most integrated setting possible); Pac. Shores Props., 730 F.3d at 1165 (segregation of the disabled is unlawful); Valley Hous. LP, 802 F. Supp. 2d at 378 (alderwoman said at hearing Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 13 of 33 Page ID #:13785 LA 14148535v9 - 7 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER that city didn't "need that kind of thing in our neighborhood"). Finally, Commissioner Vera asserted—without any expert reports—that the proposed dialysis center would "use a lot of water…in their treatment" and therefore "aggravate[] a situation to the community." UF 257. Such unfounded, speculative fear is a hallmark of discriminatory animus. See, e.g., Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 49 (2d Cir. 1997) (discriminatory animus shown where "public hearings and submitted letters were replete with…and general, unsupported fears"). 3. There were Significant Irregularities at the Hearing and in the City's Substantive Evaluation of the Criteria for the Permits. The City's treatment of Plaintiffs departed both substantively and procedurally from its procedures for conducting similar appeal hearings on zoning. The departures rendered Plaintiffs' appeal hearing unfair. Such "irregularities" that "the City had never done before" are evidence of disparate treatment. Pac. Shores Props., 730 F.3d at 1164. See also Valley Hous., 802 F. Supp. 2d at 387 (irregularities of the zoning hearing evidenced discrimination). a. Notice of the Hearing Procedure was Given Only to Appellants. The City provided notice to the Country Club Residents that they would present second and would be limited to 45 minutes, but did not simultaneously notify Plaintiffs. UF 92-94. b. Public Comments Supporting the Dialysis Center were Counted Toward Time Allotted for Plaintiffs' Presentation. The City required that Plaintiffs' time allotment include comments from members of the public supporting the dialysis center. The City prevented Plaintiffs from limiting presentation by members of the public, but permitted the Country Club Residents to remove previously designated speakers. This prevented Plaintiffs from introducing all of their supporting evidence. UF 93-97. In contrast, at a recent appeal relating to a permit for a preschool, the City Council imposed no time limits and provided a public comment period after the preschool completed its presentation. UF 293. c. The City Applied the Incorrect Standard of Review. The standard of proof should have been preponderance of the evidence. San Benito Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 14 of 33 Page ID #:13786 LA 14148535v9 - 8 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Foods v. Veneman, 50 Cal.App.4th 1889, 1892-93 (1996); Cal. Evid. Code § 115. Instead, the City Council applied a higher burden of proof on Plaintiffs—clear and convincing evidence. UF 157. Applying this improperly high evidentiary burden was unlawful. d. The Deputy City Attorney Prepared a Detailed Resolution. Unlike prior appeals, the Deputy City Attorney prepared a detailed, seven-page resolution—presumably to include post-hoc rationalizations—to justify their arbitrary and discriminatory decision to reverse Plaintiffs' CUPs on appeal. UF 125-127. The City did not prepare such resolutions for other CUP appeals, including an appeal relating to a preschool and an appeal relating to a liquor store. UF 258, 294. Notably, the City was required by law to make a written finding that the liquor store would serve public convenience and necessity because of the overconcentration of alcoholic sale licenses in the area. Nick v. Dep't of Alcoholic Beverage Control, 233 Cal.App.4th 194, 203 (2014) (cities must make written findings that public convenience or necessity would be served if issuance of a license for alcohol sales would "add to an undue concentration"). Despite this legal requirement, the City did not prepare a written decision detailing any finding of public convenience and necessity as required by law. Indeed, 18 months after the City approved permits for the liquor store, the California Department of Alcoholic Beverage Control was still seeking from the City a written finding that the liquor store would serve public convenience and necessity. UF 258. Moreover, the atypical, detailed resolution contained numerous erroneous findings. For example, the City found it "not disputed" that shuttles would only transport one patient per trip, despite the fact that the Parking Study reported four to five patients would be transported per shuttle. UF 105, 128. The resolution also falsely stated that Plaintiffs "clarified" that there would be "four shifts" per day and "16 employees per shift," i.e. 64 employees per day, when in fact, it was undisputed that the facility would have a maximum of 16 employees per day. UF 24, 129. With reductions of 75% in employees and 80% in shuttles, parking demand was at least 75-80% less than the City's resolution stated. These errors reveal the "lack of a credible justification for the zoning decision," showing " Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 15 of 33 Page ID #:13787 LA 14148535v9 - 9 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER that the decision was based on impermissible factors." Innovative Health Sys., 117 F.3d at 49. After praising its own Planning Staff for their competence and diligence, the City ignored the Planning Staff's testimony about their own observations, documented in photographs on unannounced visits—conducted over months by multiple people at various times of day and documented in photographs—showing a surplus of 17-18 empty spaces at the existing dialysis center. UF 110. The City has apparently lost or failed to preserve the photographic evidence of its own Planning Staff demonstrating that there was a surplus of parking consistent with the Parking Study, which further evidences discrimination. See Valley Hous., 802 F. Supp. 2d at 381 (discrimination finding supported by destruction of emails, memoranda, and other records relating to plaintiffs' proposed housing project for individuals recovering from addiction). e. City Officials had Conflicts of Interest Requiring Recusal. City Councilmembers whose personal residences may be impacted by matters before the City Council should recuse themselves from those matters. See Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152, 1170-72 (1996) (city councilmember who lived one block away from proposed development had conflict of interest). Here, Councilmembers Harrington and Sawkins heard the appeal of the CUPs and did not recuse themselves despite the direct personal impact that the proposed dialysis center would have on their lives. UF 149-150. Similarly, Planning Commissioner Camelia Vera did not recuse herself despite the fact that she is a licensed real estate agent and lives at 416 Daroca Avenue, just 0.7 miles away from the proposed dialysis center. UF 151-152. Commissioner Vera did not recuse herself from voting on the permits for the proposed dialysis center when the issue came before the Planning Commission, voted against granting the permits, and then testified as a "resident" against the dialysis center. City officials raised serious questions about the propriety of Commissioner Vera's participation in the appeal, but did not stop her from improperly participating in the appeal proceedings. UF 151-156. In reaching their decision, Councilmembers noted that the vote of the Planning Commission was not unanimous. UF 155. Subsequently, an email from one of the Country Club Drive residents praised Ms. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 16 of 33 Page ID #:13788 LA 14148535v9 - 10 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Vera’s work on their behalf, noting the respect her opinion commanded because she was a Planning Commissioner. UF 159. In response, Ms. Vera wrote: “I marveled as how we were united in this effort. I spoke as one of you, a resident in this effort.” UF 160. Tellingly, Commissioner Vera in other instances has as recused herself from Planning Commission votes in other instances "due to her employment in the real estate business, which might pose a conflict of interest." UF 156. f. The City Conducted Extrajudicial Investigations. California law bars administrative tribunals from engaging in investigations outside of the administrative hearings and considering information gathered from such investigations in rendering an administrative decision. English, 35 Cal.2d at 158–159 (1950). Even, the City's municipal code bars such conduct. Municipal Code §153.004 (City Council shall "render a decision based upon the evidence and testimony received"). Here, the City found insufficient parking at the proposed dialysis center at least in part because "Councilmembers...reported personally observing that the parking lot at the comparison facility was full." UF 165. Councilmember Costanzo stated that she "drive[s] by there quite often" and "see[s] the parking lot pretty full most of the time." UF 162. Councilmember Harrington similarly stated, "I drop my daughter off every single day… and…since we got this … I've made it kind of a thing to drive there a few times …and I've noticed the streets there are very congested. … So, to me, it seems like something is going on … different than the parking study." UF 163. The City Councilmembers' credited their own unscientific observations rather than detailed expert reports and Planning Staff reports (and testimony and photographs corroborating those reports) that confirmed the sufficiency of the proposed parking. UF 130. This was unlawful. See English v. City of Long Beach, 35 Cal. 2d 155, 158-59 (1950) (denial of fair hearing where city relied on extrajudicial investigation). g. The City Lost or Destroyed Evidence Despite Acknowledgement that Future Litigation was Likely and Made False Statements Under Oath. The City lost, failed to maintain, or destroyed evidence despite their knowledge that future litigation was likely. Specifically, the City has failed to maintain (1) Planning Staff's Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 17 of 33 Page ID #:13789 LA 14148535v9 - 11 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER photographs of the parking lot during unannounced visits showing a surplus of 17-18 parking spaces at the existing dialysis center, (2) the handwritten notes of Councilmember Harrington, a licensed attorney, from the appeal hearing, and (3) the surveillance video of Plaintiffs' parking lot at the existing dialysis center. UF 100, 110, 143. This destruction of evidence is further evidence of discrimination. Valley Hous., 802 F. Supp. 2d at 381 (discrimination evidenced by destruction of emails, memoranda, and records relating to proposed housing project for recovering addicts). Moreover, the City has made a number of false statements under oath. The City Attorney falsely stated that the liquor store appeal did not have signed petitions for and against the liquor store and therefore no time limits were required; in fact, documents produced by the City show the opposite. Dkt. No. 82. Similarly, the City has stated under oath that the DaVita dialysis center does not border residential properties—contrary to public records and the noise study submitted by DaVita itself. UF 188, 192, 259. The City's Planning Staff knew that newly enacted regulations would require building a facility greater than 10,000 square feet to serve a comparable number of dialysis patients. Planning Staff stated that they would explain why Plaintiffs were required to exceed 10,000 square feet at the appeal hearing. Instead, when asked why the facility needed to exceed 10,000 square feet by the City Council, Planning Staff stated that Dr. Sakhrani had rejected the option of building a facility less than 10,000 square feet—without explaining that doing so would be impossible while maintaining a similar capacity. UF 260. 4. The Historical Background Shows the City's Willingness to yield to Discriminatory Political Pressures. The historical background preceding the City's decision to reverse the permits granted for Plaintiffs' proposed dialysis center reveals the City's discriminatory intent. a. The Country Club Drive Residents are Politically Powerful and Have the Ability to Influence the City. The City's history shows that the Country Club Drive residents are politically powerful and have the ability to directly influence City Councilmembers. The site of Plaintiffs' Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 18 of 33 Page ID #:13790 LA 14148535v9 - 12 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER proposed dialysis center is a commercially zoned lot on East Las Tunas Drive that is adjacent to residential properties on Country Club Drive. This site has been vacant for 10 years but is located on a busy and heavily travelled commercial corridor, East Las Tunas Drive, that contains a variety of businesses and medical facilities. UF 22-23, 261. The properties directly south of Plaintiffs' proposed dialysis center on Country Club Drive are estimated to be worth at least $1.4 million and at most $2.5 million. UF 262. Many of the Country Club Drive residents are well connected with the City's top officials. The Country Club Drive residents include a former mayor and City Councilmember. UF 263. Some of the Country Club Drive residents have donated to the election campaigns of the City Councilmembers. UF 264. City Attorney Robert Kress described Country Club Drive resident Charles Cummings as a "very good lawyer" who had previously represented two individuals who own property neighboring the site of the proposed dialysis center, Fred and Suzanne Paine. UF 265. Suzanne and Fred Paine live on Country Club Drive and were amongst the Country Club Drive residents that appealed the City's grant of the permits for Plaintiffs' dialysis center. The Paines are political activists, and Fred Paine is a former mayor of the City. UF 266. Suzanne Paine routinely invites the City's elected officials, such as the City Clerk, to attend meetings and special events. UF 267. Suzanne Paine's complaints are taken seriously by City staff and are addressed promptly. For example, Suzanne Paine's complaints to City officials about purported mold on a shack at the location of Plaintiff's property promptly resulted in the issuance of a citation for the purported nuisance caused by the shack just days later—despite the fact that the shack has been on the property for years. UF 267-269. Prompt enforcement following nuisance complaints can demonstrate animus against individuals with disabilities. See, e.g., McGary, 386 F.3d at 1264 (enforcement of nuisance claim for failure to clean yard could constitute disability discrimination); Tsombanidis, 352 F.3d at 571 (enforcement of zoning violations constituted disability discrimination). In 2013, voters elected two individuals of Chinese descent to the City Council—Jason Pu and Chin Ho Liao. Despite having qualified for the ballot and received the second Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 19 of 33 Page ID #:13791 LA 14148535v9 - 13 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER highest vote total in an election where the top three recipients would be elected, Mr. Liao's election to the City Council was challenged by the Paines. The Paines contended that Mr. Liao was not a resident of San Gabriel at the time of his election and was barred from office. The City held extensive hearings and ultimately determined that Mr. Liao was a resident and seated him on the City Council. UF 272. The hearings and associated expenses reportedly cost the City $140,000. Despite losing the challenge after forcing such spending of public funds, Suzanne Paine stated: "I think this is all Chin Ho's problem, he did a dishonest thing. If he would have been honest in the first place this never would have happened….What were we supposed to do, everybody ignore it?" UF 271. b. Over Three Thousand San Gabriel Residents Signed Petitions in Support of the Proposed Dialysis Center. Opposition from the 96 Country Club Drive residents who appealed was dwarfed by 3,100 San Gabriel residents who signed petitions supporting the proposed dialysis center. UF 102. These figures are stark in the context of voter participation in the City. The City has 40,000 residents, but has a registered voting population of 16,410. Of these registered voters, only 2,676—or 6.5% of the population—voted in the 2015 City elections. UF 279. Defendants themselves have suggested in prior pleadings that the City "buckled to pressure from political activists." Dkt. No. 19 at 16:14. Buckling to the pressure by individuals who harbor discriminatory animus is sufficient to find disparate treatment in violation of federal law. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (legislatures may not “defer[ ] to the [discriminatory] wishes or objections of some fraction of the body politic”); Pac. Shores Props., 730 F.3d at 1163 (disability discrimination can be proven if "record suggests that City Council members were responsive to the public's views"); Innovative Health Sys., 117 F.3d at 49 (injunction upheld where city denied permits under "intense political pressure from the surrounding community"). c. Plaintiffs' Existing Dialysis Facility Operates in the City Without Issue. Since 2010, Plaintiffs have operated a dialysis center in San Gabriel without complaint from neighboring residences. The City Planning Staff itself confirmed there had been zero Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 20 of 33 Page ID #:13792 LA 14148535v9 - 14 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER complaints about noise from Plaintiffs' existing dialysis center. UF 41, 109. In fact, residential neighbors of the center signed statements confirming that the existing dialysis center caused no problems in the neighborhood. UF 280. d. Scarcity of Dialysis Centers has been a Perennial Problem in the U.S. Dialysis as a means of treating individuals with kidney failure in the United States began in 1960 when Dr. Belding Scribner first used one of the earliest hemodialysis machine on patients at University Hospital in Seattle. In 1961, when three kidney failure patients had survived, Dr. Scribner asked the University of Washington Hospital to start more patients on dialysis, but was refused because the University was concerned that it would have to bear the expense for such treatments in the event that the National Institute of Health stopped funding Dr. Scribner's proposed dialysis treatments. UF 273-274. Dr. Scribner successfully sought private funding and established one of the first dialysis centers in the world—the Seattle Artificial Kidney Center ("SAKC")—in 1962. The SAKC had three dialysis stations, but demand for this newly discovered treatment was far higher. Because of funding and capacity constraints, the SAKC established what came to be called the "Seattle God committee"—a panel of seven individuals, only one of whom was a physician, who would screen applicants for dialysis treatment based on various criteria to determine who would receive this necessary, lifesaving treatment. UF 275-276. Serious political efforts were undertaken over the subsequent decade to make dialysis more widely available, culminating in the establishment of the Medicare ESRD Program in 1973—whereby individuals with kidney failure would be eligible for Medicare and, of course, dialysis treatments. Senator Vance Hartke of Indiana—a proponent of the Medicare dialysis program—noted that many individuals with kidney failure could return to work with continued dialysis treatments and "be active and productive, but only if they have the lifesaving treatment they need so badly." UF 277-278. While the situation has significantly improved since the expansion of the Medicare program to cover individuals with kidney failure and provide them with dialysis treatment, there remain significant disparities in health outcomes across dialysis treatment providers. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 21 of 33 Page ID #:13793 LA 14148535v9 - 15 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER UF 10, 203, 205. Moreover, the scarcity of dialysis treatment has been an issue as incidence of kidney failure concentrated in Southern California has risen. UF 14, 203. Familiar with the history of dialysis and public health trends showing increased incidence and prevalence of ESRD in Southern California, Dr. Sakhrani sought to expand his ability to provide high quality dialysis treatments. Indeed, Dr. Sakhrani has already been forced to turn away many new patients over the past years. UF 15, 20. 5. Preceding Reversal of the Permits, Planning Staff and the Planning Commission Found that Dr. Sakhrani Addressed Virtually All Concerns of the Country Club Drive Residents. The sequence of events reveal that the City acted with discriminatory animus when reversing permits for the proposed dialysis center. From the outset, Plaintiffs worked extensively with City Planning Staff to ensure that the proposed dialysis center would minimize any impact on neighboring residences. The architect on the project even testified at a Planning Commission meeting that Dr. Sakhrani had insisted that the parking lot be positioned to minimize impact on the residences and that the architect made every effort to do so. UF 281. Plaintiffs made every effort to address other concerns raised by the Country Club Drive residents during public outreach meetings. Amongst other changes made at the request of the Country Club Drive residents, Dr. Sakhrani agreed to (1) equip the medical shuttles with backup cameras so that they would not "beep" when reversing, (2) bar medical shuttles serving the proposed dialysis center from travelling on Country Club Drive, (3) bar vans from idling on Country Club Drive, (4) paint the curb along the proposed center’s Country Club Drive frontage red to prohibit parking, and (5) bar any loading/unloading activities in the public right of way. UF 53-55. Other concerns raised at the Planning Commission meetings were shown to be without merit based on data maintained by the City. For example, though the Country Club Drive residents suggested that ambulance call volume would be high and disturb neighboring residences, Planning Staff reported that the existing dialysis center did not cause increased ambulance calls and concluded "[i]n both absolute and relative terms, the number of Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 22 of 33 Page ID #:13794 LA 14148535v9 - 16 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER ambulance visits to the proposed dialysis center is not expected to be significant." UF 282. At each and every stage of the process, the City's professional Planning Staff and Engineering Staff recommended approval of the project. The Planning and Engineering Staff reviewed expert reports on lights and shadows, hydrology and water quality, sewage, noise, air quality, and parking and found all of these studies were based on sound methods and supported approval of the permits for the project. UF 283. Courts have found that a city's inexplicable rejection of detailed reports by neutral planning and zoning professionals shows discriminatory animus. See, e.g., Innovative Health Sys., 117 F.3d at 49 (denial of permits was "highly suspect in light of the requirements set forth in the zoning ordinance" and zoning body's careful review and "detailed explanations for their approval"). B. The City's Reasons for Reversal of the Permits are Pretextual. 1. The City Routinely Grants Reductions in Required Parking. The City routinely grants reductions in required parking under the newly adopted zoning ordinance. Evidence shows that similar applicants for permits were treated more favorably than Plaintiffs. In some cases, applicants were approved for permits without the City requiring submission of any expert parking studies such as those Plaintiffs were required to submit. UF 173, 235, 289. Even where other applicants submitted studies, the studies were obviously less rigorous in their methods of measuring demand. UF 197-198, 249. This pattern reveals the City's reasons for denying the parking reduction were pretext. a. The City Adopted Reduced Parking Requirements in 2014. In 2012, the City began the process of "greening the code" to incorporate environmentally friendly principles into its zoning regulations. The City hired a planning firm, Dyett & Bhatia ("DB"), to remove unintended regulatory barriers by amending zoning laws to offer flexibility for more environmentally friendly development. UF 32-34. One area in which the zoning laws were amended was in relation to parking. The DB report noted that "too much parking…has a negative impact on community aesthetics, walkability…and sustainability in general." UF 227. The DB report suggested that the City expand the use of parking reductions "where special conditions such as the nature of the Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 23 of 33 Page ID #:13795 LA 14148535v9 - 17 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER proposed operation, proximity to transit service, or characteristics of persons… working or visiting …would reduce parking demand." UF 227. Amongst other benefits, appropriate reductions in required parking could "encourage more healthy transportation choices," "promote efficient use of land" and "improve the economic viability of a development project by reducing the overall cost of the project." UF 227. The City adopted an ordinance that allowed a 20% reduction in required parking if it could be shown that the parking capacity would still be adequate for the proposed use. UF 31-32. The San Gabriel Valley Council of Governments gave the City its 2014 Sustainability Award. UF 33. Though the City denied the parking reduction permit for the proposed dialysis center the City approved reduced parking on at least four other occasions. UF 167, 181, 216, 248. b. A Liquor Store had a More Favorable Hearing Procedure and was Granted a Permit Despite Insufficient Parking. Seven months before Plaintiffs' appeal hearing, the City Council held a hearing on the Planning Commission’s denial of a permit to operate a liquor store at 721 W. Las Tunas Drive, less than a mile from the proposed dialysis center. The hearing procedure differed substantially: the City did not apply a clear and convincing standard, had the appellant speak first, and imposed no time limits on presentations. UF 157-172. The City previously attempted to justify its decision to let appellant speak first and not impose time limits on presentations through explanations in a declaration by the City Attorney. UF 228. These explanations are indisputably false. First, contrary to the City Attorney's statements, the liquor store permit appeal generated significant controversy and there were numerous petitions in support of and against the liquor store submitted to the City. UF 229. Second, the more favorable treatment received by the liquor store is not explained by the City Attorney's explanation that whether the appellant was required to go first depends on factors including "legal representation, whether the hearing is a de novo hearing, and who carries the burden of proof." UF 230. The liquor store owner presented second despite having legal representation, despite the hearing being de novo, and despite the fact that the liquor store owner carried the burden of proof. UF 231. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 24 of 33 Page ID #:13796 LA 14148535v9 - 18 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER The City's evaluation of statutory criteria was also significantly different than the City's evaluation of the criteria applied to Plaintiffs. While Plaintiffs were required to obtain expert reports on noise and parking, the liquor store was not required to provide expert reports. UF 173. After requiring Plaintiffs to obtain such expert reports, the City Council ignored their findings. While the City Council in the dialysis center hearing based its decision primarily on the concerns of the Country Club Residents, at the liquor store hearing the Council dismissed as speculative neighborhood residents' concerns about parking and dismissed Planning Staff's report that another liquor store would exacerbate an overconcentration of alcohol sale points near schools and homes. UF 174-180. Where Councilmembers expressed concern that granting CUPs to a dialysis center would impact future uses because the City would be powerless to revise or revoke the CUPs in the future because of the ADA, Councilmembers in the liquor store hearing emphasized the conditional and revocable nature of a CUP and explicitly suggested that if the problems that neighboring residents feared actually materialized, the City could revoke the CUP as it had on other occasions. UF 175. Where the City sympathized with the liquor store owner's desire to relocate his business to a more favorable location, the City unfavorably viewed Plaintiffs' desire to expand their ability to provide more convenient, high quality treatment to individuals with kidney failure. UF 200, 201, 284-288. Most egregiously, the City Council granted the liquor store CUP despite the liquor store's provision of only 37 parking spaces—almost half the 70 spaces required by law. UF 176. By contrast, in this case, experts, Planning Staff, Engineering Staff, and the Planning Commission agreed—the dialysis center would have abundant parking. UF 68, 86. The City engaged in an inequitable "bait and switch" with respect to the Parking Study ultimately submitted by Plaintiffs. The City (a) required Plaintiffs to justify their parking reduction request with an expert parking study, (b) suggested potential engineering firms to conduct the Parking Study, (c) participated and approved the selection of the comparison site for the Parking Study, (d) validated through the City's Planning and Engineering Staff the methods, findings, and conclusions of the Parking Study, and then (e) refused to accept Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 25 of 33 Page ID #:13797 LA 14148535v9 - 19 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER the Parking Study's conclusions on the grounds that they might have been manipulated by Plaintiffs. UF 68, 74-78, 136. Compared with the liquor store's treatment on the issue of parking, this "bait and switch" represented a substantial departure from the City's procedures for evaluating whether a proposed project had sufficient parking or warranted a reduction in required parking—demonstrating discrimination. 173-180. See, e.g., Valley Hous., 802 F. Supp. 2d at 387 ("departure from the substantive criteria normally applied" was discriminatory because zoning official "require[ed plaintiffs] to seek variances, but did not apply it [ordinance] to other properties in the Caroline Street neighborhood"). c. A Medical Center Received a Permit for a Greater Parking Reduction and Reduced Buffering of Adjacent Residences. One year before reversing the permits for Plaintiffs' proposed dialysis center, the City granted a 20% parking reduction for a proposed medical center at 402 E. Las Tunas. UF 181. This medical center is located across the street from Plaintiffs' proposed dialysis center. The City granted the reduction easily and without requiring an expert parking study. UF 289. In addition, the medical center was granted a variance permitting it to more than double maximum compact parking, from 35% to 71.7%. UF 182. Planning Staff specifically granted this variance because the proposed medical center would not have met the required amount of parking even with the 20% reduction in required parking. UF 183. The City also granted a variance to the medical center to reduce by half the required buffering of an adjacent residential property, from 10 to 5 feet, despite the fact that the property would directly border residential properties. UF 184. In contrast, the City denied the CUPs for the new dialysis center because of purportedly inadequate buffering even though all zoning requirements for buffering were met. UF 135. The City's evaluation and grant of significant reductions in required parking and buffering for the medical center were a significant departure from the City's treatment of Plaintiffs. See, e.g., Valley Hous., 802 F. Supp. 2d at 387 (departure from the substantive evaluation of other properties in same neighborhood). d. A 125,000 Square Foot Medical Center was Granted a Parking Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 26 of 33 Page ID #:13798 LA 14148535v9 - 20 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Reduction Without any Parking Study. One year after reversing the permits for Plaintiffs' proposed dialysis center, the City granted a permit for a 10% parking reduction to a 125,000 square foot medical center proposed at 506 W. Las Tunas Dr., just half a mile away from the proposed dialysis center. The City granted the parking reduction, just as it had for the 402 E. Las Tunas medical center, without requiring an expert parking study. Worse still, the City granted the permit without knowing the actual uses for the property or even whether a potential dialysis center would purchase an entire floor of the building. UF 235-238. Though the developer promised to only allow tenants for whom the parking would be sufficient, this was not a required condition of the permit. UF 244. Plaintiffs were clearly held to a different, higher standard by being required to prove actual sufficiency for the proposed uses of the developed property. Moreover, the City granted the parking reduction despite substantial opposition from neighboring residents concerned about the "parking nightmare" already present in the area. UF 240. The fears of those residents appeared far more serious, given their testimony that residents regularly received parking tickets for parking on the street outside their own homes. UF 240. The City granted this reduction in required parking despite the fact that the proposed 125,000 square foot medical center would be located where Google Earth shows street parking appears to be fully utilized and a directly neighboring restaurant, Newport Seafood, fully utilizes its parking with double parked cars. Again, the City's decision not to require a parking study by a 125,000 square foot medical center for a reduction in required parking is a stark departure from the City's "bait and switch" treatment of Plaintiffs, evidencing discrimination. See, e.g., Valley Hous., 802 F. Supp. 2d at 387 (departure from the evaluation of other properties in same neighborhood). Additionally, Commissioner Vera recused herself from the vote on the 125,000 square foot medical center proposed at 506 W. Las Tunas "due to her employment in the real Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 27 of 33 Page ID #:13799 LA 14148535v9 - 21 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER estate business, which could pose a conflict of interest." UF 156. Commissioner Vera did not recuse herself from the Planning Commission's vote on Plaintiffs' proposed dialysis center, voted against the permits for the new dialysis center, and subsequently testified against the new dialysis center at the City Council hearing. UF 152-153. Courts have found that the uncommon involvement of public officials, such as Commissioner Vera, in such an appeal hearing is evidence of discriminatory intent. See Valley Hous. LP, 802 F. Supp. 2d at 378 (unusual involvement of public officials in zoning hearing evidenced bias). e. A Mixed-Use Medical Building Received a Parking Reduction Based on a Less Rigorous Parking Study. One year after the City reversed the permits for Plaintiffs' new dialysis center, the City granted a permit for a 20% parking reduction for a 5,400 square foot mixed use commercial building that would include retail, restaurant, business office, and medical office uses. The project site was 807 E. Wells St, just 1.5 miles away from the proposed dialysis center. UF 248. The applicant submitted a "Shared Parking Demand Analysis." Unlike Plaintiffs' Parking Study, the Shared Parking Demand Analysis did not actually count parking utilization at existing similar projects. Instead, it was conducted by reviewing data contained in the Shared Parking manual published by the Urban Land Institute to "estimate" anticipated demand and then determine if the project proposed sufficient parking for "estimated peak parking demand." UF 291. Using this method, the Shared Parking Demand Analysis found that peak weekday utilization would be 91% of the parking capacity for the project. UF 249. Moreover, adjacent residential neighbors testified about the dangerous traffic conditions that would result from the project at 807 E. Wells, describing how street parking is consistently full in the area and how the parking lot is very dense because of other land uses and high parking demand. UF 251. The City granted the requested parking reduction despite this evidence. UF 251-252. In contrast, Plaintiffs' Parking Study showed that peaking utilization would be 55% of the parking capacity for the project. UF 110. Nevertheless, the City denied such permits to Plaintiffs, a further indication of pretext. See, e.g., Valley Hous., 802 F. Supp. 2d at 387. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 28 of 33 Page ID #:13800 LA 14148535v9 - 22 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER 2. Reasons Relating to Parking were Pretextual. The City had no legitimate basis to deny the permit for parking reduction. The City Council explicitly found that 93% of the patients would be transported in medical shuttles, walk, be dropped off, or take public transportation and would therefore not require parking. UF 132. This was obviously a relevant "transportation characteristic of persons ... visiting the site" reducing parking demand. Municipal Code §153.220(H). Taken together with the maximum number of employees on site at any time—16 employees—it was abundantly clear that the proposed parking of 28 spaces would be more than adequate. UF 24, 68. This logical conclusion was corroborated by an expert parking study that actually counted the utilization of parking spaces at a virtually identical operation—i.e. Plaintiffs' existing dialysis center.2 The parking study and the logical conclusion were both corroborated by the City's Planning Staff testimony—and now destroyed photographs that showed—that a surplus of 17-18 parking spaces (out of 38) were observed at the existing dialysis center on multiple unannounced visits conducted over months. UF 110. Finally, the City Planning and Engineering Staff repeatedly found that parking was sufficient and that there would be no detrimental impact on street parking in the surrounding area. UF 68. But even assuming arguendo that there would have been some detrimental impact on parking for neighboring residences, the City has granted permits despite similar or even worse detrimental impacts on parking in (at least) the four situations described above. Each of these proposed projects was granted a permit for parking reduction despite having either no parking study completed or a significantly less rigorous parking study completed than Plaintiffs' Parking Study. UF 167, 173, 181, 216, 235, 248-249, 289. This pattern shows that the City's reasons for denial of the Plaintiffs' permits were pretextual. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir. 1995) (opponents cited potential traffic and noise problems among their reasons for opposing home synagogues but tolerated existing traffic 2 The City accepted the results of a parking study for the DaVita dialysis center that used identical methods to Plaintiffs' Parking Study and measured parking demand at other DaVita dialysis centers as comparison sites. UF 197-198. This was plainly differential treatment to Plaintiffs, whose parking study was rejected because it was purportedly manipulated. UF 136. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 29 of 33 Page ID #:13801 LA 14148535v9 - 23 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER and noise caused by secular uses, including a country club); Innovative Health Sys., 117 F.3d at 49 (city's decision was inconsistent "other similar uses in the same district"). 3. Reasons Relating to the Facility's Size were Pretextual. a. The City Granted a Permit for a DaVita Dialysis Center Even Though its Parking Lot was Directly Adjacent to Neighboring Residences. Just four months after reversing Plaintiffs' CUPs, the City approved a CUP for a 11,450 square foot DaVita dialysis center to be constructed at 825 E. Broadway (the "DaVita dialysis center"). UF 185. The City's treatment of the DaVita dialysis center's application for a conditional use permit was significantly more favorable than the treatment of Plaintiffs' application—despite virtually identical evidence supporting the applications. The site of the DaVita dialysis center was, like the site of Plaintiffs' proposed dialysis center, an abandoned commercial lot. UF 186. The DaVita dialysis center would have been just 0.7 miles (or five blocks) away from Plaintiffs' proposed dialysis center. The DaVita dialysis center would operate from 6 a.m. to 10 p.m., Monday through Saturday, with staff arriving and departing one hour before and after operating hours and 15 employees per day, with treatment shifts for each patient lasting three to four hours, three times per week. UF 187. The DaVita dialysis center would have 25 dialysis stations and required a CUP to exceed 10,000 square feet. UF 187. Like Plaintiffs' proposed dialysis center, the DaVita dialysis center's parking lot would be directly adjacent to a number of residences. UF 188. Despite complaints from Kimberly Winfield, who lived just 0.1 miles away, about increased problems with noise, traffic, and parking, the City granted the CUP for the DaVita dialysis center. UF 189. In so doing, the City dismissed Ms. Winfield's concerns and instead credited the noise study that concluded operational noise impacts would not violate City and state noise standards and would not be significant—even though the noise study used the same methods as Plaintiffs' Acoustical Assessment, gathered virtually identical data, and made virtually identical findings. UF 190-191. In fact, Plaintiffs' Acoustical Assessment was more rigorous in its assessment of the noise impacts on neighboring residences because Plaintiffs' Acoustical Assessment placed microphones Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 30 of 33 Page ID #:13802 LA 14148535v9 - 24 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER directly next to the nearest residential property to measure potential noise impacts, whereas the DaVita dialysis center's noise study only placed a microphone on the commercial street—far from the nearest residence that would suffer any noise impacts from the DaVita dialysis center. UF 192-193. This evidence shows that the City's purported reasons were pretext for denying the permits for Plaintiffs' proposed dialysis center. Behavioral Health Servs., 2003 WL 21750852, at *5 (disparate treatment found where similar application was treated differently despite the fact that proposed use "was likely to have no more of an impact on the City"); Innovative Health Sys., 117 F.3d at 49 (injunction upheld and purported non-discriminatory reasons were found pretextual where city's decision was inconsistent with "other similar uses in the same district"); Valley Hous., 802 F. Supp. 2d at 386–88 (discrimination found where city required zoning applications for treatment provider but did not require applications for similar projects). b. Operational Noise was Pretext to Deny the Permits. The City's reasons for denial of the permits to exceed 10,000 square feet were pretextual. The City's primary concern was operational noise resulting from the hours of operation. UF 135. The facility's hours of operation are necessary to ensure individuals with kidney failure receive treatments in a manner that minimizes the disruption to their lives caused by their disability. UF 12-13. Even assuming arguendo that the City's concerns about early morning and late night noise were valid, these concerns were pretextual. It is undisputed that any number of other types of businesses would have been able to operate at the site of Plaintiffs' proposed dialysis center without any restriction on hours of operation. A laundromat could have been open 24/7 at the site. A restaurant with outdoor dining—as suggested by Commissioner Vera—could have opened at 6 a.m. (with staff arriving at 5 a.m.) and closed at 2 a.m. (with staff departing at 3 a.m.). UF 290. The City's tolerance of these other potential property uses while denying Plaintiffs' proposed use of treatment of individuals with disabilities shows that the City's reasons are pretext for discrimination. See LeBlanc-Sternberg, 67 F.3d at 431; Behavioral Health Servs., 2003 WL 21750852, at *7 (impact on surrounding residences not materially different from "whatever Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 31 of 33 Page ID #:13803 LA 14148535v9 - 25 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER commercial establishment operated at that site"). Indeed, at the November 9, 2015 Planning Commission, the City Attorney admitted that the City could only restrict hours of operation for the proposed dialysis center because its size would exceed 10,000 square feet, UF 139: City Attorney Kress stated that the City does not regulate the hours of operation for this type of business. The City does regulate hours of businesses like restaurants, coffee houses and massage parlors. He explained that if the size of the proposed building was reduced to less than 10,000 square feet and met the parking requirement, then it would be Code compliant, will not require a CUP, and could be open 24 hours a day, seven days a week. It is undisputed that Plaintiffs' need to expand beyond 10,000 square feet—while maintaining capacity of 37 dialysis stations—was because of regulations governing clearance around dialysis centers, increased safety showers, conference rooms for patient counseling, and legal requirements designed to improve access to individuals with disabilities. UF 25. Given the evidence that there were no problems with operational noise at Plaintiffs' existing 36 station dialysis center (UF 41, 109), there was no logical reason to infer that the excess 2,285 square feet would cause noise issues. Behavioral Health Servs., 2003 WL 21750852, at *5 (evidence showed that proposed use "was likely to have no more of an impact on the City" than existing use). Then-Mayor Pu's attempt to limit the hours of operation, and the City's reversal of the permits because of the operational hours as proposed, resulted in discriminatory restrictions on patients' access to dialysis treatments. Turning Point, 74 F.3d at 945 (unlawful to refuse to accommodate by imposing unreasonable conditions on the grant of permit). IV. CONCLUSION For these reasons, the Court should grant Plaintiffs' motion for partial summary judgment and require that the City reinstate the permits for the proposed dialysis center. Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 32 of 33 Page ID #:13804 LA 14148535v9 - 26 - PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER DATED: January 30, 2017 JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA LAUREN BABST By: /s/Nilay U. Vora NILAY U. VORA Attorneys for Plaintiffs DR. LAKHI SAKHRANI, PRIYA SAKHRANI, and QUALITY DIALYSIS CENTER LAS TUNAS, LLC Case 2:16-cv-01756-CAS-PLA Document 104 Filed 01/30/17 Page 33 of 33 Page ID #:13805 LA 14287557v1 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA (Bar No. 268339) LAUREN BABST (Bar No. 313156) 1900 Avenue of the Stars, Seventh Floor Los Angeles, California 90067-4308 Telephone: (310) 203-8080 Facsimile: (310) 203-0567 Email: nvora@jmbm.com lbabst@jmbm.com DARON L. TOOCH (State Bar No. 137269) SANSAN LIN (State Bar No. 298994) HOOPER, LUNDY & BOOKMAN, P.C. 1875 Century Park East, Suite 1600 Los Angeles, California 90067-2517 Telephone: (310) 551-8111 Facsimile: (310) 551-8181 E-Mail: dtooch@health-law.com slin@health-law.com Attorneys for Plaintiffs DR. LAKHI SAKHRANI, PRIYA SAKHRANI, and QUALITY DIALYSIS CENTER LAS TUNAS, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DR. LAKHI SAKHRANI, PRIYA SAKHRANI, QUALITY DIALYSIS CENTER LAS TUNAS, LLC, Plaintiffs, v. CITY OF SAN GABRIEL, JASON PU, JULI COSTANZO, JOHN HARRINGTON, KEVIN SAWKINS Defendants, CASE NO.: 2:16-cv-01756-CAS [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT FOR DISPARATE TREATMENT Date: February 27, 2017 Time: 10:00 a.m. Ctrm: 8D Judge: Hon. Christina A. Snyder Complaint Filed: March 14, 2016 Case 2:16-cv-01756-CAS-PLA Document 104-1 Filed 01/30/17 Page 1 of 2 Page ID #:13806 LA 14287557v1 - 1 - [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:16-cv-01756-CAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 PRINTED ON RECYCLED PAPER Plaintiffs’ Motion for Partial Summary Judgment on the twelfth and thirteenth causes of action for disparate treatment came on regularly for hearing before this Court on February 27, 2017. Nilay U. Vora appeared as attorney for Plaintiffs, and ________________ appeared as attorney for Defendants City of San Gabriel, Jason Pu, Juli Costanzo, John Harrington, and Kevin Sawkins (collectively, "Defendants"). After considering the moving and opposition papers, arguments of counsel and all other matters presented to the Court, IT IS HEREBY ORDERED THAT the motion is GRANTED, as follows: 1. Summary judgment is awarded in favor of Plaintiffs and against all Defendants on Plaintiffs’ twelfth and thirteenth causes of action for disparate treatment in violation of disability discrimination laws; 2. The Court will issue a permanent injunction mandating that the City reinstate Plaintiffs’ conditional use permits to (1) build a dialysis center larger than 10,000 square feet and (2) reduce required parking by 20% based on lack of parking demand. IT IS SO ORDERED. DATED: ________, 2017 Hon. Christina A. Snyder United States District Judge Case 2:16-cv-01756-CAS-PLA Document 104-1 Filed 01/30/17 Page 2 of 2 Page ID #:13807