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

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Sixteenth Cause of Action for a Writ of Administrative Mandate

C.D. Cal.September 26, 2016

LA 13091619v15 NOTICE OF 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) TALYA GOLDFINGER (Bar No. 294926) 1900 Avenue of the Stars, Seventh Floor Los Angeles, California 90067-4308 Telephone: (310) 203-8080 Facsimile: (310) 203-0567 Email: nvora@jmbm.com tgoldfinger@jmbm.com HOOPER, LUNDY & BOOKMAN, P.C. DARON L. TOOCH (State Bar No. 137269) SANSAN LIN (State Bar No. 298994) 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 PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT ON SIXTEENTH CAUSE OF ACTION FOR AN WRIT OF ADMINITRATIVE MANDATE [Filed concurrently with Separate Statement of Uncontroverted Facts and Conclusions of Law, Declaration of Nilay U. Vora, Declaration of Dr. Lakhi Sakhrani, Request for Judicial Notice, [Proposed] Order Granting Request for Judicial Notice, [Proposed] Order Granting Summary Judgment] Date: October 24, 2016 Time: 10:00 a.m. Ctrm: 5 Judge: Hon. Christina A. Snyder Complaint Filed: March 14, 2016 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 1 of 33 Page ID #:1711 LA 13091619v15 - i - NOTICE OF 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, October 24, 2016, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 5 of the above-entitled Court, located at 312 N. Spring St., Courtroom 5, 2nd Floor, Los Angeles, CA 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 Sixteenth Cause of Action for an Administrative Writ of Mandate pursuant to California Code of Civil Procedure §1094.5 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 that the Sixteenth Cause of Action for an Administrative Writ of Mandate pursuant to California Code of Civil Procedure §1094.5 is a question of law that can appropriately be determined by a federal court on a motion for partial summary judgment, 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: 1. The administrative record in this case establishes that Defendants abused their discretion in reversing the City Planning Commission's previous grant of a conditional use permit to Plaintiffs to build a new dialysis center in excess of 10,000 square feet. 2. The administrative record and the uncontroverted facts establish that Defendants abused their discretion by denying Plaintiffs a fair hearing by arbitrarily and capriciously reversing the City Planning Commission's previous grant of a conditional use permit to Plaintiffs to build a new dialysis center in excess of 10,000 square feet. 3. The administrative record in this case establishes that Defendants abused their discretion in reversing the City Planning Commission's previous grant of a conditional use permit to Plaintiffs to reduce required parking by 20% at the new dialysis center. 4. The administrative record and the uncontroverted facts establish that Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 2 of 33 Page ID #:1712 LA 13091619v15 - ii - NOTICE OF 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 Defendants abused their discretion by denying Plaintiffs a fair hearing by arbitrarily and capriciously reversing the City Planning Commission's previous grant of a conditional use permit to Plaintiffs to reduce required parking by 20% at the new dialysis center. 5. The administrative record and the uncontroverted facts establish that Defendants denied Plaintiffs a fair hearing through their unlawful and inequitable conduct prior to, during, and after, the hearing of the appeal of the conditional use permits previously granted to Plaintiffs to Plaintiffs to build a new dialysis center in excess of 10,000 square feet and to reduce required parking by 20% at the new dialysis center. 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 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 evidence and argument that may be presented to the Court prior to or at the hearing on this motion or as otherwise permitted. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on September 16, 2016, 10 days prior to the filing of this motion. In the Memorandum, Plaintiffs cite the uncontroverted facts from the Separate Statement as "UF" (e.g., UF __). DATED: September 26, 2016 JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA TALYA GOLDFINGER By: 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 43 Filed 09/26/16 Page 3 of 33 Page ID #:1713 LA 13091619v15 - iii - NOTICE OF 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 TABLE OF CONTENTS Page I. introduction.................................................................................................. 1 II. summary of undisputed facts ......................................................................... 2 A. Dr. Sakhrani's Reasons for Opening Another Dialysis Center................2 B. Public Hearings and Planning Commission's Ultimate Approval............3 C. The Appeal of the Planning Commission’s Approval of the CUPs.........4 1. The Evidence in Favor of Upholding the Grant of the CUPs ......5 a. The Acoustical Assessment ..............................................5 b. The Trip Generation Report ............................................6 c. The Parking Study............................................................6 d. Planning Staff's Findings and Testimony...........................6 e. Dr. Sakhrani's Testimony and Evidence............................7 2. The "Evidence" Against the Grant of the CUPs..........................7 3. The City's Reversal of the CUPs .................................................7 III. legal standard ................................................................................................ 8 IV. ARGUMENT............................................................................................. 10 A. The City abused its discretion in denying the Parking CUP. .................10 1. Evidence showed special conditions reduced parking demand. ..10 2. Evidence showed the proposed parking was sufficient. .............11 3. Evidence showed no detrimental impact on street parking. .......14 B. The City abused its discretion in denying the Size CUP. ......................15 1. The "proposed use" was consistent with the General Plan. ........15 a. Adequacy of Parking ......................................................15 b. Location Outside the Medical Facility Zone....................15 c. Commercial Traffic Encroachment on Residential Areas.16 d. Insufficient Buffering of Operational Noise....................16 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 4 of 33 Page ID #:1714 LA 13091619v15 - iv - NOTICE OF 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. Operational noise was within City standards .........16 ii. No increase over already permitted noise ..............17 2. The site was of adequate size and shape. ...................................19 3. Adequate street access without hazardous traffic results. ...........19 4. The dialysis center was compatible with surrounding uses. ........19 5. There was no detriment to public health, safety, and welfare......19 C. The City did not provide a fair hearing................................................20 1. Notice of the hearing procedure was provided to only one side. 20 2. The City Council applied the incorrect standard of review. ........21 3. City Officials had conflicts of interest requiring recusal. ............21 4. The City's decision was based on extra judicial investigations.....22 5. The City inconsistently applies standards for CUPs. ..................23 a. The Liquor Store CUP ...................................................24 b. The Medical Center CUP ...............................................25 V. Conclusion ................................................................................................. 25 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 5 of 33 Page ID #:1715 LA 13091619v15 - v - NOTICE OF 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 TABLE OF AUTHORITIES Page(s) Cases Acad. of Our Lady of Peace v. City of San Diego, 835 F.Supp.2d 895 (S.D. Cal. 2011) ......................................................................8 Barber v. Long Beach Civil Serv. Comm'n, 45 Cal. App. 4th 652 (1996)...................................................................................9 Browning-Ferris Indus. v. City Council, 181 Cal. App. 3d 852 (1986)................................................................................12 City of Long Beach v. Mansell, 3 Cal.3d 462 (1970) .............................................................................................13 Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996).................................................................................21 Coastal Sw. Dev. Corp. v. California Coastal Zone Conservation Com., 55 Cal. App. 3d 525 (1976)..................................................................................12 Cooper v. Kizer, 230 Cal. App. 3d 1291 (1991)................................................................................9 Desmond v. County of Contra Costa, 21 Cal. App. 4th 330 (1993)...................................................................................9 Elizabeth D. v. Zolin, 21 Cal. App. 4th 347 (1993)...................................................................................8 English v. City of Long Beach, 35 Cal. 2d 155 (1950) ..............................................................................14, 22, 23 Frase v. Gourley, 85 Cal. App. 4th 762 (2000).................................................................................12 Frink v. Prod, 31 Cal. 3d 166 (1982) ............................................................................................9 Hawthorne Sav. & Loan Assn. v. City of Signal Hill, 19 Cal. App. 4th 148 (1993)...........................................................................17, 19 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 6 of 33 Page ID #:1716 LA 13091619v15 - vi - NOTICE OF 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 HPT IHG-2 Properties Trust v. City of Anaheim, 243 Cal. App. 4th 188 (2015)...............................................................................13 J. L. Thomas, Inc. v. County of Los Angeles, 232 Cal. App. 3d 916 (1991)................................................................................16 Kerrigan v. Fair Employment Practice Com., 91 Cal. App. 3d 43 (1979)......................................................................................9 Kuhn v. Dept. of Gen'l Servs., 22 Cal.App.4th 1627 (1994)...................................................................................9 Lillian F. v. Super. Ct. (Santa Clara Valley Med. Ctr.), 160 Cal. App. 3d 314 (1984)................................................................................21 Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal.4th 731 (2009) ..........................................................................................20 Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470.................................................................................20 Nightlife Partners v. City of Beverly Hills, 108 Cal.App.4th 81 (2003).....................................................................................8 Pacific Gas & Electric Co. v. Zuckerman, 189 Cal.App.3d 1113 (1987)................................................................................15 People v. Johnson, 26 Cal.3d 557 (1980) .............................................................................................9 Peretto v, Dep't of Motor Vehicles, 235 Cal.App.3d 449 (1992)..................................................................................21 Pittsburg Unified Sch. Dist. v. Comm'n On Prof'l Competence, 146 Cal. App. 3d 964 (1983)..................................................................................9 Power v. State Pers. Bd., 35 Cal. App. 3d 274 (1973)..................................................................................23 Roddenberry v. Roddenberry, 44 Cal.App.4th 634 (1996).........................................................................9, 12, 15 Rondon v. Alchoholic Beverage Appeals Bd., 151 Cal.App.4th 1274 (2007)...............................................................................20 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 7 of 33 Page ID #:1717 LA 13091619v15 - vii - NOTICE OF 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 Rosenblit v. Super. Court, 231 Cal. App. 3d 1434, 1445 (1991) ....................................................................20 San Benito Foods v. Veneman, 50 Cal.App.4th 1889 (1996).................................................................................21 Smith v. County of Los Angeles, 211 Cal. App. 3d 188 (1989)................................................................................19 Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28 (1974) ...............................................................................................8 Taxara v. Gutierrez, 114 Cal.App.4th 945 (2003).................................................................................21 West Chandler Blvd. Neighborhood Ass'n. v. City of Los Angeles ("W. Chandler"), 198 Cal.App.4th 1506 (2011)........................................................................passim Statutes Cal. Code Civ. Pro. § 1094.5.................................................................................................................8 Evid.Code § 115 .......................................................................................................21 San Gabriel Municipal Code §153.004 ...............................................................14, 23 San Gabriel Municipal Code §153.151 .................................................................3, 15 San Gabriel Municipal Code §153.152 .....................................................................17 San Gabriel Municipal Code § 153.220 ..........................................................3, 10, 25 San Gabriel Municipal Code §153.246 .....................................................................18 Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 8 of 33 Page ID #:1718 LA 13091619v15 - 1 - NOTICE OF 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 The City of San Gabriel used pretextual reasons to prevent a prominent kidney doctor from developing a new dialysis center to provide necessary, chronic treatments to residents with life-threatening disabilities. Plaintiffs seek an administrative writ because the City unlawfully reversed the City Planning Commission's grant of two conditional use permits (“CUPs”) authorized by code to (1) build a dialysis center larger than 10,000 sq. ft. and (2) reduce required parking by 20% based on lack of parking demand. Plaintiffs worked with Planning Staff for nearly a year to prepare numerous required expert reports. The City's professional Planning Staff recommended approval of both CUPs based on their independent analysis. On November 9, 2015, the Planning Commission found that all statutory criteria were met and approved the CUPs. Two weeks later, wealthy, politically powerful residents neighboring the proposed dialysis center appealed to the elected City Council, who reversed the CUPs on appeal. Every aspect of the appellate proceedings was engineered by the City Council and City executives 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 City Council even conducted unlawful extrajudicial investigations to gather evidence against the new dialysis center. Substantively, the City's evaluation of the evidence was so erroneous that it 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 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 found—using methods approved by City Planning and Engineering staff—that the dialysis center would have no negative impacts on traffic, parking, or noise. Perhaps most egregious was the City's total rejection, without any stated reason, of their own Planning Staff's reported findings and testimony. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 9 of 33 Page ID #:1719 LA 13091619v15 - 2 - NOTICE OF 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 Instead of crediting the abundant evidence in favor of the new dialysis center, the City based its decision on neighboring residents' speculation and conjecture. There is no logical route between the evidence, the City's factual findings, and the City's decision to reverse the CUPs granted by the Planning Commission. Finally, the City denied Plaintiffs a fair hearing and arbitrarily and capriciously reversed the CUPs. The City treated similar applicants for CUPs differently, granting permits and variances despite failure to meet statutory criteria. For example, across the street from the dialysis center, the City gave a permit to a liquor store though it had half the parking capacity required by law. This Court should issue a writ requiring the City's reinstatement of the CUPs. II. SUMMARY OF UNDISPUTED FACTS A. Dr. Sakhrani's Reasons for Opening Another Dialysis Center Plaintiff Lakhi Sakhrani, M.D. is a highly regarded physician who has been board certified in Internal Medicine and Nephrology for over 30 years. With his wife, Priya, Dr. Sakhrani has operated a dialysis center on San Gabriel Boulevard ("QDC San Gabriel") in the City of San Gabriel (the "City"). Dr. Sakhrani provides dialysis and medical treatment to individuals who suffer from kidney failure, known as End Stage Renal Disease (“ESRD”). ESRD is a chronic and irreversible disease for which there is no cure—only treatment. The primary function of kidneys is to clean wastes and extra fluid from blood. Kidney failure is fatal unless treated by dialysis. ESRD patients must receive dialysis three times a week for three to four hours each session. UF 1-6. QDC San Gabriel is approximately 9900 square feet and contains 36 treatment stations. Most of the patients at QDC San Gabriel receive Medi-Cal and Medicare. Most of the patients are Asian or Latino. QDC San Gabriel is has a five star rating from the Centers for Medicare and Medicaid Services, a distinction given to only 5% of dialysis centers. Like most dialysis centers, QDC San Gabriel runs four shifts: 4 am, 8:30 am, 1 pm, and 6 pm. Many patients need dialysis treatments at 4 am or 6 pm because of work schedules and daytime activities. UF 7-13. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 10 of 33 Page ID #:1720 LA 13091619v15 - 3 - NOTICE OF 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 Because of its superior service, QDC San Gabriel is presently 97% full. The Sakhranis sought to open a new dialysis center to increase capacity, to accommodate the growing need for dialysis, to provide patients better schedules for treatment, and to satisfy a forthcoming regulatory requirements for a back-up dialysis center in the event of an emergency, , such as fire or contamination, at the existing center. UF 14-21. On September 1, 2014, Plaintiffs signed a long-term lease for the property located at 237 East Las Tunas Drive for the proposed dialysis center (“QDC Las Tunas”). This property is zoned C-1 retail commercial and is located at the corner of Country Club Drive and Las Tunas Drive, a major commercial corridor in the City. Medical facilities up to 10,000 square feet are permitted by right on a C-1 lot, but to exceed 10,000 square feet requires a CUP. In April 2015, Plaintiffs submitted applications for two conditional use permits (the "CUPs"): (1) for the dialysis center size to exceed 10,000 square feet (by 2,285 square feet) and (2) for a 20% required parking reduction (from 35 to 28). Municipal Code §153.151(D) & §153.220(H). UF 21-35. B. Public Hearings and Planning Commission's Ultimate Approval On October 12, 2015, Planning Staff presented the proposed dialysis center project to the Planning Commission at its regular meeting. Planning Staff provided a detailed report recommending approval of the CUPs. Planning Staff recommended that the dialysis center be permitted to exceed 10,000 square feet because Municipal Code §153.151(D) criteria were met: (1) the proposed use was consistent with the General Plan as "dialysis centers are permitted in the C-1 (Retail Commercial) zone;" (2) the site was adequate in size, shape, topography and location; (3) adequate street access existed and no hazardous traffic conditions would result; (4) the dialysis center's operation on a commercial lot was compatible with nearby residences; and (5) the proposed use was not detrimental to public health, safety, or general welfare. UF 55-56, 65-87. Planning Staff also recommended that the dialysis center be permitted to reduce required parking because Municipal Code § 153.220(H) criteria were met: (1) special conditions reduced parking demand at the site, including the nature of the proposed Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 11 of 33 Page ID #:1721 LA 13091619v15 - 4 - NOTICE OF 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 operation as a dialysis center whose majority of patients are transported by a shuttle bus service; (2) the proposed on-site parking was adequate; (3) parking demand would not exceed the capacity of or have a detrimental impact on supply of on-street parking in the surrounding area; and (4) a parking demand study was unnecessary. UF 55-56, 65-87. Despite Planning Staff's determination that no parking study was required, the Planning Commission determined that the dialysis center should provide a parking demand study and also asked for information relating to frequency of ambulance calls to QDC San Gabriel, vanpool operations at the proposed dialysis center, and enforceability of conditions of approval. Dr. Sakhrani proceeded to work with City Planning and Engineering Staff to have a parking study conducted on October 15, 2015 (the "Parking Study"). Using a location and methods approved by the City Planning and Engineering Staff, the Parking Study found that the 28 parking spaces at the proposed dialysis center would be more than sufficient because the existing dialysis center had a maximum use of 18 spaces. UF 55-56, 65-87. On November 9, 2015, the Planning Commission held a regular meeting. After considering all the expert studies and Planning Staff’s recommendations, the Planning Commission approved the CUPs. Conditions of approval required the curb along the project’s Country Club Drive frontage to be painted red to prohibit parking in this area and barred private shuttles from traveling on Country Club Drive, from idling while loading/unloading patients, or waiting in the dialysis center’s parking lot, and from conducting any loading activities in the public right of way. UF 55-56, 65-87. C. The Appeal of the Planning Commission’s Approval of the CUPs On November 20, 2015, a group primarily consisting of residents of Country Club Drive (the "Country Club Residents") appealed, citing only two reasons: (1) insufficient evidence supporting the 20% required parking reduction; and (2) failure to consider the impact of operational noise from the dialysis center. On January 5, 2016, the City held an appeal hearing on the proposed dialysis center. UF 88-90. It was readily apparent that Dr. and Mrs. Sakhrani would not receive a fair hearing Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 12 of 33 Page ID #:1722 LA 13091619v15 - 5 - NOTICE OF 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 both procedurally and substantively. The City provided the Country Club Residents with advance notice about the procedure for the hearing, advising them that they would go second and be limited to 45 minutes of presentation. The City also permitted the Country Club Residents to order their speakers as they requested, without permitting the Sakhranis to do the same. The City failed to provide simultaneous notice to the Sakhranis and limited their ability to present evidence at the appeal, even when responding to Councilmembers' own questions. The City required Plaintiffs to meet their burden by showing "clear and convincing evidence," the incorrect legal standard of review. Two Councilmembers and a Planning Commissioner had conflicts of interest. City Councilmembers even conducted extrajudicial investigations to gather evidence against the dialysis center. UF 91-96, 140-142, 159. The City used different procedures and standards in other recent appeals of CUPs involving a liquor store and a medical building on the same street. UF 154-172. 1. The Evidence in Favor of Upholding the Grant of the CUPs Both the City's Planning Staff and Plaintiffs submitted significant evidence in favor of upholding the grant of the CUPs, including expert reports. a. The Acoustical Assessment On April 27, 2015, an expert acoustical assessment (the "Acoustical Assessment") conducted to evaluate the potential short- and long-term noise impact resulting from building and operating the proposed dialysis center concluded that there would be no material noise increase in the neighborhood. The Acoustical Assessment measured typical noise at locations around the proposed dialysis center and then considered the potential additional noise if the proposed dialysis center was built and operated, such as construction, increased traffic, deliveries, equipment operation, car doors slamming, cars starting, and cars idling. The Acoustical Assessment concluded the proposed dialysis center would not have an adverse noise effect on the area based on the noise standards of the Municipal Code and the California Environmental Quality Act. UF 36-43. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 13 of 33 Page ID #:1723 LA 13091619v15 - 6 - NOTICE OF 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. The Trip Generation Report On April 27, 2015, an expert engineering firm prepared a Trip Generation Summary Report for the proposed dialysis center (the "Trip Generation Report"). The City's Traffic Study Guidelines for Development Projects require a traffic impact study only if a proposed development would generate more than 50 vehicle trips in peak hours. Using the QDC San Gabriel facility because of its similar capacity and schedule, the Trip Generation Report concluded that there would be less than 50 trips per day at peak hours at the proposed dialysis center. UF 44-51. c. The Parking Study On October 15, 2015, an expert engineering firm that had worked with the City for decades conducted a Parking Study (the "Parking Study"). The Parking Study's author consulted extensively with staff from the City Planning and Engineering Divisions to choose a comparable site to accurately gauge anticipated parking demand at the proposed dialysis center. City Planning and Engineering Staff approved the selection of QDC San Gabriel because its size, operation, and schedule were virtually identical to the proposed dialysis center. The Parking Study found a maximum of 18 spaces were used at QDC San Gabriel and concluded that 28 parking spaces at the proposed dialysis center would be more than sufficient. UF 73-83. d. Planning Staff's Findings and Testimony Supplementing previous reports, Planning Staff provided a new report to the City Council evaluating the two appealed issues—parking and noise—and recommended upholding of the CUPs. As to parking, the Planning Staff report again found that the proposed project met the criteria for the 20% reduction in parking. Planning Staff further testified that they had been "actively monitoring the parking availability" at QDC San Gabriel for "months" and that "at any given time during any day, there have been at least 17-20 empty parking spaces." Planning Staff also noted that a 9,400 square foot medical center down the road from the proposed dialysis center received a similar parking reduction. UF 57, 106-110. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 14 of 33 Page ID #:1724 LA 13091619v15 - 7 - NOTICE OF 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 As to noise, Planning Staff confirmed the Acoustical Assessment findings, concluding that the proposed dialysis center would not generate noise levels exceeding City Standards or the California Land Use Compatibility Standards. UF 40-43. e. Dr. Sakhrani's Testimony and Evidence Dr. Sakhrani and his facility administrator for QDC San Gabriel testified at length about operations of the proposed dialysis center, the shuttle/vanpool transportation that most patients would receive, and answered questions from City Councilmembers. Plaintiffs submitted video evidence corroborating the Parking Study and signatures of 3,100 San Gabriel residents in favor of the dialysis center—nearly double the number of votes received by some elected City Councilmembers. Dialysis patients testified that noise at the proposed dialysis center would be minimal, if any. UF 97-105. 2. The "Evidence" Against the Grant of the CUPs The Country Club Residents presented no expert reports to rebut the evidence provided by Plaintiffs. Instead, their testimony largely constituted speculation about future noise, such as from future conversations in the parking lot, UF 117: I’ve worked in nursing for 35 years ... My concern is that it’s a natural thing when nurses get to work, they great each other in the parking lot, they talk about what they did on their vacation. They talk about everything that they would not like to talk about in the facility, like raises, conflict with other employees in the parking lot. And that’s going to start happening at three o’clock in the morning, and it will also happen at 11 o’clock at night. As to parking, the Country Club Residents offered three still pictures, one Google Earth photo from many years ago, showing the QDC San Gabriel parking lot full, and two still pictures that did not fully capture the parking lot or available spaces. That was the total “evidence” submitted by appellants. UF 111-117. 3. The City's Reversal of the CUPs At the hearing's end, the City Council voted to reverse the CUPs. The City Council later "formalized" its findings and decision in Resolution No. 16-03 that was primarily prepared by a Deputy City Attorney, not Planning Staff. UF 118-120. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 15 of 33 Page ID #:1725 LA 13091619v15 - 8 - NOTICE OF 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 III. LEGAL STANDARD Summary judgment is the appropriate mechanism for ruling on a writ of mandate seeking review of an administrative decision in federal court. See, e.g., Acad. of Our Lady of Peace v. City of San Diego, 835 F.Supp.2d 895, 902–03 (S.D. Cal. 2011). Because the City's decision is challenged under California law, this Court should not utilize the standard summary judgment analysis. Id. at 902. Instead, this Court must review the administrative record to determine whether the City abused their discretion because (a) the City's decision was not supported by its findings and its findings not supported by evidence and (b) the City failed to provide a fair hearing. Cal. Code Civ. Pro. § 1094.5. Plaintiffs have prepared an administrative record provides "a basis for the affirmance or reversal of the ... decision, and establishes where in the proceedings the administrative body ... denied a fair hearing or abused its discretion." Elizabeth D. v. Zolin, 21 Cal. App. 4th 347, 355 (1993). Section 1094.5 requires "that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." West Chandler Blvd. Neighborhood Ass'n. v. City of Los Angeles ("W. Chandler"), 198 Cal.App.4th 1506, 1517-1518 (2011), citing Topanga Ass'n. for a Scenic Community v. City and County of Los Angeles, 11 Cal.3d 506, 515 (1974). Where the issue “is whether a fair administrative hearing was conducted, the independent judgment test [applies] ... and the court is empowered to render its independent judgment on the basis of the administrative record plus such additional evidence" as may be admitted under Cal. Code Civ. Pro. § 1094.5(e). Nightlife Partners v. City of Beverly Hills, 108 Cal.App.4th 81, 89 (2003) (citation omitted). A reviewing court must similarly "exercise independent judgment" if a fundamental vested right is affected. Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 44-45 (1974). This Court has already found that the City's Reversal of the CUPs implicates the fundamental vested federal and state statutory rights relating to disability discrimination. Courts reviewing administrative decisions implicating statutory anti-discrimination rights and programs providing services to people with disabilities must exercise independent Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 16 of 33 Page ID #:1726 LA 13091619v15 - 9 - NOTICE OF 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 judgment review. See, e.g., Kerrigan v. Fair Employment Practice Com., 91 Cal. App. 3d 43, 51- 52 (1979) (statutory rights relating to age discrimination were "fundamental vested rights"); Frink v. Prod, 31 Cal. 3d 166, 178 (1982) (poor, disabled person's right to public assistance required independent judgment review); Cooper v. Kizer, 230 Cal. App. 3d 1291, 1298 (1991) (independent judgment review applied to "programs for the disabled"). In exercising independent judgment review, courts conduct "conduct a limited de novo review upon the administrative record" and "weigh the evidence, resolving on [their] own any conflicts in the evidence." Pittsburg Unified Sch. Dist. v. Comm'n On Prof'l Competence, 146 Cal. App. 3d 964, 976 (1983). Independent judgment review also requires this Court to "reweigh the evidence by examining the credibility of witnesses." Barber v. Long Beach Civil Serv. Comm'n, 45 Cal. App. 4th 652, 658 (1996). If independent judgment review is not applicable, substantial evidence review applies. Under that standard, the Court may uphold the City's decision only if the City's findings are supported by substantial evidence. Substantial evidence is "evidence of ponderable legal significance" or evidence that is "reasonable in nature, credible, and of solid value." Desmond v. County of Contra Costa, 21 Cal. App. 4th 330, 335 (1993). Substantial evidence must be relevant such that "a reasonable mind" might accept it as "adequate to support a conclusion." Id. “The focus is on the quality, rather than the quantity, of the evidence.” Roddenberry v. Roddenberry, 44 Cal.App.4th 634, 651 (1996). Substantial evidence review "does not mean [courts] must blindly seize any evidence in support of the respondent…to affirm the judgment…. A decision supported by a mere scintilla of evidence need not be affirmed." Kuhn v. Dept. of Gen'l Servs., 22 Cal.App.4th 1627, 1633 (1994). Substantial evidence review requires examination of the "isolated pieces of evidence that support a decision in the context of other contrary evidence in the entire record" to determine if "a reasonable trier of fact could have rejected everything that controverted the isolated evidence." People v. Johnson, 26 Cal.3d 557, 577– 578 (1980). Under either standard, the City’s denial of the CUPs should be reversed. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 17 of 33 Page ID #:1727 LA 13091619v15 - 10 - NOTICE OF 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 IV. ARGUMENT A. The City abused its discretion in denying the Parking CUP. The City abused its discretion in denying the CUP for parking reduction. The City erroneously found that (1) no special conditions existed to reduce parking demand at the proposed dialysis center, (2) proposed onsite parking was inadequate, and (3) surrounding street parking would be detrimentally impacted. Municipal Code § 153.220(H). These findings were unsupported by the evidence. 1. Evidence showed special conditions reduced parking demand. The City Council's finding that no special conditions reduced parking demand was flatly inconsistent with the evidence presented. The City found no special conditions reducing parking demand despite the City's own admission that 93% of patients would not require parking because they are transported by shuttles or are dropped off. UF 125. This was obviously a relevant "transportation characteristic of persons ... visiting the site" reducing parking demand. Municipal Code §153.220(H). Planning Staff also reported to the City Council additional evidence that special conditions showing reduced parking demand at the dialysis center, UF 67-72, 85, 109: • First, because of the nature of the operation, a significant majority of the dialysis center’s patients do not drive … and are instead transported in shuttles, thereby reducing the need for on-site parking spaces. • Second, the proposed dialysis center is located approximately 135 feet west of the nearest bus stop on the north side of Las Tunas and approximately 169 feet northwest of the nearest stop on the south side of the street. It is important to remember that the criterion for eligibility for parking reduction is proximity to a transit stop (a quarter mile or less). It is not a requirement that the applicant demonstrate expected transit ridership. • Third, the parking study was based on the applicant’s existing dialysis center at 801 S. San Gabriel Blvd., which is slightly smaller (9,586 sq. ft. vs. 12,285 sq. ft.), has the same operating hours, same number of patients per shift, same number of employees, and same employee shift schedule as the proposed center. Of the total number of patients, approximately 81 percent are expected to arrive by shuttle, approximately 12 percent will be dropped off, and approximately 7 percent will drive alone and park at the site, based on patterns at the existing center. • Lastly, the parking study showed a peak utilization of 18 spaces (out of 41 provided). This peak occurred in the afternoon from 1:30 pm to 2:00 pm and again from 3:30 pm to 4:00 pm The proposed dialysis center’s Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 18 of 33 Page ID #:1728 LA 13091619v15 - 11 - NOTICE OF 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 parking demand is expected to be similar to that of the existing center that was the subject of the parking study and therefore the 28 spaces proposed should be more than sufficient to accommodate peak demand. Given the magnitude of the surplus parking supply, the project is not expected to have a detrimental effect on on-street parking supply in the surrounding area. The parking study was reviewed by the Engineering Division, which validated its methodology and findings. Other findings by the City were indisputably false. The City found it "not disputed" that shuttles would only transport one patient per trip. UF 122. Actually, the Parking Study reported four to five patients transported per shuttle and Dr. Sakhrani similarly testified. UF 82. The City falsely stated that Plaintiffs "clarified" that each day would have "four shifts" and "16 employees per shift," i.e. 64 employees per day. UF 123. Actually, uncontroverted testimony showed that the proposed dialysis center would have 16 employees maximum per day. UF 123. With reductions of 75% in employees and 80% in shuttles, parking demand was at least 75-80% less than the City determined. There was no logical "analytic route the city council traveled" in finding no conditions reducing parking demand. See W. Chandler, 198 Cal. App. 4th at 1522. 2. Evidence showed the proposed parking was sufficient. Overwhelming evidence showed that the proposed parking would be more than adequate. Indeed, Defendants' Answer admits "that the 28 spaces provided by QDC Las Tunas would more than exceed" parking demand. UF 81. The Parking Study showed that, if the proposed dialysis center had 28 spaces as proposed, it would have a surplus of 10-11 parking spaces. UF 81. The Parking Study was conducted by an engineering firm that the City worked with for decades and at a site selected by, and using methods approved by, the City Planning and Engineering Staff. UF 75-81. Other evidence corroborated the Parking Study. Plaintiffs submitted video comprising days of surveillance of the parking lot at QDC San Gabriel showing an ample surplus of parking. UF 98-100.1 The City's Planning Staff testified about their own 1 Defendants are in sole possession of this video but did not produce the video in response to Plaintiffs' Public Records Act requests. UF 98-100. This Court should infer that the video corroborates the Parking Study. See Frase v. Gourley, 85 Cal. App. 4th 762, Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 19 of 33 Page ID #:1729 LA 13091619v15 - 12 - NOTICE OF 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 observations on no-notice 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 QDC San Gabriel. UF 108.2 Finally, Planning Staff found that parking was sufficient based on the Parking Study and lack of demand. UF 106-107. This evidence should have been given significant weight. See Browning-Ferris Indus. v. City Council, 181 Cal. App. 3d 852, 866 (1986) (opinion of agency staff "has been recognized as constituting substantial evidence"); Coastal Sw. Dev. Corp. v. California Coastal Zone Conservation Com., 55 Cal. App. 3d 525, 535–36 (1976) (written analysis by administrative agency's professional staff and testimony by professional staff constituted substantial evidence); Roddenberry, 44 Cal. App. 4th at 651 (expert opinion is "substantial evidence" only if based on "assumptions supported by evidence in the record"). Instead of giving this evidence appropriate weight, the City found inadequate parking based on meager “evidence” presented by Appellants. Appellants produced three photographs of the parking lot of the dialysis center on San Gabriel Boulevard as evidence. UF 112. Two of these photographs were taken by a resident, Debbie Jones, who testified that the photographs showed only two vacant spaces. UF 113. In fact, these photographs were taken at street level in an L-shaped parking lot and do not capture the total number of available spaces. The third photograph was a Google Earth satellite photograph showing an aerial view of the parking lot a single point in time, on March 24, 2015. UF 112. This evidence was insufficient to overcome other evidence corroborating the Parking Study, including Planning Staff observations and video evidence presented by Plaintiffs. The Country Club Residents' only attempt to directly address the Parking Study was to assert, without evidence, that Plaintiffs “manipulated” the Parking Study by 765 (2000) (City "can be foreclosed from disputing [Plaintiffs'] statement of fact" where it "has sole custody and control" of evidence and "has a duty to maintain" record). 2 The City failed to produce the photographs in response to a Public Records Act request. UF 108. This Court should infer that they corroborate the Parking Study. Id. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 20 of 33 Page ID #:1730 LA 13091619v15 - 13 - NOTICE OF 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 telling employees “not to park in the parking lot for one day.” UF 114. The City bought into this fallacy despite the lack of evidence to support such a conspiracy theory: JULI COSTANZO: So if it was somebody totally not connected…I could see where you could maybe have a fair analysis of the parking, because they wouldn’t be able to manipulate. I think you would be surprised or fooled to think that the Doctor couldn’t make arrangements to make sure that the parking study looked as best as it could. Now this is my opinion. UF 130. This was an unlawful abuse of discretion. The City was estopped from questioning the validity of the Parking Study because of Plaintiffs' purported ability to manipulate the study when the City itself previously approved the Parking Study's comparison study site and methods. See, e.g., HPT IHG-2 Properties Trust v. City of Anaheim, 243 Cal. App. 4th 188, 201 (2015) (applying equitable estoppel because of City of Anaheim's conduct). The City's conduct warrants estoppel because (1) the City was apprised of the facts, i.e. the City ordered the Parking Study to be conducted and approved QDC San Gabriel as the study site; (2) the City intended that its representations, i.e. its approval of the study site and methodology, would be acted upon; (3) Plaintiffs were ignorant of the true state of facts, i.e. that the City could later claim manipulation of the Parking Study based on Plaintiffs' control of the study site; and (4) Plaintiffs relied upon the City's representations to their injury, i.e. Plaintiffs presumed the Parking Study would not be questioned based on the comparison site approved by the City. See City of Long Beach v. Mansell, 3 Cal.3d 462, 489 (1970). Even if the City was not so estopped, no evidence suggested manipulation of the Parking Study. The author of the Parking Study testified that the parking study was an iterative process that was conducted consistent with K.C. Design, Inc.'s 25 year historic relationship with the City and in consultation with both the City's Planning and Engineering divisions. UF 73-77. Mr. Velasquez also explained that notification to the owners of the comparison site was always made when conducting such a study and that he did not think that the dialysis center, who received notice in the late afternoon the previous day, had enough time to notify their employees (and patients) who would be arriving at 3 or 4 am the next day to avoid parking in the lot. UF 73-77. Tellingly, the Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 21 of 33 Page ID #:1731 LA 13091619v15 - 14 - NOTICE OF 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 City never even asked Dr. Sakhrani if he had manipulated the Parking Study. UF 78-79, 115. Instead, the City improperly relied on Councilmembers' own extrajudicial observations "that the parking lot at the comparison facility was full most of the time" and hearsay about limited street parking surrounding QDC San Gabriel. UF 124, 152- 155. Such evidence uncovered in extrajudicial investigations should never have been considered. See Municipal Code §153.004 (requiring City Council to make decision on evidence presented only); English v. City of Long Beach, 35 Cal. 2d 155, 159 (1950) (error to rely on evidence uncovered in extrajudicial investigation). By ignoring the expert reports and Planning Staff’s determinations that there would be abundant parking at the proposed dialysis center, and instead relying on meager evidence and rank speculation, the City failed to "bridge the analytical gap" between the evidence and their findings. W. Chandler, 198 Cal. App. 4th at 1518. 3. Evidence showed no detrimental impact on street parking. The City erroneously determined that the proposed dialysis center would detrimentally impact nearby on-street parking. This finding was unsupported by the evidence and constituted rank speculation. Street parking would only be necessary if the proposed dialysis center did not have sufficient parking, but all evidence showed that the proposed dialysis center would have surplus parking. Despite this evidence, the City reasoned that Country Club Drive would suffer the same negative impact as Pearl Street purportedly caused by QDC San Gabriel. UF 128. But this was pure speculation. The City admitted that it did not know if QDC San Gabriel was causing the limited supply of parking on Pearl Street. UF 153-155. Even assuming arguendo there was a parking impact on Pearl Street, that was not a basis to infer a similar result would occur on Country Club Drive. Planning Staff explained the distinct parking supplies and demands in the two areas, UF 68-69: Las Tunas Dr. has an ample supply of on-street parking in the vicinity, unlike San Gabriel Blvd., which has red curb painting … which pushes those using on-street parking onto Pearl St. There are also no other businesses in the vicinity of Country Club Dr. that would generate … parking demand that could cause spillover parking onto Country Club Dr. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 22 of 33 Page ID #:1732 LA 13091619v15 - 15 - NOTICE OF 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 south side of Las Tunas Dr. in this area is the site of several proposed or approved new developments, most of which will be provided with the required number of parking spaces. … These conditions and circumstances, in addition to the data provided in the parking study, lead staff to believe that the conditions present on Pearl St. would not be replicated on Country Club Dr. By ignoring evidence, crediting speculation, and making illogical inferences, the City abused its discretion in finding a detrimental impact on street parking. See Pacific Gas & Electric Co. v. Zuckerman, 189 Cal.App.3d 1113, 1135 (1987) (speculative opinion testimony is not substantial evidence); Roddenberry, 44 Cal. App. 4th at 651 (inferences must be "product of logic and reason"); W. Chandler, 198 Cal. App. 4th at 1518. B. The City abused its discretion in denying the Size CUP. Both CUPs required the City to make findings and decisions pursuant to the five factors enumerated in Municipal Code §153.151(D). The City abused its discretion because its required findings were unsupported by the evidence and there was no logical analytic route between the evidence and the City's decision. 1. The "proposed use" was consistent with the General Plan. The City erroneously decided that the proposed use was not consistent with the General Plan based upon four factual findings: (a) a lack of adequate parking, (b) improper location of a medical facility outside of the medical facility zone, (c) encroachment of commercial traffic onto residential areas, and (d) insufficient buffering of noise and operational noise impacts on residential areas. UF 129. Each finding was unsupported by the evidence or otherwise legally insufficient to support the decision. a. Adequacy of Parking As discussed above, the City's findings related to parking were erroneous. b. Location Outside the Medical Facility Zone The City found that "this location was not envisioned for this type of medical use" because it is "more appropriately suited for the area around the Medical Center." UF 131. This "finding" was erroneous. The City mischaracterized the General Plan, which actually provides a medical facility zone where the City desires, but does not require, medical facilities. To the contrary, the General Plan and Municipal Code Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 23 of 33 Page ID #:1733 LA 13091619v15 - 16 - NOTICE OF 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 authorize C-1 properties to be used for medical facilities up to 10,000 square feet by right and authorizes larger facilities by permit. UF 132. Planning Staff consistently interpreted the General Plan and Municipal Code in this fashion. UF 133. This "finding" of improper location outside the medical facility zone was, therefore, unsupported by the evidence and not "legally relevant to the decision to deny the conditional use permit based on the criteria set out by" the Municipal Code. J. L. Thomas, Inc. v. City of Los Angeles, 232 Cal. App. 3d 916, 927 (1991). c. Commercial Traffic Encroachment on Residential Areas The City erroneously found that traffic "is likely to encroach into adjacent residential streets and cause degradation in the quality of life of the adjacent residential community." UF 127. Uncontroverted evidence showed no increased traffic on residential streets. The Traffic Study found no increase in traffic impact on the neighboring residential streets because there would be no ability enter the dialysis center from Country Club Drive. UF 44-49. Planning Staff concluded that "no hazardous traffic conditions are expected with the operation of the proposed kidney dialysis center" because of its entrances located only on Las Tunas Drive. UF 50. Plaintiffs also agreed to bar shuttles operators transporting over 80% of patients from using residential streets surrounding the proposed dialysis center. UF 51. The finding of traffic encroachment was unsupported and could not bridge the gap to the City's conclusion of inconsistency with the General Plan. W. Chandler, 198 Cal. App. 4th at 1518. d. Insufficient Buffering of Operational Noise The City erred in finding that operational noise from the proposed use was insufficiently buffered and would disturb neighboring residences. UF 129. i. Operational noise was within City standards The evidence did not show any negative impact of noise from operation of the proposed dialysis center. Noise is specifically governed by statute, which requires that no land use violate the City's standards. Municipal Code §153.152(B)(2). The expert Acoustical Assessment corroborated that operational noise would comply with the City's Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 24 of 33 Page ID #:1734 LA 13091619v15 - 17 - NOTICE OF 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 established standards and that there would be no detrimental impact. UF 36-38. On a commercially zoned property, the City bars noise levels from exceeding 60 db for more than 15 minutes per hour. UF 36-38. The Acoustical Assessment found that the instantaneous sound of car doors slamming (60 db) and cars starting (63 db) would definitely comply with the City's noise standards. UF 36-38. Similarly, the hypothetical parking lot conversations late at night or in the early morning would have to occur for 30 minutes out of an hour to violate City noise standards. UF 36-38, 149. The only evidence that such lengthy conversations would occur came from Country Club Residents' pure speculation. UF 117. To the contrary, the Acoustical Assessment was corroborated by uncontroverted evidence showed zero noise complaints to San Gabriel Police or the City Neighborhood Improvement Services division about QDC San Gabriel—a virtually identical operation that neighbors residential properties. UF 40. Finally, the idea that a dialysis center would be incompatible with surrounding land uses should have been categorically rejected based upon photographs showing that at least three San Gabriel Valley dialysis centers—in addition to QDC San Gabriel—operate directly adjacent to neighboring residential communities. UF 98. No evidence suggested that any of these dialysis centers were incompatible with their neighboring residential communities. ii. No increase over already permitted noise The City incorrectly interpreted the term "proposed use" in evaluating whether the proposed dialysis center (and its operational noise) would be compatible with surrounding residences. This Court can " review the validity of ... the agency's interpretation of ... statutory provisions" because "incorrect legal interpretation" is an abuse of discretion. Hawthorne Sav. & Loan Assn. v. City of Signal Hill, 19 Cal. App. 4th 148, 157 (1993) (writ issued for misinterpretation of statute and misapplication to facts). The required inquiry under Municipal Code §153.246 was whether the "proposed use" would be compatible with surrounding residential uses. The term "proposed use" is not defined in the Municipal Code. In context, "proposed use" most logically means that Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 25 of 33 Page ID #:1735 LA 13091619v15 - 18 - NOTICE OF 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 use exceeding the use already authorized by right. The proposed dialysis center required a CUP to exceed the authorized use as a medical facility of 10,000 square feet. The appropriate inquiry, therefore, was whether the marginal 2,285 square feet would be incompatible with surrounding residences. In determining whether the dialysis center's "proposed use" would cause operational noise that is incompatible with surrounding residences, the appropriate legal inquiry was whether the operational noise from the marginal 2,285 square feet would cause such incompatibility. The evidence showed that it was not. The excess 2,285 square feet would result in a single additional dialysis station in comparison with QDC San Gabriel, and was primarily the result of regulatory requirements for a larger reception and outpatient waiting area to accommodate people with disabilities, larger male and female staff bathrooms as required by regulations, increased storage space to comply with safety regulations, and an additional safety shower required to be provided by dialysis centers by law. UF 24-26. This utilization of the 2,285 square feet would not materially increase operational noise impacts on neighboring residences. Again, because it was uncontroverted that QDC San Gabriel caused no noise issues, there was no basis to infer that the excess 2,285 square feet—i.e. the "proposed use"—would increase operational noise so as to make the proposed dialysis center incompatible with surrounding residential communities. Similarly, the City's findings of insufficient buffering are legally irrelevant because Plaintiffs complied with zoning requirements of 10 foot buffering and the City could not require more buffering to a smaller facility. Instead of analyzing the "proposed use"—the excess 2,285 square feet, the City erred as a matter of law by determining that dialysis centers of any size would be compatible with neighboring residences because hours of operation were "essentially from 3 am [one hour prior to opening] to 11 pm [one hour after closing]." UF 129. This was illogical given that a restaurant by right could have opened at 6 am (with staff arriving at 5 am) and closed at 2 am (with staff leaving at 3 am). Thus, the City's determination that the proposed dialysis center was incompatible with surrounding uses Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 26 of 33 Page ID #:1736 LA 13091619v15 - 19 - NOTICE OF 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 based on hours of operation and noise was an abuse of discretion. Hawthorne Sav. & Loan Assn., 19 Cal. App. 4th at 157; W. Chandler, 198 Cal. App. 4th at 1518. 2. The site was of adequate size and shape. The City's determination that the site was not adequate was improper given the City's erroneous findings on parking adequacy, as previously discussed. 3. Adequate street access without hazardous traffic results. The City properly found no hazardous traffic conditions and adequate access. 4. The dialysis center was compatible with surrounding uses. As previously discussed, the City's determination that the dialysis center was incompatible with surrounding residential uses was unsupported by the evidence. In fact, numerous dialysis centers in the San Gabriel Valley neighbor residential areas. 5. There was no detriment to public health, safety, and welfare. The City abused its discretion in determining that the proposed use would be detrimental to the public health, safety, and general welfare. The City's findings upon which this decision was based—a lack of adequate parking and operational noise impacts—were either unsupported by the evidence or legally irrelevant. More importantly, the City violated its constitutional obligation to consider the public health impact from denial of the CUPs. Under California law, the City was constitutionally required to consider the impact of denial of the CUP on neighboring communities. See Smith v. City of Los Angeles, 211 Cal. App. 3d 188, 201–02 (1989) ("Not only does the County have the right to consider the effects of its land uses on citizens of other jurisdictions, it has a constitutional responsibility to do so."). The City failed to consider of the impact on San Gabriel Valley dialysis patients of limiting the proposed dialysis center's capacity and ability to operate. The City ignored evidence that QDC San Gabriel was full and that the proposed dialysis center would serve as a back-up dialysis center to San Gabriel Valley residents who are patients at QDC San Gabriel in the event of an emergency. UF 14, 18-20. This evidence relating to public welfare, health, and safety far outweighed the de minimis operational noise or parking impacts. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 27 of 33 Page ID #:1737 LA 13091619v15 - 20 - NOTICE OF 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 In fact, Councilmember Harrington inverted the constitutional obligation by suggesting that other cities should permit dialysis centers to operate in those cities— instead of weighing the impact of the public health and welfare on the San Gabriel Valley community residents requiring dialysis. UF 138. By inverting the constitutionally required analysis and instead crediting legally irrelevant findings, the City abused its discretion. W. Chandler, 198 Cal. App. 4th at 1518. C. The City did not provide a fair hearing. A writ is appropriate where the petitioner has been deprived of a fair hearing: When…an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal. A fair tribunal is one in which the … decision maker is free of bias …. Violation of this due process guarantee can be demonstrated not only by proof of actual bias, but also by showing a situation in which experience teaches that the probability of actual bias on the part of the … decisionmaker is too high to be constitutionally tolerable. Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal.4th 731, 737 (2009) (emphasis added; citations and internal quotations omitted). In determining "whether the administrative hearing was procedurally fair, the trial court may consider evidence not presented at the administrative hearing if the evidence addresses the petitioners claim" of unfairness. Nasha LLC v. City of Los Angeles, 125 Cal.App.4th 470, 485 (2004); see also Rondon v. Alchoholic Beverage Appeals Bd., 151 Cal.App.4th 1274, 1286 (2007). The fair hearing inquiry extends to pre- and post-hearing proceedings, as well as issues arising during the administrative hearing itself. Rosenblit v. Super. Court, 231 Cal. App. 3d 1434, 1445 (1991). Here, the appeal hearing's procedural and substantive irregularities "had a notable stench of unfairness." Id. 1. Notice of the hearing procedure was provided to only one side. The City provided notice to the Country Club Residents that their presentation of evidence would be limited to 45 minutes only. UF 91-92. The City provided no such notice to Plaintiffs. UF 93. The City prevented Plaintiffs from limiting presentation by members of the public but permitted the Country Club Residents to remove previously designated speakers. UF 92, 94-95. This was prejudicial error that prevented Plaintiffs Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 28 of 33 Page ID #:1738 LA 13091619v15 - 21 - NOTICE OF 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 from introducing all of their supporting evidence. UF 96. 2. The City Council applied the incorrect standard of review. The appropriate standard of proof in administrative hearings is preponderance of the evidence, which requires proof that something is more likely true than not. San Benito Foods v. Veneman, 50 Cal.App.4th 1889, 1892-1893 (1996); Taxara v. Gutierrez, 114 Cal.App.4th 945, 949 (2003); Peretto v, Dep't of Motor Vehicles, 235 Cal.App.3d 449, 462 (1992). See also Cal. Evid. Code § 115 (“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”). In this case, the City Council applied an incorrect, higher burden of proof—the clear and convincing standard. UF 161. Clear and convincing evidence requires a finding of "high probability" and "requires that the evidence be so clear as to leave no substantial doubt" and strong enough to "command the unhesitating assent of every reasonable mind." Lillian F. v. Super. Ct. (Santa Clara Valley Med. Ctr.), 160 Cal. App. 3d 314, 320 (1984). Application of this improperly high burden of proof denied Plaintiffs a fair hearing. 3. City Officials had conflicts of interest requiring recusal. City Councilmembers whose personal residence may be impacted by matters before the City Council should recuse themselves from those matters. In Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152, 1170 (1996), a landowner sought to demolish a duplex to create a two-unit condominium. One of the issues involved the 35 foot height of the proposed condominium unit. Area residents complained that the proposed height would affect the views of the neighboring homes. A City Councilmember opposed to the project, Robert Benz, lived one block away from the proposed building. Holding that Petitioner Clark was denied a fair hearing, the Court of Appeal cited Mr. Benz’s conflict of interest as one of the reasons. 48 Cal.App.4th at 1172. In this case, two City Councilmembers presided over the appeal of the CUPs despite the direct personal impact that granting or denying the CUPs would have. The Country Club Residents argued that the proposed dialysis center would negatively Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 29 of 33 Page ID #:1739 LA 13091619v15 - 22 - NOTICE OF 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 impact on-street parking in the neighborhood on Alabama street, the next street west of Country Club Drive intersecting E. Las Tunas Blvd. Councilmember Sawkins lives at 440 Alabama street, and Councilmember Harrington lives at 240 N. San Marino Ave., which is just seven blocks (.5 miles) away from the proposed dialysis center. UF 142-143. Neither recused himself despite the personal impact of the dialysis center's CUPs. Furthermore, Planning Commissioner Camelia Vera's lives at 416 Daroca Avenue, just 0.7 miles away from the proposed dialysis center. UF 144. Commissioner Vera did not recuse herself from voting on the CUPs when the matter was before the Planning Commission, voted against granting the CUPs, and then testified as one of the residents in favor of granting the appeal, despite questions raised by City officials about the propriety of her participation in the appeal. UF 145-147. An email from one of the Country Club Residents praised Ms. Vera’s work on their behalf, UF 150: We all owe Charlie [Cummings] and Camelia Vera a huge THANK YOU. Camelia, as a planning commissioner, voted against the project having done thorough research – which was a huge help. Charlie was superb with his professional knowledge, contacting the City Attorney, and presentation last night. … The Council Members did a good job except for Chin-Ho. We have to concentrate on replacing him next go around. In response, Commissioner Vera wrote: “I marveled as how we were united in this effort. I spoke as one of you, a resident in this effort.” UF 151. In reaching their decision, the City Councilmembers noted that the vote of the Planning Commission, on which Ms. Vera sat, was not unanimous. UF 148. Commissioner Vera's testimony, therefore, was a further denial of a fair hearing because of her failure to recuse herself. 4. The City's decision was based on extra judicial investigations. “Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and nothing can be considered as evidence that was not introduced at a hearing of which the parties had notice or at which they were present.” English, 35 Cal.2d at 158–159 (1950) (citations omitted). “[T]he right of a hearing before an administrative tribunal would be meaningless if the tribunal were permitted to base its determination upon information received without the knowledge of Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 30 of 33 Page ID #:1740 LA 13091619v15 - 23 - NOTICE OF 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 parties.” Id. Indeed, the Municipal Code requires the same. 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 "Council members ... reported personally observing that the parking lot at the comparison facility was full." UF 152. Councilmembers stated (UF 153-154): JULI COSTANZO: I drive by there quite often on my way to work and see the parking lot pretty full most of the time. JOHN HARRINGTON: [H]ow many along Pearl, how many along San Gabriel, because I know I've driven there because I drop my daughter off every single day at [UNINTEL] and I've made it 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 there where it's a little different than the parking study, so. The City Councilmembers reliance on their own observations was prejudicial error making the hearing unfair as a matter of law because Plaintiffs never had an opportunity to refute these "observations." See English, 35 Cal.2d at 158–159 (denial of fair hearing where city relied on extrajudicial investigation without opportunity for rebuttal by party). In fact, the City Councilmembers' relied more on their own unscientific observations than detailed expert reports and even Planning Staff reports (and testimony corroborating those reports)—all of which confirmed the sufficiency of the proposed parking. This further constituted denial of a fair hearing. 5. The City inconsistently applies standards for CUPs. The City is barred "from exercising its discretion in an arbitrary, capricious, or fraudulent manner" when approving or denying CUPs. Power v. State Pers. Bd., 35 Cal. App. 3d 274, 276 (1973). The City's denial of the CUPs for the new dialysis center was arbitrary and capricious. Councilmember Harrington emphasized the City's total discretion to deny the CUPs even if statutory criteria were met. UF 141. The City failed to maintain Councilmember Harrington's six pages of handwritten notes from the Appeal Hearing. UF 134-137. The Court should infer the notes show the decision to be arbitrary and capricious. See Frase, 85 Cal. App. 4th at 765. Other evidence of the City's unlawful arbitrariness in denying the CUPs can be Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 31 of 33 Page ID #:1741 LA 13091619v15 - 24 - NOTICE OF 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 seen from differing treatment of other recent applicants for CUPs. a. The Liquor Store CUP Seven months before Plaintiffs' appellate hearing, the City Council held a hearing on the Planning Commission’s denial of a conditional use permit to operate a liquor store at 721 W. Las Tunas Drive, just down the road from the proposed dialysis center. UF 157. The hearing procedure differed substantially. Unlike the proposed dialysis center hearing, the City Council did not apply a clear and convincing standard, had the appellant speak first, and imposing no time limits on presentations. UF 159-163. The City's substantive evaluation was also significantly different. While Plaintiffs were required to obtain expert reports on noise and parking, no such requirements were made of the liquor store. UF 164. 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 problems and dismissed Planning Staff's report that another liquor store would exacerbate an overconcentration of alcohol sale points near schools and homes. UF165-171. 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, in the liquor store hearing, the Councilmembers emphasized the conditional and revocable nature of a CUP. UF 166. No formal resolution was prepared or adopted by the City in reversing the prior denial of the liquor store CUP. 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 167. By contrast, in this case, experts, Planning Staff, and the Planning Commission agreed that the proposed dialysis center would have abundant parking. The City's purported denial of the CUPs to the proposed dialysis center because of inadequate parking was, therefore, plainly pretextual, arbitrary, and capricious. Case 2:16-cv-01756-CAS-PLA Document 43 Filed 09/26/16 Page 32 of 33 Page ID #:1742 LA 13091619v15 - 25 - NOTICE OF 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. The Medical Center CUP The City's granting of permits for a 20% reduction in required parking under Municipal Code §153.220(H) is arbitrary and capricious. Approximately one year before the dialysis center hearing, the City granted a medical condominium building at 402 E. Las Tunas a 20% parking reduction. The reduction was easily granted without requiring an expert parking study. UF 172. In addition, the medical center was granted a variance permitting it to more than double maximum compact parking, from 35% to 71.7%. UF 173. 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 174. The City also granted a variance to the medical center to reduce the required buffering by half, from 5 feet to 10 feet, despite the fact that the property would directly border residential properties. UF 175. By contrast, the City denied the CUPs for the new dialysis center because of inadequate buffering despite compliance with zoning requirements for buffering. The City's evaluation and grant of a required parking reduction, compact parking variance, and buffering variance for the medical center were plainly inconsistent with the City's treatment of the proposed dialysis center—constituting arbitrary and capricious decision-making that warrants a writ to correct this abuse of discretion. V. CONCLUSION For these reasons, the Court should issue a writ to reinstate the CUPs. DATED: September 26, 2016 JEFFER MANGELS BUTLER & MITCHELL LLP NILAY U. VORA TALYA GOLDFINGER 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 43 Filed 09/26/16 Page 33 of 33 Page ID #:1743