Pacific Shores Properties, LLC v. City of Newport Beach ( 2013 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PACIFIC SHORES PROPERTIES, LLC, a         No. 11-55460
    California limited liability company;
    ALICE CONNER; SEAN WISEMAN;                   D.C. No.
    TERRI BRIDGEMAN,                          8:08-cv-00457-
    Plaintiffs-Appellants,      JVS-RNB
    ANDREW BLAIR,
    Plaintiff,
    v.
    CITY OF NEWPORT BEACH, a
    California municipal corporation,
    Defendant-Appellee.
    NEWPORT COAST RECOVERY LLC, a             No. 11-55461
    California Limited Liability
    Company; YELLOWSTONE WOMEN’S                  D.C. No.
    FIRST STEP HOUSE, INC.,                   8:09-cv-00701-
    Plaintiffs-Appellants,       JVS-RNB
    v.
    OPINION
    CITY OF NEWPORT BEACH, a
    California municipal corporation,
    Defendant-Appellee.
    2     PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Appeal from the United States District Court
    for the Central District of California
    James V. Selna, District Judge, Presiding
    Argued and Submitted
    November 6, 2012—Pasadena, California
    Filed September 20, 2013
    Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
    and Sidney R. Thomas, Circuit Judges.
    Opinion by Judge Reinhardt
    SUMMARY*
    Housing Discrimination
    The panel reversed the district court’s orders granting
    summary judgment in favor of the City of Newport on claims
    that a City ordinance violated the Fair Housing Act, the
    Americans with Disabilities Act, the California Fair
    Employment and Housing Act, and the Equal Protection
    Clause by having the practical effect of prohibiting new
    group homes for recovering alcoholics and drug users from
    opening in most residential zones.
    The panel held that the district court erred in disregarding
    the evidence that the City’s sole objective in enacting and
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH            3
    enforcing its ordinance was to discriminate against persons
    deemed to be disabled under state and federal housing
    discrimination laws. The panel held that the plaintiffs were
    not required to identify similarly situated individuals who
    were treated better than themselves in order to survive
    summary judgment. It held that where there is direct or
    circumstantial evidence that the defendant has acted with a
    discriminatory purpose and has caused harm to members of
    a protected class, such evidence is sufficient to permit the
    protected individuals to proceed to trial under a disparate
    treatment theory.
    The panel also held that the district court erred in
    concluding that the plaintiffs failed to create a triable issue of
    fact as to whether the losses that their businesses suffered
    were caused by the enactment and enforcement of the
    ordinance when the plaintiffs presented evidence that they
    experienced a significant decline in business after the
    ordinance’s enactment, that the publicity surrounding the
    ordinance greatly reduced referrals, and that current and
    prospective residents expressed concern about whether the
    group-home plaintiffs would close. In addition, the panel
    held that the costs borne by the plaintiffs to present their
    permit applications and the costs spent assuring the public
    that they were still operating despite the City’s efforts to
    close them were compensable. Finally, the panel held that the
    district court erred in dismissing one plaintiff’s claim for
    emotional distress, but correctly dismissed another plaintiff’s
    similar claim.
    4   PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    COUNSEL
    Elizabeth Brancart (argued) and Christopher Brancart,
    Brancart & Brancart, Pescadero, California; and Steven G.
    Polin, Law Offices of Steven G. Polin, Washington, D.C.; for
    Plaintiffs-Appellants.
    T. Peter Pierce (argued), Saskia T. Asamura, and Toussaint S.
    Bailey, Richards Watson & Gershon, P.C., Los Angeles,
    California; and Aaron Harp, City Attorney of Newport Beach,
    Newport Beach, California; for Defendant-Appellee.
    Thomas E. Perez, Assistant Attorney General, Dennis J.
    Dimsey, Teresa Kwong (argued), United States Department
    of Justice, Civil Rights Division, Appellate Section,
    Washington, D.C., for Amicus Curiae United States.
    Chris M. Amantea and Alexandrea H. Young, Hunton &
    Williams LLP, Los Angeles, California; and Paula D.
    Pearlman, Shawna L. Parks, and Umbreen Bhatti, Disability
    Rights Legal Center, Los Angeles, California, for Amici
    Curiae Disability Rights Legal Center, Disability Rights
    California, Western Center on Law and Poverty, and
    Disability Rights Education & Defense Fund.
    Kira L. Klatchko and Jeffrey V. Dunn, Best Best & Krieger
    LLP, Indian Wells, California, for Amicus Curiae League of
    California Cities.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                       5
    OPINION
    REINHARDT, Circuit Judge:
    Prior to 2008, “group homes”—i.e., homes in which
    recovering alcoholics and drug users live communally and
    mutually support each other’s recovery—were generally
    permitted to locate in residential zones in the City of Newport
    Beach (“the City”) and they did so freely.1 By 2008, a
    number of residents of the City launched a campaign to
    restrict or eliminate group homes in their neighborhoods.
    After enacting several moratoria, the City enacted an
    Ordinance (“the Ordinance”) which had the practical effect of
    prohibiting new group homes from opening in most
    residential zones. Even in the few areas where they were
    permitted to open, new group homes were required to submit
    to a permit process. Existing group homes also had to
    undergo the same permit process in order to continue their
    operations. Among the factors to be considered when
    granting or denying a permit to any group home was the
    number of other such facilities in the neighborhood.
    On its face, the Ordinance did not single out group
    homes; persons recovering from addiction are protected from
    housing discrimination under state and federal anti-
    discrimination laws. Instead, the Ordinance facially imposed
    restrictions on some other types of group living arrangements
    as well. At the same time, the City did not impose similar
    1
    We follow the parties’ convention in referring to addiction recovery
    facilities as “group homes.” The term “group homes” is not defined in the
    Ordinance or in any relevant statute, however. As used by the parties and
    in this opinion, the term refers only to addiction recovery facilities and not
    to any other sort of communal living arrangement.
    6   PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    regulations on properties rented by homeowners to
    vacationing tourists, despite the fact that such rental
    properties may cause similar social problems as group homes.
    On advice of counsel, the City had initially planned to
    regulate such rental properties in order to avoid the
    appearance of discriminating against group homes, but it
    backed down from doing so in the face of opposition from a
    number of City residents.
    Taken in the light most favorable to the non-moving
    party, Plaintiffs’ evidence shows that the City’s purpose in
    enacting the Ordinance was to exclude group homes from
    most residential districts and to bring about the closure of
    existing group homes in those areas. The evidence also
    shows that the Ordinance regulated other types of group
    residential arrangements primarily for the purpose of
    maintaining a veneer of neutrality. Several existing group
    homes, which, as a result of the Ordinance, were required to
    apply for a use permit in order to continue operating in
    residential areas, sued the City, alleging that the Ordinance
    discriminated against them as facilities that provide housing
    opportunities for disabled individuals recovering from
    addiction. The district court acknowledged the evidence that
    the City acted with a discriminatory motive but found that
    evidence “irrelevant” because, it stated, the City had not
    treated group homes any worse than certain other group
    living arrangements.
    We reverse and hold that the district court erred in
    disregarding the evidence that the City’s sole objective in
    enacting and enforcing its Ordinance was to discriminate
    against persons deemed to be disabled under state and federal
    housing discrimination laws. Although plaintiffs in an anti-
    discrimination lawsuit may survive summary judgment by
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH            7
    identifying similarly situated individuals who were treated
    better than themselves, this is not the only way to
    demonstrate that intentional discrimination has occurred.
    Where, as here, there is direct or circumstantial evidence that
    the defendant has acted with a discriminatory purpose and has
    caused harm to members of a protected class, such evidence
    is sufficient to permit the protected individuals to proceed to
    trial under a disparate treatment theory. This is no less true
    where, as here, the defendant is willing to harm certain
    similarly-situated individuals who are not members of the
    disfavored group in order to accomplish a discriminatory
    objective, while preserving the appearance of neutrality.
    We also hold that the district court erred in concluding
    that the Plaintiffs failed to create a triable issue of fact as to
    whether the losses that their businesses suffered were caused
    by the enactment and enforcement of the Ordinance. The
    Plaintiffs presented evidence that they experienced a
    significant decline in business after the Ordinance’s
    enactment, that the publicity surrounding the Ordinance
    greatly reduced referrals, and that current and prospective
    residents expressed concern about whether the group home
    Plaintiffs would close. By requiring the Plaintiffs to prove
    more, the district court failed to draw all reasonable
    inferences in their favor, as it was required to do at summary
    judgment. In addition, we hold that the costs borne by the
    Plaintiffs to present their permit applications and the costs
    spent assuring the public that they were still operating despite
    the City’s efforts to close them are compensable. Finally, we
    hold that the district court erred in dismissing Plaintiff
    Wiseman’s claim for emotional distress, but correctly
    dismissed Plaintiff Bridgeman’s similar claim.
    8       PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    FACTUAL BACKGROUND
    I
    Newport Beach (“the City”) is a Southern California
    beachfront community with about 80,000 residents and is one
    of the wealthiest cities in the United States.2 In the late 1990s
    “group homes” began opening in increasing numbers in the
    City, particularly in the beachfront neighborhoods of West
    Newport and Balboa Park. Group homes are residential
    facilities in which individuals recovering from drug and
    alcohol addiction temporarily reside. They provide a
    communal living environment in which residents help each
    other to recover from their addictions. In order to preserve a
    substance-free environment, group homes limit occupancy to
    persons who are sober; a resident who uses drugs or alcohol
    is immediately evicted. Because individuals recovering from
    addiction need to stay for varying lengths of time, they do not
    typically sign written leases. Typically, group home
    operators meet with and screen potential residents in advance
    to ensure that they are serious about pursuing a sober
    lifestyle.
    By April 2007, the City contained 73 group homes, 48 of
    which were licensed treatment facilities and 25 of which were
    unlicensed sober houses.3 At that time the City also had 801
    2
    It is also the setting for the popular television show The O.C., now
    playing on secondary runs. Also currently showing on Netflix is Arrested
    Development.
    3
    There are two types of group homes. Unlicensed “sober houses,” also
    known as “sober living homes,” are group homes occupied by persons in
    recovery with no formal substance abuse treatment program. Licensed
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH              9
    outstanding short-term lodging permits, which were issued to
    owners of properties that were regularly offered for rental for
    short periods of time. These homes are usually rented for
    profit for a period of 30 days or fewer to tourists who elect
    Newport Beach as a beach vacation destination. Like group
    homes, short-term lodgings cater to a revolving clientele that
    can cause strains on neighborhood resources. In Newport
    Beach, “short term lodgings” are generally referred to as
    “vacation homes,” and we use the terms interchangeably.
    The three group home Plaintiffs, Pacific Shores Properties
    LLC (“Pacific Shores”), Newport Coast Recovery LLC
    (“NCR”), and Yellowstone Women’s First Step House, Inc.
    (“Yellowstone”) (collectively, “the Group Homes”) were part
    of the influx of group homes into Newport Beach during the
    mid-to-late 1990s and the early 2000s. The individual
    Plaintiffs are, respectively, one of the owners and two former
    residents of Pacific Shores. Pacific Shores and Yellowstone
    operate unlicensed sober houses, while NCR is a state-
    licensed facility. Each Group Home spent hundreds of
    thousands of dollars purchasing and renovating the homes it
    operates.
    The increasing number of group homes in Newport Beach
    generated escalating hostility on the part of some City
    residents who, in a series of public meetings, repeatedly
    described the persons in recovery as “not true handicapped,”
    “criminals,” “gang members,” and “druggies,” among other
    California Alcohol and Drug Program (“ADP”) facilities, by contrast,
    provide substance abuse treatment on site.
    10 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    derogatory terms.4 In response to these concerns, the City
    passed a series of moratoria in 2007—Ordinances 2007-8,
    2007-10, and 2007-16 (collectively, the “Moratoria”)—
    followed by a new permanent zoning Ordinance 2008-5 (“the
    Ordinance”). Because the City’s intent in passing these
    measures is central to this appeal, we recount their history in
    detail.
    II
    The City’s attempts to formally address group homes
    began at a City Council meeting on January 23, 2007. At that
    meeting, members of the public expressed their displeasure
    with group homes and submitted a petition signed by 88
    residents asking the City Council to address the issue.
    Shortly before that meeting, in an email to a concerned
    citizen, then-Mayor Rosansky wrote, “I suspect that these
    [group home] facilities do nothing to really solve the problem
    but only serve as wherehouses [sic] for alcoholics and drug
    addicts until they really hit bottom.”
    The City Council decided to form an Intense Residential
    Occupancy Committee (“IROC”) “to review and understand
    the state and federal laws and regulations that limit [the]
    City’s ability to regulate” and “to research and identify
    solutions to the problems and make . . . recommendations to
    the [C]ity [C]ouncil for changes to regulations applicable to
    all residential uses in a manner that preserves the residential
    4
    One City resident described the attitude in Newport Beach towards
    group homes in particularly stark terms: “the idea of the guys with torches
    and pitchforks coming off the bridge is much closer to the sentiment [in
    one neighborhood] than the oh, ho-hum we want to help some poor
    druggy for the tenth time go through the system.”
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH          11
    character of our neighborhoods.” Eight members were
    appointed to the IROC, including then-Mayor Rosansky,
    another council member, and Planning Commissioner
    Michael Toerge, as well as several private citizens.
    The IROC’s work culminated in a proposed ordinance
    that imposed a moratorium on establishing or operating any
    new “transitory uses” in a residential district for a period of
    45 days, including group homes and short term lodgings.
    Angry citizens protested the freeze on the latter category, i.e.,
    vacation homes. Craig Batley, a realtor and a member of the
    IROC, e-mailed City Council members to express the view
    that “the focus needs to be on Group Homes and only Group
    Homes.” At a City Council meeting on April 24, 2007,
    citizens submitted a 400-signature petition against including
    short term lodgings in the moratorium. The City nevertheless
    enacted the moratorium as drafted. In a newspaper article
    published shortly thereafter, the City Attorney expressed the
    view that regulating only group homes would be
    discriminatory absent a showing that they caused different
    social problems than short-term lodgings.
    In order to demonstrate that group homes did cause
    different social problems than vacation homes, the City
    conducted a citizen survey on the respective impacts of each
    type of housing. The City had never conducted a survey in
    connection with legislation before. The survey was
    distributed to four neighborhoods, three of which were the
    “[n]eighborhoods that seemed to generate the most
    complaints about [group homes].” One citizen opposed to
    group homes had one hundred surveys left on her doorstep to
    personally distribute.
    12 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    The City Attorney prepared a report summarizing the 47
    survey responses the City received and recommending that
    the City Council lift the moratorium with respect to vacation
    homes. The City Attorney’s report also suggested amending
    the City Code to separately address problems caused by
    short-term lodgings, although the proposed amendments were
    never enacted. On May 30, 2007, the City Council passed
    Ordinance 2007-10 (“the revised Moratorium”), which
    followed the report’s recommendation to lift the freeze on
    short-term lodging permits, but continued to prohibit new
    group homes. The revised Moratorium was renewed for an
    additional year on October 30, 2007. The district court found
    that the revised Moratorium was facially discriminatory
    because it singled out group homes for adverse treatment.
    Around spring or fall of 2007, the City created an
    “Interdepartmental Group Homes Task Force,” headed by
    Assistant City Manager David Kiff to “verify” the number
    and location of group homes in the City, and to enforce code
    violations against them, including violations of the then-
    applicable moratorium. The City hired James Sinasek to
    work with Kiff. During the second half of 2007, Sinasek
    investigated group homes by searching the internet to locate
    them and posing as a potential client. He visited suspected
    group home sites, observed the properties, and photographed
    residents, vehicles, and license plates at or around the
    properties. Both Kiff and Sinasek attended meetings at the
    homes of members of the Concerned Citizens of Newport
    Beach (“CCNB”), a citizen advocacy group opposed to group
    homes, at which CCNB members provided lists of additional
    suspected group home sites for Kiff and Sinasek to
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH             13
    investigate.5 As a result of this investigation, three group
    homes, including Pacific Shores, were cited for violating the
    revised Moratorium.
    Meanwhile, City officials worked to amend the City’s
    municipal zoning code. At a Planning Commission meeting
    on June 21, 2007, the City Planner and outside counsel,
    Goldfarb & Lipman (“Goldfarb”) presented a draft ordinance
    to the Commission. The draft regulated both group homes
    and short-term lodgings because Goldfarb advised that doing
    so was necessary to avoid enacting an unlawful
    discriminatory ordinance. Commissioner Toerge, a member
    of the IROC, argued that the City needed to “be more
    aggressive” because it was “inundated” with group homes; he
    endorsed an alternate draft prepared by attorneys employed
    by the CCNB.          Goldfarb subsequently prepared a
    memorandum explaining why the CCNB’s proposed
    ordinance would be discriminatory.
    Nonetheless, the City Planner prepared a revised
    ordinance that did not regulate short-term lodgings. On
    September 20, 2007, an attorney from Goldfarb testified to
    the City Council that not regulating vacation homes might
    raise concerns about discrimination, and stated that “[t]here
    are still other non-conforming uses that are not necessarily
    residential care facilities [i.e., group homes]. We seem to not
    know exactly how many of those there are . . . but I think you
    grasp the situation that it does—it does change the overall
    impression.” Most public comments from City residents
    expressed frustration that the Commission had rejected as
    facially discriminatory the CCNB’s more aggressive
    5
    These lists included the meeting sites for members of Alcoholics
    Anonymous and Narcotics Anonymous.
    14 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    ordinance.   Commissioner Toerge suggested that the
    Commission should not be considering legal discrimination
    concerns: “I mean save that for the courtroom.” The
    Planning Commission approved the revised draft.
    While the Planning Commission was considering drafts
    of the Ordinance, the City Council formed an Ad Hoc
    Committee on Group Residential Legal Review whose sole
    purpose was to replace Goldfarb, the firm advising the City
    that failure to regulate short-term lodgings would be
    discriminatory, with new special counsel. This Committee’s
    work resulted in the city hiring new counsel, Richards,
    Watson, & Gershon PC, the firm that represents the City in
    this appeal.
    On October 9, 2007, the City Council formed an
    additional Ad Hoc Committee on Group Residential Uses to
    work with new counsel on revising the draft ordinance that
    had been recommended by the Planning Commission. The
    committee was chaired by Council Member Henn and
    included two other council members. No such Committee
    had ever been formed by the city before and its meetings
    were not open to the public.
    On January 8, 2008, the Committee proposed another
    draft ordinance to the City Council. Unlike the draft
    approved by the Planning Commission, this one provided that
    hearing officers who were to adjudicate group homes’ use
    permit applications were to consider as a factor the
    concentration of group homes in the neighborhood. Council
    Member Henn defended the Ordinance against residents who
    wanted to limit the density of group homes even more
    explicitly. He explained that the Ordinance had four
    objectives. The first was to ensure that no new group homes
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                15
    would open in Newport Beach: “Do you get my drift? No
    new ones anywhere unless an applicant can somehow prove
    a need for special accommodation under federal law.” The
    second objective was to “assure that those homes that do
    operate in [the] community must meet the requirements of the
    stringent process and agree to strict operational guidelines or
    their permit will be revoked.” Third, the City would “assure
    that there will be strict enforcement of the new ordinances
    going forward.” The fourth objective was “to substantially
    relieve the existing overconcentration of group homes and
    their adverse impacts.”
    Henn continued: “We have carefully evaluated the idea of
    simply banning all unlicensed [group] homes in all but the
    multifamily areas of the Peninsula. The siren song of that
    solution was carefully evaluated, and unfortunately, as in so
    many facets of life, our ideal must be tempered by reality.”
    He explained that “to do so would risk an immediately
    successful court challenge that would immediately enjoin the
    City from executing the ordinance . . . while we fight it in
    court.” He concluded saying, “I believe that taken together
    these findings and requirements will, in fact, result in a
    substantial reduction in the number of group homes on the
    Peninsula. . . . I ask you judge us by our actual results.”6
    On January 22, 2008, the City Council met to approve the
    Ordinance and yet again confronted citizens who felt that the
    Ordinance should be even stricter and expressly regulate the
    concentration of group homes. Outside counsel explained
    that the approach adopted by the Ordinance—case-by-case
    6
    Although Henn at one point stated that the City wished to ban
    unlicensed homes, the larger context of his remarks suggests that the City
    preferred to ban all group homes, both licensed and unlicensed.
    16 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    analysis of each facility by a Hearing Officer—was harder to
    challenge in court than a strict limit on the density of group
    homes. Counsel assured the public that the Ordinance
    allowed “plenty of . . . hooks and standards for a [H]earing
    [O]fficer to apply [to deny a permit application].” Council
    Member Henn described the use permit process imposed by
    the Ordinance as “a very substantive attack” on the “issue of
    overconcentration [of group homes.]” Henn also pointed out
    that he was “not aware of any other city in the State of
    California that has adopted an ordinance that’s as aggressive
    as [the City’s] in terms of the location of new [group
    homes].” Then, immediately after Henn’s comments, the
    City Council approved the Ordinance, which prohibits new
    group homes in most residential areas, requires existing group
    homes in those areas to submit to a burdensome permit
    process, and subjects those seeking to establish group homes
    in the limited areas in which they are still permitted to operate
    to the same onerous permit process.
    III
    The Ordinance is codified as part of Title 20 of the City
    of Newport Beach Municipal Code (“NBMC”). Prior to the
    Ordinance’s enactment, the City treated group homes as
    “single housekeeping units.” “Single housekeeping units” are
    generally permitted to locate in all residential zones without
    any special permit. The Ordinance’s key innovation was to
    amend the definition of “single housekeeping unit” to exclude
    group homes. This was accomplished in two critical ways:
    the amended definition added the requirements that (1) a
    single housekeeping unit have a single, written lease and (2)
    the residents themselves must decide who will be a member
    of the household. As a result of these amendments, group
    homes no longer qualify as “single housekeeping units”
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                  17
    because the residents do not sign written leases and are
    chosen by staff (instead of by each other) to ensure the
    maintenance of a sober environment.7
    Instead, under the Ordinance, group homes are now
    regulated as “residential care facilities”—i.e., facilities in
    which disabled individuals reside together but not as a “single
    housekeeping unit.”8 NBMC § 20.05.030(H)-(J). As
    “residential care facilities,” group homes now face significant
    restrictions on location, and otherwise, to which they were
    not subject prior to the Ordinance’s enactment when they
    typically qualified as “single housekeeping units” and were
    able to operate freely in all residential areas. Under the
    Ordinance, as “residential care facilities,” new group homes
    may not locate in most residential zones under any
    circumstances, although they may locate in “multi-family”
    residential zones if they obtain a special use permit. NBMC
    § 20.10.020. Group homes that already existed in any
    7
    A very small number of facilities are run by the residents alone,
    without the supervision of an operator, and thus may still qualify as
    “single housekeeping units.” Those few facilities might therefore remain
    unregulated by the Ordinance. None of the Group Home Plaintiffs here
    fall in that category.
    8
    The NBMC distinguishes between “general” residential care facilities
    (those with more than six residents) and “small” residential care facilities
    (those with six or fewer residents), although the difference is not relevant
    here. California law requires that licensed facilities with six residents or
    fewer be treated as single-family dwellings for zoning purposes by all
    municipalities. As a result such facilities are classified as “small licensed
    residential care facilities” under the NBMC and treated the same as single
    family homes. All unlicensed residential care facilities, on the other hand,
    are “general residential care facilities” subject to the Ordinance, regardless
    of size. Similarly, all licensed facilities with more than six residents are
    “general residential care facilities.”
    18 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    residential zone when the Ordinance was enacted and which
    were rendered nonconforming by the Ordinance, were
    required to apply for a special use permit within 90 days of its
    enactment in order to continue operating.              NBMC
    §§ 20.62.080(A)(4), 20.62.090, 20.91A.020. Thus, the
    practical result of the Ordinance is that group homes are
    treated far less favorably than they were prior to the
    Ordinance’s enactment.9
    The extensive conditions and findings that a hearing
    office must make in order to issue a special use permit in a
    residential zone are set forth in NBMC § 20.91A. Among
    other factors, the hearing officer must consider whether
    granting a permit to a particular residential care facility would
    be “compatible with the character of the surrounding
    neighborhood” and whether granting the use permit will
    result in a concentration of more than roughly 1–2 such
    9
    As we explain in more detail, infra, the district court mistakenly relied
    on the fact that the Ordinance imposes even more restrictive regulations
    on other types of “group residential” living arrangements. “Group
    residential” living arrangements, a classification that was newly
    introduced by the Ordinance, are “[s]hared living quarters, occupied by
    two or more persons not living together as a single housekeeping unit” and
    “include[], without limitation, boarding or rooming houses, dormitories,
    fraternities, sororities, and private residential clubs.”           NBMC
    § 20.05.030(C). Such living arrangements, whether new or pre-existing,
    are flatly prohibited from existing in any residential zone. There is no
    evidence, however, that more than a minimal number of “group
    residential” living arrangements existed in residential zones at the time
    that the Ordinance was enacted. NBMC §§ 20.05.030(C), 20.10.020. In
    any event, it seems unlikely that any significant number of such
    establishments would have existed in the residential areas of Newport
    Beach.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH              19
    facilities per block.10 NBMC § 20.91A.060(D). Use permit
    denials may be appealed to the City Council under a
    substantial evidence standard of review.         NBMC
    § 20.91A.040.
    Finally, the Ordinance also provides that the rules
    described above can be waived if a residential care facility
    can demonstrate that such waiver is a necessary “reasonable
    accommodation” for the disabled under federal or state fair
    housing laws. NBMC, Chapter 20.98. As with use permits,
    the Ordinance requires the hearing officer to consider whether
    the requested accommodation would “alter the character of
    the neighborhood,” and the concentration of facilities in the
    neighborhood in question and the City as a whole. NBMC
    § 20.98.025(C)–(D)
    IV
    Council Member Henn had encouraged the public to
    judge the city by its results, and the results were significant.
    On May 23, 2008, three days after the 90-day deadline for
    pre-existing group homes to file a use permit application, the
    City served “abatement notifications” on every group home
    in the City that had not yet applied, including Pacific Shores.
    No abatement notices were sent to any other non-conforming
    business or individual although the City was aware of certain
    10
    Because the Plaintiffs do not directly challenge the legality of
    permitting the hearing officer to consider the concentration of such
    facilities when granting or denying permits, we do not address that
    question. But see, e.g., Larkin v. State of Mich. Dep’t of Social Servs.,
    
    89 F.3d 285
    , 289–90 (6th Cir. 1996) (invalidating a spacing requirement
    for housing for the disabled); Children’s Alliance v. City of Bellevue,
    
    950 F. Supp. 1491
    , 1499 (W.D. Wash. 1997) (similar).
    20 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    non-conforming commercial entities located in residential
    areas.11
    Because they each had more than six residents, Pacific
    Shores, NCR, and Yellowstone were all classified by the City
    as “residential care facilities, general,” and were therefore
    required to obtain a use permit or a reasonable
    accommodation in order to continue operating in residential
    zones. NBMC § 20.91A.020. The managers of all three
    facilities testified that the permit application process was
    burdensome, time-consuming, and costly, requiring hundreds
    of hours of staff time as well as tens of thousands of dollars
    in legal assistance to prepare and present the permit
    applications. The public hearings held regarding the Group
    Homes’ permit applications were attended by City residents
    who repeated the same slurs and stereotypes about persons in
    recovery that had been common during prior public
    gatherings and yelled at the Group Homes’ managers and
    attorneys.
    On April 14, 2009, after two public hearings, the hearing
    officer denied Yellowstone’s use permit and reasonable
    accommodation applications in their entirety, finding that
    Yellowstone was not qualified for a special use permit
    because it had not fully complied with zoning laws when it
    was first opened; the City Council affirmed that denial.
    NCR’s applications for a use permit and reasonable
    accommodation were denied on September 17, 2009, in part
    because of its proximity to another group home, as well as a
    11
    The City did serve abatement notices on some of these commercial
    entities on July 12, 2010, shortly after the Plaintiffs relied on the City’s
    failure to enforce the Ordinance against these entities in their opposition
    to the City’s summary judgment motion.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH         21
    school, a day care facility, and a liquor store. NCR appealed
    to the City Council, obtained a remand, was denied again, and
    then appealed a second time, but was forced by economic
    pressures to close prior to having its second appeal heard.
    On September 23, 2008, Pacific Shores submitted a
    reasonable accommodation application for 18 beds at each of
    its facilities, but did not apply for a use permit. The
    application was denied, and before its appeal could be heard,
    Pacific Shores submitted an amended reasonable
    accommodation request seeking to be allowed to continue
    operations at two of its three houses with a maximum of 12
    residents per facility, instead of 18. That request was granted.
    The Ordinance shut down other group homes. On July
    30, 2008, Kiff gave a public presentation defending the
    Ordinance’s efficacy. Kiff explained that the Ordinance had
    forced group homes “to fight, stay, or leave,” and noted that
    of just over 600 group home beds in the City prior to the
    Ordinance, 220 were at facilities that would soon be required
    to close. According to Kiff, housing opportunities in group
    homes were set to decline by 40% citywide “with all of the
    use permit hearings yet to come.” He commented that Pacific
    Shores was the City’s “most aggressive challenger” and that
    “they [we]re not going quietly.” Kiff ended his presentation
    stating that anti-discrimination laws “make[] me mad, too”
    but that “as long as I’m here, you have my commitment—and
    I know you do of the City Council—to trying to bring owner-
    occupied back to West Newport.”
    As Kiff predicted, by February 2009, more than 25 Group
    Homes—about one third of the number of Group Homes that
    had existed in 2007—had either closed or were pending
    closure. By March 2010, only four group homes had been
    22 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    granted use permits; five others had obtained reasonable
    accommodations, including the two granted to Pacific Shores.
    No new group homes had opened since the Ordinance’s
    enactment.12
    The City’s enforcement of the Ordinance against group
    homes was widely publicized in the press, on the internet, via
    a public letter from the City to residents, and on the City’s
    website. The City’s actions were particularly well known
    within the community of providers and therapists in Orange
    County and Southern California, and the City acknowledged
    as much in its communications with citizens. The managers
    and staff at the Group Homes spent substantial portions of
    their time contacting referral sources to assure them that,
    despite negative publicity, the Group Homes were not
    closing. Both Pacific Shores and NCR hired web consultants
    to improve their web ranking so that their webpages
    “appeared above web pages about the City’s actions to close”
    them.
    Each of the Group Homes experienced a dramatic decline
    in revenues of between 40% and 50% in the two years after
    the Ordinance’s enactment. NCR closed in 2009 as a result
    of its declining business.        In addition, as the City
    acknowledged at oral argument, prior to reducing its
    reasonable accommodation request to only 12 beds per
    homes, Pacific Shores had a higher occupancy rate at both of
    the two homes for which its request was granted, so it lost
    substantial revenue as a result of the new 12 bed limitation.
    12
    Doing so would have been difficult. Under the limitations imposed
    by the Ordinance, only 33 out of 16,811 residential parcels in the City are
    possible sites for a new group home.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                23
    PROCEDURAL HISTORY
    This is a consolidated appeal of two separate lawsuits
    resulting from the Ordinance’s enactment and enforcement.
    Pacific Shores, its owner Alice Connor, and two Pacific
    Shores residents sued the City alleging discrimination under
    the federal Fair Housing Act (“FHA”), the Americans with
    Disabilities Act (“ADA”), California Fair Employment and
    Housing Act (“FEHA”), and the Equal Protection Clause, as
    well as assorted other state and federal statutory and
    constitutional claims not at issue here. NCR and Yellowstone
    filed a separate suit alleging nearly identical claims. All of
    the Plaintiffs sought damages as well as declaratory and
    injunctive relief. The district court disposed of most of the
    Plaintiffs’ claims in two separate summary judgment rulings.
    First, the district court granted summary judgment to the
    City “with respect to [all of the] Plaintiffs’ disparate
    treatment and selective enforcement claims brought under the
    FHA, ADA, FEHA, and the Equal Protection Clause,”
    because the Plaintiffs failed to show that they were “treated
    differently than similarly situated non-disabled individuals in
    the enforcement of Ordinance 2008-5.” In so doing, the court
    acknowledged “the large amount of evidence . . . regarding
    Newport Beach’s allegedly discriminatory intent,” but
    concluded that it was “irrelevant.” However, the district
    court denied the City summary judgment as to Pacific Shores’
    claim that the Revised Moratorium was discriminatory,
    holding that it was facially discriminatory against group
    homes.13
    13
    Pacific Shores was the only plaintiff to challenge the enforcement of
    the Revised Moratorium because it was the only plaintiff against whom it
    was enforced.
    24 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    In a second summary judgment order, the district court
    dismissed all of the Group Homes’ remaining claims for
    damages, determining that none of the Group Homes had
    demonstrated that any of the harm they suffered was caused
    by the Revised Moratorium or the Ordinance as opposed to
    other causes for which the City was not responsible, such as
    the downturn in the economy or hostility of City residents
    towards group homes. The district court also dismissed the
    two individual residents’ damages claims, concluding that
    neither produced any evidence of having suffered
    compensable emotional distress.
    In order to obtain a final judgment, the Plaintiffs
    voluntarily dismissed their remaining claims with prejudice,
    including their claims to injunctive relief under a disparate
    impact theory and their challenges to the City’s adjudication
    of each Group Home’s particular use permit and reasonable
    accommodation applications. The district court entered final
    judgment in favor of the City on March 14, 2011.
    The Plaintiffs timely appealed for review of two issues:
    (1) “whether the district court erred in granting summary
    judgment against plaintiffs on their intentional discrimination
    claims despite substantial evidence that the City enacted a
    zoning ordinance for the purpose of discriminating against
    housing for disabled persons and enforced that ordinance to
    effect its discriminatory purpose” and (2) “whether the
    district court erred in granting summary judgment against
    plaintiffs, who were the targets of the discriminatory
    ordinance enacted and enforced by the City, on the grounds
    that plaintiffs could not show that the City was the cause of
    any of their injuries.” We have jurisdiction pursuant to
    
    28 U.S.C. § 1291
    .
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH              25
    STANDARD OF REVIEW
    A district court’s grant of summary judgment is reviewed
    de novo. Balvage v. Ryderwood Improvement and Serv.
    Ass’n, Inc., 
    642 F.3d 765
    , 775 (9th Cir. 2011). We must
    determine, viewing the evidence in the light most favorable
    to the nonmoving party, whether there are any genuine issues
    of material fact and whether the district court correctly
    applied the relevant substantive law. Olsen v. Idaho State Bd.
    of Med., 
    363 F.3d 916
    , 922 (9th Cir. 2004). When plaintiffs
    allege intentional discrimination under the ADA, FHA, or
    FEHA,14 “any indication of discriminatory motive may
    suffice to raise a question that can only be resolved by a fact-
    finder.” McGinest v. GTE Serv. Corp., 
    360 F.3d 1103
    , 1124
    (9th Cir. 2004) (internal quotations marks and ellipses
    omitted).
    ANALYSIS
    I
    A
    The Fair Housing Act renders it unlawful “[t]o
    discriminate in the sale or rental, or to otherwise make
    unavailable or deny, a dwelling to any buyer or renter
    14
    We do not separately discuss the Plaintiffs’ state law fair housing
    claims from this point on because we “apply the same standards to FHA
    and FEHA claims.” Walker v. City of Lakewood, 
    272 F.3d 1114
    , 1131 n.8
    (9th Cir. 2001).
    26 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    because of a handicap[.]”15 
    42 U.S.C. § 3604
    (f)(1). It is well
    established that persons recovering from drug and/or alcohol
    addiction are disabled under the FHA and therefore protected
    from housing discrimination. City of Edmonds v. Washington
    State Bldg. Code Council, 
    18 F.3d 802
    , 803, 804 (9th Cir.
    1994); see 
    42 U.S.C. § 3602
    (h). It is equally well established
    that zoning practices that discriminate against disabled
    individuals can be discriminatory, and therefore violate
    § 3604, if they contribute to “mak[ing] unavailable or
    deny[ing]” housing to those persons. See id. at 805; see also
    Casa Marie, Inc. v. Superior Court of Puerto Rico, 
    988 F.2d 252
    , 257 n.6 (1st Cir. 1993) (collecting cases and discussing
    legislative history); H.R. Rep. No. 100-711, at 24 (1988)
    (stating that amendments to the FHA to include protections
    against disability discrimination “also apply to state or local
    land use or health and safety laws, regulations, practices, or
    decisions which discriminate against individuals with
    handicaps”). Finally, group homes such as the ones at issue
    here are “dwellings” under 
    42 U.S.C. § 3602
    (b), and
    therefore the FHA prohibits discriminatory actions that
    adversely affect the availability of such group homes. See,
    e.g., Schwarz v. City of Treasure Island, 
    544 F.3d 1202
    ,
    1213–16 (11th Cir. 2008); Lakeside Resort Enters., LP v. Bd.
    of Superiors of Palmyra Twp., 
    455 F.3d 154
    , 160 (3d Cir.
    2006); Larkin, 
    89 F.3d at 289
    .16
    15
    Although the FHA refers to “handicap,” hereinafter “we use the
    preferred term, ‘disabled,’ except when referring to the statutory
    language.” Budnick v. Town of Carefree, 
    518 F.3d 1109
    , 1114 n.5 (9th
    Cir. 2008).
    16
    The Group Homes have a cause of action, even though they are not
    themselves disabled individuals, because the FHA permits suit by anyone
    “aggrieved” by housing discrimination against the disabled. See San
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                  27
    The Americans with Disabilities Act provides that “no
    qualified individual with a disability shall, by reason of such
    disability, be excluded from participation in or be denied the
    benefits of the services, programs, or activities of a public
    entity, or be subjected to discrimination by any such entity.”
    
    42 U.S.C. § 12132
    . Like the FHA, this provision prohibits
    governmental entities from discriminating against disabled
    persons through zoning. See Bay Area Addiction Research &
    Treatment, Inc. v. City of Antioch, 
    179 F.3d 725
    , 730–32 (9th
    Cir. 1999). Also like the FHA, the ADA’s protections extend
    to persons recovering from drug or alcohol addiction.17
    Hernandez v. Hughes Missile Systems Co., 
    362 F.3d 564
    , 568
    (9th Cir. 2004). The standards regarding disparate treatment
    claims under the ADA are typically identical, and courts
    accordingly “interpret them in tandem,” as we do here.
    Tsombanidis v. West Haven Fire Dep’t., 
    352 F.3d 565
    , 573
    n.4 (2d Cir. 2003).18
    Pedro Hotel Co. v. City of Los Angeles, 
    159 F.3d 470
    , 475 (9th Cir. 1998);
    
    42 U.S.C. § 3613
     (same).
    17
    The ADA provides the Group Homes with a cause of action, even
    though they are not themselves disabled. See, e.g., MX Grp., Inc. v. City
    of Covington, 
    293 F.3d 326
    , 334 (6th Cir. 2002); 
    42 U.S.C. § 12133
    (extending a cause of action to “any person alleging discrimination on the
    basis of disability”).
    18
    In addition to prohibiting intentional discrimination, both the FHA and
    the ADA also require public entities to grant such “reasonable
    accommodations” as are necessary to provide equal housing opportunities
    to disabled individuals. See, e.g., 
    id. at 573
    ; McGary v. City of Portland,
    
    386 F.3d 1259
    , 1261–62 (FHA), 1269 (ADA) (9th Cir. 2004). On appeal,
    presumably because they challenge the Ordinance as a whole rather than
    the City’s failure to grant their individual reasonable accommodation
    requests, the Plaintiffs have proceeded primarily based upon a disparate
    treatment theory.
    28 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Quite properly, the City does not challenge any of these
    foundational principles. Instead, the primary liability-phase
    question presented here is whether the district court properly
    dismissed the Plaintiffs’ disparate treatment claims for failure
    to demonstrate that any similarly situated entity was treated
    worse than the Plaintiffs under the Ordinance. The Plaintiffs
    argue that it was error to disregard the large amount of
    evidence in the record suggesting that the Ordinance was
    enacted for the discriminatory purpose of harming group
    homes and thereby limiting the housing opportunities
    available to individuals recovering from addiction. We now
    turn to that question.
    B
    Our cases clearly establish that plaintiffs who allege
    disparate treatment under statutory anti-discrimination laws
    need not demonstrate the existence of a similarly situated
    entity who or which was treated better than the plaintiffs in
    order to prevail. See, e.g., Budnick, 
    518 F.3d at 1114
    ;
    McGinest v. GTE Serv. Corp., 
    360 F.3d 1103
    , 1122 (9th Cir.
    2004) (same in Title VII context).19 Proving the existence of
    a similarly situated entity is only one way to survive
    summary judgment on a disparate treatment claim. See
    19
    The standards of proof required for the Plaintiffs’ FHA, ADA, and
    FEHA disparate treatment claims are identical, and are all drawn largely
    from Title VII cases. See Budnick, 
    518 F.3d at 1114
     (Title VII standards
    apply to FHA claims); Walker, 
    272 F.3d at
    1131 n.8 (FHA standards apply
    to FEHA claims); Hernandez, 
    362 F.3d at 568
     (Title VII standards apply
    to ADA claims).
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                  29
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973).20
    A plaintiff does not, however, have to rely on the McDonnell
    Douglas approach to create a triable issue of fact regarding
    discriminatory intent in a disparate treatment case. See Costa
    v. Desert Palace, Inc., 
    299 F.3d 838
    , 855 (9th Cir. 2002) (en
    banc), aff’d, 
    539 U.S. 90
     (2003). Instead, he may “simply
    produce direct or circumstantial evidence demonstrating that
    a discriminatory reason more likely than not motivated” the
    defendant and that the defendant’s actions adversely affected
    the plaintiff in some way. McGinest, 
    360 F.3d at 1122
    ; see
    also Trans World Airlines, Inc. v. Thurston, 
    469 U.S. 111
    ,
    121 (1985) (“[T]he McDonnell Douglas test is inapplicable
    where the plaintiff presents direct evidence of
    discrimination.”); Lowe v. City of Monrovia, 
    775 F.2d 998
    ,
    1006–07 (9th Cir. 1985), amended on other grounds,
    
    784 F.2d 1407
     (9th Cir. 1986).
    When plaintiffs rely on the “direct or circumstantial
    evidence” approach, instead of McDonnell Douglas, to
    survive summary judgment, we turn to the “sensitive” multi-
    factor inquiry articulated by the Supreme Court in Arlington
    Heights v. Metropolitan Housing Corp., 
    429 U.S. 252
    , 266
    (1977), to determine whether the plaintiffs have created a
    triable issue of fact that the defendant’s actions were
    motivated by discriminatory intent. See Gay v. Waiters’ &
    20
    In McDonnell Douglas, the Supreme Court set forth a burden shifting
    mechanism explaining how a plaintiff could survive summary judgment
    based on the treatment of a similarly situated entity. Under McDonnell
    Douglas, a plaintiff establishes a prima facie case of discrimination by
    showing that he was treated worse than such an entity. Id. at 1824. The
    burden then shifts to the defendant to present a legitimate reason for the
    allegedly discriminatory action. Id. Finally, the plaintiff bears the
    ultimate burden of demonstrating the explanation is pretextual. Id. at
    1824–25.
    30 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Dairy Lunchmen’s Union, 
    694 F.2d 531
    , 550 (9th Cir. 1982)
    (applying Arlington Heights).21 Under Arlington Heights, a
    court analyzes whether the defendant’s actions were
    motivated by a discriminatory purpose by examining (1)
    statistics demonstrating a “clear pattern unexplainable on
    grounds other than” discriminatory ones, (2) “[t]he historical
    background of the decision,” (3) “[t]he specific sequence of
    events leading up to the challenged decision,” (4) the
    defendant’s departures from its normal procedures or
    substantive conclusions, and (5) relevant “legislative or
    administrative history.” 
    429 U.S. at
    266–68; see Comm.
    Concerning Cmty. Improvement v. City of Modesto, 
    583 F.3d 690
    , 703 (9th Cir. 2009) (applying the Arlington Heights
    factors). These factors are non-exhaustive. Arlington
    Heights, 
    429 U.S. at 268
    . When a plaintiff opts to rely on the
    Arlington Heights factors to demonstrate discriminatory
    intent through direct or circumstantial evidence, the plaintiff
    need provide “very little such evidence . . . to raise a genuine
    issue of fact . . . ; any indication of discriminatory motive . . .
    may suffice to raise a question that can only be resolved by a
    fact-finder.” Schnidrig v. Columbia Mach, Inc., 
    80 F.3d 1406
    , 1409 (9th Cir. 1996) (quoting Lowe, 
    775 F.2d at 1009
    ).
    21
    The Arlington Heights test was developed to detect discriminatory
    animus in the context of a Fourteenth Amendment equal protection claim.
    However, it is well established that the Arlington Heights factors also
    provide one way for a plaintiff who alleges statutory discrimination to
    establish discriminatory intent. See id.; accord Gallagher v. Magner,
    
    619 F.3d 823
    , 833 (8th Cir. 2010) (applying the Arlington Heights factors
    to discern whether a county acted with discriminatory intent in the FHA
    context); Hallmark Developers, Inc. v. Fulton Cty., Ga., 
    466 F.3d 1276
    ,
    1283–84 (11th Cir. 2006) (same); Tsombanidis, 352 F.3d at 579 (same in
    FHA and ADA contexts).
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH         31
    The district court nonetheless refused to consider the
    “large amount of evidence submitted by Plaintiffs regarding
    Newport Beach’s allegedly discriminatory intent.” Although
    it purported to acknowledge that plaintiffs in an anti-
    discrimination lawsuit need not demonstrate the existence of
    a similarly situated entity, we see no way of interpreting the
    district court’s position as anything other than a suggestion
    that a plaintiff can establish a prima facie case of intentional
    discrimination only by using the McDonnell-Douglas burden
    shifting construct.        As described above, we have
    unambiguously rejected this position previously, and we do
    so again now. McDonnell-Douglas simply permits a plaintiff
    to raise an inference of discrimination by identifying a
    similarly situated entity who was treated more favorably. It
    is not a straightjacket requiring the plaintiff to demonstrate
    that such similarly situated entities exist.
    This case demonstrates why requiring anti-discrimination
    plaintiffs to prove the existence of a better-treated entity
    would lead to unacceptable results. According to the district
    court’s theory, Plaintiffs in anti-discrimination suits would be
    unable to demonstrate the discriminatory intent of a
    defendant that openly admitted its intent to discriminate, so
    long as the defendant (a) relies on a facially neutral law or
    policy and (b) is willing to “overdiscriminate” by enforcing
    the facially neutral law or policy even against similarly-
    situated individuals who are not members of the disfavored
    group. Such a rule presents the “grotesque scenario where a[]
    [defendant] can effectively immunize itself from suit if it is
    so thorough in its discrimination that all similarly situated
    32 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    [entities] are victimized.”22 Abdu-Brisson v. Delta Air Lines,
    Inc., 
    239 F.3d 456
    , 468 (2d Cir. 2001).
    This “grotesque scenario” is not the law. 
    Id.
     A
    willingness to inflict collateral damage by harming some, or
    even all, individuals from a favored group in order to
    successfully harm members of a disfavored class does not
    cleanse the taint of discrimination; it simply underscores the
    depth of the defendant’s animus. See, e.g., Griffin v. Cnty.
    Sch. Bd. of Prince Edward Cnty., 
    377 U.S. 218
    , 231 (1964)
    (holding that although a county has the legal power to close
    all of its public schools, it could not do so for the purpose of
    preventing children from attending desegregated schools). As
    one district court observed in a case quite similar to this one,
    “that an ordinance also discriminates against individuals
    unprotected by the FHA does not eliminate a FHA violation.”
    Children’s Alliance, 
    950 F. Supp. at
    1496 n.8.23
    22
    Another possibility where no similarly situated entity will be available
    is where the nature of the defendant’s discrimination is such that no such
    entity could exist. For example, in Pyke v. Cuomo, 
    258 F.3d 107
    , 109 (2d
    Cir. 2001), Native Americans alleging that state police officials
    deliberately provided reduced police services on reservations were not
    required to show that similarly situated groups were better treated because
    it would be impossible to identify any other group “whose situation is
    similar to Native Americans living on a reservation and exercising a
    substantial measure of self-government independent of New York State.”
    23
    Children’s Alliance involved the use of a “proxy classification,” a
    variation on the overdiscrimination theme. Proxy discrimination is a form
    of facial discrimination. It arises when the defendant enacts a law or
    policy that treats individuals differently on the basis of seemingly neutral
    criteria that are so closely associated with the disfavored group that
    discrimination on the basis of such criteria is, constructively, facial
    discrimination against the disfavored group. For example, discriminating
    against individuals with gray hair is a proxy for age discrimination
    because “the ‘fit’ between age and gray hair is sufficiently close.”
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                  33
    The principle that overdiscrimination is prohibited
    undergirds all of constitutional and statutory anti-
    discrimination law, although it often goes unsaid precisely
    because it is so foundational. Discriminatory laws, policies,
    or actions will often have negative effects (whether intended
    or not) on individuals who do not belong to the disfavored
    group. This does not, however, change the fact that such
    laws, policies, or actions are discriminatory when they are
    undertaken for the purpose of harming protected individuals.
    Arlington Heights itself relies on the assumption that
    overdiscrimination is illegal. The issue in Arlington Heights
    was whether a Chicago suburb’s denial of a rezoning
    application for construction of an affordable housing complex
    was racially motivated. Arlington Heights, 
    429 U.S. at 259
    .
    Although on the facts of the case the Court held that the
    evidence did not support the Plaintiffs’ allegations that a
    discriminatory motive was at work, the Court’s analysis
    presumed that the Plaintiffs would have prevailed if they had
    demonstrated that Arlington Heights denied the rezoning
    application in order to limit housing opportunities for
    minorities. See 
    id. at 270
    . This would have been so even
    though the racial minorities who were denied housing
    opportunities would not have been treated any worse than the
    McWright v. Alexander, 
    982 F.2d 222
    , 228 (7th Cir. 1992). The
    difference between proxy discrimination and facially neutral
    overdiscrimination is merely one of degree. In a case of proxy
    discrimination the defendant discriminates against individuals on the basis
    of criteria that are almost exclusively indicators of membership in the
    disfavored group. By contrast, facially neutral overdiscrimination arises
    when the defendant exhibits a willingness to distinguish amongst
    individuals on the basis of facially neutral criteria, knowing (but
    accepting) that some individuals who are not members of the disfavored
    group will suffer alongside the targeted individuals.
    34 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    low-income white individuals who would also have been
    deprived of the same housing opportunities.
    Similarly, in Hunter v. Underwood, 
    471 U.S. 222
     (1985),
    the Supreme Court unanimously struck down a provision of
    the Alabama constitution that disenfranchised individuals
    convicted of crimes involving moral turpitude. The provision
    was facially neutral because it applied to persons of all races.
    
    Id. at 227
    . However, there was compelling evidence that the
    provision was adopted at the turn of the 20th century for the
    purpose of disenfranchising black voters who were convicted
    of such crimes at a far higher rate than white voters.
    Assuming, arguendo, that the disenfranchisement provision
    would be constitutional if it were passed in modern times
    without the intent to discriminate against racial minorities, the
    Court nonetheless held that because it had been enacted for a
    discriminatory purpose it “violates equal protection under
    Arlington Heights.” 
    Id. at 233
    . The 1903 Alabama
    legislature’s willingness (or intent) to also disenfranchise
    white individuals convicted of crimes of moral turpitude was
    irrelevant; all that mattered was that the act “would not have
    been adopted . . . in the absence of the racially discriminatory
    motivation.”24 
    Id. at 231
    .
    24
    The City’s and its amicus’ reliance on United States v. O’Brien,
    
    391 U.S. 367
     (1968), for the proposition that courts may not invalidate a
    law that was motivated by animus purely on the basis of the legislature’s
    intent is therefore misplaced. O’Brien does not apply to equal protection
    cases or cases involving statutory anti-discrimination law where the very
    nature of the legal inquiry is whether an action taken by the legislature
    was motivated by animus. See City of Columbia v. Omni Outdoor
    Advertising, Inc., 
    499 U.S. 365
    , 377 n.6 (1991) (making this point and
    citing Arlington Heights); see also Church of the Lukumi Babalu Aye, Inc.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH               35
    More recently, in City of Modesto, this court held that
    several unincorporated majority-Latino neighborhoods had
    created a triable issue of fact that they had been victims of
    disparate treatment on account of their racial composition.
    The communities had not been included in a tax sharing
    agreement between the county in which they were located
    and the City of Modesto while communities with a majority-
    white populations were included in the agreement. City of
    Modesto, 
    583 F.3d at 697
    . Neighborhoods party to the
    agreement were more likely to be annexed by Modesto at
    some point in the future. 
    Id.
     at 703–04. Modesto argued that
    the excluded neighborhoods could not maintain an intentional
    discrimination claim because the excluded communities had
    significant white populations, and those white residents
    would also suffer as a result of the alleged discrimination.
    We rejected that argument, concluding that the relevant
    question was whether the excluded neighborhoods were
    treated differently because of their overall racial composition,
    not whether Modesto’s discriminatory actions would affect
    only racial minorities. See 
    id. at 704
    . In other words,
    Modesto’s willingness to discriminate against both minorities
    and white citizens living in majority-minority communities
    did not cleanse it of any discriminatory intent that it may have
    harbored.
    Other Circuits have similarly condemned instances of
    overdiscrimination. For example, in Town of Clarkton v.
    NAACP, 
    682 F.2d 1055
     (4th Cir. 1982), the Fourth Circuit
    held that Clarkton had intentionally discriminated against
    African Americans when it withdrew from a multi-county
    v. City of Hialeah, 
    508 U.S. 520
    , 535 (1993) (subjecting to heightened
    scrutiny a law whose “object” was to discriminate on the basis of
    religion).
    36 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    affordable housing project in response to white residents’
    racially driven hostility to the project. This analysis was not
    changed by the fact that the abandonment of the project had
    “an effect touching upon all citizens” of the county. Id. at
    1066. Rather, because “it is the black population that will
    suffer . . . in a disproportionate manner,” the town’s actions
    were still discriminatory. Id. at 1066 (emphasis added).
    Similarly, in Abdu-Brisson, the Second Circuit held that an
    airline could be guilty of age discrimination if it intentionally
    imposed unfavorable employment conditions upon all of the
    employees it inherited after its purchase of a competitor
    airline in order to discriminate against the portion of the
    inherited employees who were elderly. 
    239 F.3d at
    467–68.
    Here, the district court relied on Gamble v. City of
    Escondido, 
    104 F.3d 300
     (9th Cir. 1997); Schwarz v. City of
    Treasure Island, 
    544 F.3d 1201
     (11th Cir. 2008); and Oxford
    House-C v. City of St. Louis, 
    77 F.3d 249
     (8th Cir. 1996), in
    concluding that plaintiffs in disparate treatment suits must
    identify a similarly situated entity. None of these cases
    supports such a proposition. In Gamble, we relied in part on
    the absence of a similarly situated entity to dismiss a case
    proceeding under a McDonnell Douglas theory. 
    104 F.3d at 305
    . Gamble therefore has no application here. As to
    Schwarz and Oxford House, both cases, unlike this one,
    involved the enforcement of pre-existing, facially neutral
    zoning laws against group homes, and neither case involved
    any suggestion that the zoning laws in question had been
    enacted with a discriminatory purpose. Schwarz, 
    544 F.3d at
    1206–11, 1216; Oxford House-C, 
    77 F.3d at 252
    .
    Accordingly, again, neither case is relevant here.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH        37
    In fact, Schwarz expressly acknowledged that its “analysis
    might have been different if [the group home] claimed that
    the City enacted the [zoning law] in order to discriminate
    against people with disabilities.” Id. at 1217. This precise
    situation arose shortly thereafter. In Caron Found. of Florida
    Inc. v. City of Delray Beach, 
    879 F.Supp. 2d 1353
     (S.D. Fla.
    2012), a district court confronted exactly the circumstances
    foreseen in Schwarz. In Caron, the City of Delray enacted a
    zoning ordinance much like the one in Schwarz, but there was
    evidence that Delray’s ordinance was enacted in reaction to
    an increase in group homes and with the intent to discriminate
    against them. Caron, 879 F.Supp. 2d at 1361–63, 1367–70.
    Applying Schwarz, the district court in Caron correctly, in
    our view, determined that the zoning laws in question were
    discriminatory in light of their apparent discriminatory
    purpose. The circumstances in Caron are nearly identical to
    the ones alleged in this case. See also Nevada Fair Housing
    Ctr. v. Clark Cnty., 
    565 F. Supp. 2d 1178
     (D. Nev. 2008).
    C
    Had the district court applied the proper analysis under
    Arlington Heights, it would have necessarily concluded that
    the Plaintiffs’ claims survive summary judgment. Taken in
    the light most favorable to the non-moving party, the
    legislative history indicates that the Ordinance was enacted
    for the purpose of eliminating or reducing the number of
    group homes throughout the City. The Plaintiffs have come
    forward with statistics, provided by the City, that the
    Ordinance had the effect of reducing group home beds by
    40%. The Plaintiffs also provided evidence that group homes
    were specifically targeted for enforcement. The City created
    a task force to locate group homes, undertake surveillance of
    them, and enforce the zoning code strictly against them.
    38 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    After the Ordinance was enacted, every nonconforming group
    home in the City that did not apply for a use permit was
    served with an abatement notice within three days of the 90-
    day use permit application deadline, whereas no abatement
    notices were sent to any other entities engaged in a
    nonconforming use until the Plaintiffs pointed out those
    entities during the litigation.
    All of the circumstances surrounding the enactment of the
    Ordinance compel the conclusion that the Plaintiffs have
    raised a triable issue of fact as to whether the Ordinance was
    motivated by the desire to discriminate against the disabled.
    The Ordinance was designed to replace the amended
    Moratorium, which the district court held to be facially
    discriminatory because it expressly treated group homes
    worse than short-term lodgings. Although the Ordinance,
    unlike the amended Moratorium, was facially neutral, the
    Plaintiffs have provided evidence that it had (and, according
    to Council Member Henn, was designed to have) the same
    effect on group homes as the Moratorium: It ensured as a
    practical matter that no new group homes opened in Newport
    Beach.
    Council Member Henn also promised that the Ordinance
    would reduce the number of pre-existing group homes. At
    the same meeting, Council Member Henn explained that the
    drafters of the Ordinance would have preferred to simply ban
    all group homes, but that only a facially neutral Ordinance
    stood any hope of surviving the anticipated legal challenge.
    In response to criticism from residents that the Ordinance was
    not a blunt enough instrument to rapidly expel group homes
    from the City, Henn urged the critics to “judge us by our
    actual results.” Nonetheless, because of pressure from
    citizens who owned short-term lodgings, the City Council
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH              39
    made the ordinance narrower than outside counsel, Goldfarb,
    had initially advised. Goldfarb was fired, and the final
    Ordinance was drafted with the assistance of new counsel
    who consulted with the CCNB to develop an Ordinance that
    applied to a much narrower selection of facilities. Cf. Church
    of the Lukumi Babulu Aye, Inc. v. City of Hialea, 
    508 U.S. 508
    , 538–41 (1993) (describing as a “religious gerrymander”
    a city’s enactment of facially neutral regulations regarding
    animal slaughter that had the (intended) effect of prohibiting
    Santeria worship, while simultaneously permitting exceptions
    that allowed other types of animal slaughter carried out by
    more favored groups).25 In short, a jury could find, based on
    the record before us, that the primary purpose of the
    Ordinance was to shut down group homes and prevent new
    ones from opening in Newport Beach, but to do so in facially
    neutral terms to avoid invalidation by a court.26
    25
    Although Lukumi Babulu was a Free Exercise case, rather than a
    statutory discrimination challenge under the FHA, the Court’s analysis of
    discriminatory intent in Lukumi Babulu was guided in part by the
    Arlington Heights factors. Lukumi Babalu, 
    508 U.S. at 540
    .
    26
    The foregoing account of the City’s legislative motive does not
    examine the role that City residents’ animus played in bringing about the
    Ordinance. Every public meeting leading up to the City Council’s
    ultimate enactment of the Ordinance was marked by angry comments from
    citizens who referred to the disabled residents of the group homes as
    “criminals,” “gang members,” “druggies,” “not true handicapped” and
    other derogatory terms. The record suggests that City Council members
    were responsive to the public’s views.
    It is beyond dispute that legislatures may not “defer[] to the
    [discriminatory] wishes or objections of some fraction of the body
    politic.” City of Cleburne, Texas v. Cleburne Living Ctr., 
    473 U.S. 432
    ,
    448 (1985). A jury could certainly infer from this record that private
    citizens’ “hostility motivated the City in initiating and continuing its
    enforcement efforts.” Tsombanidis, 352 F.3d at 580; see also Metoyer v.
    40 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    A jury could also conclude that the Ordinance was
    designed to eliminate group homes rather than to serve as a
    neutral amendment to the City’s zoning laws. The Ordinance
    amended the definition of “single housekeeping unit” to
    exclude living arrangements in which residents (1) are not all
    signatories to a single written lease and (2) do not choose
    their own housemates. NBMC § 20.03.030. These
    characteristics subject group homes, but not vacation homes,
    to a more restrictive zoning regime. To be sure, the
    Ordinance affects adversely some other facilities that are not
    group homes. “Group residential” arrangements such as
    “boarding or rooming houses, dormitories, fraternities,
    sororities, and private residential clubs” are now completely
    prohibited in residential zones. NBMC § 20.05.030(C). The
    record, however, includes evidence that this aspect of the
    Ordinance has been enforced against few, if any, facilities.
    Therefore it appears either to be the case that very few “group
    residential” facilities that were not group homes existed when
    the Ordinance was enacted, or if such facilities existed, the
    City did not enforce the Ordinance against them. In either
    case, all group homes were ultimately affected by the
    Ordinance and few other facilities were.
    Finally, the City engaged in three notable procedural
    irregularities leading up to the enactment of the Ordinance.
    First, it created an ad hoc committee that met privately and
    off the record, something the City had never done before, to
    Chasman, 
    504 F.3d 919
    , 938 (9th Cir. 2007) (noting that discrimination
    arises in the Title VII context when a third-party’s animus “affected” the
    decisionmaker).
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                  41
    work with new counsel to draft the Ordinance.27 Second, the
    City conducted a survey that was distributed primarily to
    individuals opposed to group homes, to justify regulating
    group homes differently from short-term lodgings.28 Third,
    even prior to the Ordinance’s enactment, a City task force
    was formed to work with City residents to strictly enforce the
    zoning code against group homes.
    In short, applying the Arlington Heights factors to the
    evidence in this record, it is clear that the Plaintiffs have met
    their burden to create a triable issue of fact as to whether the
    Ordinance was enacted with a discriminatory purpose of
    harming group homes and, therefore limiting the housing
    27
    The Plaintiffs suggest that having committee meetings in private
    violated California’s open meeting law, Cal. Gov’t Code § 54952.2. This
    appears to be incorrect. Section 54952.2 prohibits private meetings of a
    “majority of members of a legislative body.” Id. The ad hoc committee
    had three members, whereas the Newport Beach City Council appears to
    have seven members (one of whom serves as Mayor).                   See
    http://www.newportbeachca.gov/index.aspx?page=74 (last visited Oct. 27,
    2012).
    28
    The City did not rely on objective measures, such as the number of
    formal police complaints about activities at group homes, as a basis for
    enacting the Ordinance. In fact, a memo from Goldfarb states that
    vacation homes generate more calls to the police than group homes, and
    a letter submitted to the City by a group home that is not a plaintiff here
    provided statistics showing that its facility had generated fewer calls for
    service than other residential units on the same block and fewer calls for
    service than had been the case at the same property prior to the opening
    of the group home.
    42 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    options available to disabled individuals recovering from
    addiction.29
    D
    The City argues that the Plaintiffs cannot show that they
    suffered any adverse effects as a result of its actions, even if
    those actions were motivated by discriminatory intent,
    because, on appeal, the Group Homes have not challenged the
    City’s denial of their individual permit applications. The City
    fails to appreciate that it was the imposition of the Ordinance
    itself that triggered the Plaintiffs’ alleged injuries. We have
    recognized that it is unlawful discrimination to subject
    individuals to “the rigors of the governmental or
    administrative process . . . with an intent to burden, hinder, or
    punish them by reason of their [membership in a protected
    class.]” Flores v. Pierce, 
    617 F.2d 1396
    , 1391 (9th Cir.
    1980) (Kennedy, J.), cert. denied, 
    449 U.S. 875
     (1980).
    That is what is alleged to have happened here. Prior to
    the Ordinance, group homes were classified as single
    housekeeping units and therefore were able to operate freely
    in residential zones, subject only to the restrictions that
    governed other residences. After the Ordinance’s enactment,
    however, every group home was required to submit a detailed
    application for a special use permit and/or reasonable
    accommodation in order to continue operating and to attend
    29
    For similar reasons, we also agree with the Plaintiffs that they created
    a triable issue of fact with respect to their discriminatory enforcement
    claims. The evidence that the Ordinance was enacted with discriminatory
    intent also provides support for the Plaintiffs’ claim that the City’s
    enforcement strategy was similarly calculated to accomplish a
    discriminatory goal, as does the City’s actual enforcement strategy.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                 43
    public hearings at which those applications were subjected to
    public comment.30 Subjecting an entity protected by anti-
    discrimination laws to a permit or registration requirement,
    when the requirement is imposed for a discriminatory
    purpose, has obvious adverse impacts upon that entity, and
    being forced to submit to such a regime is sufficient to
    establish injury in a disparate treatment claim. See Flores,
    617 F.2d at 1391. This would be true even if such permits
    were granted freely, which is decidedly not the case here.
    Plaintiffs have introduced evidence that the Ordinance
    had at least two kinds of adverse effects upon them, either of
    which would be sufficient to allow them to maintain an action
    under the FHA or ADA. First, the unrebutted evidence shows
    that the Group Homes expended substantial time, effort, and
    resources applying for special use permits and reasonable
    accommodations, none of which would have been necessary
    had the Ordinance not been enacted. See, e.g., Walker,
    
    272 F.3d at
    1124–25 (staff time spent responding to
    intentionally discriminatory actions by a municipality is an
    injury sufficient to confer standing under the FHA and
    FEHA). Second, Plaintiffs have produced evidence that the
    Ordinance led to the closure of approximately one third of the
    City’s Group Homes and barred new group homes from being
    established in all but multi-family residential zones. This
    resulted in a reduced diversity of housing options for the
    disabled individuals served by group homes. See Olmstead
    30
    Although the reasonable accommodation process ostensibly allowed
    exceptions to the City’s zoning policy that would be consistent with state
    and federal anti-discrimination laws, it was as complex, time-consuming,
    and restrictive as the special use permit process. Compare NBMC
    Chapter 20.91A (use permit application process), with NBMC Chapter
    20.98 (reasonable accommodation application process).
    44 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    v. L.C. ex re. Zimring, 
    527 U.S. 581
    , 599–600 (1999)
    (recognizing that segregation of the disabled is an injury
    protected by the ADA). For these reasons, the City’s waiver
    argument based upon the fact that the Group Homes no
    longer challenge the City’s denial of their permit applications
    is irrelevant. The Plaintiffs show they were harmed by the
    imposition of the discriminatory permit regime, and this is
    more than sufficient for them to maintain a claim for
    disparate treatment based upon the imposition of the permit
    requirement itself.31
    The City’s argument that the Plaintiffs cannot use
    statistical evidence to demonstrate that the Ordinance
    discriminated against them simply because they voluntarily
    dismissed their disparate impact claims is also unavailing.
    First, the City misdescribes the posture of this case. The
    Plaintiffs voluntarily dismissed their claim to injunctive relief
    under a disparate impact theory, but did not dismiss their
    claims to damages under that theory. Those damages claims
    were dismissed by the district court in the second summary
    judgment order relating to damages, and the Plaintiffs have
    appealed that ruling. Second, even if the Plaintiffs had
    waived their disparate impact claims in their entirety, the City
    31
    The City’s argument as to Pacific Shores is slightly different, but
    equally without merit. According to the City, Pacific Shores did not suffer
    any adverse effects as a result of the Ordinance because it was granted a
    reasonable accommodation for twelve beds. This argument suffers from
    the same defect: the very requirement to apply for a reasonable
    accommodation adversely affected Pacific Shores. Just as plaintiffs in a
    discrimination action need not have applied for a permit in order to allege
    that a permit requirement is discriminatory, see City of Modesto, 
    583 F.3d at
    705 n.7, so too may plaintiffs challenge a discriminatory permit regime
    even if they begrudgingly apply for a permit in order to minimize the harm
    they suffer under that regime.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH         45
    is plainly wrong that their waiver of those claims would
    prevent them from using statistical evidence that also would
    have been helpful to prove disparate impact to demonstrate
    discriminatory intent. See Arlington Heights, 
    429 U.S. at 265
    (noting that disparate impact “is not irrelevant” to proving
    intentional discrimination); Metoyer v. Chassman, 
    504 F.3d 919
    , 937 (9th Cir. 2007) (discriminatory acts towards third
    parties may be used to show actions taken against the plaintiff
    were motivated by discrimination); Lowe, 
    775 F.2d at 1008
    (9th Cir. 1985) (statistical evidence can be used to show
    disparate treatment); Costa, 
    299 F.3d at 860
     (noting that
    motive can “in some situations be inferred from the mere fact
    of differences in treatment” (internal quotation marks
    omitted)). A single piece of evidence can support multiple
    theories of liability. Thus, all of the City’s waiver arguments
    fail.
    II
    Finally, we turn to the district court’s second summary
    judgment order, in which it dismissed all of the Plaintiffs’
    claims for damages on the ground that they “cannot establish
    that any action taken by the City was the actual and
    proximate cause” of any economic harm suffered by the
    Plaintiffs. The Group Homes argue that they submitted
    sufficient evidence to survive summary judgment with
    respect to whether the City caused them to incur three
    separate categories of damages: (1) costs of complying with
    the Ordinance, i.e., diverted staff time and legal expenses; (2)
    lost income as a result of the business climate resulting from
    the Ordinance; and (3) costs associated with counteracting the
    impression that the Group Homes were being shut down by
    the City. In addition, the individual Plaintiffs argue that they
    created a triable issue of fact as to whether they suffered
    46 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    compensable emotion distress. Because most of the Plaintiffs
    created a triable issue of fact regarding each type of damage,
    we reverse, except with respect to the district court’s
    determination that Bridgeman failed to create a triable issue
    of fact as to whether she suffered compensable emotional
    distress.
    A
    The Group Homes’ respective managers provided sworn
    declarations indicating that hundreds of hours of their own
    time and their staffs’ time was diverted to preparing the
    complex applications necessary to request a use permit and/or
    reasonable accommodation. Each of the Group Homes also
    expended significant legal fees preparing its applications and
    challenging the denials of those applications to the City
    Council. These expenditures were plainly caused by the
    enactment and enforcement of the Ordinance, and they are
    recoverable.
    Diverted staff time is a compensable injury. See Walker,
    
    272 F.3d at
    1124–25; see also Convoy Co. v. Sperry Rand
    Corp., 
    672 F.2d 781
    , 785–86 (9th Cir. 1982); cf. Fair
    Housing of Marin v. Combs, 
    285 F.3d 899
    , 903–04 (9th Cir.
    2002) (holding that an organizational plaintiff suffered injury
    sufficient to confer Article III standing where it diverted staff
    resources to combating FHA violations). As we explained in
    Convoy Company, “[t]he issue is not whether [the Plaintiffs]
    would have paid the [employees’] salaries” absent the
    defendant’s wrongdoing, but, rather, whether the Plaintiffs
    were “deprived of the services [they] paid for” because of the
    need for the employees to divert their attention to minimize
    the damage from the defendant’s misconduct. 
    672 F.2d at 785
    . The staff time spent preparing and presenting permit
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH         47
    applications under the Ordinance would have otherwise been
    spent promoting the Group Homes’ business and serving their
    residents. This diversion of time therefore represents a loss
    for which the Group Homes may recover. Walker, 
    272 F.3d at
    1124–25.
    The Group Homes may also recover the legal costs they
    spent preparing their permit and reasonable use applications
    and presenting those applications before City hearing officers
    and the City Council. The district court’s conclusion that
    such costs were “better resolved” through an application for
    attorney’s fees was, therefore, erroneous. We have held that
    attorney’s fees may be recovered as damages in a civil rights
    action where the fees were necessary to obtain a permit in a
    proceeding that only occurred as a result of city officials’
    discriminatory animus. See Flores, 617 F.2d at 1392 (9th Cir.
    1980); accord Sherwin Manor Nursing Ctr. v. McAuliffe,
    
    37 F.3d 1216
    , 1221–22 (7th Cir. 1994). In Flores, Judge
    (now Justice) Kennedy upheld an award of attorney’s fees, as
    damages, to § 1983 plaintiffs for the legal services necessary
    to combat the city’s challenge to the plaintiffs’ liquor license
    application where city officials had deliberately delayed the
    application because of racial animus. 617 F.2d at 1388, 1392;
    see also Barlow v. Ground, 
    943 F.2d 1132
    , 1136 (9th Cir.
    1991) (holding that a § 1983 plaintiff could recover attorney’s
    fees as damages where those fees were incurred defending
    against criminal charges that directly resulted from the
    defendant police officer’s wrongful arrest of the plaintiff).
    Just as the plaintiffs in Flores and Barlow were entitled to
    attorneys fees spent combating wrongfully instituted legal
    proceedings, so too may the Group Homes here recover the
    attorney’s fees necessary to comply with the use permit
    requirement that the City imposed for an allegedly
    discriminatory reason.
    48 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    B
    The district court acknowledged that the Group Homes
    experienced a dramatic decline in business shortly after the
    enactment of the Ordinance. It found, however, that the
    Plaintiffs did not adequately raise a triable issue of fact as to
    whether the City’s actions caused these business losses. In
    reaching this determination, the district court misapplied
    well-established principles of causation and failed to draw
    every inference in the Group Homes’ favor, as it was required
    to do at the summary judgment stage.
    We begin with the principle that a “damages action under
    the FHA sounds basically in tort—the statute merely defines
    a new legal duty, and authorizes the courts to compensate a
    plaintiff for the injury caused by the defendant’s wrongful
    breach.” Garcia v. Brockway, 
    526 F.3d 456
    , 464 (9th Cir.
    2008) (en banc) (brackets omitted) (quoting Curtis v. Loether,
    
    415 U.S. 189
    , 195 (1974)); see also Henrietta D v.
    Bloomberg, 
    331 F.3d 261
    , 278–79 (2d Cir. 2003) (applying
    common law tort principles of causation to the ADA).
    Accordingly, general tort principles of causation usually
    govern statutory discrimination cases except when there is a
    statutory command to the contrary. See, e.g., Silver Sage
    Partners v. City of Desert Hot Springs, 
    251 F.3d 814
    , 819–21,
    824–25 (9th Cir. 2001) (applying general tort principles to the
    calculation of damages under the FHA); Samaritan Inns, Inc.
    v. District of Columbia, 
    114 F.3d 1227
    , 1234–35 (D.C. Cir.
    1997) (same).
    At tort, plaintiffs bear the burden of demonstrating that
    the defendant’s conduct caused some harm suffered by the
    plaintiffs. However, the plaintiffs are “not required to
    eliminate entirely all possibility that the defendant’s conduct
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                       49
    was not a cause. It is enough that [they] introduce[] evidence
    from which reasonable men may conclude that it is more
    probable that the event was caused by the defendant than that
    it is not.” Restatement (Second) of Torts § 433B, cmt. b
    (1965) (hereinafter “Restatement”). Moreover, “[t]he
    plaintiff doesn’t have to prove a series of negatives; he
    doesn’t have to ‘offer evidence which positively excludes[s]
    every other possible cause of the accident.’” BCS Servs., Inc.
    v. Heartwood 88, LLC, 
    637 F.3d 750
    , 757 (7th Cir. 2011)
    (quoting Carlson v. Chisholm-Moore Hoist Corp., 
    281 F.2d 766
    , 770 (2d Cir. 1960) (Friendly, J.)), cert. denied,
    
    132 S. Ct. 253
     (2011). Rather, plaintiffs can demonstrate
    causation by proving that the defendant’s wrongful conduct
    was a “substantial factor” in bringing about the harm in
    question. Restatement § 431(a); see also Benefiel v. Exxon
    Corp., 
    959 F.2d 805
    , 807 (9th Cir. 1992) (describing the
    “substantial factor” test as a “uniformly accepted principle[]
    of tort law”). The doctrine of proximate cause serves merely
    to protect defendants from unforeseeable results of their
    negligence when “too many unexpected things [have]
    happen[ed] between the defendant’s wrongdoing and the
    plaintiff’s injury.”32 BCS Services, 
    637 F.3d at 754
    .
    32
    The fact that FHA plaintiffs’ injuries must be proximately caused by
    the defendant’s discriminatory acts does not, of course, mean that
    defendants are not liable for foreseeable, but indirect, effects of
    discrimination. For example, in Silver Sage we held that a city that
    wrongfully withheld its approval of a fair housing project could be held
    liable not just to the developers of the project for their lost profits, but also
    to a real estate broker and a businessman who, respectively, did not
    receive broker’s fees and syndication fees that would have been paid had
    the project gone forward. 
    251 F.3d at
    822–23; see also San Pedro Hotel
    Co., 
    159 F.3d at 475
    .
    50 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Causation is an intensely factual question that should
    typically be resolved by a jury. See, e.g., White v. Roper,
    
    901 F.2d 1501
    , 1505–06 (9th Cir. 1990) (citing W. Prosser &
    W. Keeton, The Law of Torts, §§ 41, 42, 45 (5th ed. 1984));
    Restatement § 434(2). Juries are expected to rely on their
    common sense in resolving questions of causation. Indeed,
    it is jurors’ “common experience of living on a populated
    planet” that renders them at least as reliable, if not more so,
    than a single judge at assessing issues of causation. David W.
    Robertson, The Common Sense of Cause In Fact, 
    75 Tex. L. Rev. 1765
    , 1769 (1997). As the Seventh Circuit has
    recognized, “[o]nce a plaintiff presents evidence that he
    suffered the sort of injury that would be the expected
    consequence of the defendant’s wrongful conduct, he has
    done enough to withstand summary judgment on the ground
    of absence of causation.” BCS Services, 
    637 F.3d at 758
    .
    Contrary to the Plaintiffs’ suggestion, these principles are not
    a matter of burden-shifting—plaintiffs always bear the burden
    of proving that the defendant’s actions caused their
    injuries—but rather a simple recognition that making
    reasonable inferences about causation is one of the things that
    juries do best.
    We applied these principles in Mead v. Retail Clerks Int’l
    Assoc., Local Union No. 839, 
    523 F.2d 1371
     (9th Cir. 1975),
    when we held that a trier of fact could infer that a union’s
    illegal strike had “materially contributed” to the employer’s
    lost sales (and therefore was a substantial factor in bringing
    the loss about) because the “injury alleged . . . was precisely
    the type of loss that the claimed violations . . . would be likely
    to cause.” 
    Id. at 1378
     (quoting Zenith Radio Corp. v.
    Hazeltine Research, Inc., 
    395 U.S. 100
    , 125 (1969)). This
    was so even though the union, much like the City in this case,
    argued that it was equally likely that the lost sales were
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH          51
    attributable to adverse business conditions and negative
    publicity regarding the employer’s labor practices. Id. at
    1376.
    Although Mead drew this principle from cases arising in
    the anti-trust context, we recognized that these anti-trust cases
    merely “incorporat[e] common law principles of causation,”
    albeit with appropriate modifications. Id. Further, just as in
    Mead, here, there is “an exact parallel between the problem
    faced by a plaintiff attempting to show that lost profits
    resulted from anti-competitive activity rather than from other
    factors affecting the business,” and the problem faced by the
    Group homes in attempting to prove that their losses were
    caused by the defendant’s alleged intentional discrimination.
    Id. at 1378. In both kinds of cases, “damage issues . . . are
    rarely susceptible of the kind of concrete, detailed proof of
    injury which is available in other contexts.” Id. at 1377
    (quoting Zenith Radio Corp., 
    395 U.S. at 123
    .)
    Here, as in Mead, we ask not whether the Group Homes
    have proven that all of their business losses were attributable
    to the Ordinance’s enactment and enforcement, but rather, we
    examine whether they created a triable issue of fact that the
    City’s actions “materially contributed” to these losses.
    Although the City and the district court are correct that the
    Group Homes did not submit declarations from particular
    residents stating that they left because of the City’s actions,
    there was no requirement that they do so. Drawing all
    inferences in the Group Homes’ favor as we are required to
    do, we conclude that they submitted ample evidence that the
    City contributed to their losses.
    Just like the employer in Mead, the Group Homes
    submitted evidence that their business declined and that the
    52 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    resulting losses were both a predictable, and desired, result of
    the City’s actions. The Group Homes’ managers stated that
    they attract new residents primarily through referrals from
    care providers and their websites. There was evidence that
    both referral sources were affected by the Ordinance. The
    City’s enforcement of the Ordinance was widely publicized
    in the care provider community and “[f]ew counselors and
    therapists wanted to refer their clients to [the Group Homes]
    because of the City’s actions” as a result. NCR’s manager
    described its referrals as “dr[ying] up completely” after the
    City’s second denial of its permit application. The managers
    also explained that “our internet presence was drowned out
    by other web pages concerning the City’s actions.” In
    addition, current and prospective residents expressed concern
    to the managers about whether the Group Homes would
    close. A jury could infer from these facts that prospective
    residents were not referred to or deliberately stayed away
    from the Group Homes, and opted to reside elsewhere, as a
    result of the Ordinance’s enactment and enforcement, without
    hearing any particular individual testify that he did so.
    Indeed, prior to taking the opposite stance in litigation,
    city officials themselves credited the Ordinance with harming
    group homes. At a public meeting, Kiff stated that the
    Ordinance had been responsible for a reduction in bed counts
    of as much as 40% and described it as a key step to
    “bring[ing] owner-occupied back.”           In enacting the
    Ordinance, Council Member Henn promised City residents
    that it would “result in a substantial reduction in the
    number of group homes on the Peninsula” and asked to be
    “judge[d] . . . by our actual results.”
    Each of the Group Homes presented evidence that it
    experienced a precipitous decline in business after the
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH                 53
    passage of the Ordinance. Yellowstone’s revenues declined
    over 50% between 2007 and 2009. NCR’s dropped over 40%
    between 2007 and 2008; it closed in 2009 due to insufficient
    business.33 Pacific Shores’ business also declined nearly 50%
    in 2008. Furthermore, it served fewer residents than it
    otherwise would have due to the 12-bed occupancy limitation
    it accepted in order to secure approval of its reasonable
    accommodation application.34
    In sum, a jury could easily infer that the City’s actions
    materially contributed to the Group Homes’ losses. The
    managers all stated that the Ordinance’s enactment and
    enforcement led to reduced referrals, evidence showed that
    closing group homes was one of the Ordinance’s primary
    goals, and the Group Homes’ revenues plummeted in the
    immediate aftermath of the Ordinance’s enactment.
    This conclusion is not altered by the fact that some of the
    negative publicity about the Group Homes, which may have
    contributed to their business losses, was generated by the
    CCNB and other third-party sources. At least some of the
    negative publicity that allegedly harmed the Group Homes’
    33
    The City also argues that because NCR’s permit application was not
    finally denied until January 2009, it could not have suffered any losses
    prior to that time. This argument is simply wrong. A jury could certainly
    conclude that the threat of eventual closure contributed to NCR’s decline
    in business even prior to the final denial of its permit application.
    34
    There is no merit to the City’s contention that these losses are not
    recoverable because Pacific Shores itself requested the 12-bed limitation.
    This argument disregards the fact that Pacific Shores’ request for a 12-bed
    limitation was a result of the Hearing Officer’s two prior denials of its
    request for an 18-bed reasonable accommodation. In any event, as we
    have already explained, no such limitation would have applied if the City
    had not adopted the Ordinance in the first place.
    54 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    businesses was generated by the City itself, including on its
    own website and in a letter circulated to all residents of
    Newport Beach. In addition, the press coverage from third-
    party sources was a foreseeable result of the enactment and
    enforcement of the Ordinance, and therefore a jury could find
    that it was proximately caused by the City. See Restatement
    §§ 431, 440, 441, 442A; see also Farr v. NC Mach. Co.,
    
    186 F.3d 1165
    , 1169–70 (9th Cir. 1999) (applying the
    Restatement); Johnson v. Duffy, 
    588 F.2d 740
    , 743–44 (9th
    Cir. 1978). In other words, the Group Homes have produced
    sufficient evidence that “the [discriminatory] policy at issue
    and the particular injury alleged are not only closely related,
    they are cause and effect.” Harper v. City of Los Angeles,
    
    533 F.3d 1010
    , 1027 (9th Cir. 2008) (internal quotation marks
    and citation omitted).
    Given that a jury could conclude that the City materially
    contributed to the Group Homes’ decline in business, the
    Group Homes were not obligated to prove their losses with
    precision. As the Supreme Court has explained:
    Where the tort itself is of such a nature as to
    preclude the ascertainment of the amount of
    damages with certainty it would be a
    perversion of fundamental principles of
    justice to deny all relief to the injured person,
    and thereby relieve the wrongdoer from
    making any amend for his acts. In such case,
    while the damages may not be determined by
    mere speculation or guess, it will be enough if
    the evidence show the extent of the damages
    as a matter of just and reasonable inference,
    although the result be only approximate.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH          55
    Story Parchment Co. v. Paterson Parchment Paper Co.,
    
    282 U.S. 555
    , 563 (1931); see BCS Services, 
    637 F.3d at 759
    .
    The City argues that this principle is confined to the anti-trust
    context, but this view is undermined by cases from this court
    and others. The D.C. Circuit has described Story Parchment
    as a “seminal” case that “states the American rule on
    damages,” Hill v. Iraq, 
    328 F.3d 680
    , 684 (D.C. Cir. 2003),
    and it has been relied on to lower plaintiffs’ burden of proof
    regarding the quantum of damages in FHA cases, see Silver
    Sage, 
    251 F.3d at
    820 n.6; Samaritan, 
    114 F.3d at 1235
    , and
    in countless other statutory tort-like contexts. See, e.g., Hill,
    
    328 F.3d at 684
     (Foreign Sovereign Immunities Act); Fidelity
    Interior Const., Inc. v. S.E. Carpenters Reg’l Council of
    United Bhd. of Carpenters and Joiners, 
    675 F.3d 1250
    ,
    1264–65 (11th Cir. 2012) (Labor Management Relations
    Act); Comcast of Illinois X v. Multi-Vision Elec., Inc.,
    
    491 F.3d 938
    , 947 (8th Cir. 2007) (Cable Communications
    Policy Act); Yonkers Branch-N.A.A.C.P. v. City of Yonkers,
    
    251 F.3d 31
    , 40 (2d Cir. 2001) (apportionment of liability in
    desegregation funding order); Adray v. Adry-Mart, Inc.,
    
    76 F.3d 984
    , 988–89 (9th Cir. 1995) (trademark
    infringement); Starceski v. Westinghouse Elec. Corp., 
    54 F.3d 1089
    , 1100–01 (3d Cir. 1995) (employment discrimination
    under the Age Discrimination in Employment Act); Brock v.
    Seto, 
    790 F.2d 1446
    , 1448 (9th Cir. 1986) (Fair Labor
    Standards Act). Because the Group Homes submitted ample
    evidence from which a jury could infer that they lost some
    business as a result of the Ordinance, a jury would be entitled
    to determine the precise quantum of damages by drawing
    “just and reasonable” inferences from the evidence, given that
    the City’s enactment of the Ordinance was an act that
    “preclude[d] the ascertainment” of what portion of the Group
    56 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Homes’ decline in business was attributable to other causes.35
    Story Parchment, 
    282 U.S. at 563
    ; see, e.g., Gilchrist v. Jim
    Slemons Imports, Inc., 
    803 F.2d 1488
    , 1501 (9th Cir. 1986)
    (holding that a jury reasonably estimated a terminated
    employee’s lost commissions by relying on the commissions
    he earned the previous year, even though that year had been
    abnormally profitable).
    C
    For similar reasons, the Group Homes also created a
    triable issue of fact regarding causation as to the expenses
    they incurred contacting referral sources and advertising to
    combat the widespread impression that the City was forcing
    them to close. The Group Homes’ managers each testified
    that they expended substantial amounts of time combating the
    perception that they were on the verge of closure. As we
    explained above, diverted staff time is a compensable harm
    under the FHA and ADA. As to causation, the managers
    themselves explained that their promotional efforts were not
    undertaken because of a general, unexplained, drop in
    business, but rather because their referral sources were
    concerned whether they could remain open and provide a
    healthy atmosphere as a result of the Ordinance. Similarly,
    Pacific Shores increased its advertising expenditures in 2008
    for the purpose of “inform[ing] the public that its Newport
    Beach houses were open and provided a safe place for sober
    living.” In addition, Pacific Shores and NCR each hired a
    web consultant to assist them with promoting their presence
    on the internet because publicity surrounding the City’s
    35
    The City, of course, would be free at trial to present proof to the jury
    that a significant portion of the Group Homes’ losses were attributable to
    other causes such as the downturn in the economy.
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH           57
    enforcement efforts appeared prominently in response to
    internet searches. The Group Homes’ managers’ testimony,
    which a reasonable jury could certainly credit, creates a
    triable issue of fact as to whether these expenses were
    incurred as a result of the Ordinance and the district court
    clearly erred in concluding otherwise.
    D
    Finally, the individual Plaintiffs also challenge the district
    court’s dismissal of their damages claims for emotional
    distress. Damages are available under the FHA for any
    unusual level of anxiety, embarrassment, or humiliation
    suffered by plaintiffs as a result of a defendant’s
    discriminatory actions, and a plaintiff’s testimony is
    sufficient to create a triable issue of fact as to such emotional
    distress. See 
    24 C.F.R. § 180.670
    (b)(3)(i) (HUD regulations
    recognizing availability of damages for “humiliation and
    embarrassment”); see also Krueger v. Cuomo, 
    115 F.3d 487
    ,
    492 (7th Cir. 1997) (tenant’s testimony sufficient to establish
    FHA liability for emotional distress where her landlord’s
    discriminatory actions made her “feel ‘real dirty,’ ‘like a bad
    person,’ and ‘scared’ her”); Banai v. Sec’y of HUD, 
    102 F.3d 1203
    , 1207 (11th Cir. 1997) (damages “clearly” available
    under FHA for “anger, embarrassment, and emotional
    distress” suffered by spurned tenant); Morgan v. Sec’y of
    HUD, 
    985 F.2d 1451
    , 1459 (10th Cir. 1993) (damages
    available under FHA for any emotional distress “which
    exceeds the normal transient and trivial aggravation attendant
    to securing suitable housing”); cf. Phiffer v. Proud Parrot
    Motor Hotel, Inc., 
    648 F.2d 548
    , 552–53 (9th Cir. 1980)
    (damages available to § 1982 plaintiff for “humiliation and
    distress” resulting from landlord’s discriminatory refusal to
    rent commercial space).
    58 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH
    Wiseman, a resident at Pacific Shores, testified at his
    deposition that he experienced anxiety as a result of Pacific
    Shores’ potential closure. The anxiety was sufficiently acute
    that he visited a doctor and was prescribed medication to
    manage his symptoms. This testimony created a triable issue
    of fact as to whether he suffered compensable emotional
    distress. The City argues that Wiseman waived his damages
    claim based on statements made at his deposition that he did
    not believe the City owed him damages. In context, those
    statements constitute an expression of Wiseman’s resentment
    towards the City rather than a “voluntary, deliberate, and
    informed” declaration of waiver. See Stroman v. West Coast
    Grocery Co., 
    884 F.2d 458
    , 462 (9th Cir. 1989) (recognizing
    that waivers of civil rights claims must be “voluntary,
    deliberate, and informed” (citation omitted)).
    We agree with the district court, however, that Bridgeman
    did not create a triable issue of fact as to whether she suffered
    compensable emotional distress. Bridgeman—a resident at
    Pacific Shores—stated only that she was “kind of upset”
    about the possible closure of Pacific Shores. However, she
    also stated that she did not feel any stress as a result.
    Although an FHA plaintiff can certainly recover for distress,
    even if that distress does not physically manifest itself or
    necessitate pscyhological counseling, Bridgeman’s mild
    annoyance at the Ordinance is insufficient to support a claim
    for emotional distress damages.
    CONCLUSION
    For the foregoing reasons we reverse the district court’s
    dismissal of the Plaintiffs’ disparate treatment claims. The
    Plaintiffs have created a triable issue of fact that the
    Ordinance was enacted in order to discriminate against them
    PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH     59
    on the basis of disability, and that its enactment and
    enforcement harmed them. We also reverse the district
    court’s dismissal of all of the Plaintiffs’ damages claims,
    except for its dismissal of Terri Bridgeman’s claim for
    emotional distress.
    REVERSED AND REMANDED.
    

Document Info

Docket Number: 11-55460, 11-55461

Judges: Kozinski, Reinhardt, Thomas

Filed Date: 9/20/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

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