"Similarly-Situated" Evidence Not Necessary to Raise Issue of Fact on Discriminatory Disparate Effect of Housing Ordinance if Plaintiffs Present Evidence of Discriminatory Intent

In Pacific Shores Properties, LLC v. City of Newport Beach, published September 20, 2013, a Ninth Circuit panel that included both conservative judge Alex Kozinski and liberal judge Stephen Reinhardt reversed defense summary judgment in two lawsuits that group homes for recovering alcoholics and drug users brought against the defendant city under the Fair Housing Act, the Americans with Disability Act, California's FEHA, and the Equal Protection Clause challenging a housing ordinance that, they alleged, had the practical effect of banning such homes.  The district court had granted summary judgment because of lack of evidence that similarly-situated persons or entities were treated differently than the plaintiffs under the ordinance.  The court disregarded a large amount of evidence that the city had intended to ban the group homes and put them out of business.  The Ninth Circuit held that approach was erroneous.  Different treatment of similarly-situated entities is only one way of raising a triable issue of fact in a disparate-impact discrimination case.  If, as here, there is evidence of an intent to discriminate against a protected class (here, alcoholics and drug addicts), no "similarly-situated" evidence is necessary.  The panel also found triable issues of fact on whether the ordinance caused the damages of which the plaintiffs complained.