The Comm Concerning v. City of Modesto , 583 F.3d 690 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE COMMITTEE CONCERNING 
COMMUNITY IMPROVEMENT; SOUTH
UNITED NEIGHBORS; DAVID CANO;
MANUEL ASPIN; HORTENSIA FRANCO;
ENA LOPEZ; GRISELDA MARTINEZ;
SALVADOR GUTIERREZ MARTINEZ; Nos. 07-16715
JUAN MERCADO; MAGDALENA 07-17407
MERCADO; JUAN PEREZ; GLORIA
PIMENTEL; ALFONSO RIVERA;  D.C. No.
CV-04-06121-LJO-
DARREN SCHAEFFER, DLB
Plaintiffs-Appellants,
OPINION
v.
CITY OF MODESTO; COUNTY OF
STANISLAUS; STANISLAUS COUNTY
SHERIFF,
Defendants-Appellees.

On Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
May 11, 2009—San Francisco, California
Filed October 8, 2009
14361
14362 COMMITTEE CONCERNING COMMUNITY v. MODESTO
Before: Mary M. Schroeder and Stephen Reinhardt,
Circuit Judges, and Louis H. Pollak,* Senior District Judge.
Opinion by Judge Pollak
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14365
COUNSEL
Brian Brosnahan, KASOWITZ, BENSON, TORRES, &
FRIEDMAN LLP, San Francisco, California, for the appel-
lants.
John E. McDermott, HOWREY LLP, Los Angelos, Califor-
nia, for appellee City of Modesto.
14366 COMMITTEE CONCERNING COMMUNITY v. MODESTO
Terrence J. Cassidy, PORTER SCOTT, Sacramento, Califor-
nia, for appellee County of Stanislaus.
OPINION
POLLAK, District Judge:
Appellants (who were plaintiffs in the District Court, and
will be referred to as “plaintiffs” here) are residents of four
predominantly-Latino neighborhoods, as well as two commu-
nity groups each representing a neighborhood. The neighbor-
hoods are outside the city of Modesto (“City”) and within the
City’s “sphere of influence” although not incorporated into
the City proper; such neighborhoods are known as “unincor-
porated territory” or “islands.” The Modesto sphere of influ-
ence includes 26 such unincorporated islands partly or
completely surrounded by the City (including the four plain-
tiff islands) and other unincorporated areas.
Plaintiffs filed a complaint in the District Court in 2004,
claiming that the actions (and inactions) of the defendants
City and Stanislaus County in failing (1) to provide the neigh-
borhoods with adequate municipal services and (2) to bring
the neighborhoods into the City constituted intentional dis-
crimination based on race or ethnicity, in contravention of the
Constitution and federal statutes, and also of California stat-
utes. The complaint was amended three times. In a series of
opinions in the spring and summer of 2007, the District Court
granted motions for summary judgment that were addressed
to the Third Amended Complaint (TAC); the plaintiffs’
claims were dismissed in their entirety. In a further opinion,
the District Court awarded costs to the defendants. Plaintiffs
timely appealed these adverse decisions.
I. Background
Plaintiffs’ neighborhoods are known as Bret-Harte, Hatch-
Midway (or No-Man’s Land), Robertson Road, and Rouse-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14367
Colorado (or the Garden). These neighborhoods are urban,
residential developments which were built in the 1940s and
1950s. At that time, builders were not required to construct
infrastructure such as sewers, street lights, sidewalks, curbs,
or gutters. Census data show that in 1980 the neighborhoods’
populations were not predominantly-Latino; however, by
1990 the Latino population in each of the four neighborhoods
had increased substantially although did not yet constitute a
majority of the population. By 2000 all four neighborhoods
were majority-Latino. According to the Third Amended Com-
plaint (“TAC”), they “resemble neighboring parts of Modesto
in terms of residential density, but are easily differentiated by
the lack of basic services such as sidewalks, street lights and
road maintenance.” TAC ¶ 36.
It is undisputed that the neighborhoods lack a variety of
infrastructure needs commonly associated with urban commu-
nities. Hatch-Midway lacks sewer lines, storm drains, side-
walks, curbs, and gutters. Bret-Harte is connected to the City
sewer system, but lacks storm drains, curbs, gutters, and side-
walks. Rouse-Colorado lacks sewer connections, sidewalks,
storm drains, curbs, and gutters. Robertson Road has been
approved to connect to the City sewer system but lacks storm
drains, curbs, gutters, and sidewalks.
The City and the County have a stated policy of encourag-
ing the elimination of urban islands through annexation into
the City. Annexation can offer many benefits to a community,
including the provision of municipal services by the City and
the ability to vote in City elections. However, various steps
need to be taken before a community can be annexed, includ-
ing determining whether the community wants to be annexed,
what governmental authority will receive what percentage of
property tax revenues, and whether the infrastructure present
in the community meets the City’s standards.
With regard to taxes, the City and the County must agree
on how property tax revenues from the area to be annexed
14368 COMMITTEE CONCERNING COMMUNITY v. MODESTO
will be shared. If an unincorporated area is not annexed by the
City, all property tax revenues go to the County. In 1983, the
City and the County entered into a Master Tax Sharing Agree-
ment (“MTSA”). The MTSA provides that for all covered
communities, upon annexation, the City will take 34% of
property tax revenues and the County will take the rest. Cer-
tain communities are specifically exempted from the MTSA,
and in order for these communities to be annexed, the City
and County need to enter into a separate tax-sharing agree-
ment. In 1983, Bret-Harte and Robertson Road were excluded
from the MTSA. In 1988, Bret-Harte applied for annexation,
but the attempt failed, allegedly in part because the City and
the County could not agree on the division of property tax
revenue. The MTSA was amended in 1996, and at that time
Hatch-Midway was specifically exempted. The MTSA was
also amended in 2004 to include a portion of land adjacent to
Bret-Harte that had previously been excluded. At the same
time, the remaining provisions of the MTSA were “expressly
reaffirmed.” ER 1465. According to the TAC, exclusion from
the MTSA is problematic because:
The disparate treatment of the Plaintiff Neighbor-
hoods under the Master Tax Sharing Agreement
creates a disincentive for the County to build infra-
structure in the Plaintiff Neighborhoods since build-
ing such infrastructure to City standards does not
assure that the City will not demand additional finan-
cial concessions from the County by way of tax shar-
ing as a prerequisite to annexation of the Plaintiff
Neighborhoods. The disparate treatment of the Plain-
tiff Neighborhoods under the Master Tax Sharing
Agreement also imposes a chilling effect on Plain-
tiffs’ own annexation efforts. Plaintiffs reasonably
view the annexation application process as futile
and/or disproportionally weighted against their pros-
pects of annexation and therefore are less willing to
undertake the burdensome process of applying. The
Master Tax Sharing Agreement thus deters infra-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14369
structure development in the Plaintiff Neighbor-
hoods and makes it relatively easier for residents of
predominantly-White unincorporated areas covered
by the Master Tax Sharing Agreement to become
Modesto citizens.
TAC ¶ 61.
Plaintiffs contend that exclusion from the MTSA deters the
County from investing in infrastructure in neighborhoods that
would otherwise be eligible for infrastructure upgrades and
annexation. They argue that the County is unwilling to invest
in developing infrastructure in a community without substan-
tial assurance that the City will negotiate a tax-sharing agree-
ment and annex the community. For those communities
covered by the MTSA, this threshold concern is inapplicable.
In addition to dealing with tax-sharing issues, island neigh-
borhoods also face issues relating to sewage disposal. The
County has no sewage treatment plant of its own, and the City
is not required to provide sewer services to non-annexed com-
munities, some of which have aging and deteriorating septic
systems. In 1979, Measure A was passed by Modesto City
voters, prohibiting the City from authorizing any extensions
of sewer trunk lines to unincorporated areas without first
holding an advisory election.1 In 1995, Measure M was
passed, extending the requirement of an advisory election
from one applying only to the extension of sewer trunk lines
to one that applied before any sewer improvements at all
could be made in unincorporated areas. In 1998, the City
Council approved a resolution adopting an implementation
policy for Measure M. The implementation policy divides
islands into two categories—“substantial” and “insubstantial.”
According to the policy, the City Council has the sole discre-
tion to deem islands substantial or insubstantial (the terms are
1
Residents of the island territories are not City residents and cannot vote
in City elections.
14370 COMMITTEE CONCERNING COMMUNITY v. MODESTO
not defined in the policy). Substantial islands are not eligible
for Measure M votes “until negotiations with the County
regarding fiscal issues are complete,” while insubstantial
islands can have a Measure M vote without the need for fiscal
negotiations between the City and County. Fiscal negotia-
tions, it seems, require that the County agree to install all non-
sewer infrastructure, including storm drains, curbs, gutters,
sidewalks, street lighting, and streets, all to City standards.
This is known as the “infrastructure condition.”
Plaintiffs argue that the City’s policies with regard to the
provision of sewer access are applied in a way that discrimi-
nates against them. Plaintiffs contend that the determination
of what is a “substantial” island has been applied in an incon-
sistent, discriminatory way, and the infrastructure condition
has been imposed only on Latino islands and not on majority-
white islands, which have had Measure M votes before all
infrastructure was built.
With regard to the status of sewage disposal in the plaintiff
neighborhoods, Bret-Harte has sewer access and Robertson
Road was approved for sewer access. Rouse-Colorado and
Hatch-Midway do not have sewer access, though the two indi-
vidual plaintiffs residing at the border of Rouse-Colorado
have been able to hook up to a sewer line running at the edge
of the neighborhood. The septic systems in Rouse-Colorado
and Hatch-Midway are failing, causing untreated sewage to
leach into groundwater and potentially creating a public
health hazard.2 The County, after determining that it did not
have the financial ability to fulfill all of the infrastructure
needs of the area including Hatch-Midway, postponed the
2
Whether or not the systems are actually failing may be a disputed
issue. It is undisputed that, at the very least, the potential of failing septic
systems is acknowledged by and is of concern to the City and the County.
The District Court noted that because all disputed issues must be viewed
in the light most favorable to plaintiffs, the septic systems were considered
to be failing.
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14371
building of infrastructure and sewer access in Hatch-Midway
but did build infrastructure and sewers in some of the neigh-
borhood surrounding Hatch-Midway (known as Shackleford).
With regard to Robertson Road, as a result of the public
health crisis resulting from the leaching of sewage into
groundwater, the City made an exception to the infrastructure
condition and entered into an agreement with the County to
build sewers (but no other infrastructure) in 2004. However,
plaintiffs allege that despite the known urgency of the need
for sewer services in Rouse-Colorado and Hatch-Midway, the
County has given priority to the building of other infrastruc-
ture, such as storm drains, in predominantly-white communi-
ties. Plaintiffs allege that this priority practice is faulty and
discriminatory.
Another issue facing non-annexed communities is the pro-
vision of law-enforcement services and emergency respond-
ers. As with sewer services, the City is not required to provide
these services to communities not part of the City, so all law-
enforcement and emergency-response personnel are provided
by the County. Plaintiffs allege that the time it takes for
County law-enforcement personnel to respond to calls for ser-
vice in their neighborhoods is longer in part because County
sheriff deputies must often drive through City territory to
respond to calls from island neighborhoods. Plaintiffs also
allege that the response times within the unincorporated island
communities are longer for the predominantly-Latino island
neighborhoods than for the predominantly-white island neigh-
borhoods.
II. Proceedings Before the District Court
Plaintiffs filed a complaint against the City, the County,
and other defendants in the District Court for the Eastern Dis-
trict of California on August 18, 2004. The original complaint
alleged violations of the Fair Housing Act in the defendants’
failure to provide municipal services to the plaintiff neighbor-
hoods, violations of equal protection in the defendants’ imple-
14372 COMMITTEE CONCERNING COMMUNITY v. MODESTO
mentation of their annexation decisions, violations of Title VI
in the defendants’ land use and municipal services policies,
violations of the California Fair Employment and Housing
Act, violations of other provisions of the California Code, and
nuisance.
Defendants filed a motion to dismiss, and some of plain-
tiffs’ claims, including their claims under the Fair Housing
Act, were dismissed. Plaintiffs subsequently filed a First
Amended Complaint on April 6, 2005. The City moved to dis-
miss the First Amended Complaint as inconsistent with the
prior order on the motion to dismiss. Pursuant to a stipulation,
plaintiffs withdrew the First Amended Complaint and filed a
Second Amended Complaint on May 24, 2005. Plaintiffs then
agreed, on August 31, 2005, to limit their claims regarding
inadequate municipal services to three areas: sewers, police
services, and bilingual assistance. Plaintiffs then sought, and
were granted, leave from Magistrate Judge Beck to file the
Third Amended Complaint.
The Third Amended Complaint included five counts. The
first two counts, brought pursuant to 42 U.S.C. § 1983, allege
intentional discrimination in violation of equal protection as
guaranteed by the Fourteenth Amendment and by Title VI of
the Civil Rights Act (codified at 42 U.S.C. § 2000(d)) in (1)
the exclusion of three of the plaintiffs’ neighborhoods from
the MTSA between the City and the County; (2) the City’s
application of its Measure M policy concerning the extension
of sewer infrastructure; (3) disparate provision of emergency
law-enforcement services; and (4) the County’s policies
regarding funding and construction of public infrastructure.
The third count was brought under the Fair Employment and
Housing Act (“FEHA”), and California Government Code
§ 12955(l), and alleges that the City and County provide
municipal services in a manner that discriminates against the
plaintiff neighborhoods. The fourth count alleges violations of
California Government Code § 11135 in the provision of
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14373
municipal services, and the fifth count alleges common law
and statutory nuisance.
Defendants filed four separate summary judgment motions
pursuant to an order from the District Court dividing the
issues for summary judgment. In their memoranda in opposi-
tion to the motions, plaintiffs presented, among other evi-
dence, expert reports and statistical analysis purporting to
show the discriminatory impact of the City’s and County’s
actions. The District Court granted the motions for summary
judgment in their entirety.
In the first opinion on summary judgment, issued May 16,
2007, the District Court reviewed plaintiffs’ claims alleging
intentional discrimination in the exclusion from the MTSA.
The District Court rejected plaintiffs’ statistical evidence with
regard to MTSA, in part because the court found that the sta-
tistics did not compare the plaintiffs’ neighborhoods with the
entire Latino population in the unincorporated areas. The Dis-
trict Court also found that the proffered evidence of impact
was not sufficient to show evidence of intent; the court found
that the one failed annexation attempt of Bret-Harte did not
demonstrate intent, and neither did allegedly discriminatory
statements of city officials. As a result of this conclusion, the
District Court also held that plaintiffs’ Title VI claims must
fail because those claims also require proof of intentional dis-
crimination. In addition to this finding, the District Court held
that the statute of limitations would bar plaintiffs’ MTSA
claims. Finally, the District Court concluded that plaintiffs’
California FEHA claims had been abandoned, and that the
§ 11135 claim would otherwise be able to proceed but was
barred by the statute of limitations.
The second opinion, issued May 23, 2007, dealt with plain-
tiffs’ sewer-access claims, which alleged intentional discrimi-
nation in the City’s implementation of the Measure M policy.
The District Court again rejected plaintiffs’ evidence on this
set of claims, finding that neither the statistical nor historical
14374 COMMITTEE CONCERNING COMMUNITY v. MODESTO
evidence proffered showed discriminatory impact or intent.
This conclusion led the District Court to grant summary judg-
ment to defendants on the equal protection claim as well as
the Title VI claim. With regard to the § 11135 claim for sewer
services, the court found that plaintiffs did not state a prima
facie case because they did not show a disparate impact.
The third opinion, issued July 2, 2007, was directed at
claims filed only against defendant County, and granted sum-
mary judgment on plaintiffs’ claims of discrimination in the
response times of law enforcement and the provision of bilin-
gual police officers and emergency responders. The District
Court concluded that there was no evidence of slower
response times in the plaintiff communities and thus there was
no evidence of discriminatory impact or discriminatory intent.
The District Court also found that bilingual services were pro-
vided in a way rationally related to a legitimate government
purpose.
The District Court’s fourth opinion, of July 30, 2007, also
only concerned the County, and granted summary judgment
on plaintiffs’ claims of discrimination in the prioritization of
infrastructure needs. The District Court found that the Coun-
ty’s priority list passed rational basis review and was not
unconstitutionally arbitrary. The District Court issued another
opinion on August 21, 2007, granting summary judgment to
defendants on plaintiffs’ claims of discrimination in the provi-
sion of parks, allocation of state government funding, and cre-
ation of a common law nuisance. (None of these claims are
raised in this appeal.) The District Court, in this opinion, also
declined to exercise supplemental jurisdiction over plaintiffs’
other state law claims. Finally, the District Court, on Decem-
ber 11, 2007, awarded defendants $36,430.58 in costs.
III. Standard of Review
The District Court, in 2004, dismissed plaintiffs’ Fair
Housing Act claims under Federal Rule of Civil Procedure
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14375
12(b)(6). This dismissal is reviewed de novo. Decker v.
Advantage Fund, Ltd., 362 F.3d 593, 595 (9th Cir. 2004). The
District Court also issued the series of opinions granting
defendants’ motions for summary judgment. The grant of
summary judgment on these claims is also reviewed de novo.
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431
F.3d 353, 360 (9th Cir. 2005). The District Court’s award of
costs to defendants is reviewed for abuse of discretion. Disc
Golf Ass’n v. Champion Discs, 158 F.3d 1001, 1010 (9th Cir.
1998).
IV. Discussion
A. Statute of Limitations
Plaintiffs filed their original complaint on August 18, 2004.
The City and County argue that plaintiffs are barred from
making any claims based on events that occurred before 2002
because plaintiffs’ federal claims are subject to a two-year
statute of limitations.3 In considering statute of limitations
issues, the court is to “look at when the operative decision
occurred” and to “separate from the operative decisions those
inevitable consequences that are not separately actionable.”
RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th
Cir. 2002) (internal citations and quotations omitted). The
District Court found that plaintiffs’ claims alleging discrimi-
nation in their exclusion from the MTSA were based on the
enactments of the MTSA in 1983 and 1996, and the court then
found that rather than a continuing violation, any alleged
3
Claims under § 1983 are subject to the state statute of limitations for
personal injury claims. In California, that state rule is two years; however,
prior to 2003, the rule was one year. The District Court does not appear
to have decided whether the two-year or one-year limitation applied.
Because we conclude that the plaintiffs can base their claims on the
express renewal of the MTSA in 2004, the claim accrued at that time, and
the two-year period applies. See TwoRivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999) (“a claim accrues when the plaintiff knows or has reason
to know of the injury which is the basis of the action”).
14376 COMMITTEE CONCERNING COMMUNITY v. MODESTO
harm was instead the continuing ill effects of the alleged past
violation and therefore the claims were barred.
Plaintiffs put forth two arguments as to why this decision
was in error. First, they argue that the continuing violations
doctrine preserves their claims against each individual act of
discrimination. Second, they argue that the reenactment of the
MTSA in 2004 was a separate act for which they can seek
redress.
[1] The continuing violations doctrine permits a plaintiff to
sue for all discriminatory acts that occurred during the limita-
tions period, even if the policy or other event giving rise to
the discrimination occurred outside the limitations period. A
plaintiff must show that a pattern or practice of discrimination
creates an ongoing violation. However, discrete discrimina-
tory acts will not create a pattern of discrimination without
more; pattern-or-practice claims cannot be based on “sporadic
discriminatory acts” but rather must be based on “discrimina-
tory conduct that is widespread.” Cherosky v. Henderson, 330
F.3d 1243, 1247 (9th Cir. 2003) (citing Int’l Bhd. of Team-
sters v. United States, 431 U.S. 324, 336 (1977)).
The District Court correctly concluded that plaintiffs had
not shown the existence of a pattern or practice of discrimina-
tion but rather ongoing harm resulting from earlier discrete
decisions. Though plaintiffs argue that the earlier decisions
(the 1983 and 1996 MTSA enactments) were “applied by con-
duct throughout the limitations period,” they offer no evi-
dence of this. Plaintiffs’ claim under the MTSA is that it
“chills” their annexation attempts (a claim discussed in
greater detail below, see infra Part III(B)(1), but any chilling
flows inexorably from the MTSA itself and not from any
actions of defendants subsequent to the MTSA.
[2] However, though plaintiffs cannot show an ongoing
violation, the re-enactment of the MTSA in 2004 will pre-
serve plaintiffs’ claim that their exclusion chills their annexa-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14377
tion attempts. ER 1465. The question is whether the re-
enactment was “the inevitable consequence of an earlier deci-
sion” or instead “the result of independent consideration.” RK
Ventures, Inc., 307 F.3d at 1061; Knox v. Davis, 260 F.3d
1009, 1014 (9th Cir. 2001). The 2004 agreement is entitled
the “First Amendment to Master Property Tax Sharing Agree-
ment.” The main thrust of the agreement is the inclusion of a
particular piece of property that had been previously
excluded. Section Three of the agreement provides that:
“[e]xcept as herein amended, the provisions of the Agreement
are expressly reaffirmed and remain in full force and effect.”
[3] The District Court erred in dismissing the 2004 agree-
ment as merely an automatic renewal of a past action. Instead,
the 2004 agreement expressly altered some of the terms of the
former agreement and retained other terms, such as the exclu-
sion of the plaintiffs’ neighborhoods. The City’s contention
that the 2004 agreement was “an unrelated discrete act of no
relevance to this case” is not persuasive; part of plaintiffs’
claim is that they were intentionally excluded from the
MTSA, and the agreement in 2004 expressly provided for
retention of the MTSA provisions not amended. Moreover,
the 2004 agreement was not merely an inevitable consequence
of the 1983 and 1996 agreements, because one of the conse-
quences of those agreements was to exclude the parcel that
the 2004 agreement instead included.4
[4] The District Court erred in finding plaintiffs’ MTSA
challenge barred by the statute of limitations. Because this
conclusion stems from the 2004 MTSA re-enactment, plain-
tiffs may not challenge the 1983 or 1996 MTSA, but they may
4
The MTSA’s 2004 amendment and re-enactment happened just a few
months before plaintiffs filed their complaint; though the original com-
plaint did not include allegations based on the 2004 agreement, it did
include allegations based on the exclusion from the MTSA. When allega-
tions specific to this event were included in the TAC, they were permissi-
ble as relating back to the original pleading.
14378 COMMITTEE CONCERNING COMMUNITY v. MODESTO
use those events “as evidence to establish motive and to put
[their] timely-filed claims in context.” Carpinteria Valley
Farms v. City of Santa Barbara, 344 F.3d 822, 829 (9th Cir.
2003).
B. Statistical Evidence
Plaintiffs’ § 1983 claims alleging violations of equal pro-
tection and Title VI require similar proofs—plaintiffs must
show that actions of the defendants had a discriminatory
impact, and that defendants acted with an intent or purpose to
discriminate based upon plaintiffs’ membership in a protected
class. Lee v. City of Los Angeles, 250 F.3d 668, 686-87 (9th
Cir. 2001). Where, as here, the challenged governmental pol-
icy is “facially neutral,” proof of disproportionate impact on
an identifiable group, such as evidence of “gross statistical
disparities,” can satisfy the intent requirement where it tends
to show that some invidious or discriminatory purpose under-
lies the policy. See Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264-66 (1977); Hazelwood
School Dist. v. United States, 433 U.S. 299, 307-08 (1977).
Plaintiffs contend that “gross statistical disparities” alone
may constitute proof of a practice of discrimination and
relieve plaintiffs from their burden of showing intent to dis-
criminate. Hazelwood, 433 U.S. at 307-08. This is true, but it
is the rare case where impact alone will be sufficient to invali-
date a challenged government action. See Arlington Heights,
429 U.S. at 266 (noting that absent evidence of very stark sta-
tistical disparities, “impact alone is not determinative, and the
Court must look to other evidence.”)
In addition to statistical evidence showing discriminatory
impact, other factors to be considered in determining whether
there is evidence of intent or purpose to discriminate include:
the historical background of the decision, the sequence of
events leading up to the decision, and any relevant legislative
or administrative history. Arlington Heights, 429 U.S. at 267-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14379
68. If there is no evidence of intentional discrimination, then
the court assumes that the challenged actions were not based
on discrimination and must inquire only whether the actions
were rationally related to a legitimate governmental interest.
Hispanic Taco Vendors of Washington v. City of Pasco, 994
F.2d 676, 680 (9th Cir. 1993).
1. Exclusion from the MTSA
Plaintiffs claim that three of their neighborhoods were
excluded from the MTSA because of their predominantly-
Latino population, and that this exclusion constitutes a barrier
to annexation erected by the City and County.5 In support of
this claim, plaintiffs put forth statistical evidence comparing
the ethnicity of the population in the three plaintiffs’ neigh-
borhoods excluded by the MTSA to those covered by the
MTSA.6 The differences in the proportions of Latinos in the
areas excluded and included are statistically significant. Over-
all, according to the 2000 census, the islands excluded from
the MTSA were 71% Latino, while the islands included in the
MTSA were 48% Latino.
5
Defendants contend that no claims based on the MTSA are properly
presented in this appeal. They argue that the MTSA annexation claim—
whether characterized as (1) stating a claim for the discriminatory creation
of a “barrier to annexation” or (2) stating a claim simply for discrimina-
tory annexation—is barred by previous orders in this case. We view the
claim as not one alleging that the annexation process, in general, is dis-
criminatory; plaintiffs rest their claim on the creation of “barriers to
annexation,” a claim that is part of the equal protection claims present in
the case from its inception. To the extent that any claims were resolved
against the plaintiffs by previous orders in the case, those orders are
reviewable as part of this appeal. “An appeal from a final judgment draws
in question all earlier, non-final orders and rulings which produced the
judgment.” United Ass’n of Journeymen & Apprentices v. Bechtel Constr.
Co., 128 F.3d 1318, 1322 (9th Cir. 1997).
6
The fourth plaintiff neighborhood, Rouse-Colorado, is not specifically
excluded by the MTSA.
14380 COMMITTEE CONCERNING COMMUNITY v. MODESTO
In granting summary judgment to defendants on this claim,
the District Court rejected plaintiffs’ use of census statistics
from 2000; older census data show that the neighborhoods
were not all majority-Latino at the enactment of the MTSA in
1983 and before the 1996 amendment. However, plaintiffs
contend, and the census data show, that the neighborhoods
were clearly trending towards becoming majority-Latino over
time. Plaintiffs also note that Hatch-Midway, which was
excluded by the 1996 MTSA for the first time, had been under
50% Latino in 1980, but had become 55.9% Latino by 1990,
and, having become majority-Latino, it was excluded. More-
over, the use of 2000 census data is appropriate for analyzing
the 2004 re-enactment of the MTSA. The census data in the
record are reproduced below.
% Latino
Neighborhood 1980 1990 2000
Bret-Harte 32.7 56.3 76
Hatch-Midway 40.5 55.9 74
Robertson Road 32.5 48 70
Plaintiffs’ experts compared the percentage of the popula-
tion identified as Latino in all the island neighborhoods
excluded from the MTSA (71%) to the percentage of the pop-
ulation classified as Latino in the included neighborhoods
(47%); the difference in the percentage of the population
identified as Latino is statistically significant. ER 228.
[5] The District Court found problems with the statistical
comparisons made. The District Court concluded, “Plaintiffs
selectively analyze the Latino population within each of the
three impacted county islands, but do not adequately statisti-
cally analyze the Latino population in relation to either the
total population or total Latino population.” ER 105. How-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14381
ever, this reference to “the total Latino population” is unclear.
Plaintiffs did compare the total Latino population in the
excluded areas to the total Latino population in the included
areas. Moreover, plaintiffs compared the total non-Latino
population of the excluded areas to the total non-Latino popu-
lation of the included areas and found that, using the 2000
census figures, the MTSA included more non-Latinos than it
excluded. Defendants contend that plaintiffs’ statistics are
inconsequential because the islands’ populations also include
white citizens who “obviously have not been treated any dif-
ferently from the Latinos in these islands.” City Resp. Br. at
34. Defendants do not point to any precedent for conducting
this type of within-neighborhood analysis; as the question is
whether particular islands have been excluded because of
their racial composition, the type of island-to-island compari-
son conducted by plaintiffs is appropriate.
In addition to this population-based evidence, plaintiffs
point to the annexation of two white neighborhoods, El Vista
No. 4, a neighborhood but not an island, and Pelandale
McHenry, also not an island, as evidence that the City gave
preference to those neighborhoods over the Latino neighbor-
hoods. The District Court disregarded this evidence, finding
that because those two neighborhoods were not islands they
were not similarly situated with the plaintiffs’ neighborhoods.
Defendants, arguing that the District Court was correct, point
out that non-islands do not require County infrastructure fund-
ing, so there would be no dispute over tax-sharing. However,
this fact would seem to lend support to plaintiffs’ contention
that the need for their neighborhoods to independently negoti-
ate tax revenues is a barrier to annexation: apparently either
inclusion in the MTSA or, in the alternative, non-island status
means that negotiations about tax revenues do not, in all
instances, need to take place in order for annexation to be
accomplished.
[6] Plaintiffs point to the failed annexation attempt by Bret-
Harte in 1988, where the inability of the City and County to
14382 COMMITTEE CONCERNING COMMUNITY v. MODESTO
timely agree on how tax revenues would be shared doomed
the application. Plaintiffs also point to the annexation of Fair-
view Village (bordering Bret-Harte) in 1996. When evaluat-
ing the Fairview Village application, the regional agency
charged with regulating annexations recommended that the
entire Bret-Harte island be included in the annexation pro-
posal. ER 1499-1509. This recommendation was not adopted,
and there is evidence that the proponents of the Fairview Vil-
lage annexation believed that the inclusion of Bret-Harte in
the proposal “would kill the annexation.” ER 1509. Plaintiffs
also offer the declaration of Juan Mercado, a resident of Bret-
Harte, in which he states his belief that Bret-Harte cannot be
annexed due to its exclusion from the MTSA and relates his
difficulties in persuading his neighbors to support an applica-
tion for annexation in the absence of the assurance provided
by the MTSA. ER 1559. Based on this testimony and the evi-
dence about other annexations, a reasonable factfinder could
conclude that exclusion from the MTSA is indeed a barrier to
annexation that neighborhoods covered by the MTSA do not
face.7
Finally, the District Court did not conclude, as a matter of
law, that plaintiffs had not shown disparate impact. Rather,
the District Court, when analyzing plaintiffs’ MTSA claim
under the equal protection framework, ruled that, even assum-
ing that the MTSA disparately impacted Latinos, the statistics
did not give rise to an inference of intentional discrimination.
ER 106. Moreover, although the District Court rejected plain-
tiffs’ statistical evidence in the course of analyzing the MTSA
7
The District Court found that plaintiffs’ claims regarding annexation
were improper in the absence of any applications, whether successful or
not, since 1988. However, plaintiffs correctly point out the “barrier to
annexation” theory does not require any applications for annexation,
because the problem is that the unresolved tax-sharing barrier chills resi-
dents of the excluded islands from even putting an application together.
This court cannot determine whether or not exclusion from the MTSA is
actually a barrier to annexation; that factual issue cannot be resolved at the
summary judgment stage.
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14383
claim under equal protection, it did find, in the course of ana-
lyzing plaintiffs’ companion California Government Code
§ 11135 claim, that plaintiffs had presented some evidence of
disparate impact. The District Court stated that it could not
“conclude as a matter of law, that a reasonable jury would be
unable to find disparate impact.” ER 117.8
[7] Given the context of the 2004 reenactment, the trend of
the neighborhoods to become more heavily-Latino over time,
the 1988 unsuccessful Bret-Harte application, and the exam-
ple of the Fairview Village annexation, we conclude that
plaintiffs have presented evidence of discriminatory impact
which, in turn, has created a sufficient inference of discrimi-
natory intent to permit them to present their MTSA claim to
a factfinder. We will reverse the District Court’s decision on
this claim.
2. Measure M and the Provision of Sewer Services
Plaintiffs argue that the infrastructure condition—which
requires the County to install all infrastructure in an island up
to City standards before the City will, pursuant to Measure M,
permit City voters to consider extending sewer services to that
island—is applied in a discriminatory way. The infrastructure
condition is only imposed on islands that the City deems
“substantial,” and there is no definition of what makes an
island substantial. The infrastructure condition was imposed
on the Latino areas of Shackelford (79% Latino) (which
includes Hatch-Midway) and Robertson Road (70 % Latino),
but was not imposed on the predominantly-white islands of
Rosemore-Cox (28% Latino), Carpenter-Shaddox (30%
Latino), Grecian-McHenry (30% Latino), Pelandale-McHenry
8
Although apparently regarding this state-law claim as having sufficient
evidentiary support to warrant submission to a factfinder, the District
Court ruled that this claim, like the § 1983 claims, was barred by the stat-
ute of limitations. As discussed above, we conclude that this statute-of-
limitations ruling was in error.
14384 COMMITTEE CONCERNING COMMUNITY v. MODESTO
(5% Latino), and Emerald Elm (31% Latino).9 ER 1376,
1059-64. Plaintiffs argue that the condition is imposed in an
ad hoc, discriminatory fashion.
Of the islands which have had Measure M votes, the com-
bined population is 67% Latino, but the islands which have
been deemed insubstantial—and therefore not subjected to
Measure M—are undisputedly majority-white. It is undis-
puted that the difference between the percentage of Latinos in
the islands that were and were not subjected to the infrastruc-
ture condition is statistically significant. ER 1061. The City
contends that this statistical comparison is meaningless,
because a comparison of majority-white insubstantial islands
with majority-Latino substantial islands ignores the fact that
no substantial white island has received a Measure M vote.
Plaintiffs use the smaller white islands exempted from the
requirement to calculate the statistics. Though the City argues
that the rest of the islands should be included in the calcula-
tions, the other islands are properly left out of the analysis
because they have neither been subjected to nor exempted
from the condition yet, as there is no evidence that they have
sought a Measure M vote.
Plaintiffs contend that the City’s application of the substan-
tial/insubstantial differentiation strengthens the inference of
discriminatory intent. It is undisputed that the terms are unde-
fined and that the City has refused to define the terms even
in the face of recommendations that it do so. ER 1056. Addi-
9
Some of these neighborhoods were exempted from the infrastructure
requirement in 2001, when the City Council voted to approve an immedi-
ate Measure M vote for unincorporated islands deemed insubstantial based
on their size. The islands of Emerald Elm and Briggs were voted on at this
time, while the majority-Latino island of Maze-Spencer, which plaintiffs
contend would qualify as insubstantial based on its size, was not men-
tioned. See ER 1425. The parties disagree as to whether Maze-Spencer
was considered and not included in setting up the 2001 Measure M vote
or whether it was merely overlooked. No plaintiff in this case lives in
Maze-Spencer.
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14385
tionally, the City does not pay for infrastructure whether it
imposes the infrastructure condition or not; the County pro-
vides and pays for it. The City’s purported concern for the
financial aspects of installing infrastructure in a larger island
would seem to be less compelling where the City is providing
none of the funding for that infrastructure. The City argues
that it is trying to manage expectations of annexation, because
it is not just sewer access but all infrastructure that is required
before annexation can be considered, and that people living in
the islands will believe that annexation will naturally follow
a Measure M vote, which cannot be the case if the infrastruc-
ture is not completed. However, this does not explain why the
City would waive the infrastructure requirement for the smal-
ler islands, which will still need the County to provide that
infrastructure before they can be annexed. Some of these
islands have indeed had a Measure M vote, a vote which has
not yet been followed by annexation, and there is no evidence
that this situation has resulted in any problems for the City.
[8] It is clear that the infrastructure condition has the poten-
tial to have a real effect on the ability of island areas to con-
nect to basic services; as the District Court noted, the “County
and the City have put unincorporated County islands in a dif-
ficult situation—the County’s policy focuses on sewer repair
before above-ground improvements, while the City’s policy
favors an above-ground infrastructure improvement approach
before a Measure M advisory vote on sewers. It is undisputed
that the City and County policy are at odds.” ER 86.
[9] Although the statistics, and the conflicting policies, are
troublesome, the reality is somewhat different. Sewer services
are provided to only 3 of the 26 unincorporated islands—
Bret-Harte, Shackelford, and Robertson Road—which are
76% Latino and 80% minority.10 Sewer services were
extended to the latter two neighborhoods after those islands
10
However, Bret-Harte received sewer access before Measure M was
passed.
14386 COMMITTEE CONCERNING COMMUNITY v. MODESTO
had become majority-Latino, although it is undisputed that
these neighborhoods were subject to the infrastructure condi-
tion initially and sewer services were extended to these areas
only after the City found that “failing septic systems created
a public health crisis.” ER 1067. Still, Robertson Road suc-
ceeded in obtaining an exemption and getting sewer access,
as did part of Shackelford. Moreover, no white island has
sewer access—even those islands which have already been
the subject of a Measure M vote and are therefore in receipt
of permission from City voters to extend the sewer system to
reach them. Given this evidence of a lack of disparity in
actual access to sewer services, plaintiffs’ statistical evidence
is insufficient to give rise to an inference of discriminatory
intent. The District Court’s grant of summary judgment to the
City on the sewer issue will be affirmed.
3. Law-Enforcement and Emergency Response
Times
Plaintiffs contend that the dispatch time (the time lapse
between a call to 911 and the dispatch of an officer) and the
total response time (the time lapse between a 911 call and the
arrival of an officer on scene, including dispatch time) of
emergency and law-enforcement personnel are slower in
predominantly-Latino islands than in predominantly-white
islands.
The first question is the proper unit of measure. Plaintiffs
argue that dispatch time is a more important measure, because
that factor is entirely controlled by the individual answering
the call, while response time is influenced by other factors
such as geographical distance, driving speeds, traffic, and
weather. The County contends that the total response time is
the only measure that matters in terms of any potentially dis-
criminatory impact because it is what actually affects the indi-
vidual making the call—the person seeking assistance is
concerned simply with the overall time it takes emergency
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14387
personnel to arrive. The dispatch times and response times
discussed in the District Court’s opinion are as follows:11
Dispatch/Response Averages, modified from County’s
Expert Report (ER 667)
–for Jan. 1, 2002 to Aug. 17, 2004
Location Dispatch Total Response
Time
Plaintiff Neighborhoods 7.2 min 13.4 min
Majority-Latino Islands 7.0 min 13.0 min
Majority-White Islands 5.5 min 12.5 min
All Unincorporated 5.5 min 13.3 min
The second issue is one of control. The County asserts that
it does not control the dispatch center, Stanislaus Regional
911 (also known as the Dispatch Agency or “SR911”), and so
cannot be responsible for any potential issues relating to dis-
11
The District Court also included, but did not discuss, the evidence pro-
duced by plaintiffs, which focused on dispatch times. Plaintiffs’ statistical
evidence is as follows:
Dispatch Averages, modified from Plaintiffs’ Expert Report (ER 658-
589)
Location Jan. 1, 2002– Aug. 17, 2004–
Aug. 17, 2004 Dec. 31, 2006
Plaintiffs’ Neighborhoods 18.9 min 13.3 min
Majority-Latino Islands 17.7 min 12.9 min
County Minus Plaintiffs 15.2 min 11.5 min
Majority-White Islands 15.2 min 10.7 min
Plaintiffs’ dispatch numbers vary from defendants’ but neither argues that
the other’s data are incorrect. Neither the District Court nor either party
offered an explanation for this discrepancy.
14388 COMMITTEE CONCERNING COMMUNITY v. MODESTO
patch time, but only for response time. The County contends
that it is only in control of the time it takes a dispatched offi-
cer to arrive, which is included in response time. The District
Court found that there was a dispute over the level of control
the County exercised over SR911 and did not resolve the issue.12
The County does not appear to dispute that dispatch times
to the plaintiffs’ neighborhoods are slower than dispatch times
to predominantly-white islands and to the rest of the County.
Similarly, plaintiffs do not seem to dispute that Latino unin-
corporated areas and the plaintiffs’ neighborhoods actually
had quicker response times for some of the period in question
than did the rest of the unincorporated areas. ER 667 (show-
ing that between Aug. 18, 2004 and Dec. 31, 2006, response
time to the plaintiffs’ neighborhoods was 10.2 minutes and
response time to all the unincorporated areas was 11.4 min-
utes). The District Court concluded that “while the dispatch
times are slower, the response times by the Sheriff deputies
are quicker, yielding no meaningful difference for residents of
Latino Unincorporated Areas who call 911. The difference, if
at all, is reduced to seconds.” ER 59, 66.
However, the difference in dispatch time between the plain-
tiff neighborhoods and majority-white islands was, between
2002 and 2004, at a minimum, almost two minutes (the differ-
ence between the 7.2 minutes that the County asserts it took
for officers to be dispatched to the plaintiff neighborhoods
and the 5.5 minutes it took for officers to be dispatched to
majority-white islands during that same period). At a mini-
mum, the difference in response times, according to the
County, for that same period was almost one minute (the dif-
ference between the 13.4 minutes it took to respond to calls
in the plaintiffs’ neighborhoods and the 12.5 minutes it took
to respond to calls in the majority-white islands). Plaintiffs’
expert has asserted that these differences are statistically sig-
12
The Dispatch Agency had previously been named as a defendant, but
was dismissed in an order in 2004.
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14389
nificant; defendants’ expert asserts that these numbers do not
represent a “meaningful difference.” ER 668. The County
offers no reason why dispatch times should be different
between neighborhoods; there is some testimony in the record
indicating that differences in dispatch times would be “unusu-
al.” ER 584.
The County’s argument that response time is the most
important measure to the person waiting for the police to
arrive has weight, and plaintiffs have shown that, even look-
ing only to response time, the differences between the time to
respond to the plaintiffs’ neighborhoods and the majority-
white islands is statistically significant. Morever, the Coun-
ty’s focus on response time ignores the fact that dispatch time
is a component of response time—presumably, if dispatch
times were more equitable, response times would follow suit.
[10] This court cannot agree that, as a matter of law, a dif-
ference of one minute can be characterized as not making a
“meaningful difference” when one is waiting at one’s home
for law-enforcement or emergency personnel to arrive, partic-
ularly in the absence of any explanation for why the time dif-
ference exists. A factfinder should decide if the difference is
material and if so if the difference is explainable on grounds
other than the ethnicity of the population of the neighbor-
hoods or if plaintiffs have proved that the County has inten-
tionally discriminated against them in the provision of law-
enforcement services. The grant of summary judgment to the
County on plaintiffs’ law enforcement claim will be reversed.
[11] The issue of whether and to what extent the County
controls the Dispatch Agency was not resolved by the District
Court and cannot be resolved by this court. On remand, the
District Court should consider whether the County can be
responsible for the Dispatch Agency as a matter of law, or
whether there are issues of fact regarding the control of the
Dispatch Agency that cannot be resolved at the summary
judgment phase.
14390 COMMITTEE CONCERNING COMMUNITY v. MODESTO
4. Provision of Infrastructure
This claim concerns a “Priorities List” the County adopted
in 2004 in order to set out priorities for the construction of
infrastructure. Plaintiffs contend that despite the acknowl-
edged fact that the most pressing need in the County was for
sewers in areas with failing septic systems, the County
ignored this need in order to construct other, less important,
infrastructure in predominantly-white communities. Specifi-
cally, they challenge the choice to construct storm drainage in
Keyes, South Ceres, and Salida instead of sewers in Hatch-
Midway and Rouse-Colorado or storm drainage in any of the
plaintiffs’ neighborhoods. Plaintiffs also argue that even if
there was not intentional discrimination, the Priorities List is
so arbitrary that it is not rationally related to a legitimate gov-
ernment purpose and so fails an equal protection challenge
under rational basis review.
The District Court found that the Priorities List, as a whole,
did not favor white neighborhoods over Latino neighborhoods
and that because the “undisputed evidence is that all the
neighborhoods on the Priorities List have infrastructure needs
for which there is not enough money” there was not enough
of a disparate impact on the Latino neighborhoods to raise an
inference of discriminatory impact. ER 39 (emphasis in origi-
nal). The District Court also found that the County’s “actions
can be explained by a myriad of community and planning
concerns having nothing to do with the ethnicity” of the plain-
tiffs’ neighborhoods. ER at 44.
Plaintiffs contend that the County’s shifting around of the
order of priorities on the list is evidence of procedural irregu-
larity in the decision-making. For example, the construction
of sewers in Hatch-Midway was third on the list as part of the
project of constructing sewers in the larger neighborhood of
Shackelford (which includes Hatch-Midway) but was dropped
to eleventh when the County found the cost of putting sewers
into the whole Shackelford neighborhood was too expensive
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14391
and scaled back the project. However, the person who created
the Priorities List testified at a deposition that the list was
simply that—a list of needed things, with no actual intent to
rank any infrastructure need over any others. ER 34. The list
was then adopted by the Board of Supervisors as a priority list
in 2004.
Plaintiffs point out that the construction of storm drainage
in advance of the construction of sewers violated the County’s
own policies of making sewers the highest priority, using
funds to serve the most urgent needs of the greatest number
of people, and developing infrastructure in island neighbor-
hoods to promote annexation. Constructing storm drainage in
Keyes is not inexpensive, and, according to plaintiffs, actually
far more expensive than installing sewers or storm drains in
the plaintiffs’ neighborhoods. See App. Reply Br. 42-43
(charts comparing costs). The County, in addition to arguing
that the Keyes storm drains project actually benefitted a sig-
nificant Latino population, contends that Keyes was in more
dire need of storm drainage than some of the plaintiff neigh-
borhoods were in need of sewer access, because Keyes is
overwhelmed during rainstorms with significant water and the
septic systems in Hatch-Midway and Rouse-Colorado are not
failing. Plaintiffs dispute this, contending that the storm water
in Keyes is not nearly as bad as the storm water in Bret-Harte
or the septic needs in Hatch-Midway. In the context of a
motion for summary judgment, these disputed facts must be
construed in plaintiffs’ favor and therefore we are required to
assume that the needs in Keyes were not as pressing as the
needs in the plaintiffs’ neighborhoods. However, it is also the
case that the Priorities List as a whole places some projects
in Latino neighborhoods above some projects in white neigh-
borhoods.
[12] Setting aside the issue of ranking the relative direness
of the need, all of the items on the Priorities List represent
needed infrastructure, and some of the plaintiffs’ neighbor-
hoods, such as Robertson Road, have already received the
14392 COMMITTEE CONCERNING COMMUNITY v. MODESTO
benefit of significant infrastructure construction. There may
have been some irregularities with the decision to build the
Keyes storm drains before sewers in the plaintiff neighbor-
hoods; however, in the context of many County-wide infra-
structure needs and the need of the County to utilize limited
sources of funding, in addition to testimony of the creator of
the list that the list was not intended to rank projects, there is
not sufficient evidence to give rise to an inference of discrimi-
natory intent.
[13] With regard to the plaintiffs’ claim that the Priorities
List and the construction of storm drainage failed even ratio-
nal basis review, the County was entitled to summary judg-
ment. The County presented reasons why it chose to
undertake certain projects first, reasons largely related to the
sources of the funding for the projects and the need to con-
struct subsurface infrastructure before ground-level infrastruc-
ture; the County was permitted to take these factors into
account. Despite plaintiffs’ view that their neighborhoods face
the most pressing infrastructure problems, there is no require-
ment that the County “order the list according to need.” App.
Br. 57. The County’s actions will be upheld as long as they
bear a rational relation to a legitimate government purpose—
the actions do not have to be the wisest or most efficient
options for government action. Because it is undisputed that
all the projects on the list were needed, the creation of the Pri-
orities List bears a rational relation to infrastructure needs in
the County.
The District Court’s grant of summary judgment to the
County on plaintiffs’ infrastructure claim will be affirmed.
C. The Fair Housing Act and Post-Acquisition Claims
[14] The Fair Housing Act, 42 U.S.C. § 3604(b), makes it
unlawful to “discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection therewith,
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14393
because of race, color, religion, sex, familial status, or
national origin.” HUD, the agency tasked with implementing
the FHA, has enacted regulations relating to § 3604. 24
C.F.R. § 100.65 prohibits “failing or delaying maintenance or
repairs of sale or rental dwellings” or “limiting the use or
privileges, services, or facilities associated with a dwelling”
because of discrimination. Plaintiffs’ allegations under the
FHA are as follows:
Defendants have discriminated in the provision of
services and facilities in connection with Plaintiffs’
housing including but not limited to an ongoing dis-
criminatory failure to provide adequate law enforce-
ment protection and emergency services, and other
basic services such as lighting and sidewalks, street
maintenance, refuse removal, and drainage to Plain-
tiffs based in substantial part on the race, ethnicity,
ancestry, color or national origin of the residents of
the Latino Unincorporated Neighborhoods, in viola-
tion of 42 U.S.C. 3604(b).
ER 1655, Compl. ¶ 85.
As a general matter, FHA claims are evaluated under the
burden-shifting framework of the Title VII discrimination
analysis and may be brought under theories of both disparate
treatment and disparate impact. See Budnick v. Town of Care-
free, 518 F.3d 1109, 1114 (9th Cir. 2008). To establish a
prima facie case of disparate impact, “a plaintiff must show
at least that the defendant’s actions had a discriminatory
effect.” Keith v. Volpe, 858 F.2d 467, 482 (9th Cir. 1988).
This requires proof of “(1) the occurrence of certain out-
wardly neutral . . . practices, and (2) a significantly adverse
or disproportionate impact on persons of a particular [type]
produced by the [defendant’s] facially neutral acts or prac-
tices.” Pfaff v. U.S. Dep’t of Housing and Urban Dev., 88
F.3d 739, 745 (9th Cir. 1996) (citing Palmer v. United States,
794 F.2d 534, 538 (9th Cir. 1986)). A defendant may then
14394 COMMITTEE CONCERNING COMMUNITY v. MODESTO
rebut a plaintiff’s proof of disparate impact by “supply[ing] a
legally sufficient, nondiscriminatory reason.” Affordable
Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1194 (9th
Cir. 2006) (quoting Pfaff, 88 F.3d at 746-47).
Plaintiffs’ FHA claims were dismissed by the District Court
in 2004; the court held that plaintiffs could not state an FHA
claim because the statute is limited to “discrimination in the
provision of services in connection with the acquisition of a
dwelling,” rather than discrimination in the provision of ser-
vices to existing homeowners and renters.
This court, in prior instances where we have considered
claims brought under the FHA, has not differentiated between
claims based on whether the alleged discrimination occurred
at the time of or after the acquisition of the housing. For
example, in Ojo v. Farmers Group, Inc., 565 F.3d 1175 (9th
Cir. 2009), we recently addressed the FHA in the context of
discrimination in homeowner’s insurance rates.
We have also held, in Harris v. Itzhaki, 183 F.3d 1043 (9th
Cir. 1999), that a plaintiff who claimed she was subject to
eviction notices following her complaint of race discrimina-
tion could state a claim under the FHA. In Harris, after the
plaintiff, an African-American woman, sought the assistance
of a local housing organization, the organization employed
housing testers to confirm her complaint that the defendant
landlord treated prospective African-American and white ten-
ants differently. We held that plaintiff could pursue her FHA
claim, finding that she had standing because she was an “ag-
grieved person” under the Act and that she had established a
“prima facie disparate treatment claim” under the Act. Again,
we did not make any distinction based on the fact that the
plaintiff’s claim (which was related to her eviction) had nec-
essarily arisen after she acquired the housing.
The Seventh Circuit has also grappled with this issue. In
Halprin v. Prairie Single Family Homes of Dearborn Park
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14395
Assoc., 388 F.3d 327 (7th Cir. 2004), plaintiffs were Jewish
homeowners who contended that their property was vandal-
ized and they were harassed because of their religion. The
court concluded that § 3604 of the FHA was generally con-
cerned with the provision of services in connection with
access to housing and not problems with the provision of ser-
vices after the sale or rental. The court did permit, dubitante,
plaintiffs’ claim to proceed under a different part of the stat-
ute. Section 3617 makes it unlawful to “coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoy-
ment of, or on account of his having exercised or enjoyed, or
on account of his having aided or encouraged any other per-
son in the exercise or enjoyment of, any right granted or pro-
tected by section 3603, 3604, 3605, or 3606” of the FHA.
Implementing this part of the statute is a regulation which
prohibits “threatening, intimidating or interfering with per-
sons in their enjoyment of a dwelling because of the race,
color, religion, sex, handicap, familial status, or national ori-
gin of such persons, or of visitors or associates of such per-
sons.” 24 C.F.R. § 100.400(c)(2). The court found that the
regulation unmoored § 3617 from its tie to § 3604 and so per-
mitted a claim based on interference with “enjoyment of a
dwelling” that has taken place after the dwelling has been
acquired. In so doing, the court expressed doubt as to the
validity of this regulation, noting that the language of the reg-
ulation may stray too far from its statutory authorization to be
permissible, but finding that its validity was, in that case, unchal-
lenged.13 With regard to § 3604 itself, the court found that
“[a]s a purely semantic matter the statutory language might be
stretched far enough to reach a case of ‘constructive evic-
tion.’ ” Halprin, 388 F.3d at 329.
The Seventh Circuit revisited the issue of post-acquisition
claims in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008).
The plaintiffs in Bloch contended that the removal, pursuant
to a rule in the condominium association preventing the place-
13
The applicability of § 3617 is not at issue in this case.
14396 COMMITTEE CONCERNING COMMUNITY v. MODESTO
ment of “objects of any sort” on their doorposts, of the mezu-
zot hanging outside their doors, violated the FHA. The court
construed Halprin as holding that “harassment of owners or
tenants does not violate the Fair Housing Act or its regula-
tions” save where “harassment so severe that it amounts to
constructive eviction might be equated to making a dwelling
unavailable.” Id. at 563-64. The court found that although
plaintiffs claimed they were constructively evicted because
they could not live in a place where they could not appropri-
ately display the mezuzot, the rule was in fact a neutral rule
and no accommodation was required.
One judge dissented. The dissenting judge was of the view
that Halprin did not squarely address the § 3604 issue, as that
court rested its holding on a regulation implementing § 3617.
The Bloch dissent found that “nothing in the statute compels”
an interpretation that limits the statute’s application to pre-
acquisition claims. Bloch, 533 F.3d at 571. Further, the dis-
sent observed that even if the statutory language is ambigu-
ous, the HUD regulations, including 24 C.F.R. § 100.65(b)(4)
are reasonable and entitled to deference under Chevron v.
NRDC, 467 U.S. 837 (1984), and that those regulations permit
post-acquisition claims.14
Some courts have followed the Seventh Circuit’s decision
in Halprin and found that the FHA does not apply to post-
acquisition claims. See Cox v. City of Dallas, 430 F.3d 734,
745 (5th Cir. 2005). Other courts have permitted post-
acquisition FHA claims to go forward. See United States v.
Koch, 352 F. Supp. 2d 970, 977 (D. Neb. 2004) (denying
defendant landlord’s motion for judgment as a matter of law
14
En banc review has been granted in the Bloch case, and that court has
invited the United States to participate as amicus curiae. The United States
has since filed a brief urging the court to find that the FHA reaches claims
of post-acquisition discrimination because “[n]othing in the statute indi-
cates that it is limited to discrimination in the initial sale or rental transac-
tion.” Brief for the United States as Amicus Curiae at 15, Bloch v.
Frischholz, No. 06-3376 (7th Cir. Jan. 16, 2009).
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14397
and finding that tenants’ post-acquisition sexual harassment
claims under § 3604 could proceed); Richards v. Bono, 2005
WL 1065141, *3-4 (M.D. Fla. 2005) (differentiating the rental
context, where the discrimination on the rental of the dwelling
can be ongoing, from the sale context where the buyer and
seller relationship quickly concludes); Landesman v. Keys
Condo. Owners Ass’n, 2004 WL 2370638, *2 (N.D. Cal. Oct.
19, 2004) (permitting challenge to condominium association
facilities rules alleging discriminating against families with
children).
For the reasons that follow, we conclude that the FHA
reaches post-acquisition discrimination:
[15] First, the statutory language does not preclude all post-
acquisition claims. The statute prohibits discrimination “in the
terms, conditions, or privileges of sale or rental of a dwelling,
or in provision of services or facilities in connection there-
with.” 42 U.S.C. § 3604(b). The inclusion of the word “privi-
leges” implicates continuing rights, such as the privilege of
quiet enjoyment of the dwelling. While defendants argue that
“the provision of services or facilities in connection there-
with” refers only to services or facilities provided at the
moment of acquisition in connection with the sale or the
rental, this is hardly a necessary reading. There are few “ser-
vices or facilities” provided at the moment of sale, but there
are many “services or facilities” provided to the dwelling
associated with the occupancy of the dwelling. Under this nat-
ural reading, the reach of the statute encompasses claims
regarding services or facilities perceived to be wanting after
the owner or tenant has acquired possession of the dwelling.
[16] Second, the regulations implementing the FHA, pro-
mulgated by the Department of Housing and Urban Develop-
ment, also support permitting post-acquisition claims. 24
C.F.R. § 100.65, entitled “Discrimination in terms, conditions
and privileges and in services and facilities,” provides, in per-
tinent part:
14398 COMMITTEE CONCERNING COMMUNITY v. MODESTO
(a) It shall be unlawful, because of race, color, reli-
gion, sex, handicap, familial status, or national ori-
gin, to impose different terms, conditions or
privileges relating to the sale or rental of a dwelling
or to deny or limit services or facilities in connection
with the sale or rental of a dwelling.
(b) Prohibited actions under this section include, but
are not limited to: . . .
(2) Failing or delaying maintenance or repairs of
sale or rental dwellings because of race, color, reli-
gion, sex, handicap, familial status, or national origin
...
(4) Limiting the use of privileges, services or
facilities associated with a dwelling because of race,
color, religion, sex, handicap, familial status, or
national origin of an owner, tenant or a person asso-
ciated with him or her.
The sections prohibiting “[f]ailing or delaying maintenance
or repairs of sale or rental dwellings” and “[l]imiting the use
of privileges, services or facilities associated with a dwelling”
appear to embrace claims about problems arising after the ten-
ant or owner has acquired the property. In common parlance,
issues relating to “maintenance or repairs” or “services or
facilities associated with a dwelling” tend to be issues arising
after the tenant or owner has come into possession of the
dwelling and sought out maintenance, repair, or services. See,
e.g., Landesman, 2004 WL 2370638, *2 (discussing regula-
tion in the context of challenge to condominium association
rules placing restrictions on use of the swimming pool by
children).
Additionally, limiting the FHA to claims brought at the
point of acquisition would limit the act from reaching a whole
host of situations that, while perhaps not amounting to con-
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14399
structive eviction, would constitute discrimination in the
enjoyment of residence in a dwelling or in the provision of
services associated with that dwelling. Under so limited a
reading of the statute:
. . . it would not violate § 3604(b) for a condomin-
ium owners’ association to prevent a disabled person
from using the laundry facilities or for a landlord to
refuse to provide maintenance to his Hispanic ten-
ants. Similarly, it would not violate § 3604(b) for a
landlord to sexually harass a tenant or to raise the
rent of only Jewish tenants. It would not violate
§ 3604(c) for a landlord to use racial slurs to or
about existing tenants or to spray-paint such a slur
on an occupant’s door. Nor would it violate
§ 3604(c) for a homeowners association to print up
flyers denigrating a particular resident due to her
religious faith and post them throughout the neigh-
borhood. All of these behaviors would be beyond the
law’s purview solely because of when they occurred.
Rigel Oliveri, Is Acquisition Everything? Protecting the
Rights of Occupants Under the Fair Housing Act, 43 Harv.
C.R.-C.L. Rev. 1, 32-33 (2008) (asserting that pre-Halprin
case law found post-acquisition claims under § 3604 permissi-
ble, criticizing the Halprin decision, and proposing a frame-
work that “focuses less on the point of acquisition and more
on the identity of the defendant and the relationship between
the parties”). See also Bloch, 533 F.3d at 571 (7th Cir. 2008)
(Wood, J., dissenting) (noting that permitting post-acquisition
claims “will ensure that member of protected groups do not
win the battle (to purchase or rent housing) but lose the war
(to live in their new home free from invidious discrimina-
tion)”).
[17] In our view, the FHA does apply to post-acquisition
discrimination, and the District Court erred in deciding other-
wise. However, we will not reinstate plaintiffs’ FHA claims
14400 COMMITTEE CONCERNING COMMUNITY v. MODESTO
in this case in their entirety. Plaintiffs’ factual averments sup-
porting the alleged violations of the FHA are largely the same
as the allegations supporting plaintiffs’ claims that their rights
to equal protection were violated by defendants’ actions with
regard to municipal services.15 To the extent the complaint
alleged additional violations related to other municipal ser-
vices, plaintiffs are bound by the 2005 agreement limiting
their claims regarding services to the areas of sewer access,
police services, and bilingual assistance. We have already
concluded that plaintiffs have not put forth evidence of dispa-
rate impact with regard to the provision of sewer services or
infrastructure. As a result, remanding those claims would be
futile because the evidence of the FHA violations would be
the same statistical evidence rejected in the course of resolv-
ing the equal protection claims. We therefore limit reinstate-
ment of plaintiffs’ FHA claims to those regarding the timely
provision of law-enforcement personnel.
D. State-Law Claims
Plaintiffs have brought several state-law claims under Cali-
fornia Government Code § 11135 and the California Fair
Employment and Housing Act § 12955 (“FEHA”). The Dis-
trict Court, after consideration of the equities, declined to
exercise supplemental jurisdiction over plaintiffs’ state-law
claims following the dismissal of the federal claims, noting
that those claims involved complex and novel questions of
state law. The District Court, considering the situations under
which a court may decline to exercise supplemental jurisdic-
tion, found that the state-law claims would involve “statutory
15
The complaint alleged that: “Defendants have discriminated in the
provision of services and facilities in connection with Plaintiffs’ housing
including but not limited to an ongoing discriminatory failure to provide
adequate law enforcement protection and emergency services, and other
basic services such as lighting and sidewalks, street maintenance, refuse
removal, and drainage to Plaintiffs.”
COMMITTEE CONCERNING COMMUNITY v. MODESTO 14401
construction or interpretation and state case law analysis” that
“should be resolved by a state court.”16 ER 23.
[18] The District Court’s assessment of the state-law claims
was assuredly reasonable; hence, dismissal of those claims
cannot be characterized as an abuse of discretion. However,
the dismissal of the state-law claims came about in the context
of the dismissal of all the federal claims. We are reinstating
certain of the federal claims and remanding for further pro-
ceedings. It is not impossible that the District Court would be
more hospitable to entertaining the state-law claims when
addressed as companions to cognate federal claims. To permit
the District Court to consider whether it would, in the context
of addressing the reinstated claims, rethink its dismissal of the
state-law claims, we will vacate the dismissal of those claims.
But in so doing we emphasize that we do not mean to suggest
that if, on remand, the District Court were once again to dis-
miss the state-law claims, such a renewed dismissal would,
ipso facto, constitute, or, in the alternative, not constitute, an
abuse of discretion. Remand will simply provide the District
Court with an opportunity to exercise its discretion anew. The
proper exercise of that discretion is, in the first instance, the
responsibility of the District Court, not this court.
E. Costs
[19] The District Court awarded costs of $36,430.58 to
defendants, finding such an award appropriate because sum-
mary judgment was granted to defendants on all claims and
16
28 U.S.C. § 1367(c) provides that:
The district courts may decline to exercise supplemental jurisdic-
tion over a claim under subsection (a) if- (1) the claim raises a
novel or complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district
court has original jurisdiction, (3) the district court has dismissed
all claims over which it has original jurisdiction, or (4) in excep-
tional circumstances, there are other compelling reasons for
declining jurisdiction.
14402 COMMITTEE CONCERNING COMMUNITY v. MODESTO
no factual basis for the suit existed. As we have reversed the
District Court’s determinations with regard to a number of
plaintiffs’ claims, we will vacate the award of costs.
V. Conclusion
In summary, we affirm the District Court’s grant of sum-
mary judgment to defendants on plaintiffs’ equal protection
claims regarding access to sewers and the provision of infra-
structure. We reverse the District Court’s grant of summary
judgment on plaintiffs’ equal protection claims regarding (1)
exclusion from the MTSA and (2) law-enforcement response,
and we remand those claims to the District Court. We also
reverse the District Court’s dismissal of plaintiffs’ claims
under the FHA regarding the provision of law-enforcement
services. The District Court’s dismissal of plaintiff’s state law
claims is vacated; the District Court may exercise its discre-
tion whether to reinstate those claims. The District Court’s
award of costs to defendants is vacated.
This case is remanded for further proceedings consistent
with this opinion.
Affirmed in part, Reversed in part, Vacated in part, and
Remanded.
Each party shall bear their own costs on appeal.