Ramachandran v. City of Los Altos

• Court: District Court, N.D. California
• Decided: January 11, 2021
• Docket: 5:18-cv-01223
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SATISH RAMACHANDRAN, Case No. 18-cv-01223-VKD

9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY 11 CITY OF LOS ALTOS, et al., JUDGMENT 12 Defendants. Re: Dkt. No. 154

13 14 Plaintiff Satish Ramachandran sues defendants City of Los Altos (“Los Altos”) and Los 15 Altos employees Kirk Ballard, David Kornfield, and Christopher Jordan (collectively, “the 16 individual defendants”) for violation of his First and Fourteenth Amendment rights under 42 17 U.S.C. § 1983. Dkt. No. 153. Defendants now move for summary judgment on all of Mr. 18 Ramachandran’s claims. Dkt. No. 154. 19 All parties who have appeared have consented to magistrate judge jurisdiction. Dkt. Nos. 20 11, 22, 78. Having considered the parties’ briefs and the arguments made at the hearing on this 21 motion, for the following reasons, the Court grants in part and denies in part defendants’ motion 22 for summary judgment. Specifically, the Court grants defendants’ motion as to Mr. 23 Ramachandran’s Fourteenth Amendment claims against the individual defendants and Los Altos, 24 but denies the motion as to his First Amendment claims; except, however, the Court finds that the 25 First Amendment claim as to Mr. Kornfield is barred by the statute of limitations. The Court 26 concludes that Messrs. Ballard and Jordan are not entitled to qualified immunity with respect to 27 Mr. Ramachandran’s First Amendment claim. I. BACKGROUND 1 A. The Parties 2 Plaintiff Satish Ramachandran moved to the United States from India in 1986. Dkt. No. 3 165-3 ¶ 2. He has owned a home in Los Altos, California since 1993. Id. ¶ 3. 4 Defendant Los Altos has a Community Development Department, which includes a 5 Building Division and a Planning Division. Id. ¶¶ 4-5; Dkt. No. 155-4 at 37:17–38:12. Defendant 6 Kirk Ballard is the Building Official of the Building Division, a position he has held since 2000. 7 Mr. Ballard is responsible for supervising the processing, plan checking, and inspection of all 8 construction projects in Los Altos. Dkt. No. 155-2 at 47:13-24, 49:6-18. Defendant David 9 Kornfield was the Planning Services Manager for the Planning Division from 2010 to 2018. Dkt. 10 No. 155-3 at 76:17-21, 85:3-20. Mr. Kornfield’s responsibilities included providing support to 11 Los Altos’s planning, historical, and environmental commissions, supervising associate planners, 12 and occasionally assisting at the public planning counter. Id. at 85:24–86:14. Defendant 13 Christopher Jordan is the Los Altos City Manager. Dkt. No. 154 at 5; Dkt. No. 165-3, Ex. 22 at 14 ECF p. 174; see also Dkt. No. 153 ¶ 7. 15 B. Mr. Ramachandran’s Property Improvements 16 Beginning in 2013, Mr. Ramachandran sought to make improvements to his Los Altos 17 property and began communicating with employees of the Community Development Department 18 for that purpose. Dkt. No. 165-3 ¶¶ 4-6; Dkt. No. 155-4 at 37:17–38:12. In the spring of that year, 19 after initial communications with Messrs. Kornfield and Ballard, Mr. Ramachandran engaged 20 contractor Adam Conchas to construct certain improvements and obtain the necessary permits 21 from Los Altos. Dkt. No. 165-3 ¶¶ 6-7. Apparently, Mr. Conchas failed to obtain the necessary 22 permits and abandoned the work unfinished. Id. ¶ 8; Dkt. No. 166, Ex. 3-4. 23 On May 8, 2013, Mr. Conchas filed a complaint with Los Altos, stating that Mr. 24 Ramachandran was “converting garage space to living space with bathroom and kitchen including 25 gas-line” without permits (presumably, the permits Mr. Conchas was supposed to have obtained 26 on Mr. Ramachandran’s behalf). Dkt. No. 166, Ex. 5 at Ex. A; Dkt. No. 166, Ex. 3 ¶ 25; Dkt. No. 27 166, Ex. 4 ¶ 7; see also Dkt. No. 165-3 ¶¶ 11, Ex. 6. Following this complaint, Greg Anderson, an 1 employee of the Los Altos Community Development Department, visited Mr. Ramachandran’s 2 home. Dkt. No. 165-3 ¶ 15. Mr. Ramachandran says Mr. Anderson used a “hostile tone” and 3 made derogatory remarks, including telling him to “go back to India.” Id. ¶ 16. On July 12, 2013, 4 Mr. Ramachandran complained to Los Altos officials about Mr. Anderson’s conduct, but it is 5 unclear what action, if any, Los Altos took in response to that complaint. Id. ¶¶ 15-18. Mr. 6 Ramachandran says that after he complained about Mr. Anderson, Mr. Ballard told Mr. 7 Ramachandran that Mr. Anderson was a “good employee” and attempted to persuade Mr. 8 Ramachandran that his complaint was “misguided.” Id. ¶¶ 19-20. On July 17, 2013, Mr. 9 Ramachandran then filed a formal complaint alleging bias, discrimination, misconduct, and abuse 10 by both Messrs. Ballard and Anderson. Id. ¶ 24, Ex. 6. The record does not reflect the disposition 11 of this complaint either. 12 Mr. Ramachandran has endeavored to make improvements to several aspects of his 13 property. Id. ¶ 4. Since 2013, he says Los Altos and its employees treated him unfairly with 14 respect to his planned improvements. For example, Mr. Ramachandran received conflicting 15 statements from Los Altos employees, including Messrs. Kornfield and Ballard, concerning 16 whether permits were required for his improvement projects and whether his improvements 17 complied with the Los Altos Municipal Code (“LAMC”). Id. ¶ 5-7, 13, 19, 25; Dkt. No. 155-4 18 Ex. 7, at ECF p. 35. He says he was required to pay administrative fines before being allowed to 19 collect permits for approved improvement projects. Dkt. No. 165-3 ¶ 19, 28. He also says that 20 Los Altos staff repeatedly made arbitrary demands and changes to the requirements for his 21 improvement projects and threatened him with additional fines and penalties when he protested. 22 Id. ¶¶ 30-32. Mr. Ramachandran asserts that Los Altos staff made “baseless and unreasonable 23 demands” that “are not part of the [LAMC]” and did not make the same demands of his neighbors, 24 Pamela and James Jacobs, or several other homeowners. Id. ¶ 32, Ex. 7. He also asserts that Los 25 Altos employees, including Messrs. Ballard and Kornfield, attempted to use inspections as 26 pretexts for finding code violations. Id. ¶¶ 36, 56-57, 59-62, Ex. 14. Defendants generally dispute 27 Mr. Ramachandran’s characterizations of these events. See Dkt. No. 154 at 2–4. C. The Jacobses’ Property Improvements 1 During this same period, Mr. Ramachandran clashed repeatedly with his neighbors, the 2 Jacobses, and Los Altos over improvements each sought to make on their respective properties. 3 For example, in 2013, Mr. Ramachandran erected a shed in his backyard, prompting the Jacobses 4 to complain to Los Altos officials. Dkt. No. 165-3 ¶¶ 4, 21-23, Ex. 5. For his part, Mr. 5 Ramachandran complained to Los Altos officials in 2013, 2017 and 2018 about alleged code 6 violations and purported illegal improvements on the Jacobses’ property. Id. ¶¶ 29, 51, 54, 65-67, 7 Exs. 13, 16, 17; Dkt. No. 155-7 at RAMACHANDRAN 001835–36. According to Mr. 8 Ramachandran, Los Altos approved the Jacobses’ non-compliant improvement projects or 9 declined to take enforcement action with respect to code violations for those projects. Dkt. No. 10 165-3 ¶¶ 51, 54, 65-67, Ex. 13, 17; Dkt. No. 155-7 at RAMACHANDRAN 001835–36. 11 Defendants do not dispute that Los Altos approved the Jacobses’ projects but disagree that the 12 Jacobses’ projects were non-compliant or otherwise improper. Dkt. No. 155-7 at 13 RAMACHANDRAN 001835–36; Dkt. No. 155-4, Exs. 23 and 24. 14 D. Post-Complaint Events 15 Mr. Ramachandran filed this action on February 25, 2018. Dkt. No. 1. Approximately 16 four months later, on July 3, 2018, the Jacobses’ attorney contacted Christopher Diaz, the Los 17 Altos City Attorney, demanding that Los Altos address a list of purported violations on Mr. 18 Ramachandran’s property and asking Los Altos to “[c]onduct an immediate inspection (with 19 assistance of police if need be).” Dkt. No. 165-3 ¶ 68, Ex. 18; Dkt. No. 155-3, Ex. 7. Relying 20 principally on the existence of communications between counsel charged with prosecuting 21 violations on behalf of Los Altos and defendants’ counsel in this action, Mr. Ramachandran 22 asserts that defendants coordinated their actions to manufacture a basis for Los Altos to obtain an 23 inspection warrant without cause as a pretext to examine Mr. Ramachandran’s property. Dkt. No. 24 165-3 ¶ 69; see also Dkt. No. 165 at 12–13 (describing emails from defendants’ privilege log 25 between defense counsel, another attorney from defense counsel’s firm tasked with obtaining the 26 inspection warrant and later prosecuting Mr. Ramachandran, Mr. Diaz, and other Los Altos 27 employees between July 24, 2018 and September 10, 2018); Dkt. No. 165-2, Ex. 1. Defendants do 1 not dispute that they sought an inspection warrant after receiving the Jacobses’ 2018 complaint, 2 and they point out that they ultimately found code violations on Mr. Ramachandran’s property. 3 See Dkt. No. 167; Dkt. No. 197 at 5:18–6:7, 7:22–8:10. 4 On July 18, 2018, Mr. Ramachandran filed a first amended complaint naming additional 5 defendants in this action. Dkt. No. 34. Shortly thereafter, on August 31, 2018, Los Altos 6 successfully obtained an inspection warrant from the Superior Court for the County of Santa Clara 7 for the inspection of Mr. Ramachandran’s property. The warrant application was made on an ex 8 parte basis. Dkt. No. 166, Ex. 6 at ECF p. 64; Dkt. No. 165-3 ¶ 70. Los Altos relied on a 9 declaration from Mr. Ballard in support of the warrant application, and Mr. Jordan approved the 10 application. Dkt. No. 165-1, Ex. 3 at 63:14–65:13, 74:12–75:3; Dkt. No. 166, Exs. 5-6; Dkt. No. 11 165-3 ¶¶ 70, 72. According to Mr. Ramachandran, Mr. Ballard made false or misleading 12 statements in and omitted important facts from his declaration. Dkt. No. 165-3 ¶¶ 9-12, 70-72. 13 Mr. Ballard relied in part on Mr. Conchas’s complaint to Los Altos in 2013—five years earlier. 14 Dkt. No. 166, Ex. 5 ¶¶ 2, 13. Mr. Ballard further stated in his declaration that he observed that “a 15 cooking range, microwave, dishwasher, stacked washer dryer, refrigerator, shower, toilet and sink 16 had all been installed in the detached garage, which verified the allegations in [Mr. Conchas]’s 17 complaint.” Id. ¶ 4. Additionally, Mr. Ballard attested that Mr. Ramachandran had done 18 construction work within his home without the necessary permits and was seeking to rent out an 19 illegal second living unit on his property. Id. ¶¶ 5, 10, 12, 13. Defendants do not dispute that Mr. 20 Ballard’s declaration contained some errors and omitted some information, but they maintain 21 those errors and omissions were not material, as an inspection was justified in any event. See Dkt. 22 No. 167 at 5–6; Dkt. No. 197 at 5:18–6:7. 23 Based on Mr. Ballard’s declaration, the Santa Clara County Superior Court issued the 24 inspection warrant. Dkt. No. 166, Ex. 6 at ECF pp. 60–62. The warrant was executed on 25 September 1, 2018, and based on that inspection, Mr. Ballard identified numerous purported code 26 violations on Mr. Ramachandran’s property. Dkt. No. 165-3 ¶¶ 73-74, Ex. 20. Mr. 27 Ramachandran disputes the existence of any violations. Id. ¶¶ 33, 82-83. 1 Ramachandran’s tenant, who occupied the converted garage, to vacate the property. Id. ¶ 75. The 2 notices were signed by Mr. Ballard. Id. ¶ 76. Los Altos employees continued to post notices to 3 vacate and to stop work on the property every day for the next week. Id. ¶ 77. On September 11, 4 2018, Mr. Ramachandran removed one of the notices to provide to his attorney. Id. ¶ 78. He was 5 immediately stopped by a police officer who had been watching the property. Id. The officer 6 cited Mr. Ramachandran with a misdemeanor for removing the notice, despite the fact that five 7 other notices remained posted. Id.; Dkt. No. 155-2, Ex. 12 at ECF pp. 356–57. As of the date of 8 defendants’ motion, Los Altos’s misdemeanor prosecution against Mr. Ramachandran remains 9 pending. Dkt. No. 165-3 ¶¶ 81; Dkt. No. 155-2, Ex. 12 at ECF pp. 350–51. 10 E. Mr. Ramachandran’s Claims against Defendants 11 The operative fourth amended complaint, filed on April 27, 2020, asserts the following 12 claims for violation of his constitutional rights under 42 U.S.C. § 1983: (1) violation of Mr. 13 Ramachandran’s First Amendment rights against Messrs. Ballard, Kornfield, and Jordan; (2) 14 violation of Mr. Ramachandran’s Fourteenth Amendment right to equal protection against Messrs. 15 Ballard, Kornfield, and Jordan; (3) municipal liability as to Los Altos under Monell v. Dep’t of 16 Social Servs. of the City of New York, 436 U.S. 658 (1978) for violation of Mr. Ramachandran’s 17 Fourteenth Amendment rights, based on a longstanding custom or practice; and (4) municipal 18 liability as to Los Altos under Monell for violation of Mr. Ramachandran’s First and Fourteenth 19 Amendment rights, based on Messrs. Ballard, Kornfield, and Jordan’s final decision making or 20 final policymaking authority. Dkt. No. 153. 21 Defendants move for summary judgment on all four claims. 22 II. LEGAL STANDARD 23 A party may move for summary judgment on a “claim or defense” or “part of . . . a claim 24 or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 25 discovery, there is no genuine issue as to any material facts and the moving party is entitled to 26 judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 27 Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 1 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 2 A party seeking summary judgment bears the initial burden of informing the court of the 3 basis for its motion and of identifying those portions of the pleadings and discovery responses that 4 demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the 5 moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 6 reasonable trier of fact could find other than for the moving party. S. Calif. Gas. Co. v. City of 7 Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). 8 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 9 party may discharge its burden of production either (1) by “produc[ing] evidence negating an 10 essential element of the nonmoving party’s case” or (2) after suitable discovery, by “show[ing] 11 that the nonmoving party does not have enough evidence of an essential element of its claim or 12 defense to discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., 13 Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. at 324–25. 14 Once the moving party meets its initial burden, the opposing party must then set forth 15 specific facts showing that there is some genuine issue for trial in order to defeat the motion. See 16 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 17 simply question the credibility of the movant to foreclose summary judgment.” Anderson, 477 18 U.S. at 254. “Instead, the non-moving party must go beyond the pleadings and by its own 19 evidence set forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., 20 Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non- 21 moving party must produce “specific evidence, through affidavits or admissible discovery 22 material, to show that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th 23 Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to 24 raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. 25 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). 26 III. DISCUSSION 27 Defendants move for summary judgment on all four of Mr. Ramachandran’s claims. They 1 Jordan is barred by the statute of limitations and that Mr. Ramachandran cannot show that the 2 individual defendants retaliated against him because of any constitutionally protected conduct. 3 Similarly, defendants contend that Mr. Ramachandran’s Fourteenth Amendment claim against 4 Messrs. Ballard, Kornfield, and Jordan is barred by the statute of limitations and that Mr. 5 Ramachandran cannot show that the individual defendants intentionally discriminated against non- 6 white homeowners. Defendants also argue that Messrs. Ballard, Kornfield, and Jordan are entitled 7 to qualified immunity. Last, defendants argue that Mr. Ramachandran cannot prevail on his 8 Monell claims against Los Altos because no constitutional violation occurred and because Mr. 9 Ramachandran provides no evidence of a longstanding custom or practice of discrimination. 10 Defendants make a number of procedural and evidentiary objections to Mr. 11 Ramachandran’s submissions, and both parties ask the Court to take judicial notice of several 12 matters. The Court first addresses defendants’ procedural and evidentiary objections and the 13 parties’ requests for judicial notice, then considers the merits of defendants’ summary judgment 14 motion. 15 A. Procedural and Evidentiary Objections 16 1. Defendants’ objection to length of Mr. Ramachandran’s opposition 17 Defendants object that Mr. Ramachandran’s opposition brief exceeds the page limits set 18 under Civil Local Rule 7-4(b). Dkt. No. 167 at 1, 3–4. Mr. Ramachandran’s opposition brief 19 consists of a caption (1 page), tables of contents and authorities (4 pages), and a memorandum of 20 points and authorities (25 pages, with only counsel’s signatures appearing on the 26th page). Dkt. 21 No. 165. Defendants ask the Court to disregard the last six pages of Mr. Ramachandran’s brief. 22 Defendants are mistaken that tables of contents and authorities count toward Civil Local 23 Rule 7-4(b)’s page limits. They do not. See, e.g., Chamberlin v. Hartog, Baer & Hand, APC, No. 24 19-CV-08243-JCS, 2020 WL 2322884, at *4 n.6 (N.D. Cal. May 11, 2020) (“While the page 25 numbering of Christopher Chamberlin’s opposition brief runs to 33, nine of those pages consist of 26 a cover page, table of contents, and table of authorities, which do not count against the twenty-five 27 page limit set by Civil Local Rule 7-4(b).”); Garcia v. Harley-Davidson Motor Co., Inc., No. 19- 1 exceeds the twenty-five page limit imposed by Civil Local Rule 7-3(a). The violation is not as 2 severe as might be suggested by the number ‘34’ on the final page of the brief, because the text of 3 Garcia’s argument is contained only on the pages numbered from 8 through 33 . . . .”). 4 As Mr. Ramachandran’s opposition brief substantially complies with the page limit 5 requirements, the Court will not disregard any portion of the brief. 6 2. Defendants’ objections to Mr. Ramachandran’s evidence 7 Defendants object to paragraphs 88-90 and Exhibit 24 of Mr. Ramachandran’s declaration 8 on several grounds. Dkt. No. 167 at 1–3. Exhibit 24 is a compilation of documents Mr. 9 Ramachandran says he and another person obtained through Public Records Act (“PRA”) requests 10 pursuant to California Government Code § 6253 and through discovery in a separate state court 11 action against the Jacobses. Dkt. No. 165-3 ¶¶ 88-90, Ex. 24. In paragraphs 88-89 of his 12 declaration, Mr. Ramachandran describes the source of the documents in Exhibit 24 and 13 characterizes those documents as “establish[ing] a pattern of demands, prohibitions, requirements 14 and penalties regarding non-legal structures and legal, non-conforming accessory structures” that 15 disproportionately impacted 14 non-white homeowners compared to white homeowners. Id. ¶¶ 16 88-89. In paragraph 90 of his declaration, Mr. Ramachandran asserts that 14 Los Altos 17 homeowners whose communications with Los Altos are supposedly reflected in Exhibit 24 are 18 “non-Caucasian.” Id. ¶ 90. In opposing defendants’ motion for summary judgment, Mr. 19 Ramachandran relies on these materials as evidence of Los Altos’s custom and practice of 20 enforcing the LAMC more frequently against non-white homeowners than against white 21 homeowners. Dkt. No. 165 at 4. For the reasons explained below, the Court overrules 22 defendants’ expert testimony objection to paragraphs 88-90. The Court overrules the lack of 23 foundation objection to paragraphs 88-90 with respect to Mr. Ramachandran’s knowledge of the 24 source of the documents in Exhibit 24, but sustains defendants’ objection as to the remainder of 25 the assertions contained in paragraphs 88-90. Defendants’ hearsay objection to Exhibit 24 is 26 sustained as to documents authored by homeowners, but overruled as to documents authored by 27 Los Altos employees. 1 Pharmaceuticals, Inc., 509 U.S. 579, 589–91 (1993), defendants contend that paragraphs 88-90 of 2 Mr. Ramachandran’s declaration are inadmissible because the assertions they contain are “not 3 relevant to the facts of this case.” Dkt. No. 167 at 2. Rule 702 and Daubert concern the 4 admissibility of expert testimony. Defendants do not explain how Mr. Ramachandran’s 5 declaration implicates this authority, as he is not an expert witness but a fact witness. The Court 6 infers that defendants object to Mr. Ramachandran’s declaration to the extent he purports to 7 provide an opinion that only an expert witness is qualified to provide. The Court agrees that Mr. 8 Ramachandran may not offer expert testimony. However, the Court believes that defendants’ 9 objections to paragraphs 88-90 of the Mr. Ramachandran’s declaration are best addressed with 10 reference to the Federal Rules of Evidence that govern testimony of lay witnesses, as discussed 11 below. 12 Second, defendants argue that paragraphs 88-90 of the declaration are inadmissible 13 because Mr. Ramachandran lacks personal knowledge of the matters to which those paragraphs 14 refer, including the contents of Exhibit 24. Dkt. No. 167 at 3. Rule 602 provides that “[a] witness 15 may testify to a matter only if evidence is introduced sufficient to support a finding that the 16 witness has personal knowledge of the matter.” Fed. R. Evid. 602. The Court considers 17 defendants’ objection as it applies to the different assertions in Mr. Ramachandran’s declaration. 18 To the extent Mr. Ramachandran testifies in paragraph 88 of his declaration that the documents 19 included in Exhibit 24 were among those defendants produced in response to a PRA request or in 20 response to a discovery request Mr. Ramachandran served in a state court action against the 21 Jacobses, the Court finds that Mr. Ramachandran’s own testimony supports a finding that he has 22 personal knowledge of the source of the documents included in Exhibit 24. Dkt. No. 165-3 ¶ 88. 23 However, Mr. Ramachandran offers no evidence suggesting that he has personal knowledge of 24 any of the other matters asserted in paragraphs 88-90 of his declaration. For example, he does not 25 demonstrate personal knowledge of the actions that Los Altos and its employees took or did not 26 take with respect to any particular homeowner. And he does not demonstrate personal knowledge 27 of the events he purports to summarize and characterize in paragraph 89 or any basis whatsoever 1 penalties regarding non-legal structures and legal, non-conforming accessory structures.” Id. ¶¶ 2 88-89. With respect to paragraph 90, Mr. Ramachandran asserts that he “took steps to investigate 3 the ethnicity of the 14 homeowners identified in Exhibit 24 . . . and confirmed their non-Caucasian 4 ethnicity,” but he provides no explanation of what those steps involved or how he knows (or is 5 qualified to determine) that these homeowners are “non-Caucasian.” Id. ¶ 90. Accordingly, the 6 Court sustains defendants’ objections to the admissibility of paragraphs 88-90, except for Mr. 7 Ramachandran’s testimony regarding the source of the documents attached as Exhibit 24. 8 Third, defendants object to the documents attached to Mr. Ramachandran’s declaration as 9 Exhibit 24 as inadmissible hearsay. Dkt. No. 167 at 2–3.1 With respect to those documents within 10 Exhibit 24 that constitute non-party homeowners’ communications with Los Altos employees, the 11 Court agrees that the contents of those communications are inadmissible. See Dkt. No. 165-3, Ex. 12 24 at ECF pp. 216, 221, 223–24, 241–42, 247, 249. Mr. Ramachandran attempts to rely on these 13 communications as evidence that Los Altos disproportionately subjected non-white homeowners 14 to enforcement actions for code violations. Such reliance requires the Court to accept the truth of 15 the assertions made in the communications. While the existence of such communications may be 16 admissible as evidence of a public record under Rule 803(8) or as evidence of a regularly 17 conducted activity under Rule 803(6), the substance of the assertions made by the homeowners in 18 their communications to Los Altos is inadmissible hearsay to which no exception applies. See, 19 e.g., Muniz v. United Parcel Serv., 738 F.3d 214, 222–23 (9th Cir. 2013) (spreadsheet of 20 paralegal’s hours and attorney’s declaration in support of fees motion attaching spreadsheet and 21 stating that he watched the paralegal reconstruct her hours were inadmissible as hearsay). With 22 respect to those documents within Exhibit 24 that constitute communications or reports by Los 23 Altos employees, the Court understands that defendants concede these documents are admissible 24 as public records under Rule 803(8) or as business records under Rule 803(6). Dkt. No. 197 at 25 19:9-21. Arguably, some of these documents also are admissible as statements of an opposing 26 party under Rule 801(d)(2). Accordingly, the Court sustains defendants’ hearsay objection to the 27 1 admissibility of the contents of the non-party communications within Exhibit 24 but overrules the 2 objection as to those reports and communications authored by Los Altos employees. 3 B. Requests for Judicial Notice 4 Defendants ask the Court to take judicial notice of the Notice of Entry of Judgment and 5 Judgment issued in James Leo Jacobs and Pamela Lawrie Jacobs et al. v. Satish Ramachandran 6 et al., County of Santa Clara Superior Court Case No. 17CV312418. Dkt. No. 156. Mr. 7 Ramachandran asks the Court to take judicial notice of seven items: (1) the May 11, 2020 Santa 8 Clara County Assessor’s Office Public Information for APN 167-18-060 (889 Santa Rita Avenue, 9 Los Altos), indicating that Mr. Ramachandran’s property consists of 15,049 square feet; (2) the 10 2010 Bay Area Census for the City of Los Altos showing that of Los Altos’s population of 28,976 11 people, 70.6% are White and 23.5% are Asian; (3) the State of California Department of 12 Consumer Affairs Accusation against Olympic Construction Co., Adam Nicholas Conchas, Sole 13 Owner before the Contractor’s State License Board in Case Number N2013-237; (4) the 14 Contractor’s State License Board’s Default Decision and Order against Olympic Construction Co., 15 Adam Nicholas Conchas, Sole Owner in Case Number N2013-237; (5) the Declaration of Kirk 16 Ballard Re Application for Inspection Warrant Re 889 Santa Rita Avenue, Los Altos, California 17 94022 [APN 167-18-060], filed in support of a warrant application in the Superior Court of the 18 County of Santa; (6) the Inspection Warrant for 889 Santa Rita Avenue, Los Altos, CA 94022 19 [APN 167-18-060], the Application for Inspection Warrant and Memorandum of Points and 20 Authorities, and the Declaration of Christina Hickey in the Superior Court of the County of Santa 21 Clara in the matter of Warrant No. B15034; and (7) a transcript of the April 7, 2020 proceedings in 22 this action. Dkt. No. 166. 23 A court may take notice of public records, but not of disputed facts stated in public 24 records. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 (9th Cir. 2018) (citing Lee v. City of 25 Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). 26 The parties do not object to each other’s requests for judicial notice. Having reviewed the 27 parties’ submissions, the Court grants defendants’ request for judicial notice in its entirety and 1 documents are publicly available government records from the County of Santa Clara and the 2 California state government, and the remaining originate from proceedings before this Court and 3 other courts. Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to 4 reasonable dispute because it . . . can be accurately and readily determined from sources whose 5 accuracy cannot reasonably be questioned.”); DeHoog v. Anheuser-Busch InBev SA/NV, 899 F.3d 6 758, 763 n.5 (9th Cir. 2018) (taking “judicial notice of government documents, court filings, press 7 releases, and undisputed matters of public record”). With respect to Mr. Ramachandran’s seventh 8 request for judicial notice as to the transcript of the April 7, 2020 proceedings in this action, that 9 document has been filed on the docket of this action and is therefore already part of the record of 10 this case, thus there is no need for the Court separately to take judicial notice of it. Dkt. No. 146. 11 C. First Claim: Violation of First Amendment Against Individual Defendants 12 Mr. Ramachandran alleges that he engaged in constitutionally protected activity: 13 complaining to Los Altos and its employees about discriminatory treatment, and filing and 14 prosecuting this action. Dkt. No. 153 ¶ 87. He says that Messrs. Ballard, Kornfield, and Jordan 15 retaliated against him as follows: “(i) Kornfield and Ballard [made] permitting and code 16 enforcement decisions aimed at infringing on Ramachandran’s property rights in response to 17 Plaintiff’s complaints against agents and employees of the Building and Planning Departments; 18 and (ii) Defendants Ballard, Kornfield, and Jordan fabricated purported ‘code violations’ at [Mr. 19 Ramachandran’s property] in response to Plaintiff’s complaints and lawsuit.” Id. ¶ 88. 20 Defendants move for summary judgment on this claim against the individual defendants on 21 four grounds: (1) the statute of limitations bars Mr. Ramachandran’s claim for any alleged acts 22 occurring before February 25, 2016; (2) Mr. Ramachandran cannot show that the conduct of the 23 individual defendants was substantially motivated by Mr. Ramachandran’s constitutionally 24 protected conduct; (3) the individual defendants would have taken the same actions in the absence 25 of Mr. Ramachandran’s protected conduct; and (4) the individual defendants are entitled to 26 protection under the qualified immunity doctrine. Dkt. No. 154 at 9–15. The Court addresses 27 each argument in turn. 1. Statute of limitations 1 Defendants argue that the two-year statute of limitations bars Mr. Ramachandran’s First 2 Amendment claim to the extent the claim relies on conduct occurring before February 25, 2016.2 3 Dkt. No. 154 at 9–11. Mr. Ramachandran does not dispute defendants’ application of the statute 4 of limitations and agrees that his First Amendment claim against the individual defendants must 5 be limited to retaliatory conduct occurring on or after February 25, 2016. Dkt. No. 165 at 18 n.6. 6 The Court finds no basis to conclude otherwise. 7 2. Merits of First Amendment claim 8 To prevail on a First Amendment retaliation claim, a plaintiff must demonstrate that (1) he 9 engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of 10 ordinary firmness from continuing to engage in the protected activity, and (3) the protected 11 activity was a substantial or motivating factor in the defendant’s conduct. O’Brien v. Welty, 818 12 F.3d 920, 932 (9th Cir. 2016). Once a plaintiff makes the required showing, the burden shifts to 13 the defendant to show that he “would have taken the same action even in the absence of the 14 protected conduct.” O’Brien, 818. F.3d at 932 (internal quotation marks omitted). 15 Mr. Ramachandran contends that the constitutionally protected activity at issue is the filing 16 of this action in February 2018 and his subsequent prosecution of the action. Dkt. No. 165 at 19– 17 20. He says that defendants retaliated against him in several ways. As to Mr. Ballard, Mr. 18 Ramachandran says Mr. Ballard knowingly submitted a declaration in support of an inspection 19 warrant for Mr. Ramachandran’s property that contained false and misleading statements, made 20 false claims of purported code violations supposedly discovered during the inspection, and caused 21 numerous redundant notices of those non-existent violations to be posted on Mr. Ramachandran’s 22 property. After Mr. Ramachandran removed one of these notices, Los Altos initiated a criminal 23 prosecution against him. See id. at 19–20, 21. As to Mr. Jordan, Mr. Ramachandran says that he 24 participated in planning the inspection warrant application, and he provides evidence that Mr. 25 26 2 See Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th 27 Cir. 2007) (“It is well-established that claims brought under § 1983 borrow the forum state’s 1 Jordan authorized the application. Id. at 12–13, 19–20; Dkt. No. 165-3 ¶ 69; Dkt. No. 197 at 2 23:12–24:14. As to Mr. Kornfield, the parties agree that he left employment with Los Altos in 3 2018 and did not participate in the events leading up to the inspection warrant application and its 4 execution, or in any events thereafter. Dkt. No. 167 at 5; Dkt. No. 197 at 23:2-11. Accordingly, 5 the Court grants defendants’ motion for summary judgment with respect to the First Amendment 6 claim against Mr. Kornfield. 7 For purposes of their motion, defendants do not dispute that Mr. Ramachandran engaged in 8 constitutionally protected activity, and they do not debate whether the acts of which Mr. 9 Ramachandran complains occurred. See Dkt. No. 167 at 5–6. Rather, defendants argue that Mr. 10 Ramachandran cannot show that his filing and prosecution of this action was a substantial or 11 motivating factor for Messrs. Ballard’s and Jordan’s alleged actions with respect to procuring and 12 executing the inspection warrant, the subsequent identification of purported violations, the posting 13 of notices, and Mr. Ramachandran’s criminal prosecution for removing a notice. Dkt. No. 154 at 14 11–14. 15 Both parties acknowledge that whether and to what extent the suppression of protected 16 activity is a factor in defendants’ conduct may be shown through direct or circumstantial evidence. 17 Id. at 11–12; Dkt. No. 165 at 14; Mendocino Envt’l Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301– 18 02 (9th Cir. 1999). The Ninth Circuit has recognized three ways in which a retaliatory motive 19 may be inferred: (1) proximity in time between the protected activity and the retaliatory acts; (2) 20 defendant’s express opposition to the protected activity; or (3) the falsity or pretext of defendant’s 21 proffered explanations. Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003). These are 22 not the only ways in which circumstantial evidence may indicate an intent to retaliate. For 23 example, in Mendocino Environmental Center, a case concerning environmental activists’ First 24 Amendment activities, the Ninth Circuit reversed the district court’s grant of summary judgment 25 in defendants’ favor where circumstantial evidence of retaliatory animus included evidence that 26 defendants relied on misinformation and material omissions to obtain search warrants, publicized 27 inaccurate and derogatory information about the activists to the media, and monitored the 1 in that case, “[d]irect evidence of improper motive . . . will only rarely be available.” Id. at 1302. 2 “Moreover, ‘questions involving a person’s state of mind . . . are generally factual issues 3 inappropriate for resolution by summary judgment.’” Id. (quoting Braxton–Secret v. Robins Co., 4 769 F.2d 528, 531 (9th Cir. 1985)). 5 Mr. Ramachandran relies on circumstantial evidence of retaliatory intent. First, he 6 observes that Messrs. Ballard and Jordan sought an inspection warrant for his property 7 approximately six months after he initiated this action and approximately six weeks after he 8 amended his complaint adding Mr. Jordan as a defendant. Dkt. No 34; Dkt. No. 165-3 ¶ 70. Five 9 days after execution of the warrant, Mr. Ballard signed a notice dated September 6, 2018 10 identifying purported code violations on Mr. Ramachandran’s property that Mr. Ramachandran 11 says do not exist. Id. ¶¶ 73-74, Ex. 20. Los Altos employees posted six copies of the notice on 12 Mr. Ramachandran’s property that same day and continued to post notices every day for the next 13 week. Id. ¶ 77. When Mr. Ramachandran removed one of the notices to provide to his attorney, 14 he was immediately stopped by a police officer, who had been watching the property, and was 15 cited with a misdemeanor criminal violation. Id. ¶ 78. The timing of these events with respect to 16 the filing of this action and its later prosecution is consistent with an inference of retaliatory intent. 17 Cozalter, 320 F.3d at 977 (“Depending on the circumstances, three to eight months is easily within 18 a time range that can support an inference of retaliation.”). 19 Second, Mr. Ramachandran points to evidence that Messrs. Ballard’s and Jordan’s 20 purported reasons for obtaining and executing the inspection warrant were pretextual and that the 21 alleged code violations are trumped up. Mr. Jordan testified at his deposition that after learning 22 that Mr. Ramachandran refused to give city inspectors permission to enter his property, he 23 authorized the inspection warrant application. Dkt. No. 165-1, Ex. 3 at 63:14–65:13, 74:12–75:3; 24 see also Dkt. No. 155-5 at 97:7-12 (Los Altos employee Jon Biggs testifying that the ultimate 25 decision to obtain the inspection warrant was made by Mr. Jordan). He further testified that this 26 was the only occasion on which he had ever authorized an inspection warrant during his tenure 27 with Los Altos, and that the issue was escalated to him as City Manager because of Mr. 1 66:2-11. Mr. Jordan also testified that he had considered the possibility that the inspection warrant 2 could be viewed as retaliation for filing this action and acknowledged the potential retaliatory 3 appearance of an inspection warrant obtained under false pretenses. Id. at 69:16–70:11, 76:12– 4 77:5. 5 In addition, Mr. Ramachandran points to evidence that Mr. Ballard’s declaration in support 6 of the inspection warrant application omitted information and contained inaccurate statements. 7 Dkt. No. 165 at 8–12. For example, in paragraph 4 of the declaration, Mr. Ballard asserted that a 8 video taken of a prior inspection of Mr. Ramachandran’s garage in July 15, 2013 showed that a 9 cooking range, microwave, dishwasher, stacked washer dryer, refrigerator, shower, toilet and sink 10 had been installed in the detached garage, without Los Altos’s permission. Dkt. No. 166, Ex. 5 ¶ 11 4. However, at his deposition, Mr. Ballard acknowledged that the video he described in paragraph 12 4 did not actually show that a cooking range, dishwasher, refrigerator, washer, or dryer had been 13 installed. Dkt. No. 165-1, Ex. 1 at 242:12–243:8. Additionally, Mr. Ballard stated in his 14 declaration that Mr. Ramachandran’s property was not large enough to permit a second living unit 15 with a kitchen under the LAMC, i.e., that it was less than 15,000 square feet. Dkt. No. 166, Ex. 5 16 ¶¶ 5, 11-12. However, Mr. Kornfield testified at his deposition that a city planner would refer to, 17 among other things, assessed records for lot size determinations, and the Santa Clara County 18 Assessor’s Office Public Information for Mr. Ramachandran’s property—of which the Court takes 19 judicial notice—shows that the property exceeds 15,000 square feet. See Dkt. No. 165-1, Ex. 2 at 20 170:8–173:25; Dkt. No. 166, Ex. 1. Defendants do not dispute that Mr. Ballard’s declaration 21 included some incorrect or misleading statements and omissions. See Dkt. No. 167 at 5–6. 22 However, they argue that these statements and omissions were immaterial, and that Mr. 23 Ramachandran’s protected activity was not the but-for cause of any conduct leading to the 24 preparation and submission of the declaration containing such statements and omissions. Although 25 the facts are disputed, a reasonable jury could consider Mr. Jordan’s authorization of the 26 inspection warrant application and Mr. Ballard’s reliance on inaccurate information or material 27 omissions in his supporting declaration to be circumstantial evidence of a retaliatory motive. See 1 Mr. Ramachandran also asserts that the purported code violations discovered during the 2 inspection that followed were not, in fact, violations of the LAMC. Dkt. No. 165-3 ¶¶ 82-83, Ex. 3 21. Defendants disagree. Dkt. No. 197 at 7:22–8:13. The record on this point is not well- 4 developed. However, it appears that there is a dispute of fact on this point as well. If Mr. 5 Ramachandran were able to show that he was cited for code violations that did not exist, such 6 evidence also may be circumstantial evidence of retaliatory intent. See, e.g., Clark v. Neven, No. 7 2:10-cv-00944-RLH-RJJ, 2010 WL 4774257, at *3 (D. Nev. Nov. 16, 2010) (prisoner stated 8 plausible retaliation claim against defendant who filed false disciplinary charges against him for 9 filing a grievance against her and a lawsuit). 10 In addition, defendants argue that even in the absence of Mr. Ramachandran’s protected 11 conduct, Messrs. Ballard and Jordan would have taken the same actions. They argue that the 12 Jacobses complained in great detail to Los Altos about code violations on Mr. Ramachandran’s 13 property, and that Los Altos has a duty to investigate citizen complaints to determine whether 14 threats to public health and safety exist and to abate code violations, thereby justifying Messrs. 15 Ballard’s and Jordan’s application for an inspection warrant and subsequent enforcement action.3 16 Dkt. No. 154 at 13–15; Dkt. No. 165-3, Ex. 18. However, even if Messrs. Ballard and Jordan had 17 an obligation to investigate the Jacobses’ complaint and to obtain an inspection warrant, 18 defendants have not shown as a matter of law that, in the absence of Mr. Ramachandran’s filing 19 and prosecution of this action, they nevertheless would have relied on a faulty declaration to 20 obtain the warrant or caused Mr. Ramachandran to be prosecuted for removing a posted notice.4 21 Rather, the facts on this point are disputed. 22 The Court concludes that there exists a dispute of fact concerning whether Messrs. Ballard 23 and Jordan acted with retaliatory motive. Mr. Ramachandran’s showing on this point may be 24 sufficient for a reasonable jury to find in his favor on the third element of his First Amendment 25 3 The Court notes that Mr. Ballard’s declaration does not refer to any complaint from the Jacobses 26 as support for an inspection. See Dkt. No. 166, Ex. 5.

27 4 It is not clear what role, if any, Mr. Ballard and Mr. Jordan played in initiating or supporting the 1 retaliation claim against both Mr. Ballard and Mr. Jordan, and defendants have not shown as a 2 matter of law that they would have taken the same actions had Mr. Ramachandran not filed and 3 prosecuted this action. Accordingly, as there is a genuine dispute of material fact on this point, the 4 Court denies defendants’ motion for summary judgment on the First Amendment claims as to 5 Messrs. Ballard and Jordan. 6 3. Qualified immunity 7 Defendants contend that Messrs. Ballard and Jordan are entitled to qualified immunity with 8 respect to Mr. Ramachandran’s First Amendment claim. Dkt. No. 154 at 15, 19. 9 The doctrine of qualified immunity shields a government official performing discretionary 10 functions from individual liability for civil damages if the official’s conduct does not violate a 11 clearly established constitutional right. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1066–67 12 (9th Cir. 2016). It does not apply to government officials sued in their official capacity. Cmty. 13 House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010). Because Mr. 14 Ramachandran asserts claims against Messrs. Ballard and Jordan in their individual and official 15 capacities in addition to Monell claims against Los Altos, Dkt. No. 153 ¶¶ 8, 86-99, the Court 16 understands Mr. Ramachandran’s § 1983 First Amendment claim to be brought against Messrs. 17 Ballard and Jordan in their individual capacities only.5 Hafer v. Melo, 502 U.S. 21, 25 (1991) 18 (“[O]fficial-capacity suits generally represent only another way of pleading an action against an 19 entity of which an officer is an agent. Suits against state officials in their official capacity 20 therefore should be treated as suits against the State.”) (internal quotation marks and citations 21 omitted). 22 Where, as here, defendants assert qualified immunity at the summary judgment stage, the 23 court conducts a two-prong inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). Viewing the 24 record in the light most favorable to the non-moving party, the Court considers “(1) whether there 25 has been a violation of a constitutional right; and (2) whether that right was clearly established at 26 the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 27 1 2014). A court may exercise its discretion to address either prong first. Pearson v. Callahan, 555 2 U.S. 223, 236 (2009). 3 With respect to the first prong of the qualified immunity analysis, defendants contend that 4 Messrs. Ballard’s and Jordan’s conduct was not substantially motivated by Mr. Ramachandran’s 5 protected activity and that therefore they did not violate his First Amendment rights. Dkt. No. 154 6 at 15. As discussed above, the Court concludes that there exists a genuine dispute of material fact 7 on this point that precludes summary judgment. With respect to the second prong, defendants do 8 not dispute that filing and prosecuting a lawsuit against a government entity and its employees 9 implicates a clearly established constitutional right. See, e.g., Soranno’s Gasco, Inc. v. Morgan, 10 874 F.2d 1310, 1313–14, 1319 (9th Cir. 1989) (finding defendants not entitled to qualified 11 immunity for suspending plaintiff’s petroleum plant permit because “[i]t could hardly be disputed 12 that at the time of the permit suspension an individual had a clearly established right to be free of 13 intentional retaliation by government officials based upon that individual’s constitutionally 14 protected expression,” including filing suit against defendant officials); CarePartners, LLC v. 15 Lashway, 545 F.3d 867, 883 (9th Cir. 2008) (no qualified immunity for retaliatory enforcement of 16 state boarding home laws and regulations against boarding home operator for publicly criticizing 17 state agency and filing administrative appeal of agency decision based on Soranno’s Gasco). 18 Accordingly, the Court finds that Messrs. Ballard and Jordan are not entitled to qualified 19 immunity on Mr. Ramachandran’s First Amendment claim. 20 D. Second Claim: Violation of Fourteenth Amendment Against Individual Defendants 21 Mr. Ramachandran asserts that the individual defendants violated his Fourteenth 22 Amendment right to equal protection by discriminating against him on the basis of race or national 23 origin by enforcing LAMC requirements against him as part of an ongoing custom or practice of 24 discriminating against non-white homeowners. Dkt. No. 153 ¶¶ 31, 44, 48, 52-53, 92-95; Dkt. No. 25 165 at 2–4, 18–19, 22–24. Mr. Ramachandran contends that he has been deprived of the use and 26 enjoyment of his property, and that his property has been devalued compared to those of white 27 homeowners. Id. ¶¶ 92-95. 1 Defendants move for summary judgment on this claim against Messrs. Ballard, Kornfield, 2 and Jordan on four grounds: (1) the statute of limitations bars Mr. Ramachandran’s claim for any 3 alleged acts occurring before February 25, 2016; (2) Mr. Ramachandran was not treated 4 differently than similarly situated homeowners because of his race or national origin; and (3) the 5 individual defendants are entitled to protection under the qualified immunity doctrine. Dkt. No. 6 154 at 15–19. The Court addresses each argument in turn. 7 1. Statute of limitations 8 Defendants argue that, like his First Amendment claim, Mr. Ramachandran’s Fourteenth 9 Amendment claim is barred by the two-year statute of limitations to the extent the claim relies on 10 conduct occurring before February 25, 2016. Dkt. No. 154 at 16. Mr. Ramachandran disagrees 11 and contends that he is entitled to seek relief for conduct occurring outside the limitations period 12 under the continuing violations doctrine. Dkt. No. 165 at 18–19. 13 As the Ninth Circuit recently explained, “[t]he continuing violations doctrine functions as 14 an exception to the discovery rule of accrual allowing a plaintiff to seek relief for events outside of 15 the limitations period.” Bird v. Dept. of Human Servs., 935 F.3d 738, 746 (9th Cir. 2019) (per 16 curiam) (internal quotation marks omitted). The continuing violations doctrine may apply in two 17 ways: first, to “a series of related acts, one or more of which falls within the limitations period,” 18 and second, to “the maintenance of a discriminatory system both before and during [the 19 limitations] period.” Id. (quoting Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 20 1997)). Following the Supreme Court’s decision in National Railroad Passenger Corporation v. 21 Morgan, 536 U.S. 101 (2002), application of the continuing violations doctrine has been sharply 22 curtailed. Id. at 746–48. In Bird, the Ninth Circuit observed that after Morgan, 23 little remains of the continuing violations doctrine. Except for a limited exception for hostile work environment claims—not at issue 24 here—the serial acts branch is virtually non-existent. Moreover, while we have left room for the systematic branch to apply to class- 25 wide pattern-or-practice claims, . . . we have consistently refused to apply the systematic branch to rescue individualized claims that are 26 otherwise time-barred. 27 Id. at 748 (internal citation omitted). 1 custom and practice of discriminating against non-white homeowners by enforcing LAMC 2 requirements against them while not enforcing those requirements as strictly against white 3 homeowners. Dkt. No. 165 at 18–19; Dkt. No. 153 ¶¶ 80, 92-95. He contends that this custom 4 and practice has existed since at least May 2011 and continues to the present. See Dkt. No. 165-3 5 ¶ 89, Ex. 24 at ECF pp. 226. This is the type of claim that Bird appears to have contemplated as 6 potentially suitable for application of the continuing violations doctrine. Bird, 935 F.3d at 748; 7 see also Garcia v. City & Cty. of Honolulu, No. CV 18-00100 ACK-WRP, 2020 WL 5604034, at 8 *22 –23 (D. Haw. Sept. 18, 2020), reconsideration denied, No. CV 18-00100 ACK-WRP, 2020 9 WL 6379271 (D. Haw. Oct. 30, 2020). However, it is unclear from the summary judgment record 10 whether Mr. Ramachandran’s claim encompasses any conduct by the individual defendants before 11 and during the limitations period, as required under the continuing violations doctrine. See Bird, 12 935 F.3d at 746; see also Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019) (“An official is 13 liable under § 1983 only if ‘culpable action, or inaction, is directly attributed to them.’”) (quoting 14 Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011)). In opposing summary judgment, Mr. 15 Ramachandran refers to some conduct by Mr. Ballard and Mr. Kornfield before and after February 16 25, 2016. See, e.g., Dkt. No. 165-3 ¶¶ 5, 19, 28, 37, 48, 55-62. He cites no specific conduct by 17 Mr. Jordan after February 25, 2016, except for Mr. Jordan’s authorization of the inspection 18 warrant. Dkt. No. 197 at 23:12–24:14; see Dkt. No. 165. Moreover, Mr. Ramachandran does not 19 explain how any of this conduct relates to his claim of disparate treatment based on race or 20 national origin. 21 Nevertheless, for purpose of this motion only, the Court will assume, without finding, that 22 the continuing violations doctrine applies and that the statute of limitations does not bar Mr. 23 Ramachandran’s Fourteenth Amendment claim against the individual defendants for conduct 24 occurring before February 25, 2016. 25 2. Merits of the Fourteenth Amendment claim 26 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 27 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 1 Living Center, 473 U.S. 432, 439 (1985). 2 As a threshold matter, the parties disagree about the nature of Mr. Ramachandran’s equal 3 protection claim and therefore the proper standard by which the Court should analyze defendants’ 4 summary judgment motion. Defendants say that Mr. Ramachandran claims selective enforcement 5 of the LAMC against non-white homeowners, and that to prevail on such a claim, Mr. 6 Ramachandran must show both that defendants’ enforcement of the LAMC had a discriminatory 7 effect and that defendants were motivated by a discriminatory purpose. Dkt. No. 154 at 16–19; 8 Dkt. No. 197 at 11:16–12:10; Rosenbaum v. City and Cty. of San Francisco, 484 F.3d 1142, 1152– 9 53 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S. 598, 608 (1985)). Mr. Ramachandran 10 says that he does not rely on a selective enforcement theory, but instead asserts a claim of 11 disparate treatment based on race or national origin. Dkt. No. 165 at 24 (“Defendants have 12 mischaracterized the discrimination claim as a ‘selective enforcement’ claim.”); Dkt. No. 197 at 13 42:3–43:16, 46:9-25. Citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 14 252 (1977), he argues that his evidentiary burden on summary judgment is lower than it would be 15 for a claim of selective enforcement. Dkt. No. 165 at 23–24. 16 The Ninth Circuit has explained the relevant distinction as follows:

17 [P]laintiffs who allege disparate treatment under statutory anti- discrimination laws need not demonstrate the existence of a 18 similarly situated entity who or which was treated better than the plaintiffs in order to prevail. Proving the existence of a similarly 19 situated entity is only one way to survive summary judgment on a disparate treatment claim. A plaintiff does not, however, have to 20 rely on the McDonnell Douglas [v. Green, 411 U.S. 792 (1973)] approach to create a triable issue of fact regarding discriminatory 21 intent in a disparate treatment case. Instead, he may simply produce direct or circumstantial evidence demonstrating that a discriminatory 22 reason more likely than not motivated the defendant and that the defendant’s actions adversely affected the plaintiff in some way. 23 When plaintiffs rely on the “direct or circumstantial evidence” 24 approach, instead of McDonnell Douglas, to survive summary judgment, we turn to the “sensitive” multi-factor inquiry articulated 25 by the Supreme Court in Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 (1977), to determine whether the plaintiffs 26 have created a triable issue of fact that the defendant’s actions were motivated by discriminatory intent. Under Arlington Heights, a 27 court analyzes whether the defendant’s actions were motivated by a ones, (2) [t]he historical background of the decision, (3) [t]he 1 specific sequence of events leading up to the challenged decision, (4) the defendant’s departures from its normal procedures or 2 substantive conclusions, and (5) relevant legislative or administrative history. These factors are non-exhaustive. When a 3 plaintiff opts to rely on the Arlington Heights factors to demonstrate discriminatory intent through direct or circumstantial evidence, the 4 plaintiff need provide very little such evidence . . . to raise a genuine issue of fact . . . ; any indication of discriminatory motive . . . may 5 suffice to raise a question that can only be resolved by a fact-finder. 6 Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158–59 (9th Cir. 2013) 7 (internal quotation marks and citations omitted, emphasis original). 8 The difficulty with Mr. Ramachandran’s position is that the disparate treatment of which 9 he complains is a custom or practice of selective enforcement of the LAMC against non-white 10 homeowners like himself, while white homeowners’ code violations are more frequently 11 overlooked. In order to show that kind of disparate treatment, Mr. Ramachandran must point to 12 evidence sufficient to support a finding in his favor at trial—regardless of what label he assigns to 13 his claim. Mr. Ramachandran principally relies on three pieces of evidence in support of his 14 claim: (1) the documents in Exhibit 24 to his declaration which he says show that Los Altos has 15 disproportionately enforced the LAMC against non-white homeowners since at least May 25, 16 2011, (2) Los Altos’s approval of the Jacobses’ property improvement projects but not his, and (3) 17 the fact that a Los Altos employee once told him to “go back to India.” Dkt. No. 165 at 22–24; 18 Dkt. No. 165-3, Ex. 24 at ECF pp. 227–28. The Court addresses all of this evidence in evaluating 19 defendants’ motion. 20 a. Exhibit 24 21 Exhibit 24 consists of a selection of documents Mr. Ramachandran and another person 22 obtained from PRA requests as well as documents Mr. Ramachandran obtained through discovery 23 in his state court action involving the Jacobses. Dkt. No. 165-3 ¶¶ 86-88. Mr. Ramachandran 24 points to the documents in Exhibit 24 as evidence that Los Altos employees have a custom or 25 practice of enforcing the LAMC more strictly against non-white homeowners seeking to improve 26 their property than white homeowners. Dkt. No. 165 at 24. He says that he is “one of fifteen non- 27 Caucasian homeowners in Los Altos who have been denied permits to improve their properties 1 while there are no more than four Caucasian homeowners who have been denied such permits.”6 2 Id. at 22. He relies on his own assessment of the homeowners’ race or ethnicity. Dkt. No. 165-3 ¶ 3 90. 4 Exhibit 24 contains no admissible evidence that supports an inference of discrimination, let 5 alone an inference of a custom or practice. As noted above, the Court has already concluded that 6 the contents of the documents reflecting purported communications from the homeowners are 7 inadmissible hearsay. See supra Section III.A.2. In addition, the Court also has already 8 concluded that Mr. Ramachandran’s assessment of the homeowners’ race or ethnicity is not 9 admissible. Id. Even if the Court were to consider all of the documents in Exhibit 24 and accept 10 Mr. Ramachandran’s classifications of white and non-white homeowners, these documents 11 nevertheless do not support Mr. Ramachandran’s claim of disparate treatment. First, Mr. 12 Ramachandran says that he “gleaned” the documents included in Exhibit 24 from a larger 13 collection of records, without explaining how he made his selections. Dkt. No. 165-3 ¶ 88. This 14 unexplained selection undermines Mr. Ramachandran’s claim that the documents reliably reflect 15 how Los Altos treats similarly situated white and non-white homeowners. Second, even if the 16 Court were to assume that between May 25, 2011 and September 2018 (see Dkt. No. 165-3, Ex. 17 24 at ECF pp. 227–28), Los Altos and the individual defendants enforced the LAMC against 15 18 non-white homeowners but only four white homeowners, this cannot be considered evidence of 19 disparate treatment because Mr. Ramachandran merely contrasts these statistics with census data 20 reflecting the racial composition of the overall population of Los Altos, rather than data reflecting 21 the racial composition of homeowners who made improvements to their property in Los Altos (or 22 some other possibly relevant comparison). Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1261 23 (9th Cir. 2016) (finding that plaintiff’s reliance on general population statistics did not establish 24 that Mexican nationals were disproportionately impacted by challenged restraint policy); cf. Pac. 25 Shores Props., 730 F.3d at 1158–59 (evidence of “statistics demonstrating ‘a clear pattern 26 6 Mr. Ramachandran’s opposition characterizes Exhibit 24 as reflecting denials of permits. This 27 description is at odds with the documents in Exhibit 24, none of which refer to permit denials, and 1 unexplainable on grounds other than’ discriminatory ones” can support a claim of disparate 2 treatment) (quoting Arlington Heights, 429 U.S. at 266–68). 3 In sum, nothing in Exhibit 24 supports Mr. Ramachandran’s claim that defendants have 4 engaged in a custom or practice of disparate treatment based on race or national origin. 5 b. The Jacobses 6 Mr. Ramachandran also cites the Jacobses as white homeowners who were granted “a 7 permit to create a second living unit from an illegal, unpermitted structure.” Dkt. No. 165 at 22. 8 Defendants dispute this characterization of the Jacobses’ second living unit and why Los Altos 9 permitted it. Dkt. No. 154 at 5–6, 11, 12–13, 17–19. It is not entirely clear how this evidence, 10 even if viewed in the light most favorable to Mr. Ramachandran, supports his claim that 11 defendants engaged in a custom or practice of discrimination. At most it shows that one white 12 homeowner received a permit for a particular structure on one occasion. 13 c. Mr. Anderson’s comments 14 In 2013, Greg Anderson, who was then a Los Altos employee, asked Mr. Ramachandran 15 why he lived in Los Altos and told him to “go back to India.” Dkt. No. 165-3 ¶ 16. Mr. 16 Ramachandran filed a formal complaint with Los Altos about Mr. Anderson’s behavior. Id. ¶¶ 17- 17 18, 24, Ex. 6. A week later, Mr. Ballard visited Mr. Ramachandran’s home, remarked that Mr. 18 Anderson was a “good employee,” and attempted to persuade Mr. Ramachandran that his 19 complaint was “misguided.” Id. ¶¶ 19, 20. According to Mr. Ramachandran, Mr. Ballard also 20 became “belligerent,” threatened Mr. Ramachandran with financial penalties, and demanded Mr. 21 Ramachandran take other steps with respect to other structures on his property. Id. ¶ 19. Mr. 22 Ramachandran does not suggest that Mr. Kornfield or Mr. Jordan had any role with respect to 23 these matters. Defendants do not dispute Mr. Ramachandran’s characterization of Mr. Anderson’s 24 or Mr. Ballard’s conduct. 25 Considering the evidence in the light most favorable to Mr. Ramachandran, Mr. 26 Anderson’s comments, Mr. Ballard’s defense of Mr. Anderson, and Los Altos’s apparent lack of 27 action in response to Mr. Ramachandran’s complaints may be circumstantial evidence that 1 against him and other non-white homeowners. See Pac. Shores Props., 730 F.3d at 1158–59 2 (citing “historical background” as among the relevant factors that may be considered) (quoting 3 Arlington Heights, 429 U.S. at 266–68). However, this evidence, which is specific to Mr. 4 Ramachandran and limited to interactions occurring in 2013, does not support Mr. 5 Ramachandran’s claim of a custom or practice of discrimination in enforcement of the LAMC 6 with respect to non-white homeowners in Los Altos. 7 In sum, because Mr. Ramachandran frames his Fourteenth Amendment claim against 8 Messrs. Ballard, Kornfield, and Jordan as a claim that defendants engaged in a custom or practice 9 of selective enforcement of the LAMC against non-white homeowners like himself while white 10 homeowners’ code violations were more frequently overlooked, he must produce specific 11 admissible evidence to show that a genuine dispute of fact exists for trial with respect to this 12 claim. However, he points to no admissible evidence that defendants enforced the LAMC against 13 homeowners who made property improvements based on those homeowners’ race, ethnicity, or 14 national origin. Evidence of a single derogatory remark by a Los Altos employee in 2013 and of 15 Mr. Ballard’s subsequent interactions with Mr. Ramachandran concerning that remark is 16 insufficient, without more, to support a claim that the individual defendants engaged in a custom 17 or practice of discrimination with respect to code enforcement. Mendiola-Martinez, 836 F.3d at 18 1260–61 (offensive quotes about Mexican nationals attributed to sheriff were not direct evidence 19 of intent to discriminate against Mexican nationals in implementation of restraint policy); cf. 20 Avenue 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir. 2016) (plaintiffs 21 plausibly alleged disparate treatment under Arlington Heights based on use of racially 22 discriminatory “code words,” defendant’s departure from its normal procedures or substantive 23 conclusions, and disproportionate impact on Hispanics resulting from defendant’s decision). For 24 this reason, the Court concludes that Mr. Ramachandran has not produced sufficient evidence 25 from which a reasonable jury could find in his favor on his Fourteenth Amendment claim against 26 the individual defendants, and these defendants are entitled to summary judgment in their favor on 27 this claim. 3. Qualified immunity 1 Defendants contend that Messrs. Ballard, Kornfield, and Jordan are entitled to qualified 2 immunity on Mr. Ramachandran’s Fourteenth Amendment claim. Dkt. No. 154 at 19. Defendants 3 do not dispute the existence of a clearly established right in their briefing. At the hearing, 4 defendants acknowledged that a “simple right to be equally treated as other similarly situated 5 citizens in your city” is clearly established, but also suggested that the Court view Mr. 6 Ramachandran’s asserted right far more narrowly. Id. at 17:18–18:9 (“If we were to say if the 7 constitutional violation is whether a non-white resident is prohibited from having an ADU despite 8 lot size requirements, then I think that that constitutional right is not clearly established in the 9 same way.”). However, because the Court has determined that the individual defendants are 10 entitled to summary judgment in their favor on the merits of this claim, the Court does not reach 11 the question of qualified immunity. See supra Section III.D.2. 12 E. Third and Fourth Claims: Monell Claims Against Los Altos 13 Mr. Ramachandran’s third and fourth claims assert municipal liability against the city of 14 Los Altos based on Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Dkt. No. 153 ¶¶ 96- 15 99. The third Monell claim asserts liability based on a widespread and longstanding custom and 16 practice of treating non-white homeowners disparately compared to its white homeowners. Id. ¶ 17 97. The fourth Monell claim asserts liability based on a theory that Messrs. Ballard, Kornfield, 18 and Jordan were final decision makers or possessed final policymaking authority. Id. ¶ 99. 19 To prevail on a § 1983 claim against a government entity, Mr. Ramachandran must 20 demonstrate that a “person” acting under color of state law proximately caused a violation of his 21 constitutional or other federal rights. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A 22 “person” can be a municipality, county, or other local government unit. Monell, 436 U.S. at 690; 23 Jackson v. Barnes, 749 F.3d 755, 764 (9th Cir. 2015) (“[W]hen a California sheriff’s department 24 performs the function of conducting criminal investigations, it is a county actor subject to suit 25 under §1983.”), cert. denied, 135 S. Ct. 980 (2015). 26 A local government unit cannot be held responsible for the actions of its employees under 27 a respondeat superior theory of liability on a § 1983 claim. See Bd. of Cty. Comm’rs v. Brown, 1 520 U.S. 397, 403 (1997); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). Therefore, a 2 plaintiff must demonstrate that the alleged constitutional violation was the result of a policy or 3 custom of that local government unit. Connick v. Thompson, 563 U.S. 51, 60 (2011) (explaining 4 that to impose liability on a local government under section 1983, the plaintiffs must prove that an 5 “action pursuant to official municipal policy” caused their injury); Sandoval v. Las Vegas Metro. 6 Police Dep’t, 756 F.3d 1154, 1167–68 (9th Cir. 2014) (same). The policy or custom must 7 “reflect[] deliberate indifference to the constitutional rights of its inhabitants.” Castro, 833 F.3d at 8 1073 (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)) (internal quotation marks 9 omitted). 10 A plaintiff may demonstrate a policy or custom of a municipality in three ways: (1) by 11 showing “a longstanding practice or custom which constitutes the ‘standard operating procedure’ 12 of the local government entity”; (2) “by showing that the decision-making official was, as a matter 13 of state law, a final policymaking authority whose edicts or acts may fairly be said to represent 14 official policy in the area of decision”; or (3) “by showing that an official with final policymaking 15 authority either delegated that authority to, or ratified the decision of, a subordinate.” Rosenbaum, 16 484 F.3d at 1155 (quoting Ulrich v. City and Cty. of San Francisco, 308 F.3d 968, 984–85 (9th 17 Cir. 2002)) (internal quotation marks and citations omitted). 18 Los Altos makes three arguments as to why Mr. Ramachandran cannot prevail on his 19 Monell claims against it. First, Los Altos contends that no violation of Mr. Ramachandran’s 20 constitutional rights occurred. Dkt. No. 154 at 20. As discussed above, Mr. Ramachandran has 21 shown that a genuine dispute of material fact exists as to whether Messrs. Ballard and Jordan, 22 acting in their individual and official capacities, violated his First Amendment rights. However, 23 he has not shown a violation of his Fourteenth Amendment rights by any individual defendant. 24 See supra Section III.C.2, D.2. 25 Second, Los Altos argues that Mr. Ramachandran failed to provide evidence of “a 26 longstanding practice or custom which constitutes the standard operating procedure of the local 27 government entity.” Dkt. No. 154 at 20 (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1 evidence from which a reasonable jury could find that Los Altos or its Community Development 2 Department engaged in a longstanding custom or practice of racial discrimination in the 3 enforcement of the LAMC in violation of the Fourteenth Amendment. See supra Section III.D.2. 4 As for his First Amendment retaliation claim, Mr. Ramachandran concedes that the statute of 5 limitations applies to bar a claim for conduct predating February 25, 2016. See supra Section 6 III.C.1. He does not contend that Los Altos has a longstanding custom or practice of retaliating 7 against residents who exercise their First Amendment rights to file and prosecute lawsuits against 8 the city. 9 Finally, Los Altos argues that, to the extent Mr. Ramachandran’s Monell claims are based 10 on ratification by a final policymaker, Mr. Ramachandran has not established a constitutional 11 violation. Defendants do not dispute that Messrs. Ballard or Jordan qualify as final policymakers. 12 See Dkt. No. 154 at 21; Dkt. No. 167 at 11. As described above, Mr. Ramachandran has not 13 established a genuine dispute of fact regarding a violation of his Fourteenth Amendment rights, 14 but he has raised a genuine dispute of fact as to whether Messrs. Ballard and Jordan retaliated 15 against him in violation of his First Amendment rights. See supra Section III.C.2, D.2. For the 16 same reason, the Court finds that Mr. Ramachandran has established that a genuine dispute of fact 17 exists regarding whether Messrs. Ballard and Jordan, as final policymakers on behalf of Los Altos, 18 violated his First Amendment rights. 19 Accordingly, the Court grants Los Altos’s summary judgment motion as to the third 20 Monell claim predicated on a longstanding custom or practice. The Court denies summary 21 judgment as to the fourth Monell claim based on a final policymaker theory in connection with 22 Mr. Ramachandran’s First Amendment claim only. 23 F. Request for Sanctions Pursuant to 28 U.S.C. § 1927 24 In his opposition brief, Mr. Ramachandran asks the Court to issue an order to show cause 25 why sanctions pursuant to 28 U.S.C. § 1927 should not be imposed on defendants’ counsel for 26 moving for summary judgment despite “counsels’ [sic] knowledge of the extensive factual support 27 for Plaintiff’s pending claims in his Fourth Amended Complaint . . . .” Dkt. No. 165 at 14–18, 25. 1 motions for sanctions be separately filed. The Court denies the motion on this ground. Moreover, 2 || in view of defendants’ partial success on their summary judgment motion, the Court anticipates 3 that Mr. Ramachandran would have difficulty showing that defendants’ counsel have vexatiously 4 || multiplied proceedings. 5 || IV. CONCLUSION 6 For the foregoing reasons, the Court grants in part and denies in part defendants’ motion 7 || for summary judgment as follows: 8 1. With respect to Mr. Ramachandran’s first claim for violation of his First Amendment 9 rights, the Court denies defendants’ motion as to Messrs. Ballard and Jordan. The First 10 Amendment claim as to Mr. Kornfield is barred by the statute of limitations. Messrs. 11 Ballard and Jordan are not entitled to qualified immunity on this claim. 12 2. With respect to Mr. Ramachandran’s second claim for violation of his Fourteenth 5 13 Amendment rights, the Court grants defendants’ motion. 14 3. The Court grants Los Altos’s summary judgment motion on Mr. Ramachandran’s third 3 15 Monell claim for violation of his Fourteenth Amendment rights based on a theory of a 16 longstanding custom or practice of racial discrimination. 3 17 4. The Court grants Los Altos’s summary judgment motion on Mr. Ramachandran’s 18 fourth Monell claim based on a theory of final policymaking as to Mr. Ramachandran’s 19 Fourteenth Amendment claim, but denies it as to his First Amendment claim. 20 Mr. Ramachandran’s request for an order to show cause why sanctions pursuant to 28 21 U.S.C. § 1927 should not be imposed on defendants’ counsel is denied. 22 IT IS SO ORDERED. 23 Dated: January 11, 2021 24

6 VIRGINIA K. DEMARCHI United States Magistrate Judge 27 28