FILED
NOT FOR PUBLICATION
MAY 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, a municipal No. 15-55897
corporation,
D.C. No.
Plaintiff-Appellant, 2:13-cv-09046-PA-AGR
v.
MEMORANDUM*
BANK OF AMERICA CORPORATION;
BANK OF AMERICA, N.A.;
COUNTRYWIDE FINANCIAL
CORPORATION; COUNTRYWIDE
HOME LOANS INC; COUNTRYWIDE
BANK, FSB,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted May 17, 2017
Seattle, Washington
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The City of Los Angeles (“City”) appeals the district court’s summary
judgment rulings in favor of the Bank of America, N.A. (“BOA”), and
Countrywide Financial Corporation and Countrywide Home Loans, Inc.
(collectively, “Countrywide”) on its claims that BOA and Countrywide violated
the Fair Housing Act (“FHA”) and were unjustly enriched. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment. Bravo v.
City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We must determine,
viewing the evidence in the light most favorable to the City, whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th
Cir. 2004). Summary judgment may be affirmed on any ground supported by the
record. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950,
956 (9th Cir. 2009).
1. We may affirm for a reason supported by the record, but not relied upon by
the district court.1 The City sued under § 3605(a) of the FHA, which makes it
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Defendants BOA and Countrywide separately moved for, and the district
court separately granted, summary judgment. We affirm summary judgment for a
reason which applies equally to both defendants and accordingly treat the
defendants as one for the purposes of this disposition.
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unlawful for financial institutions like BOA and Countrywide “to discriminate
against any person in making available such a transaction, or in the terms or
conditions of such a transaction, because of race [or] color.” 42 U.S.C. § 3605(a).
The City sued under both disparate impact and disparate treatment theories of
discrimination, but focused on, and presented evidence almost exclusively to
support, disparate impact.
To make out a prima facie case of disparate impact under the FHA, the City
must show both a statistical disparity and a policy or policies that caused the
disparity. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,
135 S. Ct. 2507, 2523 (2015). The causal link between the policy and disparity
must be “robust.” Id. “A plaintiff who fails to . . . demonstrat[e] a causal
connection cannot make out a prima facie case of disparate impact.” Id.
Through its expert Professor Ian Ayres, the City showed a statistical racial
disparity. Minority borrowers were two to three times more likely to receive high
cost or Fair Housing Act/Veteran’s Affairs (“FHA/VA”) loans than were similarly
situated white borrowers. The City fell short, however, in failing to show a
“robust” connection between this disparity and any BOA or Countrywide facially-
neutral policy. Id. The city identified sixty-two facially neutral policies which it
alleged resulted in the disparity, and emphasized three in particular. The City
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emphasized that (1) BOA and Countrywide’s compensation scheme provided
incentives for their loan officers to issue higher-amount loans, (2) BOA and
Countrywide’s marketing targeted low-income borrowers, and (3) BOA and
Countrywide failed to adequately monitor their loans for disparities. The City
failed to demonstrate how the first two policies were causally connected in a
“robust” way to the racial disparity, as they would affect borrowers equally
regardless of race, and the third is not a policy at all. Summary judgment on the
FHA claim was warranted because the record does not reflect that the City raised a
genuine issue of material fact as to a policy or policies with a robust casual
connection to the racial disparity.
3. We also affirm summary judgment on the City’s unjust enrichment claim.
Under California law, unjust enrichment “may be awarded where the defendant
obtained a benefit from the plaintiff by fraud, duress, conversion, or similar
conduct.” Durell v. Sharp Healthcare, 108 Cal. Rptr. 3d 682, 699 (Ct. App. 2010).
The City’s injuries—lost tax revenue and increased spending on services—did not
confer a benefit upon BOA and Countrywide, and accordingly the City did not
show a genuine issue of triable fact as to unjust enrichment.
4. Because we affirm on other grounds supported by the record, we need not
address errors in the district court’s summary judgment, nor BOA and
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Countrywide’s alternative argument that we should affirm on the basis of the zone
of interests test.
AFFIRMED.
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