Socal Recovery, LLC v. City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOCAL RECOVERY, LLC, a No. 20-55820
California limited liability company;
ROGER LAWSON, D.C. No.
8:18-cv-01304-
Plaintiffs-Appellants, JVS-PJW

v.
OPINION
CITY OF COSTA MESA, a municipal
corporation; DOES, 1-100,

Defendants-Appellees.

RAW RECOVERY, LLC, a California No. 20-55870
limited liability company,
D.C. No.
Plaintiff-Appellant, 8:18-cv-01080-
JVS-PJW
v.

CITY OF COSTA MESA,

Defendant-Appellee.
2 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted July 12, 2022
Pasadena, California

Filed January 3, 2023

Before: Kim McLane Wardlaw and Mark J. Bennett,
Circuit Judges, and Gary S. Katzmann, * Judge.

Opinion by Judge Bennett

SUMMARY **

Disability / Housing

The panel reversed the district court’s summary
judgment in favor of the City of Costa Mesa in cases in
which plaintiffs-appellants (“Appellants”), operators of
sober living homes for persons recovering from drug and
alcohol addiction, alleged that two new City ordinances and
the City’s enforcement practices discriminated against them
on the basis of disability under the Fair Housing Act (FHA),

*
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 3

the Americans with Disabilities Act (ADA), and the
California Fair Employment and Housing Act (FEHA).
The ordinances, which made it unlawful to operate sober
living homes without a permit, define sober living homes as
group homes serving those who are “recovering from a drug
and/or alcohol addiction and who are considered
handicapped under state or federal law,” and define group
homes as “facilit[ies] that [are] being used as a supportive
living environment for persons who are considered
handicapped under state or federal law.” Until the
ordinances were adopted, the City did not regulate sober
living homes differently from other residences. The
ordinances required all sober living homes, including
established homes, to be located more than 650 feet away
from any other sober living home or any state-licensed drug
and alcohol treatment center. No existing homes were
grandfathered—i.e., if two operating sober living homes
were within 650 feet of each other, one would have to cease
operating as a sober living home. The ordinances did not
address the criteria used to determine which home could
remain, but provided that applicants could request
reasonable accommodations from permit conditions and
requirements, like the 650-foot requirement.
Appellants submitted both permit applications and
reasonable accommodation requests to the City so they could
continue to operate their sober living homes, even those that
were operating within 650 feet of other sober living homes
or state-licensed drug and alcohol treatment centers. The
City found that Appellants were operating sober living
homes but denied some permits and reasonable
accommodation requests because the homes were operating
in violation of the new separation requirement. The City
issued citations to Appellants for operating the sober living
4 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

homes without approval, and filed state court abatement
actions against Appellants.
Granting the City’s motions for summary judgment, the
district court found that Appellants did not establish that
residents in their sober living homes were actually disabled,
or that the City regarded their residents as disabled.
The panel held that Appellants and other sober living
home operators can satisfy the “actual disability” prong of
the ADA, FHA, or FEHA on a collective basis by
demonstrating that they serve or intend to serve individuals
with actual disabilities; they need not provide individualized
evidence of the actual disability of their residents. Rather,
they can meet their burden by proffering admissible
evidence that they have policies and procedures to ensure
that they serve or will serve those with actual disabilities and
that they adhere or will adhere to such policies and
procedures. The panel held that in each action, the district
court therefore erred by finding that an individualized
assessment of resident disability was necessary under the
“actually disabled” prong of the disability definition.
The panel held that in determining whether Appellants
can establish disability under the “regarded as disabled”
prong of the disability definition, the district court erred by
finding that Appellants must prove the City’s “subjective
belief” that their residents were disabled. The panel
explained that under this prong, the analysis turns on how an
individual is perceived by others.
The panel noted that Appellants provided the district
court with evidence of (1) admissions criteria and house
rules, (2) employee and former resident testimony, (3) public
fears and stereotypes of their residents that may have
influenced the City’s perception, and (4) the actual content
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 5

of City ordinances, denial letters, resolutions, citations, and
abatement actions that acknowledged the residents in
Appellants’ homes were disabled. The panel wrote that this
type of evidence, if it satisfied the requirements of Federal
Rule of Civil Procedure 56(c), should have been considered
by the district court in evaluating whether Appellants
established triable issues of fact under either or both of the
“actually disabled” or “regarded as disabled” prongs. The
panel therefore reversed each of the district court’s grants of
summary judgment and remanded for the court to consider
whether the record contains evidence sufficient to establish
a genuine dispute of material fact on the “actually disabled”
or “regarded as disabled” prongs of the disability definition.

COUNSEL

Christopher Brancart (argued) and Elizabeth Brancart,
Brancart & Brancart, Pescadero, California; Steven G. Polin,
Law Offices of Steven G. Polin, Washington, D.C.; Garrett
Prybylo, Seyfnia & Prybylo LLP, Los Angeles, California;
Isaac Zyfaty, Much Shelist PC, Newport Beach, California;
for Plaintiffs-Appellants.
Mary-Christine Sungaila (argued) and Efrat M. Cogan,
Buchalter APC, Irvine, California; Seymour B. Everett,
Samantha E. Dorey, and Christopher D. Lee, Everett Dorey
LLP, Irvine, California; Kimberly Hall Barlow and James
Touchstone, Jones & Mayer, Fullerton, California; for
Defendants-Appellees.
Brant S. Levine (argued) and Nicolas Y. Riley, Attorneys;
Pamela S. Karlan, Principal Deputy Assistant Attorney
General; Kristen Clarke, Assistant Attorney General United
6 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

States Department of Justice, Civil Rights Division,
Appellate Section, Washington, D.C.; Heather Nodler and
Shira E. Gordon, Trial Attorneys; Jeanine Worden,
Associate General Counsel for Fair Housing; Sasha
Samberg-Champion, Deputy General Counsel for
Enforcement and Fair Housing; Damon Smith, General
Counsel; Department of Housing and Urban Development,
Office of General Counsel, Office of Fair Housing,
Washington, D.C.; for Amicus Curiae United States of
America.

OPINION

BENNETT, Circuit Judge:

In 2014, the City of Costa Mesa (“City”) began
amending its zoning code to reduce the number and
concentration of sober living homes in its residential
neighborhoods. Two of its new ordinances—Ordinances
14-13 and 15-11 (“Ordinances”)—made it unlawful to
operate sober living homes without a permit. The
Ordinances define sober living homes as group homes
serving those who are “recovering from a drug and/or
alcohol addiction and who are considered handicapped
under state or federal law,” and define group homes as
“facilit[ies] that [are] being used as a supportive living
environment for persons who are considered handicapped
under state or federal law.” Costa Mesa, Cal., Mun. Code §
13-6. Unlike addiction treatment facilities, sober living
homes do not require a license from the state of California.
Until the Ordinances were adopted, the City did not regulate
sober living homes differently from other residences.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 7

The Ordinances required all sober living homes,
including established homes, to be located more than 650
feet away from any other sober living home or any state-
licensed drug and alcohol treatment center. No existing
homes were grandfathered under the Ordinances—i.e., if
two operating sober living homes were within 650 feet of
each other, one would have to cease operating as a sober
living home. The Ordinances did not address the criteria
used to determine which home could remain. They
provided, however, that applicants could request reasonable
accommodations from permit conditions and requirements,
like the 650-foot requirement.
Plaintiffs-Appellants SoCal Recovery, LLC (“SoCal”)
and RAW Recovery, LLC (“RAW”) (together,
“Appellants”) operate sober living homes in Costa Mesa,
California, for persons recovering from drug and alcohol
addiction. Appellants submitted both permit applications
and reasonable accommodation requests to the City so they
could continue to operate their sober living homes, even
those that were operating within 650 feet of other sober
living homes or state-licensed drug and alcohol treatment
centers. 1 The City found that Appellants were operating
sober living homes but denied some permits and reasonable
accommodation requests because the homes were operating
in violation of the new separation requirement. 2 The City
issued citations to Appellants for operating the sober living
homes without approval. The City also filed state court

1
Four sober living homes at issue in this appeal were opened or acquired
after 2014, but before the applicable Ordinances went into effect.
2
Two other reasonable accommodation requests were denied because
they were not submitted in writing, as required by the Ordinances.
8 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

abatement actions against Appellants.
Appellants sued the City, arguing that the Ordinances
and the City’s enforcement practices discriminated against
them on the basis of disability under the Fair Housing Act
(FHA), 42 U.S.C. § 3601 et seq., the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and the
California Fair Employment and Housing Act (FEHA), Cal.
Gov’t Code § 12900 et seq. 3 The City moved for summary
judgment against Appellants. The district court granted the
City’s motions, finding that Appellants did not establish that
residents in their sober living homes were actually disabled, 4
or that the City regarded their residents as disabled. 5

3
Appellants withdrew other claims they brought under 42 U.S.C. §§
1985–1986 and California Government Code §§ 11135, 65008.
Appellants also brought a retaliation claim under the FHA and a claim
under 42 U.S.C. § 1983. The district court granted summary judgment
to the City on both. The district court awarded the City attorneys’ fees
on all these claims, which it found “were asserted in a frivolous fashion.”
Using a rough estimate, the district court found 10% of the City’s total
requested fees were related to the frivolous claims and awarded the City
$21,935.84 in fees in RAW’s case and $20,923.01 in fees in SoCal’s
case.
4
The district court held that Appellants must prove their “clients have a
substantial impairment to a major life activity, on a case-by-case basis.”
SoCal Recovery, LLC v. City of Costa Mesa et al., No. SACV 18-1304,
2020 WL 2528002, at *5 (C.D. Cal. Apr. 10, 2020), reconsideration
denied, No. SACV 18-1304, 2020 WL 4668145 (C.D. Cal. July 20,
2020).
5
We grant RAW’s motion to take judicial notice of the City Council
resolution upholding the denial of the Knox Street home and the state
court judgment and order in the City’s abatement action against that
home. We deny as unnecessary Appellants’ motions to take judicial
notice of City Council and Planning Commission resolutions that are
already in the record.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 9

Because the district court erred by requiring Appellants
to adduce individualized evidence of actual disability and
failing to consider evidence that the City regarded the
residents of the sober living homes as disabled, we reverse
the district court’s grant of summary judgment in both cases.
I. BACKGROUND
A. Sober Living Home Zoning Regulations
Through its 2014 and 2015 Ordinances, the City imposed
new zoning regulations regarding group housing for persons
with disabilities. Before the Ordinances, about 94
unlicensed sober living homes were legally operating in
residential zones. Appellants argue that between 2014 and
2017, 73 sober living homes had closed. 6 The City’s website
indicates that there are 16 approved sober living homes
today. 7 The City adopted the 650-foot separation restriction
and other restrictions in an explicit effort to reduce the
number of sober living homes operating within the City. The
City was concerned about the “overconcentration” of sober
living homes in some neighborhoods, which the City

6
The source in the record cited by Appellants lists 68 closures, assuming
each entry is a different property.
7
See City Approved Sober Living/Group Homes,
https://app.smartsheet.com/b/publish?EQBCT=f6f1941be3624556ab1b
03e829df4639 (last visited Aug. 31, 2022); see also Group Homes/Sober
Living Information and Application, Costa Mesa,
https://www.costamesaca.gov/city-hall/city-departments/development-
services/community-improvement-division/group-homes-sober-living-
information (last visited Aug. 31, 2022) (providing information on “City
approved sober living/group homes,” “Operators that have closed,” and
“Group homes cited”).
10 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

believed was “deleterious” to those neighborhoods’
residential character.
The 2014 Ordinance, Ordinance 14-13, regulates group
housing for persons with disabilities in single-family
districts. Costa Mesa Mun. Code §§ 13-310–312. It defined
“[s]ober living home” as: “a group home for persons who are
recovering from a drug and/or alcohol addiction and who are
considered handicapped under state or federal law.” Id. §
13-6. “Group home[s],” in turn, are defined as “facilit[ies]
that [are] being used as a supportive living environment for
persons who are considered handicapped under state or
federal law.” Id.
Ordinance 14-13 made it unlawful to operate a sober
living home in a single-family district without obtaining a
special use permit. Id. § 13-311. Group homes in single-
family districts were limited to six occupants and needed to
have a “house manager” residing in the home and present on
a 24-hour basis. Id. § 13-311(a)(2), (a)(4).
In addition to the group home requirements, sober living
homes needed to meet certain additional conditions.
Relevant here, a sober living home could not be “located
within six hundred fifty (650) feet, as measured from the
closest property lines, of any other sober living home or a
state licensed alcoholism or drug abuse recovery or
treatment facility” (“separation requirement”). Id. § 13-
311(a)(14)(i). 8 An applicant could seek relief from the

8
Other requirements include that all occupants other than the house
manager are “actively participating in legitimate recovery programs.” §
13-311(a)(14)(ii). Additionally, “[t]he sober living home’s rules and
regulations must prohibit the use of any alcohol or any non-prescription
drugs at the sober living home or by any recovering addict either on or
off site.” § 13-311(a)(14)(iii).
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 11

“strict application” of the permit requirements by requesting
a reasonable accommodation. Id. § 13-311(a)(15). 9
The 2015 Ordinance, Ordinance 15-11, applied similar
zoning regulations as Ordinance 14-13 but to multi-family
residential districts. Id. §§ 13-322 to 324. The same
conditions for a special use permit under Ordinance 14-13
applied to existing group homes with six or fewer residents,
including the 650-foot separation requirement for sober

9
Permit applications are first submitted to the Director of Economic and
Development Services (“Development Director”), who may make an
initial determination, or designate another official to do so. Costa Mesa,
Cal., Mun. Code §§ 13-311, 322; see id. § 13-6 (defining “director” as
“[t]he director of [economic and] development services of the City of
Costa Mesa, or his or her designee”). In this case, the Development
Director designated the City’s Zoning Administrator to make an initial
decision regarding a subset of sober home applications. An unfavorable
decision by the Development Director or Zoning Administrator is
appealable to the City Planning Commission and then to the City
Council. Id. §§ 13-8 to -11. The application shall include, inter alia, a
copy of the group home rules and regulations, the relapse policy, and
“[a]n affirmation by the owner/operator that only residents (other than
the house manager) who are handicapped as defined by state and federal
law shall reside at the group home.” Id. § 13-311(a)(1)(viii).
Reasonable accommodation requests must be filed in writing with the
Planning Division. Id. § 13-200.62(a)–(b). Applicants shall state “[t]he
basis for the claim that the individuals are considered disabled under
state or federal law, and why the accommodation is necessary to provide
equal opportunity for housing and to make the specific housing available
to the individuals.” Id. § 13-200.62(b)(2). And the application shall
include documentation that the applicant is “an individual with a
disability,” “applying on behalf of one or more individuals with a
disability,” or “a developer or provider of housing for one or more
individuals with a disability.” Id. § 13-200.62(b)(4). The Development
Director’s decision on the request for reasonable accommodation can be
appealed to the Planning Commission, and then the City Council. Id. §§
13-7, -8, -10(i)(2)(c), -11(b).
12 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

living homes. Id. §§ 13-322, -324(a). Existing group homes
and sober living homes with seven or more residents needed
to obtain a conditional use permit within one year, and to
apply for an operator’s permit within 120 days. Id. §§ 13-
323, -324(b). A 650-foot separation requirement also
applied to sober living homes with seven or more residents.
Id. § 13-323(b). As with Ordinance 14-13, under Ordinance
15-11, a group home could seek relief from the “strict
application” of the permit requirements by submitting a
request for reasonable accommodation exempting it from a
requirement. Id. §§ 13-322(c), -200.62. Permit applications
would be reviewed by the Development Director and could
be appealed to the Planning Commission and City Council.
Id. §§ 13-7 to -11.
All permitting requirements in the Ordinances applied to
both existing sober living homes and proposed sober living
homes. Since the Ordinances passed, the City has received
fifty-two reasonable accommodation requests from group
homes and has granted three, none to Appellants.
B. SoCal Recovery, LLC
SoCal operates three sober living homes relevant to this
appeal. Two of the homes, located on Hudson Avenue and
Cecil Place, both opened before November 2014, are in
single-family districts, and provide housing to six or fewer
residents in recovery. One property, on East 21st Street, is
in a multi-family residential district, providing housing for
up to thirty-two residents in recovery. The East 21st Street
home opened prior to December 2015, before the multi-
family residential district Ordinance took effect. Each of the
homes is within 650 feet of another facility covered by the
Ordinances.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 13

SoCal submitted permit applications for all three homes
and applied for a reasonable accommodation from the 650-
foot requirement for the 21st Street property. The City’s
Development Director denied the reasonable
accommodation request, citing the 650-foot separation
requirement and concerns about the overconcentration of
sober living residences in the area. At a 2016 public hearing,
SoCal verbally requested reasonable accommodations for
the Hudson Avenue and Cecil Place homes. The Zoning
Administrator denied the permit applications because the
houses violated the 650-foot separation requirement and
denied the reasonable accommodation requests because they
were not made in writing.
SoCal appealed. The Planning Commission upheld the
denial of the reasonable accommodation request and permit
application for the 21st Street property. The Planning
Commission upheld the denials of the permit applications for
the Hudson Avenue and Cecil Place homes without
discussing the reasonable accommodations requests. 10 The
City Council adopted resolutions upholding the decisions of
the Planning Commission, finding that each of the homes
violated the separation requirement. The City Council
“determined that a separation requirement for such facilities
will still allow for a reasonable market for the purchase and
operation of sober living homes within the City and still
result in preferential treatment for sober living homes.”
Like the Planning Commission, the City Council denied
the reasonable accommodation request for the 21st Street

10
SoCal did not appeal the reasonable accommodation denial for the
Hudson Avenue and Cecil Place homes to the City Council.
14 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

home, finding that waiver of the 650-foot separation
requirement was “not necessary to allow one or more
individuals who are recovering from drug and alcohol abuse
to enjoy the use of a dwelling within the City” even if, “[i]n
theory, [waiving the requirement] would allow [them] to
enjoy the use of these dwellings.”
The City then issued notices of violation to all three
homes, informing SoCal that they were operating unlicensed
homes in violation of the Zoning Code and ordering them to
cease operations within sixty days. The City also brought an
abatement action in state court, targeting one of the homes.
SoCal then brought this suit. SoCal alleged that its sober
living homes were illegally “subject to the discriminatory
limitation” in the zoning code—the “separation requirement
limiting the number of Sober Living Homes that may exist”
in the residential zones. 11
During discovery, the City requested from SoCal
documents related to the “disability” status of every one of
its clients. The records the City requested included “all
medical records from all health care providers which
provided any of [SoCal’s] clients any treatment [starting
from] January 1, 2014,” “all documents that relate to clients’
medical and health information and histories, and
information and histories regarding clients’ drug use,” and
records of all drug tests performed at the facilities. SoCal
refused to produce those documents, or to have any of its
employees testify about them, asserting that they were

11
SoCal also filed a motion for a preliminary injunction, which the
district court denied. We previously affirmed the district court’s
decision.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 15

privileged under HIPAA. 12 The City moved for summary
judgment, arguing that without individualized evidence,
SoCal’s statutory disability discrimination claims failed
because SoCal had not demonstrated a genuine dispute of
material fact as to whether any of its residents were
“disabled” under the ADA and FEHA, or “handicapped”
under the FHA.
On summary judgment, two relevant issues were
whether Appellants’ residents had an actual disability or
were regarded as disabled by the City. First, SoCal argued
that a triable issue of fact existed as to whether any of its
residents had an “actual disability” based on evidence about
its admissions policies, rules, and daily operations, as well
as deposition testimony from SoCal staff. To argue that their
residents were regarded as disabled by the City, SoCal also
cited assertions by the City, including in the language of the
Ordinances, the City’s administrative rulings on the sober
living homes’ zoning requests, and the state court abatement
action.
Second, SoCal argued that a disputed factual issue
existed as to whether the City regarded its residents as
disabled, pointing to the City’s statements throughout the
permit application and reasonable accommodation process,
as well as the residents’ testimony to the City Council.
SoCal cited the City’s admission that SoCal “made a
showing that the [reasonable accommodation] application is
on behalf of disabled individuals in recovery from drug and
alcohol substance abuse.” Thus, under the definitions in the
Ordinances, SoCal stated that it was “required to prove that

12
The City did not seek to compel production of the medical records
SoCal refused to produce.
16 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

it was making a reasonable accommodation request on
behalf of disabled individuals.” SoCal argued that the
Ordinances classified “a disabled household . . . as a Sober
Living Home” and then subjected it to “discriminatory
limitation[s] . . . that are not imposed on other groups of
unrelated non-disabled persons or other groups of disabled
persons.”
C. RAW Recovery, LLC
RAW provides “housing to disabled individuals in
recovery from drug and alcohol abuse.” Before the 2015
Ordinance went into effect, RAW provided sober living at
three homes in multi-family zoning districts in Costa Mesa.
Two were on adjacent parcels on Jeffrey Drive and one was
on Knox Street.
Pursuant to Ordinance 15-11, RAW submitted timely
conditional use permit applications and reasonable
accommodation requests for the three homes. In its
reasonable accommodation requests, RAW sought “waiver
of the spacing requirements,” so that its contiguous locations
on Jeffrey Drive could remain open and its Knox Street
home could be treated as a “single housekeeping unit” and
thereby be exempted from the Ordinances’ requirements for
group homes. 13 RAW’s applications and requests were

13
The Ordinances specifically exempt “any group home that operates as
a single housekeeping unit” from regulations concerning group homes.
Costa Mesa, Cal., Mun. Code § 13-6. Designation as a single
housekeeping unit “means that the occupants of a dwelling unit have
established ties and familiarity with each other, jointly use common
areas, interact with each other, share meals, household activities, and
expenses and responsibilities; membership in the single housekeeping
unit is fairly stable as opposed to transient, members have some control
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 17

denied; the contiguous Jeffrey Drive homes were denied at
each stage of the process, whereas the Knox Street home’s
application denial was more complicated. 14
RAW joined a federal court action seeking monetary,
declaratory, and injunctive relief for zoning discrimination

over who becomes a member of the household, and the residential
activities of the household are conducted on a nonprofit basis.” Id. Such
designation exempts a dwelling from, inter alia, the 650-foot
requirement. See id. § 13-311.
Notably, the City Council provided in the 2014 Ordinance that “sober
living homes do not function as a single-family unit nor do they fit the
City’s zoning definition of a single-family for the following reasons: (1)
they house extremely transient populations . . .; (2) the residents
generally have no established ties to each other . . .; (3) neighbors
generally do not know who or who does not reside in the home; (4) the
residents have little to no say about who lives or doesn’t live in the
home,” among others.
RAW did not specifically argue that its Knox Street home met the
definition of a “single housekeeping unit,” but did state in its reasonable
accommodation application that “residents of RAW are not ‘transient’
by nature and function and interact with each other much in the same
way as ‘the functional equivalent of a traditional family.’”
14
RAW’s Knox Street conditional use permit application, was initially
denied by the Development Director, then approved by the Planning
Commission on appeal. Two City Councilmembers called for review
because they believed the home was within 650 feet of a state-licensed
facility. Though a City attorney advised that Ordinance 15-11 “would
not permit the City Council to take into consideration state licensed
homes that had not applied for use permits, as a basis for finding a 650
foot separation conflict,” the City Council reviewed the application,
overturned the Planning Commission, and revoked the permit. The City
Council cited maintenance and secondary concerns of smoking and
noise. The City Council passed a resolution reflecting the revocation of
the permit, citing the separation requirement.
18 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

on the basis of disability. 15 RAW primarily argued that the
City’s “draconian permitting requirements” for group homes
and sober living homes “are discriminatory on [their] face,
and as applied to Plaintiffs, as well as other applicants
similarly situated.” RAW asserted that “Ordinance 15-11,
which requires that all group homes be at least 650 feet
apart,” is a “tool[] the City uses to enforce its policy of
discrimination” against people in recovery.
The City moved for summary judgment, arguing that
“Plaintiffs’ discrimination claims fail because Plaintiffs
cannot meet their burden to prove that they are associated
with individuals that qualify as disabled.” The City alleged
that RAW “must prove on a case-by-case basis” that all its
residents are disabled or regarded as disabled and are no
longer using illegal drugs. 16 Because RAW did not do so,
the City argued, “all of [its] claims fail.” RAW argued that
it could prove the disability of its residents through the City’s
admissions and witness testimony. It argued that “[t]here
should be no doubt that [RAW’s] patients are statutorily
handicapped” given they are recovering from drug and/or
alcohol addiction and they must be sober to live in RAW’s
homes. RAW also argued that “[t]here is no question that
the City of Costa Mesa regarded the individuals residing in

15
Northbound Treatment Services, which is no longer a party to this
case, filed the initial complaint, and added RAW as a plaintiff in its first
amended complaint.
16
As with SoCal, the City requested “all medical records from all health
care providers which provided any of [RAW’s] clients any treatment at
any time [starting from January 1, 2014] to present,” as well as “all
documents that relate to clients’ medical and mental health information
and histories, and information and histories regarding clients’ drug use.”
RAW refused to produce the records, and the City never sought to
compel their production.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 19

[RAW’s] group homes and sober living homes as disabled”
because “[i]t is memorialized in every step of the use permit
application process and reasonable accommodation
requests.” RAW argued that the City’s permit and
reasonable accommodation processes required RAW “to put
forward proof of the disability of the residents,” stating that
the “City in processing the applications has admitted and
accepted that Plaintiffs provided housing to a class of
disabled persons.” Finally, RAW argued that the City
regarded their residents as disabled because of City resident
testimony at the City Council hearing indicating “fear of the
influx of felons coming into the neighborhood, and the
violence and damage” they would bring.
D. District Court Proceedings
The district court issued substantively similar rulings in
each case, granting summary judgment to the City on
Appellants’ ADA, FHA, and FEHA claims because
Appellants had failed to create a genuine dispute of material
fact as to whether their clients have a “handicap” or
“disability” under the statutory definition. SoCal, 2020 WL
2528002, at *4–6; Nat’l Therapeutic Servs., Inc. v. City of
Costa Mesa, No. SACV 18-1080, 2020 WL 5005550, at *6
(C.D. Cal. July 17, 2020). Under the FHA and the ADA,
“disability” is defined as “(1) a physical or mental
impairment which substantially limits one or more . . . major
life activities; (2) a record of having such an impairment; or
(3) being regarded as having such an impairment.” 42
U.S.C. § 3602(h); see also id. § 12102(1). Though the FHA
uses the word “handicap” instead of “disability,” “handicap”
is defined using the same three alternative definitional
prongs as “disability” under the ADA. Thus, the words
“handicap” and “disability” are construed to have the same
meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
20 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

FEHA defines “mental disability” and “physical disability”
more specifically and incorporates the ADA’s definition of
disability if it provides “broader protection or coverage.”
See Cal. Gov’t Code § 12926(j), (m), (n). Federal courts
analyze FEHA claims under the same standard as FHA
claims. Pac. Shores Props., LLC v. City of Newport Beach,
730 F.3d 1142, 1156 n.14 (9th Cir. 2013).
On the “actual disability” prong of the disability
definition, the district court concluded in each case that
Appellants were required to provide individualized evidence
that “their clients,” Nat’l Therapeutic Servs., 2020 WL
5005550, at *6, “have a physical or mental impairment that
substantially limits one or more major life activities.”
SoCal, 2020 WL 2528002, at *5. In each case, the court
agreed with the City that there is no “per se rule that all
individuals in a drug rehabilitation program qualify as
disabled or protected.” Id. at *4; see also Nat’l Therapeutic
Servs., 2020 WL 5005550, at *4. According to the district
court in SoCal, “[t]hat [Appellants] require[] sobriety for
[their] residents does not change that [they] must prove
[their] clients have a substantial impairment to a major life
activity, on a case-by-case basis.” SoCal, 2020 WL
2528002, at *5.
In both actions, the district court held that Appellants did
not meet the “record of disability” prong of the definition
because they did not produce their residents’ medical records
and asserted privilege when the City requested those records
during discovery. 17 Id. at *5; Nat’l Therapeutic Servs., 2020

17
Appellants did not rely on this prong below to establish that their
clients were disabled.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 21

WL 5005550, at *5. As to the “regarded as” prong of the
definition, the court’s only proffered reason for granting
summary judgment was that Appellants’ evidence was
“either inadmissible, mischaracterize[d] what the City
required from [Appellants] in the application process, and/or
[did] not establish the City’s subjective belief of the clients’
impairments.” 18 Nat’l Therapeutic Servs., 2020 WL
5005550, at *5; see also SoCal, 2020 WL 2528002, at *6.
Appellants timely appealed the grants of summary
judgment. 19
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment
de novo. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.
2001) (en banc). Viewing the evidence in the light most
favorable to the nonmoving party, we must determine
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).

18
The district court did not discuss in either case which evidence was
inadmissible or why any of the evidence was inadmissible. And it did
not discuss how Appellants had mischaracterized what the City had
required of Appellants in the application process.
19
SoCal filed a motion for partial reconsideration asking the court to
reconsider its holding that SoCal had failed to create a material dispute
of fact as to whether the City “regarded” its residents as disabled. SoCal,
2020 WL 4668145, at *1–2. The court denied that motion, reiterating
that the evidence SoCal presented “did not establish a triable issue of fact
as to whether the City regarded Plaintiff’s specific clients as disabled.”
Id. at *2.
22 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

III. DISCUSSION
Appellants argue that the district court applied the
wrong legal standard on the questions of what evidence is
required to establish actual or perceived disability. They
contend that they should not have been required to provide
individualized evidence of their clients’ disabilities.
Appellants also argue that a genuine dispute of material fact
exists as to whether their residents are “regarded as” disabled
by the City. We agree that the district court applied incorrect
legal standards and did not properly consider the summary
judgment evidence Appellants presented. We therefore
reverse the district court’s grants of summary judgment on
the FHA, ADA, and FEHA claims.
A. Statutory Background
Under the FHA, it is unlawful “[t]o discriminate against
any person in the terms, conditions, or privileges of sale or
rental of a dwelling” because of a handicap of that person, a
resident or intended resident, or any person associated with
that person. 42 U.S.C. § 3604(f)(2). The statute gives any
“aggrieved person” the right to sue, and broadly defines an
“aggrieved person” as anyone who “claims to have been
injured by a discriminatory housing practice.” Id. §§
3602(i)(1), 3613.
FEHA makes it unlawful “[t]o discriminate [because of
disability] through public or private land use practices,
decisions, and authorizations.” Cal. Gov’t Code § 12955(l).
Any “aggrieved person” can sue. Id. § 12989.1. An
“aggrieved person” is “any person who claims to have been
injured by a discriminatory housing practice or believes that
the person will be injured by a discriminatory housing
practice that is about to occur.” Id. § 12927(g). The FHA
and FEHA invalidate any state or local law that “purports to
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 23

require or permit” an action that would be a discriminatory
housing practice. 42 U.S.C. § 3615; Cal. Gov’t Code §
12955.6.
Title II of the ADA makes it unlawful for a public entity
to discriminate through its zoning laws against (1) a person
with a “disability,” 42 U.S.C. § 12132, or (2) a person who
has a “relationship or association” with a person with a
“disability,” 28 C.F.R. § 35.130(g). The ADA gives “any
person alleging discrimination” under the provision the right
to sue. 42 U.S.C. § 12133; see also Barker v. Riverside Cnty.
Off. of Educ., 584 F.3d 821, 827 (9th Cir. 2009).
“Disability” in the ADA (and therefore FEHA) and
“handicap” in the FHA are defined as: (1) a “physical or
mental impairment which substantially limits one or more of
[a] person’s major life activities,” (2) “a record of having
such an impairment,” or (3) “being regarded as having such
an impairment.” 42 U.S.C. §§ 3602(h), 12102(1). 20 The
first definition is often referred to as the “actual disability”
prong, and the third as the “regarded as” prong.
B. Actual Disability
To establish a disability under the “actual disability”
prong of the ADA, FHA, or FEHA, a plaintiff must show “a
physical or mental impairment” that “substantially limits”
their ability to engage in one or more “major life activities.”
42 U.S.C. §§ 3602(h), 12102(1); Pac. Shores Props., 730
F.3d at 1156 n.14 (applying FHA standards to FEHA
claims). Alcoholism and drug addiction are “impairments”

20
Recall that although FEHA defines “mental disability” and “physical
disability” more specifically than the ADA, it incorporates the ADA’s
definition of “disability” if the ADA would provide broader protection.
See Cal. Gov’t Code § 12926(n).
24 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

under the FHA, 24 C.F.R. § 100.201(a)(2), and the ADA, 28
C.F.R. § 35.108(b)(2). See also Pac. Shores Props., 730
F.3d at 1156 (“It is well established that persons recovering
from drug and/or alcohol addiction are disabled under the
FHA and therefore protected from housing
discrimination.”). The impairment cannot include “current,
illegal use of or addiction to a controlled substance.” 42
U.S.C. § 3602(h); see also id. § 12114(a).
The district court concluded in both actions that
Appellants could not establish that any of their residents had
an “actual disability” because the evidence they adduced,
including testimony about the admissions policies, house
rules, and general day-to-day operations of their homes, was
not sufficiently “individualized” under Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams. 534 U.S. 184,
199 (2002), superseded on other grounds by the ADA
Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-
325, 122 Stat. 3553; see Nat’l Therapeutic Servs., 2020 WL
5005550, at *5; SoCal, 2020 WL 2528002, at *5. In Toyota,
the Supreme Court held that “the ADA requires those
claiming the Act’s protection to prove a disability by
offering evidence that the extent of the limitation caused by
their impairment in terms of their own experience is
substantial.” 534 U.S. at 198 (cleaned up). Thus, a plaintiff
must prove the relevant person’s disability status in a “case-
by-case manner.” Id.
Appellants contend that an “individualized assessment”
of every resident’s disability status was unnecessary for their
zoning discrimination claims to survive summary judgment
or prevail at trial. We agree. At the outset, Appellants had
standing to sue. Appellants are not disabled or handicapped,
but they stated a claim under the FHA because they claimed
they were “‘aggrieved’ by housing discrimination against
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 25

the disabled.” Pac. Shores Props., 730 F.3d at 1157 n.16.21
They stated a claim under the ADA because they were
“alleging discrimination on the basis of disability.” Id. at
1157 n.17 (parenthetically quoting 42 U.S.C. § 12133). 22
They stated a claim under FEHA because they claim to
“have been injured by a discriminatory housing practice.”
Cal. Gov’t Code §§ 12927(g), 12989.1(a). 23
The separation requirement prevented Appellants from
conducting their normal business operations. Thus, they

21
“The sole requirement for standing to sue under the FHA is the Article
III minima of injury in fact: that the plaintiff allege that as a result of the
defendant’s actions he has suffered a distinct and palpable injury.”
Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001)
(cleaned up and citation omitted). For purposes of “the FHA. . . a plaintiff
need not be among the class discriminated against in order to have
standing. In particular, an organization may have standing to bring suit
on its own behalf, without relying in a representative capacity on the
standing of any third parties.” El Dorado Ests. v. City of Fillmore, 765
F.3d 1118, 1121 (9th Cir. 2014) (citation omitted).
22
An organization has standing to sue under the ADA on its own behalf
by establishing an “injury in fact if it can demonstrate: (1) frustration of
its organizational mission; and (2) diversion of its resources to combat
the particular conduct in question.” Am. Diabetes Ass’n v. U.S. Dep’t of
the Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (brackets omitted)
(quoting Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th
Cir. 2004)). Thus, a plaintiff that “has presented evidence that it was
denied a zoning permit because it cares for and/or associates with
individuals who have disabilities . . . has standing to bring . . . suit on its
own behalf.” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 335 (6th
Cir. 2002).
23
Both this court and California courts assess FEHA standing under
FHA standards. See, e.g., Sisemore v. Master Fin., Inc., 151 Cal. App.
4th 1386, 1424–26 (2007) (applying FHA standing analysis to FEHA
claims); Walker, 272 F.3d at 1124–25 (Plaintiff had standing under
FEHA because it had standing under the FHA).
26 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

were aggrieved by the zoning policies. That every resident
may not have been disabled does not mean Appellants were
not aggrieved by discrimination against the disabled.
Appellants should not have been required to prove the actual
disability of their residents, in “a case-by-case manner,” to
meet the actual disability prong for their sober living homes.
Toyota Motor Mfg., 534 U.S. at 198.
Appellants’ sober living homes and other dwellings
intended for occupancy by persons recovering from
alcoholism and drug addiction are protected from illegal
discrimination against the disabled without the need for
Appellants to present individualized evidence of the “actual
disability” of their residents. The district court therefore
applied the incorrect legal standard in both actions when it
concluded that Appellants could not establish “actual
disability” because they failed to present evidence of their
residents’ disability status.
The panel finds persuasive the United States’ amicus
brief, which argues that sober living homes need not provide
individualized evidence of their residents’ disabilities to
establish a cause of action for disability discrimination under
the FHA or the ADA. Under the FHA, as the United States
argued, state and local governments are prohibited from
discriminating on the basis of disability through zoning and
land use practices. See Pac. Shores Props., 730 F.3d at
1157. In discussing amendments to the FHA, the House
Judiciary Committee explained that the FHA ban “is
intended to prohibit the application of special requirements
through . . . conditional or special use permits that have the
effect of limiting the ability of [people with disabilities] to
live in the residence of their choice in the community.” H.R.
Rep. No. 100-711, at 24 (1988). And Title II of the ADA
prohibits local governments from enacting zoning laws that
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 27

discriminate based on disability. See Bay Area Addiction
Rsch. & Treatment, Inc. v. City of Antioch, 179 F.3d 725,
732 (9th Cir. 1999). 24
We now hold that Appellants and other sober living
home operators can satisfy the “actual disability” prong on a
collective basis by demonstrating that they serve or intend to
serve individuals with actual disabilities. As discussed
above, Appellants need not provide individualized evidence
of the “actual disability” of their residents. Rather, they can
meet their burden by proffering admissible evidence that
they have policies and procedures to ensure that they serve
or will serve those with actual disabilities and that they
adhere or will adhere to such policies and procedures. We
have held that plaintiffs may establish an actual disability
through non-medical evidence. See Rohr v. Salt River
Project Agric. Improvement & Power Dist., 555 F.3d 850,
858–59 (9th Cir. 2009) (“At the summary judgment stage,
‘precedent does not require comparative or medical evidence
to establish a genuine issue of material fact regarding the
impairment of a major life activity. . . . Rather, . . . a
plaintiff’s testimony may suffice to establish a genuine issue
of material fact.’” (alterations in original) (citation
omitted)). 25 Indeed, the City conceded at oral argument that

24
As the United States aptly pointed out, the City’s argument, taken to
its logical conclusion, would preclude the owner or operator of any
proposed facility from surviving summary judgment. By definition, a
proposed facility has no residents. So no matter how egregious the
zoning discrimination, under the City’s standard requiring individualized
proof of disability, no suit by the owner or operator of a proposed home
for people with disabilities would survive summary judgment.
25
When a plaintiff is an organization that serves the disabled, rather than
a person who is disabled, there is no reason similar evidence should not
suffice, at least at the summary judgment stage.
28 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

new homes could satisfy the actual disability standard using
this type of evidence, i.e., evidence of policies and
procedures that the group home has a zero-tolerance policy,
produced through declarations of individuals related to the
group home. Oral Arg. at 29:45–30:30. There is no reason
to hold existing homes to a higher standard.
Thus, Appellants can prove the “actual disability” of
their current residents and any residents they seek to serve in
the future through admissions criteria and house rules,
testimony by employees and current residents, and
testimony by former residents. 26 Because the district court
applied an incorrect standard, it failed to consider evidence
in the record that might support a finding that Appellants
served or intended to serve individuals with “actual
disabilities.”
First, Appellants could show their residents were
“actually disabled” and their future residents would be
“actually disabled” using admissions criteria and house
rules. We have stated that “[p]articipation in a supervised
drug rehabilitation program, coupled with non-use, meets
the definition of handicapped,” under the FHA. City of
Edmonds v. Wash. State Bldg. Code Council, 18 F.3d 802,
804 (9th Cir. 1994) (citing 42 U.S.C. § 3602(h) and United
States v. S. Mgmt. Corp., 955 F.2d 914, 922 (4th Cir. 1992)).
Other circuits have reached the same conclusion. See Reg’l
Econ. Cmty. Action Program, Inc. v. City of Middletown
(“RECAP”), 294 F.3d 35, 47–48 (2d Cir. 2002) (holding that
a group home’s admissions policies demonstrated that “[a]ll
of the halfway house’s residents must be substantially

26
This list is not exclusive, and Appellants could provide other types of
evidence demonstrating “actual disability.”
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 29

impaired in a major life activity to continue residing there”);
MX Grp., Inc. v. City of Covington, 293 F.3d 326, 337 (6th
Cir. 2002) (holding methadone clinic’s admissions policy
supported a finding that individual clients were disabled);
Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1010 (3d
Cir. 1995) (observing that “no one would be able to meet a
nursing home’s admissions requirements in the absence of
some handicapping condition necessitating nursing home
care”).
Appellants provided this type of evidence to the district
court in each action. RAW provided its house rules and
requirements for living in its homes, including its drug
testing requirements, to the City. RAW requires residents to
attend a twelve-step program or a “peer recovery group,”
such as Narcotics Anonymous. Further, “RAW drug tests
the residents to ensure they are not currently using drugs,
two to three times per week, administered by the house
manager.” RAW also submitted evidence in its use-permit
application that drug use is prohibited at all its properties. 27
Finally, RAW stated in its reasonable accommodation
request that its residents are “individuals in recovery from
alcoholism and substance abuse . . . who cannot live
independently without the fear or threat of relapse into active
alcoholism and substance abuse.” 28 The district court did

27
RAW submitted the permit application, including its house rules,
relapse policy, and intake paperwork, as well as its reasonable
accommodation application, as exhibits in its compendium of evidence
filed with its memorandum in opposition to the City’s motion for
summary judgment.
28
This statement is corroborated by deposition testimony, taken under
oath, from RAW personnel, and by the public comments of former
30 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

not reach the City’s evidentiary objections under Federal
Rule of Civil Procedure 56(c). We express no view on
whether RAW’s proffered evidence complied with this
rule. 29
SoCal says that it houses only persons in recovery who
are considered disabled under federal and state laws. SoCal
proffers evidence of a zero drug and alcohol tolerance
policy, says that it demands mandatory involvement in
recovery programs, performs randomized drug tests, and
requires residents to leave if they relapse. The district court
could have relied on admissions criteria that satisfied Rule
56(c) and other relevant evidence to find, in the light most
favorable to SoCal, that SoCal’s residents are in recovery
from alcohol or drug addiction. See RECAP, 294 F.3d at 47.
Courts may also consider employee testimony when
determining whether a sober living facility houses people
with actual disabilities. See MX Grp., 293 F.3d at 331, 337.
One RAW employee testified on personal knowledge that
the residents stay at the sober living home “until they’re
about a year sober,” after which they’re able to “reintegrate[]
back into society.” RAW’s owner testified in his deposition
that when a resident’s “mother called concerned” that her
son had relapsed, the management of the sober living home
“confronted him,” and when “he admitted to drinking,” the
owner referred him to detox. He testified that most residents
are referred to RAW’s homes from treatment centers, where

residents at a City Planning Commission meeting regarding RAW’s
permit applications.
29
We similarly express no view regarding whether Appellants’ other
proffered evidence satisfied Rule 56(c).
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 31

they had resided for 30 to 90 days (after spending one to two
weeks in detox). SoCal provided evidence that none of its
current residents were currently using drugs based on the
personal knowledge deposition testimony of three staff
members who testified that: residents move into a SoCal
residence after completing a 30-, 60-, or 90-day rehab
program; the average resident stays for six to eight months;
residents are required to stay sober; the sobriety requirement
is enforced via regular drug and alcohol testing; and if
residents break their sobriety, they are immediately sent
back to rehab.
Finally, the operators of sober living homes can show
residents’ disability with former resident testimony. At a
public hearing for RAW’s permit applications, a former
resident of a RAW facility who was “in recovery” stated that
RAW “helped [him] put [his] life back together” after he
arrived there “broken,” having “lost everything that had
mattered to [him—] job, house, family.” This statement
could show that his addiction substantially limited his ability
to work, maintain housing, and maintain relationships under
FEHA’s definition of disability. See RECAP, 294 F.3d at
47; Cal. Gov’t Code §§ 12955.3, 12926(j), (m). The former
resident also spoke about how he and his roommates “had a
target on [their] backs and . . . wanted to show [this]
communit[y] that [they] could be a part of it.” A former
SoCal resident testified that without sober living, he was
certain he would relapse. It was therefore “really important
for [him] to be [around] other people who [had] the same
mindset or the same goals.” He testified that when he was
using drugs, he could not hold down a job or have a normal
life, and was at constant risk of overdosing.
In both actions. the district court applied the wrong legal
standard to determine whether SoCal and RAW met their
32 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

burden of demonstrating a triable issue of fact as to whether
their residents were “actually disabled” under the ADA or
FHA. The court unnecessarily limited its inquiry to
individualized medical evidence of the disability of current
residents, which Appellants chose not to provide. 30 Instead,
the court ought to have considered all the relevant evidence
complying with Rule 56(c) and showing that Appellants
served and intended to serve individuals with actual
disabilities. We therefore reverse the grant of summary
judgment and remand for the district court to evaluate the
evidence in accord with Rule 56(c) and to apply the
appropriate legal standards. 31
C. “Regarded As” Disabled
“In 2008, Congress enacted the [ADAAA], which
broadened the definition of disability under the [ADA].”
Nunies v. HIE Holdings, Inc., 908 F.3d 428, 430 (9th Cir.
2018). “An individual meets the requirement of ‘being
regarded as having such an impairment’ if the individual
establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or
perceived physical or mental impairment.” 42 U.S.C. §
12102(3)(A). After the ADA was amended, Appellants no
longer needed to show that the City subjectively believed

30
We do not reach whether Appellants’ refusal to produce records or
other information (whether as requested or redacted) was justified or
appropriate.
31
If Appellants can proceed past summary judgment, they need to prove,
among other things, discrimination on the merits of their disparate
treatment, disparate impact, or reasonable accommodation claims. See
Budnick v. Town of Carefree, 518 F.3d 1109, 1114–19 (9th Cir. 2008)
(providing the elements of each claim). The merits of these claims were
not at issue before the district court and are not at issue on appeal.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 33

that Appellants (or those they served) were substantially
limited in a major life activity or disabled, in order to meet
the “regarded as” prong of the disability definition. See
Nunies, 908 F.3d at 434; see also 28 C.F.R. § 35.108(f)(1)
(providing that the “regarded as” prong does not require
showing that “the public entity” perceived the “actual or
perceived impairment” as substantially limiting a major life
activity). To establish disability under the “regarded as
disabled” prong, Appellants need to show that the City
perceived their “clients as being disabled and discriminated
against them on that basis.” MX Grp., 293 F.3d at 340. The
analysis turns on how an individual is perceived by others.
See 42 U.S.C. § 12102(1)(C); 24 C.F.R. § 100.201(d); 28
C.F.R. § 35.108(f)(1). This question is fact-dependent and
is adjudicated on a case-by-case basis.
Here, the district court erred by applying the pre-
ADAAA standard. As Appellants and the United States
argue, Appellants need not show that the City subjectively
believed that all the residents (or even some specific
residents) of Appellants’ sober living homes were disabled.
The district court’s holding to the contrary is error.
Sober living homes, by the City’s own definition, serve
people with disabilities: “Sober living home[s]” are “group
home[s] for persons who are recovering from a drug and/or
alcohol addiction and who are considered handicapped
under state or federal law.” Costa Mesa, Cal., Mun. Code §
13-6 (emphasis added). This is evidence that the district
court must consider in deciding whether there is a triable
issue of fact as to whether the City regarded the residents (or
potential residents) of the sober living homes as disabled or
handicapped, as the terms are used in the FHA and the ADA.
There is additional evidence that the district court must
34 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

also consider, if the district court finds it presented in accord
with Rule 56(c). First, language in the permit denial letters
and resolutions concerning whether the City regarded
Appellants as serving people with disabilities in their sober
living homes. For example, the Development Director’s
initial denial of RAW’s reasonable accommodation requests
stated: “I accept for purposes of your request that you are
making this request on behalf of individuals who are
considered disabled under state and federal law.” Similarly,
the Planning Commission stated that RAW “currently
operates a sober living facility” at each Jeffrey Drive
location and the Knox Street home. The Planning
Commission was concerned that granting the permit for the
Jeffrey Drive homes would have been “materially
detrimental to other properties within the area,” “to the
health, safety and general welfare of the public,” and “to the
residential character of the City’s neighborhoods” because
“[t]he operation of a group home on contiguous parcels
would result in the overconcentration of such facilities in
[the] neighborhood.” The City Council’s resolution denying
the permit for the Knox Street location found that “[t]he
facility will contribute to the overconcentration of drug and
alcohol treatment facilities and sober living homes in this
neighborhood, which could lead to negative impacts in the
neighborhood.” The Planning Commission also rejected
SoCal’s permit applications for its Cecil, Hudson, and 21st
Street residences through formal resolutions, each of which
made a formal finding that the residence was a “sober living
home” as defined by statute. To the extent this evidence is
admissible, the City’s recognition of Appellants’ facilities as
“sober living homes” seems to admit under the City’s own
definition that residents are “considered handicapped under
state or federal law.” Costa Mesa, Cal., Mun. Code § 13-6.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 35

Further, the City cited and fined Appellants for operating
sober living homes without approval. The City issued
notices of violation to all three of SoCal’s homes on the
grounds that they were “sober living homes” operating
without a permit. SoCal also received citations for violating
the Ordinances. The City filed an abatement action against
SoCal on the ground that it was operating a “sober living
home” without a permit at the Hudson Street property. In its
abatement complaint, the City repeatedly alleged that the
Hudson Street residence was a “sober living group home.”
The City issued citations to RAW’s residences for
“operation of a sober living / group home without [City]
approval,” and sued RAW in state court to enjoin and abate
“operation of an unlawful sober living group home.” The
state trial judge found that RAW was “operating a sober
living home” or “allowing the operation of a sober living
home” at its Knox Street location. 32
On summary judgment, the district court can also
consider appropriate evidence as to whether the City’s
actions were based on unfounded fears and stereotypes,
since the “regarded as” prong concerns how people with
disabilities are perceived by others. See 42 U.S.C. §
12102(1)(C); 24 C.F.R. § 100.201(d); 28 C.F.R. §
35.108(f)(1). Here, the City may have been influenced by
the way others wrote and spoke about those with disabilities
at public hearings. Congress added the “regarded as” prong
because of its concern that “society’s accumulated myths

32
We may take judicial notice of the state court’s findings in the
abatement action, as a matter of public record that is not subject to
reasonable dispute. See Csutoras v. Paradise High Sch., 12 F.4th 960,
964 n.3 (9th Cir. 2021); Colony Cove Props., LLC v. City of Carson, 640
F.3d 948, 954 n.3 (9th Cir. 2011).
36 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

and fears about disability and disease are as handicapping as
are the physical limitations that flow from actual
impairment.” Rodriguez v. Vill. Green Realty, Inc., 788 F.3d
31, 50 (2d Cir. 2015) (cleaned up) (quoting Sch. Bd. of
Nassau Cnty. v. Arline, 480 U.S. 273, 284 (1987)). The oral
testimony given at public hearings and written statements
submitted to the City by residents opposing the permit
applications for Appellants’ sober living homes reflect
stereotypes about the homes’ residents. Some described the
residents of sober living homes as “capable of mayhem and
violence,” and as the cause of “[c]rime and homelessness.”
One person shared that single women are “uncomfortable”
with residents of a sober living home residing so close to
their homes. The City referenced some of these stereotypes
in its decisions denying Appellants’ permit applications.
The Sixth Circuit, see MX Grp., 293 F.3d at 342, and the
Fourth Circuit, see S. Mgmt. Corp., 955 F.2d at 919, decided
that this type of public speech about sober living home
residents was evidence that the government regarded the
population under discussion as disabled. We agree that this
type of evidence, if appropriately presented and to the extent
it appears in the City Council’s stated reasons for adopting
the Ordinances or denying permits and reasonable
accommodation requests, should be considered in the
“regarded as disabled” analysis.
This type of evidence, if it can be considered under Rule
56(c), should have been examined by the district court in
analyzing whether, in the light most favorable to Appellants,
the City regarded Appellants’ residents as disabled. We
therefore reverse each district court decision and remand for
the court to consider whether Appellants established a
genuine dispute of material fact on this prong.
 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA 37

IV. CONCLUSION
For the reasons stated above, we REVERSE and
REMAND to the district court. In each action, the district
court erred by finding that an individualized assessment of
resident disability was necessary under the “actually
disabled” prong of the disability definition, and that
Appellants must prove the City’s “subjective belief” that
their residents were disabled under the “regarded as” prong.
In the context of zoning discrimination against a home that
aims to serve people with disabilities, we hold that courts
must look at the evidence showing that the home serves or
intends to serve individuals with actual disabilities on a
collective basis, including the home’s policies and the
standards the municipality uses to evaluate the residence.
Appellants provided the district court with evidence of (1)
admissions criteria and house rules, (2) employee and former
resident testimony, (3) public fears and stereotypes of their
residents that may have influenced the City’s perception, and
(4) the actual content of City ordinances, denial letters,
resolutions, citations, and abatement actions that
acknowledged the residents in Appellants’ homes were
disabled. This type of evidence, if it satisfied the
requirements of Rule 56(c), should have been considered by
the district court in evaluating whether Appellants
established triable issues of fact under either or both of the
“actually disabled” or “regarded as disabled” prongs. We
reverse each of the district court’s grants of summary
judgment and remand for the court to consider whether the
record contains evidence sufficient to establish a genuine
dispute of material fact on the “actually disabled” or
38 SOCAL RECOVERY, LLC V. CITY OF COSTA MESA

“regarded as disabled” prongs of the disability definition. 33
REVERSED AND REMANDED.

33
In light of this disposition and given the City’s concession at oral
argument, we also vacate and remand the awards of attorneys’ fees and
costs, without prejudice. See Green v. Mercy Hous., Inc., 991 F.3d 1056,
1057–58 (9th Cir. 2021); Braunstein v. Ariz. Dep’t of Transp., 683 F.3d
1177, 1189 (9th Cir. 2012).