NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOCAL RECOVERY, LLC, a California No. 19-56077 limited liability company; ROGER LAWSON, D.C. No. 8:18-cv-01304-JVS-PJW Plaintiffs-Appellants,

v. MEMORANDUM*

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

Defendants-Appellees.

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

Submitted June 2, 2020** Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and R. COLLINS,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. SoCal Recovery, LLC (“SoCal”) and resident Roger Lawson (“Lawson”)

appeal the district court’s denial of their motion for a preliminary injunction

against the City of Costa Mesa (the “City”) to prevent the enforcement of the

City’s zoning ordinances against a sober living residence operated by SoCal. We

have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm.1

To warrant a preliminary injunction, a plaintiff must demonstrate “that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the

absence of preliminary relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). In this circuit, we have adopted “a ‘sliding scale’ approach,”

whereby “a stronger showing of one element may offset a weaker showing of

another.” hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 2019)

(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

2011)). Thus, “when the balance of hardships tips sharply in the plaintiff’s favor,

the plaintiff need demonstrate only ‘serious questions going to the merits.’” Id.

Reviewing for abuse of discretion, we find that the district court did not err

in denying the plaintiffs a preliminary injunction. See Inst. of Cetacean Research

v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th Cir. 2013). First, the

1 We also grant the appellants’ request for judicial notice, see Fed. R. Evid. 201, and deny the appellee’s motion to supplement the record on appeal.

2 district court did not abuse its discretion in determining that the balance of

hardships did not tip sharply in the plaintiffs’ favor. The district court

acknowledged the potential hardships confronting SoCal and Lawson absent

injunctive relief, and it recognized their individual interests in the continued

operation of the sober living facility, as well as “the public interest in vindicating

fair housing rights and promoting the recovery of alcoholics and addicts.” But the

district court also found significant countervailing interests that weighed against a

grant of relief to the plaintiffs, including the interests of the City in enforcing its

ordinances and of the residents of sober living homes and the public at large in

preserving the benefits the City ordinances conferred. The court further noted the

City’s concerns that non-enforcement would “contribute to the overconcentration

of these types of facilities in this residential neighborhood,” clash with “the scale

and intensity of surrounding properties,” and “fundamentally alter” the

neighborhood’s character. Ultimately, the court reasonably concluded there were

“public interests on both sides,” and that the balance of hardships did not tip

sharply in the plaintiffs’ favor, such that they could not avail themselves of

Cottrell’s more malleable “sliding scale” approach to the test for preliminary

injunctive relief.

Second, we hold that the district court did not abuse its discretion in

determining that the plaintiffs failed to demonstrate a likelihood of success on the

3 merits of their reasonable accommodation claim pursuant to the Fair Housing Act

(“FHA”).2 The plaintiffs never submitted a written request for a general departure

from the 650-foot separation requirement—although that procedure was mandated

by the City’s zoning ordinances, brought to SoCal’s attention by City officials, and

specifically solicited from SoCal by the City. And when the plaintiffs ultimately

did submit a written request for the accommodation of using the “walk-off” metric

rather than the “bird’s eye” metric for distance calculations, they failed to respond

to the City’s reasonable solicitation of additional, more reliable information

pertaining to the distance measurements relied on by the plaintiffs. At no point do

the plaintiffs explain why they failed to comply with the City’s procedures (which

SoCal had followed, without incident, with respect to a different one of its sober

living residences) or the City’s information request, even after those deficiencies

were brought to their attention by the City with sufficient time to cure them.

Against that backdrop, we find no abuse of discretion in the district court’s

conclusion that the plaintiffs failed to show a likelihood of success on the merits of

their claim that their reasonable accommodation request was wrongfully denied in

violation of the FHA.

2 The district court found that the plaintiffs failed to demonstrate a likelihood of success on any of their claims, but, on appeal, the plaintiffs challenge only the district court’s assessment of their reasonable accommodation claim under the FHA.

4 Without showing that the balance of hardships tips sharply in their favor,

and without showing a likelihood of success on the merits, the plaintiffs cannot

satisfy the applicable standards for preliminary injunctive relief. See Winter, 555

U.S. at 20; Cottrell, 632 F.3d at 1131. Therefore, the district court appropriately

denied the plaintiffs’ motion for a preliminary injunction.

AFFIRMED.

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