Indig v. Village of Pomona

Background

Samuel Indig, Leah Indig, Meir Kahana, Robert Klein, and Naftali Klein alleged that the Village of Pomona and Village officials discriminated against them because they are Orthodox Jews. Their claims arose from building-permit delays, stop-work orders, appearance tickets, and enforcement of Village and state building requirements. They asserted claims under the Equal Protection Clause of the Fourteenth Amendment and the Fair Housing Act, including its anti-retaliation provision.

The defendants moved for summary judgment under Rule 56. Summary judgment is allowed only when the evidence shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. The court viewed disputed evidence in the light most favorable to the plaintiffs and did not decide which side’s account was true.

Equal-Protection Claims

The court held that the Indigs could not proceed under a selective-enforcement theory because they had not identified similarly situated non-Jewish property owners who were treated differently. But their alternative claim could proceed because evidence could allow a jury to find that Village officials applied building rules or delayed permit approvals partly because of religious hostility. The court cited statements by Louis Zummo and Brett Yagel concerning the Indigs and Orthodox Jews, as well as disputes about the approved grading plan, a temporary access road, and delays in reviewing revised plans. Summary judgment on Samuel and Leah Indig’s Equal Protection claim was denied.

The court granted summary judgment on Meir Kahana’s Equal Protection claim. Kahana alleged that officials issued him two appearance tickets concerning an above-ground pool because of his religion. The court found insufficient evidence of religious motivation or different treatment of similarly situated people. It also noted that Kahana acknowledged the pool was unfenced and that the Village had heightened pool-safety concerns after a child drowned in a Village pool.

The court likewise held that the Kleins could not proceed under a selective-enforcement theory because their proposed comparator was not similarly situated. However, their alternative claim could proceed. The court identified evidence from which a jury could find that Yagel, Zummo, and Leon Harris impeded the Kleins’ construction plans because of hostility toward Orthodox Jews. The evidence included alleged delays or loss of permit applications, communications about the Kleins, a stop-work order issued during the Jewish holiday of Sukkot, and conduct concerning the sprinkler requirement. Summary judgment on Robert and Naftali Klein’s Equal Protection claim was denied.

Fair Housing Act Claims

The court denied summary judgment on the Indigs’ Fair Housing Act discrimination claim. It found that the Indigs presented enough evidence to create an initial inference of discrimination, including statements about them and their construction company. Although the defendants offered non-discriminatory explanations based on alleged departures from approved plans and an unapproved temporary road, the court found a factual dispute about whether those explanations were a pretext for religious discrimination.

The court granted summary judgment on Kahana’s Fair Housing Act discrimination claim. It did not decide whether disabling an above-ground pool could qualify as making a dwelling unavailable or interfering with housing-related services under the Act. Instead, it ruled that Kahana had not shown discriminatory motivation or pretext, while the defendants had identified legitimate safety-related reasons for the tickets.

The court denied summary judgment on the Kleins’ Fair Housing Act discrimination claim for substantially the same reasons it denied summary judgment on their Equal Protection claim. The court found evidence from which a jury could conclude that officials impeded the Kleins’ construction plans because they are Jewish. The defendants’ explanations concerning the sprinkler requirement and the unapproved garage removal did not eliminate factual disputes about whether other actions were motivated by discrimination.

The court granted summary judgment on Kahana’s Fair Housing Act retaliation claim. Kahana did not identify protected activity that led to the tickets, and the evidence did not show that officials knew his religion when the property was inspected. The court also found that Kahana had not shown that the defendants’ pool-safety explanation was pretextual.

The court denied summary judgment on the Indigs’ and Kleins’ Fair Housing Act retaliation claims. The Indigs alleged that filing this lawsuit was protected activity and that officials then delayed approval of revised permit applications. The Kleins alleged that officials delayed lifting stop-work orders after a state Board of Review ruled that the sprinkler requirement did not apply to residential homes. The court found factual disputes about whether the defendants’ stated reasons were a cover for retaliation or discrimination.

Claims Against Individual Defendants

The court granted summary judgment on all claims against Ian Banks. The plaintiffs did not provide sufficient evidence that Banks personally discriminated against them or Orthodox Jews. The court also granted summary judgment on all claims against Doris Ulman. The plaintiffs did not support their allegations that Ulman personally participated in discriminatory conduct, and the evidence instead included indications that she objected to actions taken against the Kleins.

The court denied summary judgment on the claims against Brett Yagel and Leon Harris. It found evidence from which a jury could infer that Yagel and Harris acted with discriminatory intent toward Orthodox Jews and were involved in conduct concerning the plaintiffs’ construction projects. The court also denied summary judgment on the claims against Louis Zummo, which remained in the case.

Qualified Immunity

Qualified immunity can protect government officials from damages when their conduct did not violate a clearly established legal right or when a reasonable official could have believed the conduct was lawful. The court ruled that the remaining individual defendants—Yagel, Harris, and Zummo—were not entitled to qualified immunity at the summary-judgment stage. The court found factual disputes about whether they intentionally delayed or obstructed the plaintiffs’ construction projects because of religion and whether their conduct was unreasonable.

Kleins’ Exposure-Damages Claim

The court denied summary judgment on the Kleins’ claim for damage caused by their partially open home’s exposure to the elements. The defendants argued that the damage was not caused by them, that the Kleins failed to mitigate it, and that the claimed amount was speculative. The court found factual disputes about whether the stop-work orders caused the exposure, whether using tarps was a reasonable mitigation effort, and the amount of damage. The court noted that the Kleins presented an expert estimate of at least $300,000 in exposure damage, in addition to claimed construction-delay costs.

Disposition

The defendants’ motion for summary judgment was granted in part and denied in part. Meir Kahana’s claims and all claims against Doris Ulman and Ian Banks were dismissed. Samuel and Leah Indig’s claims, and Robert and Naftali Klein’s claims, remained against the remaining defendants. The opinion’s conclusion spells the second Klein plaintiff as “Neftali,” while the caption and earlier portions spell the name “Naftali.”