NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YELLOWSTONE WOMENS FIRST STEP 

HOUSE, INC.; et al., 

Plaintiffs-Appellants, 

 v. 

CITY OF COSTA MESA, 

Defendant-Appellee.

No. 19-56410 

D.C. No. 

8:14-cv-01852-JVS-JDE 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted July 26, 2021

San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,** District 

Judge.

Yellowstone Women’s First Step House, Inc. (“Yellowstone”), California 

Women’s Recovery, Inc. (“Lynn House”), and Sober Living Network, Inc. 

(“SLN”) appeal the district court’s entry of final judgment in favor of the City of 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Royce C. Lamberth, United States District Judge for 

the District of Columbia, sitting by designation.

FILED

SEP 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Costa Mesa (the “City”) on all claims after a roughly two-week jury trial. They 

argue that the district court committed several errors before, during, and after trial. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Appellants disclaimed asserting a facial discrimination claim against 

Ordinance 14-13 on multiple occasions and thus effectively abandoned this claim. 

See Walsh v. Nevada Dep’t of Hum. Res., 471 F.3d 1033, 1037 (9th Cir. 2006). 

Because Appellants have abandoned this claim, they cannot raise it—or issues 

related to it—on appeal. See id.; see also Somers v. Apple, Inc., 729 F.3d 953, 

960–61 (9th Cir. 2013). For this reason, we decline to review the district court’s 

grant of the City’s motion to dismiss the second amended complaint, its denial of 

Lynn House and SLN’s motion for partial summary judgment, and its denial of 

SLN’s motion for partial summary judgment with respect to its reasonable 

accommodation claim, which is a repackaged facial discrimination claim.1

2. The district court did not err in denying SLN’s motion for partial 

summary judgment on its claim based on Ordinance 17-05 due to lack of notice. 

Appellants’ complaint did not put the City on notice that they sought to assert a 

1 To the extent SLN’s reasonable accommodation claim can be construed as an asapplied challenge focusing on “discrete instances” in which “specific 

individualized accommodations” were denied, we agree with the district court that 

the City lacked proper notice of any allegations related to these specific 

applications for reasonable accommodations. Cf. Payan v. Los Angeles Cmty. 

Coll. Dist., No. 19-56111, 2021 WL 3730692, at *9 (9th Cir. Aug. 24, 2021).
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facial challenge to Ordinance 17-05’s special use permit provisions, nor did they 

make their intention to do so known during discovery. See Coleman v. Quaker 

Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The district court’s decision not to 

consider new assertions raised on summary judgment was not an abuse of 

discretion under the circumstances. Even if the new assertions were construed as a 

request for leave to amend, the factors courts take into account to assess the 

propriety of granting such leave would not have counseled in favor of granting 

leave here. Cf. Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154–55 

(9th Cir. 2014). 

3. The district court did not commit any instructional or evidentiary 

errors at trial. But even if the claimed errors were made, Appellants were not 

harmed or prejudiced by them. See Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 

1232 (9th Cir. 2011); Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 

2013). The district court also did not abuse its discretion in refusing to order 

separate trials. See Fed. R. Civ. P. 42(b); Hangarter v. Provident Life & Acc. Ins. 

Co., 373 F.3d 998, 1021 (9th Cir. 2004).

4. The district court did not err in denying Yellowstone’s motion for 

entry of judgment on its California Government Code § 65008 claim. The district 

court concluded that Yellowstone did not meet its burden of proving that the City 

discriminated against Boston House because of disability, and this finding of fact 
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was neither clearly erroneous nor was it predicated on legal or factual error. See 

Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1068 (9th Cir. 2015); see also 

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (“[A] finding of 

intentional discrimination is a finding of fact . . . .”).

5. The district court did not err in denying Lynn House and SLN’s 

renewed motion for judgment as a matter of law on their disparate impact and 

disparate treatment claims. In reviewing the district court’s denial of a renewed 

motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of 

Civil Procedure, we must “view the evidence in the light most favorable to the 

nonmoving party . . . and draw all reasonable inferences in that party’s favor.” 

EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (alteration in 

original) (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)). 

A reasonable jury could conclude that the substantial, legitimate, 

nondiscriminatory interests supporting Ordinance 14-13 would not be served by 

another practice that has a less discriminatory effect. See Texas Dep’t of Hous. & 

Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 533 (2015). A

reasonable jury could also conclude that passage of Ordinance 14-13 was not more 

likely than not motivated by a discriminatory reason. See Pac. Shores Properties, 

LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013). Thus, under 

the substantial evidence standard, there was adequate evidence to support the 
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jury’s verdict that Lynn House and SLN failed to establish their disparate impact 

and disparate treatment claims by a preponderance of the evidence. See Go Daddy,

581 F.3d at 963. 

6. Because of timing, the district court did not have the benefit of our 

recent decision in Green v. Mercy Housing, Inc., 991 F.3d 1056 (9th Cir. 2021), 

when it affirmed costs against Appellants. Under Green, a plaintiff bringing suit 

under the Fair Housing Act—as well as under the Americans with Disabilities Act, 

see id. at 1057—“should not be assessed fees or costs unless the court determines 

that his claim is ‘frivolous, unreasonable, or groundless.’” Id. at 1058 (quoting

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). We thus vacate 

the costs award and remand for the district court to review the Clerk’s award of 

costs against Appellants in light of Green. 

AFFIRMED in part, VACATED in part, and REMANDED.

2 Each 

party shall pay its own costs on appeal.

2 We deny the motion for leave to file an amici curiae brief of League of California 

Cities and California State Association of Counties (Dkt. No. 61) and grant the 

parties’ motions to take judicial notice (Dkt. Nos. 26, 50).