Sharon Smith v. Harold Powdrill et al

Filing 53


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHARON SMITH, an individual, 12 Plaintiff, 13 14 v. HAROLD POWDRILL, ZELMA POWDRILL, individuals, 15 16 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-06388 DDP (RZx) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkt Nos. 29, 30] 17 18 Before the court are cross motions for summary judgment 19 brought by Plaintiff Sharon Smith and Defendants Harold Powdrill 20 and Zelma Powdrill. Having considered the parties’ submissions and 21 heard oral argument, the court adopts the following order. 22 23 24 I. Background Plaintiff is the former tenant of a rental unit owned and 25 operated by Defendants. Plaintiff’s claims center on Defendants’ 26 allegedly unlawful threat to evict her after Plaintiff requested 27 that she be permitted to live with a companion dog as an 28 accommodation to her mental disabilities. 1 Defendants own an 8-unit residential property located at 4205 2 Degnan Boulevard in Los Angeles, California (the “subject 3 property”). Defendants reside in Texas. Defendants’ children, 4 Valerie and Phillip Powdrill, assist them in operating the 5 property. 6 Plaintiff suffers from various mental disabilities, with 7 symptoms that include depression, frequent bouts of crying, and 8 anxiety. Her psychiatrist, Dr. David L. Friedman, diagnosed her as 9 “temporarily totally disabled” and suffering from adjustment 10 disorder, pain disorder, and insomnia. (Declaration of Sharon Smith 11 in Support of Motion, Ex. A. (Dr. Friedman Letter); Declaration of 12 Dr. David Friedman in Support of Reply to Defendant’s Opposition.) 13 Plaintiff asserts that her mental disabilities inhibit her ability 14 to take care of herself, get out of bed, interact with others, and 15 remain focused. (Smith Decl. ¶ 5.) Plaintiff, a former clerk 16 typist, also suffers from injuries in both wrists for which she has 17 received surgery but not fully recovered. (Id. ¶ 2.) 18 For several years, Plaintiff has lived with a companion dog, 19 Layla, a ten-pound terrier, which she asserts helps to alleviate 20 the symptoms of her mental disabilities. She states that the dog 21 “helps me keep a regular routine of caring for myself, motivates me 22 to get out of bed, clean, maintain relationships with friends and 23 family, and to exercise.” (Smith Decl. ¶ 6.) 24 In late June 2012, after working with Philip Powdrill to clean 25 the apartment, Plaintiff moved into the subject property before 26 seeing, signing, or reviewing a lease agreement with Defendants. 27 (Id. ¶ 11; Deposition of Phillip Powdrill at 39:18-25, 40:1-4.) 28 Around the time Plaintiff began moving into the property, she 2 1 informed Philip Powdrill that she would live with a dog, which she 2 stated was a companion animal necessary to address her 3 disabilities.1 Philip Powdrill subsequently acknowledged the 4 presence of the dog at the home in a text message, inquiring about 5 how it was doing in its new home. (Smith Decl., Ex. B.) 6 On or about June 30, 2012, Valerie Powdrill provided Plaintiff 7 with a copy of the a rental agreement to review and sign. The 8 agreement contained a “no pets” clause, which states: “No dog, cat, 9 bird, or other domestic pet or animal of any kind may be kept on or 10 about the premises without LANDLORD’s written consent.” (Smith 11 Decl., Ex. G at 5.) Plaintiff signed the lease, but did not initial 12 the page with the no-pet provision. (Id.) 13 Uncomfortable with representations by Philip Powdrill that she 14 could keep the dog so long as she kept it on the “down low,” (Smith 15 Decl., Ex. C-F), on or about July 12, 2012 Plaintiff sent a 16 handwritten letter to Defendants requesting an exception to the no- 17 pet policy. (Smith Decl., Ex. H.) In the letter, Plaintiff 18 introduced herself as a new tenant and stated that she has 19 undergone surgery to both her hands due to workplace injuries, 20 receives disability benefits, and is currently attending physical 21 and mental therapy. (Id.) Plaintiff stated that she was unaware of 22 the no-pet policy when she moved in and requested an accommodation 23 to allow her to keep the dog because it had been deemed a necessary 24 form of emotional support by her doctor. (Id.) She described the 25 26 1 27 28 There is some dispute as to what Plaintiff told Phillip Powdrill, but Defendants have indicated they accept Plaintiff’s version of events for the purposes of its summary judgment motion. (Dfdts.’ MSJ at 1, fn 1.) 3 1 dog as “well trained, doesn’t bark, [and] completely house 2 broken.” (Id.) 3 4 Plaintiff attached a letter from her psychiatrist, Dr. Friedman, which contains the following text: 5 Please be advised that I have been treating Ms. Smith since 6 April 2012. 7 from a severe Adjustment Disorder, Pain Disorder, and 8 Insomnia. 9 companion animal would be of much benefit to her mental state As part of her psychiatric difficulty she suffers Due to Ms. Smith’s psychiatric condition, having a 10 and necessary for her continued stabilization. 11 Smith should be allowed to have such a animal at her place of 12 residence. 13 hesitate to contact this office. 14 15 I believe, Ms. Should you have any questions please do not (Smith Decl., Ex. H.) On July 16, 2012, Defendant Zelma Powdrill replied to 16 Plaintiff’s letter, denying the request for an accommodation. 17 (Smith Decl., Ex. I.) The reply letter first asserts that Plaintiff 18 has given differing explanations as to who owns the dog and whether 19 it would be living with her. (Id.) It then states: “Your letter 20 dated July 12, 2012, asking us to allow you and the dog to stay, 21 indicates you are in possession of a dog in the apartment. (Id.) 22 Our lease clearly states no pets are allowed, therefore we have 23 enclosed a NOTICE TO PERFORM CONDITIONS AND COVENANTS OR QUIT.” 24 (Id.) Defendants attached said notice, which states that Plaintiff 25 has three days to comply with the lease covenants or quit the 26 premises. (Id.) 27 On July 24, 2012, Gabriela Garcia, a former Case Analyst at 28 the Housing Rights Center (HRC), called and spoke with Defendant 4 1 Zelma Powdrill. During this conversation, Ms. Garcia stated that 2 Plaintiff is a person with mental disabilities and requires the use 3 of a companion animal to alleviate the symptoms of her 4 disabilities. (Deposition of Zelma Powdrill at 56:6-24; Declaration 5 of Gabriela Garcia ¶ 4.) Defendant Zelma Powdrill stated that she 6 received Plaintiff’s July 12, 2012 letter and the letter from Dr. 7 Friedman. Ms. Powdrill stated that she will not allow Plaintiff to 8 keep the companion dog in the unit, asserting that allowing her to 9 do so would result in extra costs to renovate the apartment, that 10 dogs are meant to be kept outside, and that she wanted Plaintiff 11 out of the unit. (Zelma Powdrill Dep. at 56:6-24.) Ms. Garcia 12 subsequently sent a letter to Defendant Zelma Powell memorializing 13 the conversation and confirming Defendants’ refusal to grant 14 Plaintiff’s requested accommodation. (Declaration of Judith Vasan, 15 Ex. H.) 16 17 18 On the following day, July 25, 2012, Plaintiff filed the instant lawsuit. On or around February 7, 2013, Plaintiff notified Defendant of 19 her intent to vacate the apartment by March 7, 2013. 20 vacated the property on that date. (Smith Decl. ¶ 25-26.) 21 Plaintiff Plaintiff asserts that Defendants’ actions caused her 22 emotional distress, including stress, heightened depression, 23 increased anxiety, fear of retaliation and eviction, and 24 humiliation. (Smith Decl. ¶ 27.) 25 Plaintiff asserts claims under (1) the Fair Housing Amendments 26 Act of 1988 (“FHAA”), 42 U.S.C. § 3601 et seq.; (2) the California 27 Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12955 28 et seq.; (3) the California Disabled Persons Act (“DPA”), Cal. 5 1 Civil Code §§ 54–55.2; (4) the Unruh Civil Rights Act (“Unruh 2 Act”), Cal. Civil Code §§ 51–52,, and (5) Negligence. 3 Plaintiff and Defendants have filed cross motions for summary 4 judgment as to liability with respect to each of these claims. 5 6 7 II. Legal Standard Summary judgment is appropriate where the pleadings, 8 depositions, answers to interrogatories, and admissions on file, 9 together with the affidavits, if any, show “that there is no 10 genuine dispute as to any material fact and the movant is entitled 11 to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party 12 seeking summary judgment bears the initial burden of informing the 13 court of the basis for its motion and of identifying those portions 14 of the pleadings and discovery responses that demonstrate the 15 absence of a genuine issue of material fact. See Celotex Corp. v. 16 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from 17 the evidence must be drawn in favor of the nonmoving party. See 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the 19 moving party does not bear the burden of proof at trial, it is 20 entitled to summary judgment if it can demonstrate that “there is 21 an absence of evidence to support the nonmoving party's case.” 22 Celotex, 477 U.S. at 323. 23 Once the moving party meets its burden, the burden shifts to 24 the nonmoving party opposing the motion, who must “set forth 25 specific facts showing that there is a genuine issue for trial.” 26 Anderson, 477 U.S. at 256. Summary judgment is warranted if a party 27 “fails to make a showing sufficient to establish the existence of 28 an element essential to that party's case, and on which that party 6 1 will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 2 A genuine issue exists if “the evidence is such that a reasonable 3 jury could return a verdict for the nonmoving party,” and material 4 facts are those “that might affect the outcome of the suit under 5 the governing law.” Anderson, 477 U.S. at 248. There is no genuine 6 issue of fact “[w]here the record taken as a whole could not lead a 7 rational trier of fact to find for the nonmoving party.” Matsushita 8 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 9 It is not the court's task “to scour the record in search of a 10 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1278 11 (9th Cir.1996). Counsel has an obligation to lay out their support 12 clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 13 (9th Cir.2001). The court “need not examine the entire file for 14 evidence establishing a genuine issue of fact, where the evidence 15 is not set forth in the opposition papers with adequate references 16 so that it could conveniently be found.” Id. 17 III. 18 A. 19 Discussion Claims under Fair Housing Amendments Act (FHAA) Plaintiff alleges that Defendants are liable under three 20 provisions of the FHAA: (1) refusing to make a reasonable 21 accommodation because of a disability in violation of 42 U.S.C. 22 3604(f)(3)(B); (2) otherwise making a dwelling unavailable to a 23 renter because of a disability in violation of 42 U.S.C. § 24 3604(f)(1)(A); and interfering with a person in the exercise or 25 enjoyment of rights guaranteed by the Fair Housing Act in violation 26 of 42 U.S.C. § 3617. Each theory of liability is considered below. 27 28 7 1 1. Defendants Denied Plaintiff a Reasonable Accommodation 2 We begin with Plaintiff’s assertion that Defendants’ conduct 3 constituted a refusal to make a reasonable accommodation under the 4 FHAA. 5 The FHAA makes it unlawful “[t]o discriminate against any 6 person in the terms, conditions, or privileges of sale or rental of 7 a dwelling, or in the provision of services or facilities in 8 connection with such dwelling, because of a handicap of [that 9 person]. 42 U.S.C. § 3604 (f)(2)(a). The FHAA's definition of 10 prohibited discrimination encompasses “a refusal to make reasonable 11 accommodations in rules, policies, practices, or services, when 12 such accommodations may be necessary to afford such person equal 13 opportunity to use and enjoy a dwelling.” 42 U.S.C § 3604(f)(3)(b). 14 To state a claim of discrimination based on failure to 15 reasonably accommodate, a plaintiff must demonstrate that (1) she 16 suffers from a handicap as defined by the FHAA; (2) defendants knew 17 or reasonably should have known of the plaintiff's handicap; (3) 18 accommodation of the handicap may be necessary to afford plaintiff 19 an equal opportunity to use and enjoy the dwelling; and (4) 20 defendants refused to make such accommodation. 21 Associates, 343 F.3d 1143, 1147 (9th Cir. 2003) (quoting United 22 States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th 23 Cir. 1997)). 24 (a) Plaintiff suffers from a disability 25 Giebeler v. M & B We consider each element in turn. The uncontroverted facts show that Plaintiff suffers from a 26 disability. Under the FHAA, “handicap” means (1) a physical or 27 mental impairment which substantially limits one or more of such 28 person's major life activities, (2) a record of having such an 8 1 impairment, or (3) being regarded as having such an impairment. 42 2 U.S.C. § 3602(h)(1)-(3).2 3 The Department of Justice (DOJ) and the Department of Housing 4 and Urban Development (HUD) are jointly responsible for enforcing 5 the FHA, as amended by the FHAA. 6 agencies on May 17, 2004 titled Reasonable Accommodations under the 7 Fair Housing Act (“Joint Statement”) describes the meaning of 8 relevant terms. It specifies that a “physical or mental impairment” 9 as defined by the FHA “includes, but is not limited to, such 10 diseases as ... emotional illness.” Joint Statement at 3. It 11 further notes that the term “substantially limits” indicates “that 12 the limitation is ‘significant’ or ‘to a large degree’” and the 13 term “major life activity” means “those activities that are of 14 central importance to daily life, such as seeing, hearing, walking, 15 breathing, performing manual tasks, caring for one's self, 16 learning, and speaking.” Joint Statement at 4. 17 A joint statement issued by these The uncontested record shows that Plaintiff has a mental 18 disability that substantially impairs her major life activities. 19 Plaintiff’s psychiatrist Dr. Friedman diagnosed her as “temporarily 20 totally disabled and suffering from Adjustment Disorder with Mixed 21 Emotional Features, Pain Disorder Associated with Both 22 Psychological Factors and a General Medical Condition, and Insomnia 23 due to Adjustment Disorder with Mixed Emotional Features.” 24 (Friedman Decl. ¶ 7.) As a licensed physician and surgeon with 25 “expert[ise] in diagnosing and treating anxiety and depression” and 26 a Dimplomate of the American Board of Psychiatry and Neurology, Dr. 27 2 28 The court uses the now preferred term “disability” in place of “handicap” elsewhere in this Order. 9 1 Friedman appears to have the specialized knowledge necessary to 2 provide expert testimony on this matter. (Id. at ¶ 1-6; Friedman 3 Letter.); Fed. R. Evid. Rule 702. 4 condition inhibits her ability to take care of herself, get out of 5 bed, interact with others and remain focused. (Smith Decl. 6 Plaintiff asserts that her ¶ 3.) Defendants have pointed to no evidence controverting Dr. 7 Friedman’s diagnosis or Plaintiff’s assertions. 8 indication in the record that Defendants sought to take Dr. 9 Friedman’s deposition.3 10 Nor is there (b) Defendant knew or should have known of Plaintiff’s disability 11 The undisputed facts show that defendants knew, or should have 12 known, of Plaintiff’s disability. As stated above, Plaintiff sent a 13 letter to Defendants on July 12, 2012 requesting an exception to 14 the no-pet rule as an accommodation for her mental disability. In 15 this letter, Plaintiff informed Defendant that she was attending 16 “mental therapy” and that her companion dog Layla “has been deemed 17 to be [her] emotional support... by [her] doctor.” (Smith Decl. ¶ 18 17, Ex. H.) 19 Plaintiff attached a letter from Dr. Friedman stating that he 20 was treating Plaintiff and that she suffers from “a severe 21 Adjustment Disorder, Pain Disorder as well as Insomnia.” (Smith 22 Decl., Ex. H.) Defendants acknowledged receipt and responded to 23 3 24 25 26 27 28 Dr. Friedman’s declaration was presented with Plaintiff’s Reply after Defendants objected that Plaintiff’s claim of disability was based solely on Plaintiff’s own declaration and the Dr. Friedman’s letter and that no foundation was laid for the latter’s expertise. (Dfdts.’ Opp. at 4.) However, following the submission of Dr. Friedman’s declaration, Defendants made no request for a sur-reply, nor did they make any request in open court for additional time to supplement the record. The court therefore will consider Dr. Friedman’s declaration for the purposes of the instant motion. 10 1 Plaintiff’s communication, denying the request and issuing a 3-Day 2 eviction notice. 3 that she spoke by telephone on July 24, 2012 with Gabriela Garcia 4 of the Housing Rights Center who informed her of Plaintiff’s mental 5 disability and requested an accommodation for her. 6 Dep. at 56:6-24; ) 7 Additionally, Defendant Selma Powdrill admits (Zelma Powdrill Defendants assert that, despite these communications, they did 8 not believe that Plaintiff was truly mentally disabled. (Dfdts.’ 9 Opp. at 5.) To justify this skepticism, Defendants note that 10 Plaintiff spent substantial time cleaning the Subject Property to 11 ready it for her to live in. 12 may go to whether Plaintiff was physically disabled, Defendants do 13 not explain how her assistance in cleaning the apartment 14 contradicts her diagnosis of mental disability, since Plaintiff 15 does not assert that her mental disability renders her incapable of 16 carrying out any productive activity. However, while Defendants’ assertions 17 Moreover, it is undisputed that Defendants failed to ask 18 Plaintiff for further documentation or engage an “interactive 19 process” to assuage any doubts they harbored about her mental 20 disability. 21 disability or the landlord's ability to provide an accommodation, 22 it is incumbent upon the landlord to request documentation or open 23 a dialogue.” Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 24 895 (7th Cir. 1996). See also Rodiriguez v. Morgan, 2012 WL 253867 25 *9(C.D. Cal. Jan. 26, 2012) (holding that, after being appraised of 26 plaintiff’s disabilities, “if Defendant had any questions regarding 27 the full nature and scope of Plaintiff's disabilities ... he should 28 have opened a dialogue with her and/or her representative”); Book “If a landlord is skeptical of a tenant's alleged 11 1 v. Hunter, 2013 WL 1193865 *4 (D. Or. Mar. 21, 2013) (“The 2 defendants may have believed that the plaintiff was not truly 3 disabled or that her request for accommodation was unreasonable. 4 However, under the FHAA they were required to engage in an 5 interactive process to determine whether or not that was the 6 case.”) 7 Defendants further argue that the letter Plaintiff submitted 8 to Defendants did not state that Plaintiff was “disabled.” (Dfdts.’ 9 Opp. at 5.) However, defendants cite no authority to support their 10 assertion that Plaintiff was required to use term “disabled” in 11 order to effectively notify them of her disability. 12 Thus, on the undisputed facts, Plaintiff has shown that 13 Defendants knew or should have known of Plaintiff’s disability. 14 (c) Accommodation was necessary for Plaintiff to fully use and 15 enjoy the unit 16 The undisputed facts show that Plaintiff’s requested 17 accommodation was necessary for Plaintiff to fully use and enjoy 18 the unit. See Giebler, 343 F.3d 1143. An accommodation is necessary 19 if there is evidence “showing that the desired accommodation will 20 affirmatively enhance a disabled plaintiff's quality of life by 21 ameliorating the effects of the disability.” 22 Dadian v. Vill. of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001) 23 (internal citation and quotation marks omitted). Courts in this 24 Circuit have held that exceptions to no-pet rules may be required 25 as accommodation in the case of untrained companion animals that 26 provide emotional support to individuals with mental disabilities. 27 See Book v. Hunter, 2013 WL 1193865 (D. Or. Mar. 21, 2013) (finding 28 that landlord violated the FHA by failing to provide an exception 12 1 to a no-pet policy for an individual suffering from anxiety, 2 depression, and fibromyalgia who sought to live with an emotional 3 companion animal); Ass'n of Apartment Owners of Liliuokalani 4 Gardens at Waikiki v. Taylor, 892 F. Supp. 2d 1268, 1288 (D. Haw. 5 2012) (“Whether [a particular animal] qualifies as an ‘assistance 6 animal’ or ‘reasonable accommodation’ will depend largely on the 7 determination of [the plaintiff’s] disability and the accommodation 8 necessary to ameliorate the effects of the disability.”) 9 Here, as discussed above, Plaintiff suffers from depression, 10 anxiety, and insomnia that impair her ability to engage in daily 11 functions, including taking care of herself, getting out of bed, 12 and interacting with others. According to Plaintiff, the companion 13 dog, Layla, alleviates these symptoms by motivating her to maintain 14 a regular routine, get out of bed, clean, maintain relationships 15 with others, and exercise. Paintiff’s psychiatrist stated in a 16 letter dated July 5, 2012 that “[d]ue to Ms. Smith’s psychiatric 17 condition, having a companion animal would be ... necessary for her 18 continued stabilization.” (Smith Decl., Ex. H.) Defendants have not 19 substantively contested this evidence. Accordingly, there is no 20 triable issue as to whether the requested accommodation was 21 necessary. 22 (d) Defendant failed to provide Plaintiff with a reasonable 23 accommodation 24 Defendants do not contest that they refused Plaintiff’s 25 request for an exception to the no-pet rule as an accommodation for 26 her disability. Indeed, it is undisputed that on July 16, 2012 27 Defendants responded to Plaintiffs July 12, 2012 request to live 28 with her dog by issuing her a 3-Day Notice to Perform Conditions or 13 1 Covenants or Quit, requiring that she remove the dog or vacate the 2 premises. Defendant Zelma Powdrill subsequently told an HRC 3 representative on July 24, 2012 that she would not allow Plaintiff 4 to keep the companion dog and that she wanted Plaintiff out of the 5 unit. 6 Nor do Defendants present sufficient evidence to create a 7 triable issue as to whether the requested accommodation was 8 reasonable. “Ordinarily, an accommodation is reasonable under the 9 FHAA when it imposes no fundamental alteration in the nature of the 10 program or undue financial or administrative burdens.” Giebeler, 11 343 F.3d at 1157 (internal citations and question marks omitted). 12 “[T]he history of the FHAA clearly establishes that Congress 13 anticipated that landlords would have to shoulder certain costs 14 involved, so long as they are not unduly burdensome.” United States 15 v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th 16 Cir. 1994). 17 Here, Defendants argue that they denied the accommodation in 18 part because of “potential extra costs” in cleaning the unit after 19 Plaintiff moved out. (Dfdts.’ MSJ at 2.) 20 do not indicate that such costs would be unduly burdensome. 21 Defendants do not contest that the dog in question is a 10-pound 22 terrier that is “well trained, doesn’t bark, [and is] completely 23 house broken.” 24 Defendants issued Plaintiff the 3-Day Notice, they had accepted a 25 security deposit of $850.00 from Plaintiff. 26 However, the facts here (Smith Decl. ¶ 19, Ex. H.) Moreover, at the time If Defendants felt that the accommodation imposed unreasonable 27 costs, they were required to engage in an “interactive process” 28 with Plaintiff to explore alternatives. 14 See Jankowski, 91 F.3d at 1 895; Rodiriguez, 2012 WL 253867 at *9; Book, 2013 WL 1193865 at *4; 2 Joint Statement at 7. Such a process could have resulted, for 3 example, in agreement on a larger security deposit. Defendants 4 engaged in no such process and have provided no evidence that the 5 requested accommodation imposed unreasonable costs. 6 landlord might not be required to accommodate all dogs, the facts 7 in the present case do not present a triable fact as to whether the 8 accommodation at issue here was unduly burdensome. 9 While a Additionally, defendants argue that their actions do not 10 violate the FHAA because they did not take further legal action to 11 evict Plaintiff after issuing her the 3-Day Notice. (Dfdts.’ Opp. 12 at 6.) Defendants argue that “Plaintiff was given exactly what she 13 requested” because “Plaintiff was permitted to reside at the 14 Subject Property with her dog until she moved out” voluntarily. 15 (Pltf.’s Opp. at 6-7.) 16 Defendants’ argument relies exclusively on Congdon v. Strine, 17 854 F. Supp 355 (E.D. Pa 1994), a case that is distinguishable from 18 the present one. 19 alleged violations of the FHAA on the ground that her landlord’s 20 elevator maintenance policies failed to take account of her 21 disability and that the landlord’s decision to not renew her lease 22 was made in retaliation for filing complaints about the elevator’s 23 condition with governmental agencies. Id. at 357-58. Partly on the 24 ground that defendants did not take further action to evict the 25 plaintiff, the court held that the landlord’s announcement that it 26 would not renew her month-to-month tenancy did not fall within the 27 “otherwise making a dwelling unavailable to a renter” language of 28 42 U.S.C. § 3604(f)(1). See 854 F. Supp 355. In Congdon, a mostly wheelchair-bound plaintiff 15 1 Congdon is distinguishable for at least two reasons. First, 2 Plaintiff’s claim deals with a different prong of 42 U.S.C. § 3604, 3 subsection(f)(3), which prohibits landlords from “refusing to make 4 a reasonable accommodation” to a person with a disability. Unlike 5 in Congdon, the facts here clearly demonstrate that Defendants 6 refused Plaintiff’s request for an accommodation. Though the 7 refusal was accompanied by a 3-day notice of eviction, the refusal 8 alone would have been violative of § 3604(f)(3)(B). Second, the 9 Congdon court based its finding that the defendants did not make 10 the dwelling “unavailable” in part on the fact that 11 Strine and his agents made offers to rent other apartments to 12 the Congdons, including an offer to rent her an apartment in 13 the same building on the first floor. Indeed, Strine never 14 denied housing to the Congdons. To the contrary, Strine 15 undisputedly offered the Congdons alternatives, albeit not to 16 their taste. 17 Id. at 359 (citations to the record omitted). Unlike the facts in 18 Congdon, Defendants in the present case did not offer alternatives 19 or engage in any dialogue with Plaintiff as to her request for an 20 accommodation. 21 issuing her a 3-Day Notice, a position Defendants reinforced 22 several weeks later when they told Plaintiff’s advocate, HRC, that 23 they wanted Plaintiff out of the apartment. 24 They instead responded to Plaintiff’s request by Defendants also argue that their “[a]cceptance of rent to 25 cover a period after the termination of a 3-day Notice waive[ed] 26 Plaintiffs’ prior breach, making the 3-Day Notice moot.” (Dfdts.’ 27 Reply at 2, citing EDC Associates, Ltd. V. Gutierrez, 153 Cal. App. 28 3d 167, 170-71 (1984); Kern Sunset Oil Co. V. Good Roads Oil Co., 16 1 214 Cal. 435, 440 (1931); Salton Community Services Dist. V. 2 Southard, 256 Cal. App. 2d, 526, 530 (1967).) However, even 3 accepting Defendants’ assertion as true, the Defendants’ receipt of 4 rent would only have worked to prevent Defendants from lawfully 5 evicting Plaintiff on the basis of Plaintiff’s breach of the no-pet 6 policy prior to the date rent was accepted. It would not have 7 prevented Defendants from pursuing an unlawful detainer action 8 against Plaintiff going forward, and, it appears, Plaintiff 9 continued to fear such action. See, e.g. Kern Sunset Oil Co., 214 10 Cal. at 440-41 (“[I]f the landlord accepts rent from his tenant 11 after full notice or knowledge of a breach of a covenant or 12 condition in his lease for which a forfeiture might have been 13 demanded, this constitutes a waiver of forfeiture which cannot 14 afterward be asserted for that particular breach or any other 15 breach which occurred prior to the acceptance of the rent.”) Nor 16 does acceptance of rent demonstrate agreement to provide the 17 accommodation requested, particularly given Defendants’ obligation 18 to engage in an interactive process with Plaintiff relative to her 19 reasonable accommodation request. See, supra, Section 3(A)(1)(b). 20 The failure to engage with Plaintiff as to her requested 21 accommodation is particularly noteworthy in light of Plaintiff’s 22 lawsuit, which was filed July 25, 2012, the day after Defendant 23 Zelma Powdrill reinforced Defendants’ position that they would not 24 make an exception to the no-pet policy and wanted Plaintiff out of 25 the apartment. (See Zelma Powdrill Dep. at 56:6-24.) 26 acceptance of rent would not nullify Plaintiff’s asserted emotional 27 damages during the period leading up to Defendants’ receipt of the 28 rent. 17 Finally, 1 2 2. Defendants’ Conduct Made Unit “Unavailable” The court next considers Plaintiff’s claim that defendants 3 unlawfully made the unit “unavailable” to her or denied the unit to 4 her because of her disability. 42 U.S.C. § 3604(f)(1)(A) makes it 5 unlawful to “discriminate in the sale or rental, or to otherwise 6 make unavailable or deny, a dwelling to any buyer or renter because 7 of a [disability] ... of that buyer or renter.” The phrase 8 “otherwise make unavailable or deny,” as one district court has 9 noted, “appears to be as broad as Congress could have made it” and 10 encompasses such conduct as “the imposition of more burdensome 11 application procedures, of delaying tactics, and of various forms 12 of discouragement by resident managers and rental agents.” United 13 States v. Youritan Const. Co., 370 F. Supp. 643, 648 (N.D. Cal. 14 1973) (construing parallel language in 42 U.S.C. § 3604(a)). 15 In the present case, Defendants’ issuance of a 3-Day Notice in 16 response to Plaintiff’s request for an accommodation for her 17 disability, in combination with Defendants’ other communications, 18 had the effect of making Plaintiff choose between living in the 19 apartment and having access to a medically necessary companion 20 animal. These actions constituted “mak[ing] unavailable or 21 deny[ing” the apartment unit to Plaintiff under § 3604(f)(1)(A). 22 Defendants challenge to this claim relies exclusively on 23 Congdon v. Strine (discussed in the immediately preceding section). 24 (See Dfdts.’ Opp. at 6.) Congdon offers greater support for 25 Defendants with respect to this claim than it does with respect to 26 the reasonable accommodation claim discussed supra in Section 27 III(A)(1) because the portion of Congdon relied upon by Defendants 28 does address § 3604(f)(1)(A). However, the court finds that Congdon 18 1 is nonetheless fundamentally distinguishable on the facts because, 2 unlike the current case, the defendant in Congdon sought to ensure 3 that the a dwelling was made available to the plaintiffs by 4 offering them alternative housing options. See 854 F. Supp 355 at 5 359. Defendants made no similar efforts here. 6 7 3. 8 Enjoyment of FHAA rights. 9 Defendants’ conduct Interfered with Plainitff’s Exercise and The court next considers Plaintiff’s claim under 42 U.S.C. § 10 3617. This statute provides that “[i]t shall be unlawful to coerce, 11 intimidate, threaten, or interfere with any person in the exercise 12 or enjoyment of, or on account of his having exercised or enjoyed, 13 or on account of his having aided or encouraged any other person in 14 the exercise or enjoyment of, any right granted or protected by 15 section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. 16 “The Supreme Court has instructed that we are to treat ‘[t]he 17 language of the [FHA as] broad and inclusive.’” Walker v. City of 18 Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001) (quoting Trafficante 19 v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). 20 “‘[I]interference,’” in particular, ‘has been broadly applied to 21 reach all practices which have the effect of interfering with the 22 exercise of rights under the federal fair housing laws.’” Id. 23 (quoting United States v. Hayward, 36 F.3d 832, 835 (9th 24 Cir.1994)). “Interference” has also been described as “the act of 25 meddling in or hampering an activity or process” (Id.) 26 The undisputed facts show that Defendants interfered with 27 Plaintiff’s exercise of her right to obtain a reasonable 28 accommodation for her disabilities under the FAHA, FEHA, and DPA. 19 1 By responding to Plaintiff’s request for an accommodation for her 2 disability by issuing her a 3-Day Notice, and subsequently 3 reiterating that they wanted Plaintiff out of the apartment if she 4 insisted on keeping the companion animal, Defendants engaged in 5 conduct that would give a person in Plaintiff’s position cause to 6 hesitate in seeking to enforce her right to obtain a reasonable 7 accommodation for her disabilities. In opposing this claim, 8 Defendants again rely exclusively on Congdon in asserting that 9 their conduct did not constitute interference. (Dfdts.’ MSJ at 4.) 10 But, as discussed, Congdon is distinguishable from the present case 11 because of the efforts that the landlord defendants in Congdon made 12 to provide alternative housing options to the plaintiff. See 854 F. 13 Supp at 359. The lack of such engagement in the present case 14 supports Plaintiff’s claim that Defendants’ issuance of the 3-Day 15 Notice and other communications interfered with the exercise of 16 Plaintiff’s fair housing rights. 17 B. Claim under California Fair Employment and Housing Act (FEHA) 18 The FEHA prohibits, as unlawful discrimination, “a refusal to 19 make reasonable accommodations in rules, policies, practices, or 20 services when these accommodations may be necessary to afford a 21 disabled person equal opportunity to use and enjoy a dwelling.” 22 Cal. Gov’t Code S 12927(c)(1). The FEHA was written to “to conform 23 California law on the subject of fair housing to the Federal Fair 24 Housing Act.” Broodmore San Clemente Homeowners’ Assn. v. Nelson, 25 25 Cal. App. 4th 1, 5-7 (1994). 26 The elements to prove a “reasonable accommodation” claim under 27 the FEHA are the same as those under the FHAA, as reviewed above. A 28 20 1 plaintiff must provide that she (1) suffers from a disability as 2 defined in the FEHA,4 (2) the discriminating party knew of, or 3 should have known of, the disability, (3) accommodation is 4 necessary to afford an equal opportunity to use and enjoy the 5 dwelling, and (4) the discriminating party refused to make this 6 accommodation. 7 & Hous. Comm'n, 121 Cal. App. 4th 1578, 1592(2004). 8 9 Auburn Woods I Homeowners Ass'n v. Fair Employment Because Plaintiff has established she is entitled to summary judgment as to each of these elements with respect to her FHAA 10 reasonable accommodation claim, she is also entitled to summary 11 judgment as to her FEHA reasonable accommodation claim. 12 13 C. California Disabled Persons Act (DPA) 14 The DPA provides that “[a]ny person renting, leasing, or 15 otherwise providing real property for compensation shall not refuse 16 to make reasonable accommodations in rules, policies, practices, or 17 services, when those accommodations may be necessary to afford 18 individuals with a disability equal opportunity to use and enjoy 19 the premises.” Cal. Civ. Code § 54.1(3)(A). This language closely 20 parallels the language defining a “reasonable accommodation” claim 21 22 23 24 25 26 4 Disability under the FEHA encompasses “mental disability” which are defined as “any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” Cal. Gov't Code § 12926(j)(1). This definition is at least as encompassing of Plaintiff’s mental disabilities as the definition of “disability” under the FHAA, as defined in 42 U.S.C. § 3602(h)(1)-(3)and interpreted by HUD and DOJ. See, supra, Section III(A)(1)(a). 27 28 21 1 under the FEHA. See Cal. Gov't Code § 12927(c)(1). In light of 2 these similarities, this court finds, as another court in this 3 district recently did, that the same four elements under the FEHA 4 criteria can establish a refusal to provide reasonable 5 accommodation claim for the DPA. See Rodriguez v. Morgan, 2012 WL 6 253867 at *5 (C.D. Cal. Jan. 26, 2012). 7 As Plaintiff has established she is entitled to summary 8 judgment as to her FEHA reasonable accommodation claim, she is 9 likewise entitled to summary judgment as to her DPA reasonable 10 accommodations claim. 11 12 13 D. California Unruh Civil Rights Act (Unruh) Plaintiff asserts a claim under the Unruh Civil Rights Act, 14 Cal. Civ. Code § 51. This statute provides that "[a]ll persons 15 within the jurisdiction of this state are free and equal, and no 16 matter what their sex, race, color, religion, ancestry, national 17 origin, disability, medical condition, genetic information, marital 18 status, or sexual orientation are entitled to the full and equal 19 accommodations, advantages, facilities, privileges, or services in 20 all business establishments of every kind whatsoever.” Id. 21 Prevailing plaintiffs may recover actual damages or automatic 22 minimum statutory damages in the amount of $4,000, as well as 23 attorneys fees. Cal. Civ. Code § 52. Plaintiff asserts that 24 Defendants’ denial of a reasonable accommodation for her 25 disabilities violates the Unruh Act. (Pltf.’s MSJ at 18.) 26 Defendants challenge the Unruh claim on the grounds that 27 Plaintiff has not proved intentional discrimination. (Dfdts.’ Opp. 28 at 10.) However, a preliminary question, not raised by Defendants, 22 1 is whether Plaintiff’s reasonable accommodation claim may be 2 brought under the Unruh Act. The issue is whether the Unruh Act 3 requires residential landlords to provide reasonable accommodations 4 for disabled tenants. In agreement with the analysis of Judge Wu in 5 Rodriguez v. Morgan, 2012 WL 253867 (C.D. Cal. Jan. 26, 2012), the 6 court finds that it does not. 7 The Unruh Act does not specifically include a requirement for 8 the provision of reasonable accommodations. This makes it distinct 9 from the federal FHA and California’s FEHA and DPA, as discussed, 10 respectively, in Sections III(A)(1), III(B), and III(C). The Unruh 11 Act does include a provision providing that “[a] violation of the 12 right of any individual under the federal Americans with 13 Disabilities Act [ADA] of 1990 shall also constitute a violation of 14 this section.” Cal. Civ. Code § 51(f). The ADA, in turn, includes a 15 reasonable accommodations requirement as a component of its ban on 16 discrimination in “public accommodations.” See 42 U.S.C. § 12182 17 and § 12182(b)(2)(A)(ii) (defining discrimination to include a 18 failure to make reasonable accommodations for individuals with 19 disabilities). However, the ADA’s reasonable accommodations 20 requirement does not extend to residential housing. 21 § 12181(7) (defining “public accommodations” to include “an inn, 22 hotel, motel, or other place of lodging ....”; 23 Servs. v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 n. 14 24 (N.D.Cal.1993) (statutory history of ADA indicates lack of intent 25 to extend reasonable accommodations requirement to residential 26 housing). 27 28 See 42 U.S.C. Independent Hous. Plaintiff accurately asserts that the Unruh Act, unlike the ADA, does apply to residential housing. 23 See Marina Point v. 1 Wolfson, 30. Cal 3d 721, 731 (1982) (“For nearly two decades the 2 provisions of the Unruh Act, in light of its broad application to 3 ‘all business establishments,’ has been held to apply with full 4 force to the business of renting housing accommodations.”) However, 5 it does not follow from this fact that the California legislature 6 intended to expand the ADA’s reasonable accommodations requirement 7 beyond the requirement’s scope under the ADA itself (as 8 California’s legislature did by including a reasonable 9 accommodations requirement that is applicable to residential 10 housing in the FEHA and DPA, discussed supra in Sections III(B) and 11 III(C)), and the court has seen no authority indicating that the 12 legislature had such an intention. 13 In sum, the court agrees with Judge Wu’s analysis in Rodriguez 14 v. Morgan and finds that Plaintiff’s claim under the Unruh Act must 15 be dismissed. 16 17 E. 18 19 Claim for Negligence The court finds it unnecessary for the resolution of this matter to reach Plaintiff’s negligence claims. 20 21 22 IV Conclusion For the reasons set forth herein, the court GRANTS Plaintiff’s 23 motion for summary judgement and DENIES Defendants’ motion for 24 summary judgment as to liability for Plaintiff’s claims under the 25 Fair Housing Amendments Act, the California Fair Employment and 26 Housing Act, and the California Disabled Persons Act. The court 27 GRANTS Defendants’ motion for summary judgement and DENIES 28 24 1 Plaintiff’s motion for summary judgment as to Plaintiff’s claim 2 under the Unruh Civil Rights Act.5 3 4 IT IS SO ORDERED. 5 6 7 Dated: October 28, 2013 8 DEAN D. PREGERSON 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The court notes that, in light of the present order, it need not address Plaintiff’s recently filed motions in limine. (See DKT Nos. 40, 41.) 25

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