Jesus Gutierrez v. Teresa Gonzalez et al

Filing 26

MINUTES (IN CHAMBERS) - Defendant Scott A. Burkle's Motion to Dismiss by Judge Christina A. Snyder: The Court DENIES Burkle's motion to dismiss plaintiff's claims 18 . Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

Present: The Honorable 

CHRISTINA A. SNYDER 

Attorneys Present for Plaintiffs: 

N/A 

Tape No.

Attorneys Present for Defendants: 

Not Present 

Not Present

Catherine Jeang 
Deputy Clerk 

Proceedings:  

Not Present 
Court Reporter / Recorder

(IN CHAMBERS) - DEFENDANT SCOTT A. BURKLE’S
MOTION TO DISMISS (Dkt. 18, filed March 29, 2017)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing date of May 1, 2017 is
vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION

On March 9, 2017, plaintiff Jesus Gutierrez filed this action against defendants
Teresa Gonzalez and Scott A. Burkle. Dkt. 1 (“Compl.”). Plaintiff asserts six claims:
(1) violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; (2) violation of the
California Fair Employment and Housing Act, Cal. Govt. Code §§ 12955 et seq.;
(3) violation of the California Disabled Persons Act, Cal. Civil Code §§ 54 et seq.;
(4) violation of the Unruh Civil Rights Act, Cal. Civil Code §§ 51 et seq.; retaliation in
violation of California Civil Code § 1942.5(c); and (6) negligence. Id. This case arises
from defendants’ alleged refusal to permit plaintiff to have an emotional support animal
in his apartment.
On March 16, 2017, the Court denied plaintiff’s an ex parte application for a
temporary restraining order that would have enjoined Gonzalez from commencing
eviction proceedings against him in state court. Dkt. 16.
On March 29, 2017, Burkle filed the instant motion to dismiss plaintiff’s claims.
Dkt. 18 (“Motion”). Plaintiff filed his opposition on April 10, 2017. Dkt. 24 (“Opp’n).
Burkle has not filed a reply.

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 1 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

Having carefully considered the parties’ arguments, the Court finds and concludes
as follows.
II.

BACKGROUND
Plaintiff alleges the following facts.

Plaintiff suffers from debilitating rheumatoid arthritis and osteoarthritis, the
severity of which causes plaintiff to experience feelings of stress, anxiety, inadequacy,
and hopelessness. Compl. ¶¶ 8–10. Approximately two years ago, plaintiff obtained an
emotional support animal—a dog named Karma—that had a beneficial impact on his
health. Id. ¶ 10.
On October 1, 2016, plaintiff—along with his girlfriend and their ten-year old
daughter—moved into a residence at 4742 Live Oak Street, Cudahy, California (the
“subject property”). Id. ¶¶ 5, 12. Gonzalez owns, operates and manages the subject
property, while Burkle serves as an ad hoc manager for the property. Id. ¶¶ 6–7. When
plaintiff moved into the subject property, he left Karma with friends because defendants
prohibit tenants from having pets. Id. ¶ 13. However, when plaintiff experienced a flare
up of his rheumatoid arthritis symptoms in November 2016, plaintiff contacted the
Housing Rights Center (“HRC”) for assistance with requesting a reasonable
accommodation to allow him to have an emotional support animal at the subject property.
Id. ¶¶ 13–14.
On January 4, 2017, HRC sent a letter to Gonzalez requesting that plaintiff be
permitted to have his companion animal in the subject property as a reasonable
accommodation for his physical disabilities. Id. ¶ 14. The letter was accompanied by a
December 20, 2016 note from Dr. Terence T.Z. Tan, recommending that plaintiff be
permitted to have a companion pet. Id.
On January 17, 2017, HRC received a letter from Burkle denying plaintiff’s
request for a companion animal as an accommodation for his disability. Id. ¶ 15. Burkle
stated that plaintiff’s request was unreasonable because the insurance policy covering the
subject property required the owner to have a “no pets” rule. Id. According to Burkle,
granting plaintiff’s request would place Gonzalez at risk of losing her property insurance
and, therefore, at risk of defaulting on her mortgage, which requires insurance coverage
as a condition of the mortgage. Id. Burkle attached to his note a letter from the property
insurer, Don Dixon & Associates Insurance, Inc. (“Don Dixon”), which stated that the

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 2 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

renewal terms for the insurance policy and the premiums were based on the no pets rule,
among other features of the property. Id. ¶ 16.
On or about January 17, 2017, HRC contacted Don Dixon to ask for an explanation
of its insurance renewal letter. Id. ¶ 17. The Don Dixon agent told HRC that the terms of
the insurance policy, including the no pets rule, were not restrictions imposed by the
insurance provider, but were based on answers that Gonzalez provided in response to
questions from the insurer. Id.
On January 18, 2017, HRC asked Burkle for authorization to speak with the
property insurance provider about the specific policy covering the subject property to
confirm that plaintiff’s request would place Gonzalez’s property insurance and mortgage
at risk. Id. ¶ 18. HRC told Burkle that plaintiff sought such information to engage in the
interactive process with the goal of reaching a mutually beneficial arrangement. Id.
Burkle allegedly refused to engage in the interactive process. Id.
On or about January 25, 2017, HRC sent defendants a second written request for a
reasonable accommodation on behalf of plaintiff, and made several follow-up telephone
calls, but received no response. Id. ¶ 19
On February 15, 2017, plaintiff was served with a 30-notice to vacate, allegedly in
retaliation for requesting a reasonable accommodation. Id. ¶ 20. This has exacerbated
plaintiff’s stress and anxiety and placed plaintiff’s housing at risk. Id. ¶ 23.
Plaintiff continues to reside at the subject property without his medicallyprescribed emotional support animal. Id. ¶ 22.
III.

LEGAL STANDARDS

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 3 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).
Federal Rule of Civil Procedure 8(a) provides that a pleading stating a claim for
relief must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to meet this standard, a claim for
relief must be stated with “brevity, conciseness, and clarity.” See Charles A. Wright &
Arthur R. Miller, 5 Federal Practice and Procedure § 1215 (3d ed.). “The Plaintiff must
allege with at least some degree of particularity overt acts which Defendants engaged in
that support the Plaintiff’s claim.” Jones v. Community Redevelopment Agency, 733
F.2d 646, 649 (9th Cir. 1984). The purpose of Rule 8(a) is to ensure that a complaint

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 4 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

“fully sets forth who is being sued, for what relief, and on what theory, with enough
detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
As a general rule, leave to amend a complaint that has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.

DISCUSSION
A.

Plaintiff’s Claims under the FHA and FEHA

The Fair Housing Act (“FHA”) makes it unlawful to “discriminate against any
person . . . in the provision of services or facilities in connection with [his] dwelling,
because of a handicap” of that person or any person associated with that person.1 See 42
U.S.C. § 3604(f)(2). Discrimination encompasses “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such accommodations
may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
Id. § 3604(f)(3)(B). Therefore, the FHA “imposes an affirmative duty upon landlords
reasonably to accommodate the needs of handicapped persons not only with regard to the
physical accommodations, but also with regard to the administrative policies governing
rentals.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1146–47 (9th Cir. 2003) (citation
and quotation marks omitted).
To make out a claim of discrimination based on failure to reasonably
accommodate, a plaintiff must demonstrate that (1) he suffers from a
handicap as defined by the FHAA; (2) defendants knew or reasonably
should have known of the plaintiff’s handicap; (3) accommodation of the
handicap “may be necessary” to afford plaintiff an equal opportunity to use

1

The provisions of California’s Fair Employment and Housing Act (“FEHA”)
involved in this case protect substantially the same rights as the FHA provisions at issue
and are subject to the same analysis. Walker v. City of Lakewood, 272 F.3d 1114, 1131
n.8 (9th Cir. 2001).

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 5 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

and enjoy the dwelling; and (4) defendants refused to make such
accommodation.
Id. at 1147. “Ordinarily, an accommodation is reasonable under the FHAA when it
imposes no fundamental alteration in the nature of the program or undue financial or
administrative burdens.” Id. at 1157 (quotation marks omitted). However, “[i]mposition
of burdensome policies, including financial policies, can interfere with disabled persons’
right to use and enjoyment of their dwellings, thus necessitating accommodation.” Id. at
1155.
Burkle argues that plaintiff fails to state a claim under the FHA or FEHA because
(a) the complaint does not allege any facts that state that plaintiff’s request for
accommodation was reasonable and (b) the January 17, 2017 letter “clearly states” that
Gonzalez was the sole decisionmaker and Burkle has “no legal authority” regarding
Gonzalez’s rental property. Motion at 3–5. The Court will address these arguments in
turn.
Plaintiff alleges that, on January 4, 2017, the HRC sent a “written reasonable
accommodation request letter” on plaintiff’s behalf to Gonzalez. Compl. ¶ 14. In
Burkle’s January 17, 2017 letter, Burkle explained that plaintiff’s request was denied
because permitting an animal on the property would violate Gonzalez’s insurance policy
for the property, thereby putting Gonzalez at risk of defaulting on her mortgage (which
required insurance). Id. ¶ 15. However, plaintiff alleges that the property insurer’s
representative stated that Gonzalez’s “no pets” rule was not a restriction on the property
imposed by the insurance provider, but an answer that Gonzalez provided in determining
the price of the insurance policy. Id. ¶ 17. Even if accommodating plaintiff’s alleged
need for a companion animal would increase Gonzalez’s insurance premiums,
“exceptions to neutral policies may be mandated by the FHAA where disabled persons’
disability-linked needs for alterations to the policies are essentially financial in nature.”
McGary v. City of Portland, 386 F.3d 1259, 1263 (9th Cir. 2004). Therefore, drawing all
reasonable inferences in favor of plaintiff, the Court finds that plaintiff adequately pleads
that his request for an accommodation was reasonable.
On January 17, 2017, plaintiff alleges that the HRC received a letter “from
Defendant Scott A. Burkle denying Mr. Gutierrez’s reasonable accommodation request.”
Id. ¶ 15. Drawing all reasonable inferences in favor of plaintiff, the Court finds that

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 6 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

plaintiff adequately pleads that Burkle himself denied plaintiff’s accommodation
request.2
Accordingly, the Court finds that plaintiff has adequately alleged claims under the
FHA and FEHA. The Court therefore DENIES Burkle’s motion to dismiss plaintiff’s
FHA and FEHA claims.
B.

Plaintiff’s Claim under the California Disabled Persons Act

The California Disabled Persons Act (“DPA”) provides:
A person renting, leasing, or otherwise providing real property for
compensation shall not refuse to make reasonable accommodations in rules,
policies, practices, or services, when those accommodations may be
necessary to afford individuals with a disability equal opportunity to use and
enjoy the premises.
Cal. Civ. Code § 54.1(b)(3)(B). “This language closely parallels the language defining a
‘reasonable accommodation’ claim under the FEHA. In light of these similarities, this
court finds, as another court in this district recently did, that the same four elements under
the FEHA criteria can establish a refusal to provide reasonable accommodation claim for
the DPA.” Smith v. Powdrill, No. 12-cv-06388-DDP-RZ, 2013 WL 5786586, at *10
(C.D. Cal. Oct. 28, 2013) (citation omitted); see also Rodriguez v. Morgan, No. 09-cv8939-GW-CW, 2012 WL 253867, at *5 (C.D. Cal. Jan. 26, 2012) (“While there are no
reported cases as to the elements of a reasonable accommodation claim based on the DPA
in the context of housing, given the similarity of the language in Cal. Civil Code § 54.1

2

The Court may not review the language of the January 17, 2017 letter, which was
not attached to plaintiff’s complaint. Nonetheless, the Court notes that plaintiff did
submit a copy of the January 17, 2017 letter in support of his motion for a TRO. See dkt.
13-3 Ex. 6. In that letter, Burkle appeared to represent that he acted as Gonzalez’s agent:
“This letter is in response to a letter you sent to Teresa Gonzalez on January 04, 2017
regarding Jesus Gutierrez and his request for a companion animal. I am Mrs.
Gonzalez[’s] son in law and will be assisting her in this matter.” Id. Furthermore, the
Court may not consider the declarations that Burkle submits in support of his motion.
Dkts. 20, 21. Burkle and his coworker Lourdes Acosta assert that Burkle clarified to
HRC that Burkle was not the owner of the apartment and could not make any decisions.
See dkts. 20, 21.

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 7 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

(under the DPA) and Cal. Gov’t Code § 12927(c)(1) (under the FEHA), this Court would
find that the same four elements under the FEHA criteria can establish a refusal to
provide reasonable accommodation claim for the DPA.”). Because the Court has already
concluded that plaintiff adequately alleges his claim under FEHA, plaintiff likewise
alleges sufficient facts to support a claim under the DPA. The Court therefore DENIES
Burkle’s motion to dismiss plaintiff’s DPA claim.
C.

Plaintiff’s Unruh Act Claim

The Unruh Act provides in relevant part:
All persons within the jurisdiction of this state are free and equal, and no
matter what their sex, race, color, religion, ancestry, national origin,
disability, medical condition, marital status, or sexual orientation are entitled
to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.
Cal. Civ. Code § 51(b). Civil Code § 51.5 provides that “[n]o business establishment of
any kind whatsoever shall discriminate against, boycott or blacklist, refuse to buy from,
sell to, or trade with any person in this state on account of any characteristic listed . . . in
[Section 51(b).]” Id. § 51.5(a). To sustain a claim for disability discrimination under the
Unruh Act, a plaintiff must establish that:
(1) [s]he was denied the full and equal accommodations, advantages,
facilities, privileges, or services in a business establishment; (2) [her]
disability was a motivating factor for this denial; (3) defendants denied
plaintiff the full and equal accommodations, advantages, facilities,
privileges, or services; and (4) defendants wrongful conduct caused plaintiff
to suffer injury, damage, loss or harm.
Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012).
Burkle argues that plaintiff fails to state a claim under the Unruh Act because
plaintiff has not alleged facts showing that: (a) Burkle denied plaintiff’s accommodation;
(b) Burkle’s conduct was motivated by plaintiff’s disability; or (c) Burkle’s conduct was
a substantial factor in causing plaintiff’s harm. Motion at 7.

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 8 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

As described above, the Court has already concluded that plaintiff adequately
pleads that Burkle denied plaintiff’s accommodation request.
In response to Burkle’s second argument, plaintiff contends that no showing of
intent is required to assert an Unruh Act claim. Opp’n at 10–11. The California Supreme
Court has concluded that a plaintiff is not required to allege intentional discrimination to
establish an Unruh Act violation that is based on a violation of the Americans with
Disabilities Act (“ADA”). Munson v. Del Taco, Inc., 208 P.3d 623, 634 (Cal. 2009).
However, the Munson court made clear that it reached this conclusion because, by
adopting “the full expanse of the ADA, it must follow, that the same standards for
liability apply under both Acts.” Id. at 630. Therefore, “to establish a violation of the
Unruh Act independent of a claim under the Americans with Disabilities Act (“ADA”), [a
plaintiff] must plead and prove intentional discrimination in public accommodations in
violation of the terms of the Act.” Greater Los Angeles Agency on Deafness, Inc. v.
Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (quotation marks omitted);
see also Cohen v. City of Culver City, 577 F. App’x 745, 746 (9th Cir. 2014) (“If his
Unruh Act claim is separate from an ADA claim, however, the plaintiff must prove
intentional discrimination.” (citing Wilkins-Jones, 859 F. Supp. 2d at 1051)).
Plaintiff does not assert an ADA claim in this case. Therefore, plaintiff must plead
intentional discrimination on the basis of his disability to allege an Unruh Act claim.
Under the Unruh Act, “willful, affirmative misconduct” constitutes intentional
discrimination. Greater Los Angeles Agency on Deafness, 742 F.3d at 425 (citing
Koebke v. Bernardo Heights Country Club, 115 P.3d 1212, 1228 (Cal. 2005)). Plaintiff
alleges that defendants served him with a 30-day notice to vacate because plaintiff
requested a reasonable accommodation. Compl. ¶ 20. Taking these allegations as true,
the Court finds that plaintiff alleges that defendants actively retaliated against him
because of his disability. Such conduct constitutes “willful, affirmative misconduct” on
the basis of plaintiff’s protected status. Accordingly, the Court finds that plaintiff
adequately pleads a violation of the Unruh Act premised on disability discrimination.
The Court therefore DENIES Burkle’s motion to dismiss plaintiff’s Unruh Act claim.
D.

Plaintiff’s Retaliation Claim

Under California law, it is unlawful for a landlord to bring “an action to recover
possession . . . for the purpose of retaliation against the lessee because he or she . . . has
lawfully and peacefully exercised any rights under the law.” Cal. Civ. Code § 1942.5(c);

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 9 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

see Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467, 1492 (2008) (“[A]
retaliatory eviction occurs when the landlord attempts to evict the tenant because of the
tenant's exercise of certain rights as set forth in Civil Code section 1942.5, subd. (c)”).
Section 1942.5(c) “has been denominated a ‘boilerplate’ provision because of its broad
prohibition against retaliation by a landlord when a tenant has exercised valid legal rights
under the law.” Barela v. Superior Court, 636 P.2d 582, 585 (Cal. 1981).
Burkle argues that plaintiff fails to state any facts supporting that Burkle subjected
plaintiff to an adverse action because of plaintiff’s participation in a protected activity.
Motion at 8. Plaintiff alleges that, on February 15, 2017, “Defendants served Mr.
Gutierrez with a 30-day notice to vacate in retaliation against Mr. Gutierrez for
requesting a reasonable accommodation.” Compl. ¶ 19. The Court finds that plaintiff
adequately pleads that Burkle took an adverse action by causing plaintiff to be served
with a notice to vacate and that Burkle did so on the basis of plaintiff’s exercise of his
valid legal rights, namely plaintiff’s request for a reasonable accommodation.
Accordingly, the Court DENIES Burkle’s motion to dismiss plaintiff’s retaliation claim.
E.

Plaintiff’s Negligence Claim

“The elements of a cause of action for negligence are . . . (a) a legal duty to use due
care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause
of the resulting injury.” Ladd v. Cty. of San Mateo, 911 P.2d 496, 498 (Cal. 1996)
(quotation marks omitted). Several courts have recognized that the failure of a landlord
or his agent to reasonably accommodate a tenant’s disability constitutes a breach of duty
imposed by the FHA. See, e.g., S. California Hous. Rights Ctr. v. Los Feliz Towers
Homeowners Ass’n, 426 F. Supp. 2d 1061, 1069 (C.D. Cal. 2005) (“Whether Defendants
breached their duty depends on whether a reasonable accommodation may have been
necessary for [plaintiff] to use and enjoy [his] dwelling and whether Defendants refused
to provide such an accommodation.”); Hous. Rights Ctr. v. Snow, No. 05-cv-4644-SGLJTL, 2007 WL 91148, at *3 (E.D. Cal. Jan. 3, 2007) (“Defendants’ violation of the
federal Fair Housing Act also constitutes negligence because Defendants owed Plaintiff
and the general public a duty to operate the management of the subject property in a
manner that was free from unlawful discrimination, and to hire, train, supervise, and
discipline themselves and their agents to fulfill that duty.”); McAlister v. Essex Prop.
Trust, 504 F. Supp. 2d 903, 911 (C.D. Cal. 2007) (“Defendants do not contest that failing
to reasonably accommodate imposes derivative liability for negligence.”).

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

Page 10 of 11 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-01906-CAS(Ex)
Date April 26, 2017
JESUS GUTIERREZ v. TERESA GONZALEZ ET AL.

Burkle argues that plaintiff does not allege any facts in support of her negligence
claim. Motion at 9. Plaintiff however alleges that defendants owed plaintiff a duty:
“(1) [to] operate the subject property in a manner . . . free from unlawful discrimination;
(2) to employ, train, and supervisors its directors, employees, and agents, and themselves
to fulfill that duty, and (3) [to] operate the subject property in conformity with accepted
industry custom and standards.” Compl. ¶ 38. Plaintiff further alleges that defendants
breached those duties by discriminating against plaintiff on the basis of his disability,
denying his reasonable accommodation request, refusing to engage in the interactive
process, and retaliating against him by service him with a notice to vacate. Id. ¶ 39.
Finally, plaintiff contends that this conduct harmed and continues to harm him because he
is being denied the full use and enjoyment of his dwelling. Id. ¶ 40. Drawing all
reasonable inferences in favor of plaintiff, the Court finds that plaintiff adequately pleads
facts to sustain a negligence claim against Burkle. Accordingly, the Court DENIES
Burkle’s motion to dismiss plaintiff’s negligence claim.
V.

CONCLUSION

In accordance with the foregoing, the Court DENIES Burkle’s motion to dismiss
plaintiff’s claims.
IT IS SO ORDERED.
Initials of Preparer

CV-1906 (04/17)

CIVIL MINUTES - GENERAL

: 
00 
                        CMJ 

00 

Page 11 of 11