Bischoff, et al v. Brittain, et al

Filing 133

ORDER signed by District Judge Kimberly J. Mueller on 9/15/16 ORDERING that the court DENIES defendants' motion for reconsideration; DENIES plaintiffs' motion for partial summary judgment against Johnson and GRANTS it in all other regard s; and DENIES without prejudice plaintiffs' motion for attorney's fees and costs. The court OVERRULES as moot defendants' objection to plaintiffs' notice of recent consent judgment and attorney fee award 127 .The claims not res olved by this order are all of plaintiffs' claims against Johnson, plaintiffs' claim against all defendants under 42 U.S.C. § 3604(b) based on the allegedly discriminatory attempted eviction of Bischoff and Dempsey, and plaintiffs' claim against all defendants under 42 U.S.C. § 3617. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT BISCHOFF, et al.,

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No. 2:14-cv-01970-KJM-CKD

Plaintiffs,
v.

ORDER

SANDRA BRITTAIN, et al.,
Defendants.

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Plaintiffs Scott Bischoff, Leron Dempsey, and Project Sentinel, Inc. (“Project

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Sentinel”) filed this action against defendants RZM Investments Enterprise, LLC (“RZM”), J.A.

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Brittain, Limited (“Brittain Commercial”), Keith Johnson, and Sandra Brittain, alleging that their

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housing practices discriminate based on familial status. Several motions are currently before the

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court. Defendants move for reconsideration of the court’s April 29, 2016 order granting Project

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Sentinel’s motion for partial summary judgment. Plaintiffs move for partial summary judgment

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on other claims and for an interim award of attorney’s fees and costs. Each motion is opposed.

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The court held a hearing on August 19, 2016, at which Todd Espinosa appeared for plaintiffs, and

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Ryan Abernethy and Daniel Costa appeared for defendants. As explained below, the court

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DENIES defendants’ motion for reconsideration, GRANTS IN PART and DENIES IN PART

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plaintiffs’ motion for partial summary judgment, and DENIES without prejudice plaintiffs’

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motion for attorney’s fees and costs.

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I.

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BACKGROUND
A.

Statutory Background
Plaintiffs bring claims under the federal Fair Housing Act (“FHA”), 42 U.S.C.

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§ 3601 et seq., and the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51 et

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seq. The FHA is a “broad remedial statute” that courts “generously construe.” City of Edmonds

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v. Wash. St. Bldg. Code Council, 18 F.3d 802, 804 (9th Cir. 1994). The FHA makes it unlawful

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“[t]o discriminate against any person in terms, conditions, or privileges of sale or rental of a

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dwelling, or in the provision of services or facilities in connection therewith, because of . . .

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familial status . . . .” 42 U.S.C. § 3604(b). Familial status discrimination entails “discrimination

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against families with children.” Fair Hous. Cong. v. Weber, 993 F. Supp. 1286, 1290 (C.D. Cal.

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1997). A plaintiff may bring a claim under § 3604(b) under either a disparate treatment or

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disparate impact theory. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008)

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(courts apply Title VII discrimination analysis in cases brought under the FHA). Plaintiffs here

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rely on a disparate treatment theory.

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The FHA also makes it unlawful

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[t]o make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on . . . familial status, . . . or an
intention to make any such preference, limitation, or discrimination.

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42 U.S.C. § 3604(c).

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The Unruh Act provides, in relevant part,

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All persons within the jurisdiction of [California] are free and
equal, and . . . are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.

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Cal. Civ. Code § 51(b). The prohibitions of the Unruh Act include “discriminating in the sale or

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rental of housing based upon age.” Id. § 51.2(a).

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B.

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Evidentiary Objections
The court overrules defendants’ objections to plaintiffs’ citation to the court’s May

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2, 2016 order, Defs.’ Objection Nos. 1–4 & 6–9, ECF No. 116-5, because they are not in fact

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evidentiary objections. Moreover, plaintiffs’ statement of undisputed facts and the cited portions

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of the court’s prior order each cite to materials in the record that independently support the

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respective facts. See Statement of Undisputed Material Facts (“UMF”) Nos. 9, 10, 12, 13, 20, 27,

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28, 35, ECF Nos. 47-2 & 61-1. The court also overrules defendants’ objection as to Keith

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Johnson’s personal knowledge, Defs.’ Objection No. 5. Johnson properly provided testimony

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based on his experience as a resident manager of the complex. See Johnson Dep. 113, Espinosa

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Decl. Supp. MSJ Ex. C, June 3, 2016, ECF No. 110-3 (“Espinosa Decl. II”) (“Q. In your

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experience as a resident manager, what have been the bases of situations that have led to evictions

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of your tenants?”).

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C.

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Relevant Facts
The court has examined the record to determine whether the submitted facts are

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supported and whether there exists a genuine dispute as to material facts. The following facts are

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undisputed, unless otherwise noted.

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The Birchwood Gardens apartment complex (“Birchwood Gardens”) is located at

Background

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1225 Bell Street, Sacramento, California. UMF No. 2. Defendant RZM owns Birchwood

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Gardens. UMF No. 1. Defendant Brittain Commercial manages Birchwood Gardens on RZM’s

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behalf under a written property management agreement. UMF No. 4. Defendant Sandra Brittain

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is the Property Director of Brittain Commercial, and defendant Keith Johnson is the resident on-

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site manager for Birchwood Gardens. UMF No. 6. Brittain and Johnson are both employed by

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Brittain Commercial. UMF No. 7.

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Plaintiffs Bischoff and Dempsey each rented apartments at Birchwood Gardens at

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the time this action was filed. UMF No. 19. Bischoff and Dempsey are single fathers of minor

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children. UMF No. 20. Project Sentinel is a non-profit fair housing organization whose

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organizational mission includes the promotion of equal opportunity in housing and the

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elimination of all forms of unlawful housing discrimination. UMF No. 26.

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Birchwood Gardens comprises approximately thirty apartments that surround a

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common courtyard area with a fenced swimming pool. UMF No. 2; Brittain Decl. Opp’n SJ ¶¶ 5,

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7, Oct. 28, 2015, ECF Nos. 61-3 & 108 (“Brittain Decl. I”). The complex has a parking lot with

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fifty parking spots that is located only a “few paces” away from the courtyard area. Brittain Decl.

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Opp’n SJ ¶ 14, July 8, 2016, ECF No. 116-2 (“Brittain Decl. II”). A large gate separates the

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parking lot from the street in front of the complex. Id. The gates are electronically operated and

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take about a minute to open and close when a vehicle passes through. Id. The gate is kept open

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continuously from 2:00 p.m. to 6:00 p.m. Monday through Friday whenever there is a vacancy in

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the complex. Id.; Miller Dep. 154–55, Abernethy Decl. Ex. B, ECF No. 116-8. Robert Miller,

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plaintiffs’ expert in the field of property management, testified that leaving the gate open

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jeopardizes the safety of the children in the building. Miller Dep. 69; see id. at 223–25 (“Brittain

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has put . . . the children in a [sic] harm’s way . . . . [T]hese children would not be in harm’s way if

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you had done these things to make sure that the children were in a safe place.”).

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2.

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Brittain Commercial’s resident on-site managers receive training, including

“Brief Recap of Notes” Document and Related Guidance

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“Resident Relations” training, at seminars provided by independent experts. Brittain Decl. I

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¶¶ 11–13; see Espinosa Decl. Supp. MSJ Ex. B (Certificates of Completion), Oct. 2, 2015, ECF

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No. 47-4 (“Espinosa Decl. I”). Defendant Brittain prepared a document titled “Brief Recap of

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Notes from the following classes:” (“‘Brief Recap of Notes’ document”) on Brittain Commercial

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letterhead that summarizes several training seminars and provides guidelines for resident

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managers to follow. Espinosa Decl. I Ex. D; Brittain Dep. 106, Feb. 8, 2016, Espinosa Decl. II

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Ex. A; Brittain Decl. I ¶¶ 10, 15. Under the heading “Resident Relations,” the document states, in

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relevant part,

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Handling unsupervised children:

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1. If you have a young child not being supervised, walk the child
home and speak with whoever is in charge.

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2. Have your supervisor write a letter after you speak with the
person in the apartment, which will alert whoever opens the mail,
that you are worried over the child’s safety—you are now showing
safety concerns and are not attacking their parenting skills or being
discriminatory.

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3. If nothing changes and the child is once again outside
unsupervised, notify your supervisor who will now contact social
services and/or the police.

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4. If nothing still changes, we will then consider eviction and note
the reasoning on their notice.

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Espinosa Decl. I Ex. D. The document was distributed to all resident on-site managers for their

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reference in or about 2014 or 2015. Brittain Dep. 106–08, Feb. 8, 2016; Brittain Decl. I ¶ 15;

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Johnson Dep. 100–01, 105. It also was distributed to everyone in Brittain Commercial’s main

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office. Brittain Dep. 107, Feb. 8, 2016.
Defendant Brittain explained the policy behind the guidelines in her declaration in

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opposition to Project Sentinel’s prior motion for partial summary judgment, on which plaintiffs

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rely here without objection:

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It is our understanding and belief that young children require
regular adult supervision . . . . In managing Birchwood Gardens, we
believe that it is within the scope of our management role to
encourage . . . parents and guardians to exercise such supervision
for the safety of their young children and for the benefit of other
residents. We believe that such supervision is necessary so that
young children who are tenant residents of Birchwood Gardens will
not be at risk of injuring themselves or other residents, or engaging
in disruptive or destructive activities. In an effort to promote such
supervision and discourage parent-guardian neglect, we developed
internal suggested guidelines for managers to use in their discretion
as circumstances might warrant.

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Brittain Decl. I ¶ 9.

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The primary goals of these guidelines are to protect the safety and
well-being of young children in need of supervision, to encourage
such young children’s parents or guardians to provide that needed
supervision, and to limit disturbances to other residents by such
children. They also serve the concomitant business purpose of
protecting against liability that might arise from injuries to such
young children.

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Id. ¶ 16.

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Defendant Johnson testified that he has never been “instructed” to follow the four

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steps outlined in the “Brief Recap of Notes” document. Johnson Dep. 94–95. Throughout his

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deposition, Johnson objected to the characterization of the guidelines as “instructions,” but

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admitted to having received the document. Id. at 94–95, 102–10. Johnson’s understanding was

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“[t]hat they were to be used as guidelines and that [he] should adhere to them as closely as

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possible.” Id. at 104–05. He explained that his only responsibilities are to take unsupervised

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children home and to notify the main office if the problem continues. Id. at 105–09. It is the

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main office’s responsibility to take any additional steps described in the document. Id.

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Johnson has taken children home because they were unsupervised on at least two

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occasions. Id. at 95–96. Once, he took Dempsey’s children home because they were “young

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children” and were playing in the barbecue area, which is not visible from Dempsey’s apartment.

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Id. at 96. He believed Dempsey’s children were between the ages of three and six or seven. Id.

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Johnson considers children up to the ages of eight or nine to be “young.” Id. at 78. On another

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occasion, Johnson took Bischoff’s then three-year-old son home because he was playing with a

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stick in the outside common area right below Bischoff’s apartment “without anyone visible

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nearby.” Id. at 96–100; see UMF No. 21.

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According to Brittain’s most recent declaration opposing plaintiffs’ pending

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motion for partial summary judgment, defendants have never sent a letter to tenants, contacted

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social services or the police, or evicted a tenant due to failure to supervise a child. Brittain

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Decl. II ¶ 7. She claims the four-step guidelines “[were] never implemented or enforced by

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anyone at Brittain Commercial.” Id. (emphasis in original).

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In addition to the “Brief Recap of Notes” document, Brittain Commercial provides

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resident managers with a written Resident Managers Standard Operations Manual, which states

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that “[f]ailure to properly supervise children is grounds for termination of the tenancy.” Brittain

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Dep. 99, 157–58 & Ex. 21, Mar. 23, 2016, Espinosa Decl. II Ex. D. According to Brittain, this

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does not refer to children “merely being unsupervised,” but instead refers to violations of the

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lease agreement, described below, such as “loud and boisterous activity.” Brittain Decl. II ¶ 13.

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When Johnson was asked what type of serial lease agreement violations have led to evictions, he
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identified “unsupervised children” as one of the violations “that come[s] to mind.” Johnson

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Dep. 113. In his declaration in opposition to plaintiffs’ pending motion for partial summary

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judgment, he submits he “was referring to tenants who were evicted due to their children’s

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disruptive behavior, disturbing of the peace, physically assaulting tenants and the like,” rather

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than “because a child was simply on the property unattended.” Johnson Decl. Opp’n SJ ¶ 4, ECF

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No. 116-3. Brittain is the only person at Brittain Commercial authorized to issue an eviction

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notice or to commence eviction proceedings. Brittain Decl. II ¶ 8.

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3.

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Dempsey and Bischoff each executed a written lease agreement with Brittain

Terms of the Lease Agreement

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Commercial. Johnson Decl. Opp’n TRO Ex. 2 (“Dempsey Lease Agreement”) at 34, ECF

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No. 13-2; Johnson Decl. Opp’n TRO Ex. 8 (“Bischoff Lease Agreement”) at 33, ECF No. 13-9.

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Section 12 of the lease agreements, titled “Conduct of Tenants & Guests,” provides, in relevant

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part,

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Neither Tenant nor any invitee, guest or family member of the
Tenant shall . . . create a nuisance or otherwise interfere with the
quiet use and enjoyment of other residents or neighbors . . . .

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Loud boisterous activity is prohibited at all times . . . .

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Complaints from your neighbors . . . may result in a termination of
your tenancy . . . .

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Dempsey Lease Agreement 11–12; Bischoff Lease Agreement 10–11. When there are noise

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complaints, the on-site manager gives the offending resident either a written notice or a verbal

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warning. Brittain Decl. I ¶ 8. Noise complaints with respect to minors are handled in the same

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manner as those arising from adults. Id.

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Section 7 of the lease agreements, titled “No Assignment or Subletting,” provides,
in relevant part,
Unless written permission is given in advance by the Landlord, the
Tenant shall not assign, transfer, mortgage or hypothecate the
Rental Agreement in whole or in any part or any interest therein,
nor shall the Tenant sublease or sublet the premises or any part of
any portion thereof, either voluntarily or by operation of
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law. . . . Anyone other than the authorized Tenants listed above who
resides or stays overnight at the premises more than three (3) days

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in any thirty day period shall be considered an unauthorized subtenant and an incurable violation of the Rental Agreement. . . .
Dempsey Lease Agreement 8; Bischoff Lease Agreement 7.

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4.

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The remaining facts are provided as background for understanding the parties’

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Complaints and Attempted Eviction

arguments, although they do not affect the court’s resolution of the pending motions.
In May and June 2014, Brittain Commercial management received several verbal
and written complaints from other residents about Dempsey and his guests making excessive

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noise and occupying the entire pool area at the complex. See Johnson Decl. Opp’n TRO ¶¶ 11–

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19, ECF No. 13. On May 12, 2014, after Dempsey received a written warning notice for a noise

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violation, he entered Johnson’s office and engaged in what Johnson describes as “threatening”

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behavior. Johnson Dep. 185–87, ECF No. 116-9; see also Johnson Decl. Opp’n TRO ¶13.

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On June 30, 2014, Bischoff received a written warning notice arising from a verbal

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complaint by a resident that his son was blocking access to walkways and stairs and engaging in

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“loud, boistrous [sic] behavior.” Johnson Decl. Opp’n TRO Ex. 9 (Warning Notice); Yellen

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Decl. Opp’n SJ ¶¶ 3–5, ECF No. 116-4; Bischoff Dep. 181. In July 2014, Bischoff allowed a

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friend and his son to stay with him in his apartment on and off for three weeks in violation of

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Section 7 of the lease agreement. Bischoff Dep. 85–86, 195–96, ECF No. 116-7; Brittain Decl. II

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¶ 10; UMF Nos. 45 & 46. Bischoff also violated the lease agreement by allowing the friend to

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receive mail at his apartment. Bischoff Dep. 216; UMF No. 46.

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Later that month, in late July 2014, Brittain Commercial notified Bischoff and

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Dempsey of the termination of their tenancies at Birchwood Gardens, effective August 31, 2014.

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UMF No. 23. Brittain testified that she decided to issue Dempsey a notice of termination of

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tenancy principally because he “threaten[ed]” and “intimidat[ed]” Johnson. Brittain Decl. II ¶ 9;

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Brittain Dep. 44–48, Mar. 23, 2016. She testified that she decided to issue Bischoff a notice of

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termination of tenancy principally because he kept unauthorized guests in his apartment. Brittain

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Dep. 48–54, Mar. 23, 2016; Brittain Decl. II ¶ 10.
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In her declaration opposing plaintiffs’ request for sanctions filed in connection

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with the court’s October 15, 2016 discovery order, Brittain stated plaintiffs’ “instances of parental

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neglect or derelictions” were among the “last straws” leading up to their attempted evictions.

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Brittain Decl. Opp’n Mot. Sanctions ¶ 4, ECF No. 70-2. In her later-filed declaration opposing

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the pending motion for partial summary judgment, she explained that she was referring to the

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complaints defendants received about plaintiffs’ children causing excessive noise and blocking

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access to the walkways and stairs. Brittain Decl. II ¶ 12. She said, “Plaintiffs’ children merely

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being unsupervised . . . by itself is not a violation of the tenancy agreement and was not even a

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consideration for Plaintiffs’ evictions in any way . . . .” Id.

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D.

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Procedural Background
Bischoff and Dempsey filed a complaint in this action on August 25, 2014. ECF

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No. 1. On August 29, 2014, the court approved the parties’ stipulated temporary restraining

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order. ECF No. 8. On October 10, 2014, the court granted plaintiffs’ motion for a preliminary

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injunction and preliminarily ordered defendants to allow Dempsey and Bischoff to remain in their

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apartments so long as they continued paying their monthly rent. ECF No. 20. On October 24,

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2014, defendants filed an answer to the complaint. ECF No. 21. On November 14, 2014,

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plaintiffs filed a first amended complaint, which added Project Sentinel as a plaintiff. ECF

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No. 22. Defendants filed an answer to the first amended complaint on December 5, 2014. ECF

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No. 25.

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On April 20, 2015, Bischoff gave notice to defendants that he intended to vacate

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his apartment on May 2. Three days later, he attempted to withdraw his notice. See Espinosa

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Decl. Ex. C (April 24, 2015 Letter), ECF No. 111-3. The following day, on April 24, defendants’

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counsel informed plaintiffs’ counsel that defendants refused to accept Bischoff’s withdrawal of

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his notice, id., so Bischoff vacated his apartment on May 2, 2015, id. Ex. D (Move-In/Move-Out

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Itemized Statement). Dempsey continues to reside at Birchwood Gardens and is protected by the

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court’s preliminary injunction.

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On October 2, 2015, Project Sentinel filed a motion for partial summary judgment
as to RZM’s and Brittain Commercial’s liability under 42 U.S.C. § 3604(b) for their allegedly
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facially discriminatory “Brief Recap of Notes” policy. ECF No. 47 (“Prev. MSJ”). The court

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held a hearing on the motion on November 20, 2015. On January 29, 2016, Bischoff, Dempsey,

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and Project Sentinel filed a motion to amend the first amended complaint to add allegations and a

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claim under 42 U.S.C. § 3604(c). ECF No. 75. On May 2, 2016, the court issued an order

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granting Project Sentinel’s motion for partial summary judgment and granting plaintiffs leave to

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amend the complaint. ECF No. 105 (“Prev. Order”). Plaintiffs filed the operative second

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amended complaint, ECF No. 106 (“Second Am. Compl.”), and defendants filed an answer to that

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complaint, ECF No. 109. The second amended complaint asserts claims for violations of 42

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U.S.C. §§ 3604(b), 3604(c), and 3617, and California Civil Code sections 51 and 51.2. On June

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3, 2016, plaintiffs filed the instant motion for partial summary judgment and motion for interim

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attorney’s fees and costs. Pls.’ Mot. Summ. J. (“MSJ”), ECF No. 110; Pls.’ Mot. Atty’s Fees

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(“Atty’s Fees Mot.”), ECF No. 111. Defendants opposed the motions. Opp’n SJ, ECF No. 116;

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Opp’n Atty’s Fees, ECF No. 117. Plaintiffs replied. Reply SJ, ECF No. 120; Reply Atty’s Fees,

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ECF No. 121.

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On July 22, 2016, defendants filed a motion for reconsideration of the court’s May

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2, 2016 order granting partial summary judgment for Project Sentinel. Defs.’ Mot. Recons., ECF

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No. 119. Plaintiffs opposed the motion, Opp’n Recons., ECF No. 123, and defendants replied,

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Reply Recons., ECF No. 124.1

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The court first considers defendants’ motion for reconsideration, and then turns to

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plaintiffs’ motion for partial summary judgment and motion for interim attorney’s fees and costs.

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II.

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MOTION FOR RECONSIDERATION
A.

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Prior Order
In its prior order, the court applied the burden-shifting framework for facially

discriminatory policies established by the Ninth Circuit in Community House, Inc., 490
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The court DENIES defendants’ request for an extension of the court’s page limitations,
Reply Recons. 1 n.1, and disregards the last five pages of the reply brief, because defendants have
not shown good cause for the request. See Standing Order 4, ECF No. 3-1 (“Only in rare
instances and for good cause shown will the court grant an application to extend these page
limitations.”).
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F.3d 1045. See Prev. Order 9–13. Under this framework, a plaintiff first must make out a prima

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facie case of intentional discrimination. 490 F.3d at 1050. A plaintiff can satisfy this burden

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“merely by showing that a protected group has been subjected to explicitly differential—i.e.

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discriminatory—treatment.” Id. (citation omitted); see Iniestra v. Cliff Warren Invs., Inc.,

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886 F. Supp. 2d 1161, 1166 (C.D. Cal. 2012). Once a plaintiff has established a prima facie case,

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the burden shifts to the defendant to justify the differential treatment. See Community House,

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490 F.3d at 1050 (discussing Int’l Union, United Auto., Aerospace & Agr. Implement Workers of

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Am., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)); see also Larkin v. State of Mich.

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Dep’t of Soc. Servs., 89 F.3d 285, 290 (6th Cir. 1996). Facial discrimination under the FHA is

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allowed only when (1) “the restriction benefits the protected class,” or when (2) “it responds to

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legitimate safety concerns raised by the individuals affected, rather than being based on

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stereotypes.” Community House, Inc., 490 F.3d at 1050.

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Applying these standards, the court first found Brittain Commercial’s policy

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requiring adult supervision of young children “inherently treats children differently than adults by

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limiting when they may use the common areas of the complex to times when they are supervised

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by an adult.” Prev. Order. 10. The court also found the four-step “Brief Recap of Notes” policy

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“treats parents of young children differently by subjecting them to certain consequences if their

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children are found unsupervised.” Id. Because Brittain Commercial’s child supervision policy

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subjects children and families to explicitly different treatment, the court concluded Project

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Sentinel established a prima facie case of facial discrimination. Id. (citing Community House,

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Inc., 490 F.3d at 1050).

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The court next considered defendants’ justifications for the discriminatory policy.

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Only one of defendants’ purported justifications was permissible under Community House: that

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the policy protected the safety and well-being of young children. Prev. Order 13. The only

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evidence defendants offered to support this justification was Brittain’s declaration. Id. Brittain

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generally identified the following safety hazards: the street adjacent to the complex, tables and

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trees in the courtyard common area, outdoor grilling equipment, and a fenced swimming pool. Id.

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at 13–14 (quoting Brittain Decl. I ¶ 6). She noted that one three-year-old child had drowned at a
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different apartment complex in August 2014 while the child was unsupervised. Brittain Decl. I

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¶ 6. After considering this evidence and the relevant case law, the court determined that

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defendants’ safety concerns “[were] based largely on unfounded speculation,” and that their

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policy “[was] not adequately tailored to respond to those purported concerns.” Prev. Order 14.

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The court concluded that defendants had not created a triable dispute as to whether the facial

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discrimination was justified under the FHA. Id. at 13–15. In addition to finding Brittain

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Commercial liable under § 3604(b) for its policy, the court also found RZM vicariously liable as

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the owner of Birchwood Gardens. Id. at 15–16. Accordingly, the court granted Project Sentinel’s

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motion for partial summary judgment.

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B.

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Legal Standard
The court has authority under its inherent powers and the Federal Rules of Civil

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Procedure to reconsider its prior motion granting partial summary judgment. “As long as a

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district court has jurisdiction over [a] case, then it possesses the inherent procedural power to

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reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of

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Los Angeles v. Santa Monica BayKeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citations and

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emphasis omitted). In addition, Rule 54(b) authorizes courts to revise “any order or other

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decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

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the parties . . . at any time before the entry of a judgment adjudicating all the claims and all the

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parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).

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Reconsideration is appropriate where it is necessary to correct clear error or

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prevent manifest injustice, where new evidence has become available, or where there has been an

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intervening change in controlling law. Cachil Dehe Band of Wintun Indians v. California, 649 F.

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Supp. 2d 1063, 1069 (E.D. Cal. 2009) (citing Sch. Dist. No. 1J Multnomah Cty. v. ACandS Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993)). Under Local Rule 230(j), the party moving for reconsideration

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must explain:

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(1) when and to what [j]udge . . . the prior motion was made;

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(2) what ruling, decision, or order was made thereon;

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1

(3) what new or different facts or circumstances are claimed to exist
which did not exist or were not shown upon such prior motion, or
what other grounds exist for the motion; and

2
3

(4) why the facts or circumstances were not shown at the time of
the prior motion.

4
5

E.D. Cal. L.R. 230(j). “To succeed, a party must set forth facts or law of a strongly convincing

6

nature to induce the court to reverse its prior decision.” Knight v. Rios, No. 09-00823, 2010 WL

7

5200906, at *2 (E.D. Cal. Dec. 15, 2010).

8

C.

Discussion

9

Defendants argue reconsideration is warranted because new evidence and case law

10

affects the court’s analysis, and because the court previously erred by not considering whether the

11

policy’s limitation to “young” children rendered it lawful. See Mot. Recons. 1. The court

12

considers and rejects each argument in turn.

13

1.

“New” Evidence

14

Defendants first argue that “now that discovery has finished,” new evidence

15

creates genuine disputes of fact as to whether the policy violates § 3604(b). See id. at 1, 5, 9.

16

The evidence defendants identify can generally be grouped into three categories:

17

(1) evidence that Dempsey and Bischoff violated the lease agreement, see, e.g.,

18

Yellen Decl. Opp’n SJ ¶¶ 3–5, July 7, 2016, ECF No. 116-4; Johnson Dep. 185–

19

87; Bischoff Dep. 85–86, 181, 195–96, 216; Brittain Decl. Opp’n TRO ¶ 8 &

20

Ex. 21, ECF Nos. 14 & 14-11;

21

(2) testimony by Brittain and Johnson that the “Brief Recap of Notes” document

22

was never in fact “implemented,” see Johnson Decl. Opp’n SJ ¶ 3 (the policy “was

23

never implemented or enforced by me”); Brittain Decl. II ¶¶ 7–10 (claiming that

24

the policy “was never implemented or enforced by anyone at Brittain Commercial”

25

(emphasis in original)); and

26

(3) evidence that the complex presents safety risks for children, especially in

27

connection with the electronic gate to the parking lot, see Dempsey Dep. 127–28

28

(testifying that he believes kids should be watched at the complex so that they are
13

1

not “snatched” by strangers); and Miller Dep. 69, 223–25 (testifying that a number

2

of defendants’ practices, such as leaving the gate to the parking lot open for

3

extended periods of time, “jeopardize[] the safety of children” and put “children in

4

a [sic] harm’s way”).

5

See Mot. Recons. 5–10.

6

Defendants’ argument is unpersuasive for several reasons. First, defendants did

7

not comply with Local Rule 230(j)’s requirement that they show why the purportedly new facts

8

were not presented at the time of the prior motion. Second, contrary to defendants’ assertion,

9

defendants were not “railroaded” by Project Sentinel’s prior motion. See Mot. Recons. 5. At the

10

time Project Sentinel filed its prior motion, the case had already been pending for more than one

11

year. At the July 16, 2015 Status (Pretrial Scheduling) Conference, a few months before the

12

motion was filed, plaintiffs’ counsel described the anticipated filing of the motion. See Prev.

13

Mot. Summ. J. 1. At no point did defendants request additional time to conduct discovery under

14

Rule 56(d) or otherwise suggest that additional discovery would be beneficial. Rule 56(d)

15

provides a procedure by which a non-moving party may obtain discovery needed to oppose a

16

motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“Any

17

potential problem with . . . premature motions [for summary judgment] can be adequately dealt

18

with under Rule 56[d].[2]”). Third, most of the facts defendants put forth in support of their

19

motion for reconsideration were not previously unavailable to defendants, because they pertain to

20

defendants’ own property and management practices. Courts have rejected attempts by parties to

21

present their own testimony or other evidence in their possession as “new” evidence. See, e.g.,

22

Schlicht v. United States, No. 03-1606, 2006 WL 229551, at *2 (D. Ariz. Jan. 30, 2006) (“It

23

usually defies all reasonable explanation why a party could not produce his own testimony at any

24

time in the proceeding.”); Morris v. McHugh, 997 F. Supp. 2d 1144, 1176 (D. Haw. 2014).

25

Defendants in fact submitted some of the cited evidence of plaintiffs’ alleged lease violations in

26
27
2

28

Subsection (d) was labeled (f) at the time of the Celotex decision.
14

1

opposition to plaintiffs’ motion for preliminary injunction in 2014. Brittain Decl. Opp’n TRO ¶ 8

2

& Ex. 21.

3

Even if the court were to consider this evidence, however, it would not change the

4

court’s previous ruling. Defendants argue that the evidence of Bischoff’s and Dempsey’s lease

5

violations “creates an issue of fact” as to whether their tenancies were terminated for legitimate

6

purposes, Mot. Recons. 8, but that issue is not material. Project Sentinel moved for summary

7

judgment only as to whether defendants’ facially discriminatory “Brief Recap of Notes” policy

8

violated the FHA, not on whether the attempted evictions also violated the FHA.

9

Neither can Brittain and Johnson raise a genuine dispute of material fact by now

10

claiming that the “Brief Recap of Notes” policy “was never implemented or enforced by anyone

11

at Brittain Commercial,” Brittain Decl. II ¶ 7 (emphasis in original); see Johnson Decl. Opp’n SJ

12

¶ 3. This statement is conclusory and contradicts Brittain’s previous sworn statements that she

13

developed and distributed the “Brief Recap of Notes” documents to on-site managers to use as

14

guidelines in managing their sites, see, e.g., Brittain Decl. I ¶¶ 9, 15. See Romero v. Cty. of Santa

15

Clara, No. 11-04812, 2014 WL 3378628, at *11 (N.D. Cal. July 10, 2014) (“‘[U]ncorroborated

16

and self-serving’ testimony that ‘flatly contradicts [ ] prior sworn statements’ cannot create a

17

genuine issue of fact.” (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996))).

18

The statement also is inconsistent with Johnson’s testimony that he tried to adhere to the

19

guidelines and took children home on at least two occasions because they were not supervised.

20

Johnson Dep. 95–100, 104–05. Brittain and Johnson appear to largely base their statement on the

21

fact that defendants have not carried out steps three or four of the policy, of contacting social

22

services or evicting tenants because they left a child unsupervised. See Brittain Decl. II ¶ 7 (“We

23

have never contacted . . . social services or the police regarding a parent’s failure to supervise a

24

child. We have never evicted a tenant for failing to supervise a child.” (emphasis in original));

25

Johnson Decl. Opp’n SJ ¶ 3. However, this fact does not raise a genuine dispute as to defendants’

26

liability. As plaintiffs noted at hearing, a property manager cannot create a discriminatory multi-

27

step policy and then avoid liability by not implementing certain steps. Defendants do not dispute

28

that they created the facially discriminatory “Brief Recap of Notes” document and distributed it to
15

1

all on-site managers as official guidance. This alone is a sufficient basis for liability under the

2

FHA. Cf. Iniestra, 886 F. Supp. 2d at 1166 (evidence regarding the specific implementation of

3

the policy may limit damages, but not liability).

4

As to the evidence of safety risks, although defendants have now identified

5

evidence substantiating some of the purported safety hazards at the complex, they have presented

6

no new evidence that the “Brief Recap of Notes” policy was the appropriate response to those

7

safety concerns. See Prev. Order 14. Miller identified safety hazards at the complex created by

8

defendants’ practices, but did not advocate for a strict child supervision policy as the solution.

9

Rather, he proposed defendants take other actions, such as changing their practice of leaving the

10

gate open for extended periods. See Miller Dep. 69, 154–56, 158, 223–25. The existence of

11

dangerous conditions by itself does not justify policies that discriminate against children; a policy

12

must be adequately tailored and sufficiently necessary to justify the differential treatment. See

13

Prev. Order 11–13 (interpreting the Ninth Circuit’s decision in Community House as implicitly

14

requiring heightened tailoring, but not requiring a policy to be the least restrictive means of

15

achieving the allowed interests); id. at 14 (concluding the policy is not adequately tailored to

16

respond to the purported safety concerns). Otherwise, property managers would have an

17

incentive to create unsafe conditions in order to justify rules discriminating against children.

18

Defendants also note that Miller included a sample policy in a handbook he published for

19

property managers in 1993 that is even more restrictive of children than defendants’ policy is.

20

Miller Dep. 170–71, 194 & Ex. E, ECF No. 116-8. Although this fact may undermine Miller’s

21

credibility, it does not create a material dispute of fact or cause the court to re-think its prior legal

22

analysis. See, e.g., Feezor v. Excel Stockton, LLC, No. 12-0156, 2013 WL 2485623, at *2 (E.D.

23

Cal. June 10, 2013) (“[A]n expert witness cannot give an opinion as to her legal conclusion, i.e.,

24

an opinion on the ultimate issue of law.” (quoting Nationwide Transp. Fin. v. Cass Info. Sys.,

25

Inc., 523 F.3d 1051, 1058 (9th Cir. 2008)) (emphasis in original)).

26

Defendants have not shown reconsideration is warranted based on new evidence.

27

/////

28

/////
16

1

2.

2

Defendants next argue reconsideration is warranted in light of a district court

New District Court Case

3

decision, Campbell v. Vitran Express Inc., No. 11-05029, 2016 WL 873009 (C.D. Cal. Mar. 2,

4

2016) (denying partial summary judgment based on a facially defective employment policy).

5

Mot. Recons. 11–12. However helpful they may be at times, other district court decisions are not

6

binding on this court. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011). It would greatly strain

7

the court’s time and resources to reconsider its prior orders whenever another district court issued

8

a decision supporting the losing party’s position. The Campbell decision does not warrant

9

reconsideration of the court’s prior order here.

10

3.

11

Finally, defendants argue the court erred by not considering whether the policy’s

Limitation to “Young” Children

12

limitation to “young” children rendered it lawful. Mot. Recons. 12–14. Defendants primarily

13

rely on dicta in another district court decision, Pack v. Fort Washington II, 689 F. Supp. 2d 1237

14

(E.D. Cal. 2009). In Pack, the court held that a requirement that children ages ten and under be

15

supervised by an adult when outside was “overbroad and unduly restrictive,” but opined that “it

16

would be reasonable to require adult supervision for young children.” Id. at 1243. This court in

17

its prior order considered Pack, among other authorities, and concluded defendants’ policy was

18

not adequately tailored to respond to their purported safety concerns. Prev. Order 12–14. In

19

making this determination, the court considered all of the relevant facts before the court,

20

including the specific language of defendants’ policy. See, e.g., Prev. Order 3–5, 10–11, 13–15

21

(noting defendants’ policy applies to “young children”). Reconsideration is not warranted on this

22

basis.

23

For the foregoing reasons, the court DENIES defendants’ motion for

24

reconsideration of its prior order granting partial summary judgment for Project Sentinel. The

25

court next considers plaintiffs’ currently pending motion for partial summary judgment.

26

/////

27

/////

28

/////
17

1
2
3

III.

MOTION FOR PARTIAL SUMMARY JUDGMENT
A.

Legal Standard
A court will grant summary judgment “if . . . there is no genuine dispute as to any

4

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

5

The “threshold inquiry” is whether “there are any genuine factual issues that properly can be

6

resolved only by a finder of fact because they may reasonably be resolved in favor of either

7

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

8

Rule 56 also authorizes the granting of summary judgment on part of a claim or

9

defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may move for

10

summary judgment, identifying each claim or defense—or the part of each claim or defense—on

11

which summary judgment is sought.”). The standard that applies to a motion for partial summary

12

judgment is the same as that which applies to a motion for summary judgment. See State of

13

California ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th

14

Cir. 1998) (applying summary judgment standard to motion for summary adjudication); ARC of

15

Cal. v. Douglas, No. 11-02545, 2015 WL 631426, at *3 (E.D. Cal. Feb. 13, 2015).

16

The moving party bears the initial burden of “informing the district court of the

17

basis for its motion, and identifying those portions of [the record] which it believes demonstrate

18

the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The burden then shifts

19

to the nonmoving party to “go beyond the pleadings” and “designate specific facts showing that

20

there is a genuine issue for trial.” Id. at 324 (quotation marks and citation omitted). The non-

21

moving party “must do more than simply show that there is some metaphysical doubt as to the

22

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

23

“Only disputes over facts that might affect the outcome of the suit under the governing law will

24

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48.

25

In deciding a motion for summary judgment, the court draws all inferences and

26

views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at

27

587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a

28

whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
18

1

issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv.

2

Co., 391 U.S. 253, 289 (1968)).

3

B.

4

Discussion
Plaintiffs now seek partial summary judgment on their first claim for violation of

5

42 U.S.C. § 3604(b), on the third claim for violation of California Civil Code sections 51 and

6

51.2, and on the fourth claim for violation of 42 U.S.C. § 3604(c). MSJ 1. Specifically, plaintiff

7

Project Sentinel seeks partial summary judgment as to the liability of defendants Brittain and

8

Johnson on the first claim; plaintiffs Bischoff and Dempsey seek partial summary judgment as to

9

the liability of all defendants on the first and third claims; and all plaintiffs seek partial summary

10

judgment as to the liability of defendants Brittain, Brittain Commercial, and RZM on the fourth

11

claim. Id.

12

The parties in their briefing analyze plaintiffs’ FHA claims and Unruh Act claims

13

together. Id. at 10–11; Opp’n SJ 7. The provisions of the FHA and the Unruh Act involved here

14

protect substantially the same rights against housing discrimination and are in fact subject to the

15

same analysis. See Cabrera v. Alvarez, 977 F. Supp. 2d 969, 975 (N.D. Cal. 2013); Iniestra, 886

16

F. Supp. 2d at 1170. Accordingly, the court likewise analyzes the claims together. The court

17

does not here review arguments rejected above or in the court’s previous order. The court first

18

considers plaintiffs’ claims under § 3604(b).

19
20
21

1.

Claims Under 42 U.S.C. § 3604(b) and the Unruh Act
a)

Project Sentinel’s Claims Against Brittain and Johnson

As discussed above, the court previously granted Project Sentinel’s motion for

22

partial summary judgment against defendants Brittain Commercial and RZM under § 3604(b) for

23

maintaining and implementing the facially discriminatory “Brief Recap of Notes” policy. See

24

Prev. Order. Project Sentinel now argues Brittain and Johnson also are liable under § 3604(b) for

25

creating, implementing, and following the “Brief Recap of Notes” policy. MSJ 9–10; see Prev.

26

Order 9–15. Individual employees can be held liable for their own unlawful conduct under the

27

FHA. The language of § 3604 broadly makes it unlawful “to discriminate against any person in

28

the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services
19

1

or facilities in connection therewith,” without limiting which persons or entities may be held

2

liable. 42 U.S.C. § 3604(b); cf. Meyer v. Holley, 537 U.S. 280, 285 (2003) (traditional agency

3

and vicarious liability principles apply to liability under the FHA); cf. also Dillon v. AFBIC Dev.

4

Corp., 597 F.2d 556, 562 (5th Cir. 1979) (“An agent has no obligation to carry out his principal’s

5

order to do an illegal act.” (citing Restatement (Second) of Agency § 411 (1958)); Hous.

6

Opportunities Project For Excellence, Inc. v. Key Colony No. 4 Condo. Assoc., Inc., 510 F. Supp.

7

2d 1003, 1014 (S.D. Fla. 2007) (“[A]n excuse offered by an employee that she was acting at the

8

behest of her employer does not absolve her from the illegal actions she took nor does it preclude

9

her from liability.”).

10

Brittain admitted during her deposition that she prepared the “Brief Recap of

11

Notes” policy and caused it to be distributed to the on-site managers. Brittain Dep. 106, 108,

12

Feb. 8, 2016; see also Brittain Decl. I ¶¶ 9–12, 15. Accordingly, Brittain is also liable for

13

implementing a facially discriminatory policy under § 3604(b).

14

However, the record is less clear as to Johnson’s involvement. Plaintiffs in their

15

briefing group Johnson and Brittain together and argue that together they have “created,

16

implemented, and followed” the unlawful “Brief Recap of Notes” document. MSJ 10. At

17

hearing, plaintiffs confirmed their position, that Johnson’s own actions violated the FHA and that

18

he also is liable as a joint tortfeasor for helping implement the policy. Plaintiffs rely solely on a

19

few statements by Johnson at his deposition that he understood that the “Brief Recap of Notes”

20

document should be followed as closely as possible, and that he took children home on at least

21

two occasions because they were unsupervised. Johnson Dep. 95–100, 104–05. It is not clear to

22

the court from this vague, undeveloped testimony that Johnson violated the FHA. The court finds

23

plaintiffs have not met their burden of showing the absence of a genuine dispute of fact as to

24

Johnson’s liability under the FHA.

25

The court GRANTS Project Sentinel’s motion for summary judgment against

26

Brittain for a violation of § 3604(b) and the Unruh Act. The court DENIES the motion against

27

Johnson.

28
20

1

b)

2

Bischoff’s and Dempsey’s Claims Against all Defendants

The court has now found defendants Bischoff Commercial, RZM, and Bischoff are

3

liable to Project Sentinel for implementing the facially discriminatory “Brief Recap of Notes”

4

policy. Plaintiffs Bischoff and Dempsey are likewise entitled to summary judgment against these

5

defendants on their first and third claims. It is undisputed Bischoff and Dempsey, who are fathers

6

of minor children, resided at Birchwood Gardens while defendants adopted the “Brief Recap of

7

Notes” policy, and Dempsey continues to reside at Birchwood Gardens. UMF Nos. 19–22;

8

Dempsey Dep. 17. Accordingly, defendants are also liable to Bischoff and Dempsey for having

9

adopted their facially discriminatory policy. See 42 U.S.C. § 3613 (creating private right of

10

action for “aggrieved person[s]”); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 375–

11

76 (1982) (Congress intended standing to sue under the FHA to extend to the full limits of Article

12

III); Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001)

13

(irreparable injury may be presumed from a defendant’s discrimination and violations of fair

14

housing statutes).

15

Defendants attempt to defeat summary judgment by raising disputes of fact that

16

are not material to plaintiffs’ motion. As with their motion for reconsideration, they insist they

17

attempted to terminate Bischoff’s and Dempsey’s tenancies as a result of legitimate lease

18

violations, not because their children were unsupervised. Opp’n SJ 7–10. However, plaintiffs

19

Bischoff and Dempsey move for summary judgment only as to defendants’ facially

20

discriminatory “Brief Recap of Notes” policy; they do not move for summary judgment on

21

whether defendants’ attempted termination of their tenancies independently violated the FHA.

22

See Reply SJ 4 & n.4. On these facts, that plaintiffs allegedly violated the lease agreement does

23

not contradict the fact that defendants maintained a facially discriminatory child supervision

24

policy.

25

The court GRANTS Bischoff’s and Dempsey’s motion for partial summary

26

judgment as to the liability of Brittain, Brittain Commercial, and RZM under § 3604(b) and the

27

Unruh Act. This order is limited to their liability for adopting the facially discriminatory “Brief

28

Recap of Notes” policy, and does not address their attempted termination of plaintiffs’ tenancies.
21

1
2

For the same reasons provided above, the court DENIES the motion against
Johnson.

3

2.

4

All plaintiffs seek summary judgment against defendants Brittain, Brittain

Claims under 42 U.S.C. § 3604(c) and the Unruh Act

5

Commercial, and RZM under 42 U.S.C. § 3604(c) for the discriminatory “Brief Recap of Notes”

6

document. As stated above, § 3604(c) makes it unlawful

7
8
9

[t]o make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on . . . familial status, . . . or an
intention to make any such preference, limitation, or discrimination.

10

42 U.S.C. § 3604(c). The implementing regulations issued by the U.S. Department of Housing

11

and Urban Development (“HUD”) provide that these prohibitions “apply to all written or oral

12

notices or statements by a person engaged in the sale or rental of a dwelling.” 24 C.F.R.

13

§ 100.75(b). It states that notices and statements subject to the requirements “include any

14

applications, flyers, brochures, deeds, signs, banners, posters, billboards or any documents used

15

with respect to the sale or rental of a dwelling.” Id. Prohibited statements include discriminatory

16

statements “[e]xpress[ed] to agents, brokers, employees, prospective sellers or renters or any

17

other persons.” Id. § 100.75(c)(2). To determine whether a statement violates § 3604(c), courts

18

ask whether it “would suggest a preference to an ordinary reader or listener.” Johnson v. Macy,

19

145 F. Supp. 3d 907, 916 (C.D. Cal. 2015) (citation and quotation marks omitted). “Intent is not

20

a necessary element of a § 3604(c) violation.” Iniestra, 886 F. Supp. 2d at 1169; Rojas v. Bird,

21

No. 13-04967, 2014 WL 260597, at *1 (C.D. Cal. Jan. 10, 2014).

22

As the court found in its previous order, defendants’ “Brief Recap of Notes”

23

document plainly indicates a limitation on the use of common areas of the complex based on

24

familial status. See Prev. Order 10; see also Iniestra, 886 F. Supp. 2d at 1169; Pack, 689 F. Supp.

25

2d at 1246. It is undisputed defendants Brittain and Brittain Commercial caused the statements to

26

be made and distributed to Brittain Commercial’s employees. Brittain Dep. 106–08, Feb. 8,

27

2016; Brittain Decl. I ¶ 15; UMF No. 9. Accordingly defendants Brittain and Brittain

28

Commercial violated § 3604(c). As the owner of Birchwood Gardens, RZM is vicariously liable
22

1

for the violation under § 3604(c). Meyer, 537 U.S. at 285; Llanos v. Estate of Coehlo, 24 F.

2

Supp. 2d 1052, 1061 (E.D. Cal. 1998); see Prev. Order 15–16. The court GRANTS plaintiffs’

3

motion for summary judgment under § 3604(c) and the Unruh Act against defendants Brittain,

4

Brittain Commercial, and RZM for making discriminatory statements.

5
6
7
8

Finally, the court considers plaintiffs’ motion for interim attorney’s fees.
IV.

MOTION FOR ATTORNEY’S FEES
A.

Legal Standard
The FHA authorizes an award of reasonable attorney’s fees and costs to a

9

“prevailing party.” 42 U.S.C. § 3613(c)(2). The term “prevailing party” under the FHA “has the

10

same meaning as such term has in [42 U.S.C. § 1988].” Id. § 3602(o). “The purpose of § 1988 is

11

to ensure effective access to the judicial process for persons with civil rights grievances.

12

Accordingly, a prevailing plaintiff should ordinarily recover an attorney’s fee unless special

13

circumstances would render such an award unjust.” Ballen v. City of Redmond, 466 F.3d 736,

14

746 (9th Cir. 2006) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)).

15

A plaintiff is a “prevailing party” for purposes of § 1988 “when actual relief on the

16

merits of his [or her] claim materially alters the legal relationship between the parties by

17

modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Higher Taste,

18

Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir. 2013) (quoting Farrar v. Hobby, 506 U.S.

19

103, 111–12 (1992)). Relief “on the merits” occurs “when the material alteration of the parties’

20

legal relationship is accompanied by ‘judicial imprimatur on the change.’” Id. (quoting

21

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605

22

(2001)). Examples of such relief, depending on the facts, have included achieving a judgment on

23

the merits, winning a preliminary injunction, or entering into a legally enforceable settlement

24

agreement. Carbonell v. I.N.S., 429 F.3d 894, 898–99 (9th Cir. 2005); see, e.g., Watson v. City.

25

of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (preliminary injunction); Richard S. v. Dep’t of

26

Dev. Servs., 317 F.3d 1080, 1086 (9th Cir. 2003) (settlement). To satisfy the “material alteration”

27

requirement, the relief obtained must be sufficiently “enduring,” Yamada v. Snipes, 786 F.3d

28
23

1

1182, 1208 (2015), and cannot be “purely technical or de minimis,” Texas State Teacher Ass’n. v.

2

Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989).

3

B.

4

Discussion
Plaintiffs Bischoff and Dempsey argue they are prevailing parties based on this

5

court’s orders approving their stipulated temporary restraining order and granting their motion for

6

preliminary injunction. Atty’s Fees Mot. 8–10 (discussing ECF Nos. 8 & 20). Plaintiff Project

7

Sentinel contends it is a prevailing party based on this court’s order granting its motion for partial

8

summary judgment as to the liability of defendants Brittain Commercial and RZM. Id. at 8

9

(discussing Prev. Order).

10

The court first examines three Ninth Circuit cases—Watson, 300 F.3d 1092,

11

Higher Taste, 717 F.3d 712, and Yamada, 786 F.3d 1182—for additional guidance on the

12

applicable legal standards for prevailing party status, and then applies those principles to

13

plaintiffs here.

14

1.

15

Plaintiffs, and especially Bischoff and Dempsey, rely heavily on the Ninth

Relevant Case Law

16

Circuit’s decision in Watson. See Atty’s Fees Mot. 8–10. In Watson, the plaintiff, a former

17

county deputy sheriff, alleged that county officials violated his rights by compelling him to write

18

a report about an incident in which he allegedly used excessive force, and by refusing to allow

19

him to consult with a lawyer prior to writing the report. 300 F.3d at 1093–94. Among other

20

relief, the plaintiff sought an injunction enjoining the county from using the report at the hearing

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on his appeal of his termination from the sheriff’s office. Id. at 1094. The court issued a

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preliminary injunction prohibiting introduction of the report at the administrative hearing. Id.

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Nearly two years later, long after the administrative hearing had passed, the court granted

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summary judgment in favor of the defendants on all issues except for the plaintiff’s claim for

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permanent injunctive relief, as to which the court found a triable dispute of fact. Id. By that time,

26

however, the claim for a permanent injunction had become moot, so the court dismissed the case.

27

Id.

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24

1

The Watson court held that the plaintiff was a prevailing party under § 1988,

2

because by securing a preliminary injunction that prevented the use of the report at the

3

administrative hearing, he had “obtained significant, court-ordered relief that accomplished one of

4

the main purposes of his lawsuit.” Id. at 1096. The Ninth Circuit also found the district court did

5

not abuse its discretion when it awarded the plaintiff fees for time spent litigating his unsuccessful

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claims. Id. at 1096–97. The court distinguished the case from cases in which the “plaintiff scores

7

an early victory by securing a preliminary injunction, [but] then loses on the merits as the case

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plays out and judgment is entered against him—a case of winning a battle but losing the war.” Id.

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at 1096. Watson was not such a case, the court noted, because the claim for permanent injunctive

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relief “was not decided on the merits . . . [or] dissolved for lack of entitlement”; rather, “[it] was

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rendered moot . . . after the preliminary injunction had done its job.” Id.

12

Two more recent Ninth Circuit decisions—Higher Taste and Yamada—help

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further define the contours of prevailing party status where a plaintiff secures an early preliminary

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injunction. In Higher Taste, the city park district adopted a resolution that would ban the plaintiff

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non-profit religious organization from selling t-shirts along the main walkway leading to the

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entrance of a zoo, which it had done for years. 717 F.3d at 714. The plaintiff organization sued

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the district under 42 U.S.C. § 1983 based on alleged violations of the First and Fourteenth

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Amendments, and successfully secured a preliminary injunction enjoining enforcement of the

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resolution. Id. at 714–15. Relatively early on in the case, before the court issued a final ruling on

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the merits, the parties entered into a settlement agreement that allowed the plaintiff to continue

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selling its shirts. Id. at 715.

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The Ninth Circuit in Higher Taste held that the plaintiff was a prevailing party,

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and in so doing, elaborated on the applicable legal standards. The court noted that it is not

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enough that a preliminary injunction generally satisfies the judicial imprimatur requirement and

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forces the defendant to something it otherwise would not have to do. Id. at 716–17. For a

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plaintiff to be a prevailing party, the preliminary injunction must also achieve “enduring” change

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in the parties’ legal relationship. Id. at 717. The court explained that a plaintiff is a prevailing

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party “when [it] wins a preliminary injunction and the case is rendered moot before final
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1

judgment, either by the passage of time[,] other circumstances beyond the parties’ control, . . . .

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[or] by the defendant’s own actions.” Id. In such cases, the relief is sufficiently enduring

3

because, by virtue of the case’s mootness, the relief “[is] no longer subject to being ‘reversed,

4

dissolved, or otherwise undone by the final decision in the same case.’” Id. (quoting Sole v.

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Wyner, 551 U.S. 74, 83 (2007)). By contrast, a plaintiff is not a prevailing party when it

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“succeeds at the preliminary injunction stage but loses on the merits after the case is litigated to

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final judgment.” Id. Applying these principles, the Higher Taste court concluded that the

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plaintiff organization was a prevailing party because the settlement agreement “transformed what

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had been temporary relief capable of being undone . . . into a lasting alteration of the parties’ legal

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relationship,” and “gave [the plaintiff] what it had hoped to obtain through a permanent

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injunction.” Id. at 718.

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The Ninth Circuit articulated similar principles in Yamada. In Yamada, the

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plaintiffs secured a preliminary injunction on their claim that Hawaii campaign finance laws

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limiting contributions to noncandidate committees to $1,000 violated the First Amendment. 786

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F.3d at 1207. The defendants filed an interlocutory appeal, and then abandoned it. Id. On the

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parties’ subsequent cross-motions for summary judgment, the district court permanently enjoined

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enforcement of the law as applied to the plaintiffs’ proposed contributions. Id. Citing Watson,

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the district court concluded that the plaintiffs became prevailing parties under § 1988 when the

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defendants abandoned their appeal of the preliminary injunction. Id. at 1208. As a result, the

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court concluded it did not have authority under Ninth Circuit Rule 39-1.6 to award fees pertaining

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to the interlocutory appeal, because the Ninth Circuit had not transferred the fee request to the

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district court. Id. The Ninth Circuit in Yamada found the district court’s analysis to be flawed in

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part because, contrary to the district court’s conclusion, the plaintiffs did not become prevailing

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parties until the district court entered final judgment against the defendants on their claim. Id.

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(reversing district court’s denial of fees arising from the prior appeal). The court distinguished

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the case from Watson. Id. It limited Watson’s holding to the proposition that, “when a plaintiff

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wins a preliminary injunction and the case is rendered moot before final judgment, either by

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passage of time or other circumstances beyond the parties’ control, the plaintiff is a prevailing
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1

party eligible for a fee award.” Yamada, 786 F.3d at 1208 (quoting Higher Taste, 717 F.3d at

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717) (emphasis in Yamada). In Yamada, the Ninth Circuit found the plaintiffs’ challenge to the

3

campaign finance laws was not “rendered moot” until the district court entered final judgment

4

against the defendants on that claim. Id. Before that point, the preliminary injunction could have

5

been negated by a final decision on the merits. Id.

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2.

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Applying the principles of Watson, Higher Taste, and Yamada here, the court finds

Analysis

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plaintiffs are not prevailing parties at this stage. The relief they have obtained is not sufficiently

9

enduring to confer prevailing party status, because the temporary restraining order, preliminary

10

injunction, and order granting partial summary judgment all are interlocutory orders that could be

11

reversed, dissolved, or otherwise undone by this court’s final decision in this case. See Santa

12

Monica BayKeeper, 254 F.3d at 885 (“As long as a district court has jurisdiction over [a] case,

13

then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory

14

order for cause seen by it to be sufficient.” (citations and emphasis omitted)).

15

The fact that Bischoff’s claim for injunctive relief is now moot does not make him

16

a prevailing party. Unlike in Watson, the claim was rendered moot by Bischoff’s own conduct of

17

submitting a notice of intent to vacate, rather than by defendants’ conduct or circumstances

18

beyond the parties’ control. See Higher Taste, 717 F.3d at 717. Also, unlike the plaintiffs in

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Watson and Higher Taste, Bischoff has not achieved what he had hoped to obtain through a

20

permanent injunction, to continue residing at the apartment complex after the lawsuit. See id.

21

at 718. Accordingly, this case does not fall within the narrow circumstances in which a party is a

22

prevailing party before final judgment based on a preliminary injunction.

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In addition, the court is not persuaded by Bischoff’s and Dempsey’s argument that

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the preliminary injunction achieved enduring change because it allowed them to reach their one-

25

year residency milestones which, under California Civil Code Section 1946.1, legally entitles

26

them to at least sixty-days’ notice before defendants could attempt to terminate their tenancies

27

without cause. Nothing on the face of the complaint suggests that one of plaintiffs’ main

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1

purposes in bringing suit was to become entitled to this sixty-day’s notice. Rather, this relief

2

appears to be “purely technical” and “de minimis.” Texas State Teacher Ass’n, 489 U.S. at 792.

3

Because plaintiffs have not at this stage satisfied the requirements for prevailing

4

party status under § 1988, the court DENIES without prejudice their motion for attorney’s fees

5

and costs.

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V.

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CONCLUSION
For the foregoing reasons, the court DENIES defendants’ motion for

8

reconsideration; DENIES plaintiffs’ motion for partial summary judgment against Johnson and

9

GRANTS it in all other regards; and DENIES without prejudice plaintiffs’ motion for attorney’s

10

fees and costs. The court OVERRULES as moot defendants’ objection to plaintiffs’ notice of

11

recent consent judgment and attorney fee award (ECF No. 127).

12

The claims not resolved by this order are all of plaintiffs’ claims against Johnson,

13

plaintiffs’ claim against all defendants under 42 U.S.C. § 3604(b) based on the allegedly

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discriminatory attempted eviction of Bischoff and Dempsey, and plaintiffs’ claim against all

15

defendants under 42 U.S.C. § 3617.

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IT IS SO ORDERED.
DATED: September 15, 2016.

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UNITED STATES DISTRICT JUDGE

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