McLemore et al v. Marin Housing Authority et al

Filing 26

ORDER RE MOTIONS TO DISMISS. Signed by Judge James Donato on 9/9/2021. (jdlc1S, COURT STAFF) (Filed on 9/9/2021)

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 1 of 7

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
ROYCE MCLEMORE,

7

Plaintiff,

8

ORDER RE MOTIONS TO DISMISS

v.

9

Re: Dkt. Nos. 18, 19
MARIN HOUSING AUTHORITY, et al.,

10

Defendants.

11

United States District Court
Northern District of California

Case No. 20-cv-05431-JD

12
A putative class of current and former residents of the Golden Gate Village Public Housing

13
14

Project have sued Marin County (the County), the Marin Housing Authority (MHA), and several

15

County and MHA employees under a variety of state and federal laws, including 42 U.S.C.

16

§ 1983, for race discrimination and habitability claims. The residents seek monetary damages, as

17

well as declarative and injunctive relief. This order resolves a motion to dismiss filed by the

18

County, Dkt. No. 18, and a separate motion filed by the MHA and its employees, who are jointly

19

represented, Dkt. No. 19.1 The County’s motion is granted, and the MHA’s motion is granted and

20

denied in part.
BACKGROUND

21

The parties’ familiarity with the record is assumed. The first amended complaint is not

22
23

always clear and direct, but the salient allegation is that defendants did not adequately respond to

24

unsafe and unclean conditions at Golden Gate Village, such as “outdated electrical subpanels,”

25
26
27
28

1

Individual defendant Bernadette Stuart, the property manager of the MHA, answered the
residents’ initial complaint and cross-claimed for indemnity against the other defendants. Dkt.
No. 14. She did not file a renewed response to the amended complaint, but the MHA raises
arguments for dismissal on her behalf to the extent she is being sued as its employee. Dkt. No. 19
at 2.

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 2 of 7

1

unheated bathrooms, and an “active rodent infestation and mold.” Dkt. No. 16 ¶ 21. Defendants

2

are said to have allowed Golden Gate Village to fall into disrepair “so as to justify [its]

3

demolition,” in violation of the residents’ federal due process rights. Id. ¶¶ 24, 30. Plaintiffs

4

contend that “African American families, who comprise 58%” of Golden Gate Village, “are

5

suffering racial discrimination in housing and community development opportunities.” Id. ¶ 26.

6

They also say that demolition of Golden Gate Village will displace and disparately impact

7

“African Americans, racial minorities, female-headed households and families with children.” Id.

8

¶ 58.
The residents allege four claims against all defendants: one claim for “non-habitable

10

conditions” under California Civil Code § 1941.1; two claims for violations of the Housing Act of

11

United States District Court
Northern District of California

9

1937; and one disparate impact claim under the Fair Housing Act, 42 U.S.C. § 3604. The

12

residents allege two claims against the County’s Environmental Health Services division and its

13

employees: a Section 1983 claim for failure to “enforce all environmental laws to safeguard the

14

[residents] from exposure to these environmental hazards,” which the residents say constitutes

15

deliberate indifference to their Fourteenth Amendment rights; and a negligence claim for the

16

failure “to investigate and stop the environmental hazards.” Id. ¶¶ 61, 66. A seventh claim for

17

“injunctive relief” is listed in the caption of the complaint, but is not stated separately as a cause of

18

action in the body of the complaint. See id. ¶¶ 71-76.

19
20

LEGAL STANDARD
Straightforward standards govern the application of Rule 12(b)(6). To meet the pleading

21

requirements of Rule 8(a) and to survive a Rule 12(b)(6) motion to dismiss, a claim must provide

22

“a short and plain statement . . . showing that the pleader is entitled to relief,” Fed. R. Civ. P.

23

8(a)(2), including “enough facts to state a claim . . . that is plausible on its face.” Bell Atl. Corp. v.

24

Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if, accepting all factual

25

allegations as true and construing them in the light most favorable to the plaintiff, the Court can

26

reasonably infer that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556

27

U.S. 662, 678 (2009). The plausibility analysis is “context-specific” and not only invites but

28

“requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
2

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 3 of 7

DISCUSSION

1
2
3

I.

THE MARIN COUNTY CLAIMS.
The County’s main argument in support of dismissal is that it is not liable for the actions of

4

the MHA because they are separate legal entities. Dkt. No. 18 at 2-3. The MHA is a public

5

corporation created under California Health & Safety Code §§ 34240 et seq., and is governed by

6

an independent board of commissioners, id. § 34271. It is well-established in California that a

7

housing authority is a separate state agency and “not an agent of the city in which it functions.”

8

Hous. Auth. of City of L.A. v. City of L.A., 38 Cal. 2d 853, 861-62 (1952); see also San Diegans for

9

Open Gov’t v. City of San Diego, 242 Cal. App. 4th 416, 436 (2015) (a housing authority is a

10

United States District Court
Northern District of California

11

public entity “legally separate from the City”).
The County and its unnamed employees are not the plausible defendants for the residents’

12

first four claims, which are targeted at habitability and discrimination issues at Golden Gate

13

Village. The County does not legally own, rent, manage, or control the Village in any way. The

14

amended complaint does not allege any facts indicating that it does, and the residents apparently

15

concede the point by not addressing the County’s argument in their opposition brief. See Jenkins

16

v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (plaintiff abandoned claims “by not

17

raising them in opposition to the County’s motion.”).

18

Consequently, the first through fourth claims are dismissed as a matter of law. While the

19

Court typically gives plaintiffs an opportunity to amend, the separate entity issue is a matter of

20

law, and so amendment would be futile. See Monie v. Lewis, No. 17-CV-03996-JD, 2018 WL

21

10436645, at *2 (N.D. Cal. Feb. 8, 2018). The dismissal is with prejudice.

22

The residents’ deliberate indifference claim, which is brought solely against the County

23

and its employees (the fifth claim), also warrants dismissal. Plaintiffs allege that the County

24

ignored “environmental health issues plaguing Golden Gate village despite being put on notice,”

25

and that this constituted deliberate indifference to the residents’ “Constitutional Rights” because

26

the County placed them in a “state created danger” through inaction. Dkt. No. 16 ¶¶ 25, 63.

27

The problem for plaintiffs is that the County had no duty to remedy the conditions at

28

Golden Gate Village because the property was not under its control or care. See Martinez v. City
3

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 4 of 7

1

of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Consequently, it had no duty to protect or

2

safeguard the residents with respects to their complaints about conditions of habitability.

3

The residents ask for a different conclusion on the basis of a state-created danger
exception. Dkt. No. 20 at 2. Under this exception, a state actor may be “constitutionally required

5

to protect a plaintiff that it affirmatively places in danger by acting with deliberate indifference to

6

a known or obvious danger.” Martinez, 943 F.3d at 1271 (cleaned up). But the amended

7

complaint does not plausibly allege facts that might support an application of the exception. It

8

alleges only that the County did not investigate the complaints about hazards, and did not enforce

9

“environmental laws,” which are left unidentified. Dkt. No. 16 ¶ 66. That is not enough to

10

establish a state-created danger. See Pauluk v. Savage, 836 F.3d 1117, 1124 (9th Cir. 2016)

11

United States District Court
Northern District of California

4

(deliberate indifference requires affirmative conduct by a state actor that places the plaintiff in a

12

“worse position than that in which he would have been had [the state] not acted at all.”) (internal

13

quotations and citation omitted).

14

The residents’ reliance on Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989), does not

15

salvage this claim. Wood applied the exception to a situation in which a state police officer left a

16

female a passenger stranded late at night in a known high-crime area after a traffic stop, and she

17

was raped after accepting a ride home from a passing car. Id. No similar circumstances are

18

alleged here. To the contrary, the residents say that the environmental hazards “were created by

19

the Marin Housing Authority” and its employees, not the County. Dkt. No. 20 at 3.

20
21
22

Consequently, the fifth claim is dismissed with leave to amend. The residents will have an
opportunity to allege affirmative conduct, the facts permitting.
The residents’ negligence claim (the sixth claim) is also dismissed. They did not allege

23

that they filed a claim pursuant to the California Tort Claims Act (CTCA), Cal. Gov. Code §§ 905

24

et seq., which “requires, as a condition precedent to suit against a public entity, the timely

25

presentation of a written claim and the rejection of the claim in whole or in part.” Mangold v. Cal.

26

Public Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); State v. Sup. Ct. (Bodde), 32 Cal. 4th

27

1235, 1240 (2004). Under the CTCA, the residents “must allege facts demonstrating or excusing

28
4

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 5 of 7

1

compliance with the claim presentation requirement. Otherwise, [the] complaint is subject to

2

[dismissal].” Bodde, 31 Cal. 4th at 1243.
The residents say that they lodged complaints with the County’s Environmental Health

3
4

Services division, Dkt. No. 16 ¶¶ 17-18, but did not state whether those complaints were in

5

writing, or how the County responded to them. The residents say in the opposition brief that they

6

“placed a tort claim in the mail to the Defendants,” Dkt. No. 20 at 6, but “[i]n determining the

7

propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s

8

moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss” for

9

additional factual allegations. Schneider v. Cal. Dep’t Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.

10

1998) (emphasis in original).
There is another reason to dismiss this claim. The County and its employees are entitled to

United States District Court
Northern District of California

11
12

statutory immunity. The residents identify Section 815.2 as a basis for the County’s vicarious

13

liability in the amended complaint, Dkt. No. 16 ¶ 70, which provides that a public entity “is liable

14

for injury proximately caused by an act or omission of an employee of the public entity within the

15

scope of his employment,” Cal. Gov. Code § 815.2(a). But liability does not attach to a public

16

entity under Section 815.2(b) “where the employee is immune from liability,” and Section 821.4

17

immunizes public employees for any injuries allegedly caused by their “failure to make an

18

inspection” or by their negligent inspection “of any property . . . for the purpose of determining

19

whether the property complies with or violates any enactment or contains or constitutes a hazard

20

to health or safety.” Cal. Gov. Code §§ 815.2, 821.4; see also Stevenson v. S.F. Hous. Auth., 24

21

Cal. App. 4th 269, 279-80 (2007).
Dismissal of the sixth claim is with leave to amend. The residents will have an opportunity

22
23

to allege facts plausibly establishing compliance with the CTCA’s exhaustion requirement, and to

24

identify a plausible statutory basis for liability.

25

II.

26

THE MHA CLAIMS.
Overall, the MHA presented scant grounds for dismissal of the claims against it. The

27

MHA says that the residents’ claims are barred by the CTCA’s exhaustion requirement, but that

28

requirement does not apply to the federal Section 1983 and Fair Housing Act claims. See Bodde,
5

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 6 of 7

1

32 Cal. 4th at 1240 (the Supremacy Clause precludes the application of the CTCA’s exhaustion

2

requirement to federal causes of action). The second, third, and fourth claims against the MHA

3

will go forward.

4

A different outcome is warranted for the first claim of “non-habitable conditions” under

5

California Civil Code Section 1941.1, which is subject to the CTCA. See Hart v. Alameda Cnty.,

6

76 Cal. App. 4th 766, 778 (1999) (exhaustion requirement applies in all actions “where the

7

plaintiff is seeking monetary relief, regardless of whether the action is founded in tort, contract, or

8

some other theory”) (internal quotations omitted); Lozada v. City & Cnty. of San Francisco, 145

9

Cal. App. 4th 1139, 1152 (2006) (exhaustion requirement applies to claims for “breach of
statutory duties”). The residents’ allegation that they “have lodged numerous complaints” with

11

United States District Court
Northern District of California

10

MHA employees since 2011, Dkt. No. 16 ¶¶ 17-18, is again not enough for CTCA purposes; so

12

too for the facts presented for the first time in an opposition brief, see Dkt. 22 at 4 (claiming

13

residents “filed a tort claim against Marin Housing Authority in the mail in August of 2020”). The

14

Section 1941.1 claims is dismissed with leave to amend.

15

Although the MHA argues that it is “improper and functionally useless” for the residents to

16

sue both the MHA and its individual employees, this is not grounds for dismissal of the individual

17

employees as defendants. See Dkt. No. 19 at 7. The MHA says that the residents “have

18

foreclosed any possibility for Employee Defendants to be held individually liable” because they

19

also assert a theory of the MHA’s vicarious liability in the amended complaint. Id. This

20

misunderstands the statutory scheme, which expressly provides for both individual and vicarious

21

liability. Cal. Gov. Code §§ 820 (individual liability of public employees) and 815.2 (vicarious

22

liability of public entities). Under the CTCA, “the general rule is that an employee of a public

23

entity is liable for his torts to the same extent as a private person and the public entity is

24

vicariously liable for any injury which its employee causes to the same extent as a private

25

employer.” See C.A. v. William S. Hart Union Sch. Dist., 53 Cal. 4th 861, 868 (2012) (internal

26

quotations and citations omitted). There is no ironclad rule that the MHA and its employees

27

cannot be sued for the same claims, see id. at 865-66, and naming both an employer and its

28
6

Case 3:20-cv-05431-JD Document 26 Filed 09/09/21 Page 7 of 7

1

employees as defendants is not the contradiction or “elephant in the room” that the MHA says it

2

is, see Dkt. No. 23 at 2.

3

The MHA’s remaining contention, made for the first time in a reply brief, is that its

4

employees are entitled to statutory immunity to the extent they are sued in an official capacity.

5

Dkt. No. 23 at 3. While new arguments in a reply are highly disfavored, and the Court generally

6

does not consider them, it is worth noting for the sake of moving this case along that statutory

7

immunity does not apply to the federal claims (second through fourth claims) against the MHA

8

employees. See Martinez v. California, 444 U.S. 277, 284 (1980). The MHA does not say how

9

any of the immunity provisions it cites -- Sections 818.2, 821.4, and 820.2 -- might immunize the

10

employees from suit for the non-habitability claim.
CONCLUSION

United States District Court
Northern District of California

11
12

Claims one through four against the County are dismissed with prejudice. Claims five and

13

six against the County are dismissed with leave to amend. Claim one against the MHA is

14

dismissed with leave to amend.

15

IT IS SO ORDERED.

16

Dated: September 9, 2021

17
18
JAMES DONATO
United States District Judge

19
20
21
22
23
24
25
26
27
28
7